2009 Chapter 802

802.01 Note Judicial Council Committee's Note on sub. (1), 1981: See 1981 Note to s. 802.02 (4). [Re Order effective Jan. 1, 1982]

802.01 Annotation In the absence of an answer to a cross claim and in the absence of any other responsive pleadings, a court may deem facts alleged in the cross claim and submissions filed in connection with a summary judgment motion admitted for purposes of summary judgment. Daughtry v. MPC Systems, Inc. 2004 WI App 70, 272 Wis. 2d 260, 679 N.W.2d 808, 02-2424.

802.02 802.02  General rules of pleading.

802.02(1) (1)  Contents of pleadings. A pleading or supplemental pleading that sets forth a claim for relief, whether an original or amended claim, counterclaim, cross claim or 3rd-party claim, shall contain all of the following:

802.02(1)(a) (a) A short and plain statement of the claim, identifying the transaction or occurrence or series of transactions or occurrences out of which the claim arises and showing that the pleader is entitled to relief.

802.02(1)(b) (b) A demand for judgment for the relief the pleader seeks.

802.02(1m) (1m) Relief demanded.

802.02(1m)(a) (a) Relief in the alternative or of several different types may be demanded. With respect to a tort claim seeking the recovery of money, the demand for judgment may not specify the amount of money the pleader seeks.

802.02(1m)(b) (b) This subsection does not affect any right of a party to specify to the jury or the court the amount of money the party seeks.

802.02(2) (2) Defenses; form of denials. A party shall state in short and plain terms the defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If the party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. The pleader shall make the denials as specific denials of designated averments or paragraphs, but if a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder.

802.02(3) (3) Affirmative defenses. In pleading to a preceding pleading, a party shall set forth affirmatively any matter constituting an avoidance or affirmative defense including but not limited to the following: accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of a condition subsequent, failure or want of consideration, failure to mitigate damages, fraud, illegality, immunity, incompetence, injury by fellow servants, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, superseding cause, and waiver. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, if justice so requires, shall permit amendment of the pleading to conform to a proper designation. If an affirmative defense permitted to be raised by motion under s. 802.06 (2) is so raised, it need not be set forth in a subsequent pleading.

802.02(4) (4) Effect of failure to deny. Averments in a pleading to which a responsive pleading is required, other than those as to the fact, nature and extent of injury and damage, are admitted when not denied in the responsive pleading, except that a party whose prior pleadings set forth all denials and defenses to be relied upon in defending a claim for contribution need not respond to such claim. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

802.02(5) (5) Pleadings to be concise and direct; consistency.

802.02(5)(a) (a) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.

802.02(5)(b) (b) A party may set forth 2 or more statements of a claim or defense alternatively or hypothetically, either in one claim or defense or in separate claims or defenses. When 2 or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal or equitable grounds. All statements shall be made subject to the obligations set forth in s. 802.05.

802.02(6) (6) Construction of pleadings. All pleadings shall be so construed as to do substantial justice.

802.02 History History: Sup. Ct. Order, 67 Wis. 2d 585, 616 (1975); 1975 c. 218; Sup. Ct. Order, 82 Wis. 2d ix (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981); 1987 a. 256; 1993 a. 486.

802.02 Cross-reference Cross-reference: See s. 806.01 (1) (c) for effect of demand for judgment or want of such demand in the complaint in case of judgment by default.

802.02 Cross-reference Cross-reference: See ss. 891.29 and 891.31 as to the effect of not denying an allegation in the complaint of corporate or partnership existence.

802.02 Note Judicial Council Committee's Note, 1977: Sub. (1) is amended to allow a pleading setting forth a claim for relief under the Rules of Civil Procedure to contain a short and plain statement of any series of transactions, occurrences, or events under which a claim for relief arose. This modification will allow a pleader in a consumer protection or anti-trust case, for example, to plead a pattern of business transactions, occurrences or events leading to a claim of relief rather than having to specifically plead each and every transaction, occurrence or event when the complaint is based on a pattern or course of business conduct involving either a substantial span of time or multiple and continuous transactions and events. The change is consistent with Rule 8 (a) (2) of the Federal Rules of Civil Procedure. [Re Order effective July 1, 1978]

802.02 Note Judicial Council Committee's Note, 1981: Sub. (4) has been amended and s. 802.07 (6) repealed to limit the circumstances in which a responsive pleading to a claim for contribution is required. A claim for contribution is a claim for relief under sub. (1) which normally requires an answer, reply or third-party answer. The amendment to sub. (4), however, eliminates this requirement where the party from whom contribution is sought has already pleaded all denials and defenses to be relied upon in defending the contribution claim. [Re Order effective Jan. 1, 1982]

802.02 Annotation Sub. (2) does not authorize denials for lack of knowledge or information solely to obtain delay. An answer that does so is frivolous under [former] s. 814.025 (3) (b). First Federated Savings Bank v. McDonah, 143 Wis. 2d 429, 422 N.W.2d 113 (Ct. App. 1988).

802.02 Annotation Insurers must plead and prove their policy limits prior to a verdict to restrict the judgment to the policy limits. Price v. Hart, 166 Wis. 2d 182, 480 N.W.2d 249 (Ct. App. 1991).

802.02 Annotation A claim for punitive damages on a tort claim is subject to sub. (1m) (a). A demand for a specific amount in violation of sub. (1m) (a) is a nullity. Apex Electronics Corp. v. Gee, 217 Wis. 2d 378, 577 N.W.2d 23 (1998), 97-0353.

802.02 Annotation The effect of the court striking a defendant's answer is that the defendant failed to deny the plaintiff's allegations and, therefore, is deemed to have admitted them. An insured's answers do not inure to an insurers benefit. Such a proposition is contrary to the direct action statute, s. 632.24. Estate of Otto v. Physicians Insurance Company of Wisconsin, Inc. 2007 WI App 192, 305 Wis. 2d 198, 739 N.W.2d 599, 06-1566. Affirmed, 2008 WI 78, 311 Wis. 2d 84, 751 N.W.2d 805, 06-1566.

802.03 802.03  Pleading special matters.

802.03(1) (1)  Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party. If a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the party shall do so by specific negative averment which shall include such supporting particulars as are peculiarly within the pleader's knowledge, or by motion under s. 802.06 (2).

802.03(2) (2) Fraud, mistake and condition of mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.

802.03(3) (3) Conditions precedent. In pleading the performance or occurrence of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance or occurrence, but it may be stated generally that the party duly performed all the conditions on his or her part or that the conditions have otherwise occurred or both. A denial of performance or occurrence shall be made specifically and with particularity. If the averment of performance or occurrence is controverted, the party pleading performance or occurrence shall be bound to establish on the trial the facts showing such performance or occurrence.

802.03(4) (4) Official document or act. In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with the law.

802.03(5) (5) Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.

802.03(6) (6) Libel or slander. In an action for libel or slander, the particular words complained of shall be set forth in the complaint, but their publication and their application to the plaintiff may be stated generally.

802.03(7) (7) Sales of goods, etc. In an action involving the sale and delivery of goods or the performing of labor or services, or the furnishing of materials, the plaintiff may set forth and number in the complaint the items of the plaintiff's claim and the reasonable value or agreed price of each. The defendant by the answer shall indicate specifically those items defendant disputes and whether in respect to delivery or performance, reasonable value or agreed price. If the plaintiff does not so plead the items of the claim, the plaintiff shall deliver to the defendant, within 10 days after service of a demand therefor in writing, a statement of the items of the plaintiff's claim and the reasonable value or agreed price of each.

802.03(8) (8) Time and place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.

802.03(9) (9) Foreclosure. In an action for foreclosure of real property, the complaint may not name a tenant of residential real property as a defendant unless the tenant has a lien or ownership interest in the real property.

802.03 History History: Sup. Ct. Order, 67 Wis. 2d 585, 619 (1975); 1975 c. 218; 2009 a. 28.

802.03 Annotation Sub. (8) subjects claims lacking averments of time to motions for a more definite statement and not to motions to dismiss for failure to state a claim. Schweiger v. Loewi & Co., Inc. 65 Wis. 2d 56, 221 N.W.2d 882 (1974).

802.03 Annotation The "American rule" of absolute judicial immunity from liability for libel or slander provides that writings made by an attorney of record in a pending lawsuit apply in this state if the statements made are relevant to the matters being considered and are made in a procedural context recognized as affording absolute privilege. Converters Equip. Corp. v. Condes Corp. 80 Wis. 2d 257, 258 N.W.2d 712 (1977).

802.03 Annotation When a libel action is based on conduct rather than words, sub. (6) is not applicable. Starobin v. Northridge Lakes Development Co. 94 Wis. 2d 1, 287 N.W.2d 747 (1980).

802.03 Annotation Sub. (2) does not prevent the trial court from amending the pleadings to conform with the evidence pursuant to s. 802.09 as long as the parties either consent or have the chance to submit additional proof. Maiers v. Wang, 192 Wis. 2d 115, 531 N.W.2d 54 (1995).

802.03 Annotation Sub. (2) requires specification of the time, place, and content of an alleged false representation. Allegations were too general that did not specify the particular individuals who made the representations and did not specify where, when, and to whom the representations were made. Friends of Kenwood v. Green, 2000 WI App 217, 239 Wis. 2d 78, 619 N.W.2d 271, 00-0680.

802.04 802.04  Form of pleadings.

802.04(1) (1)  Caption. Every pleading shall contain a caption setting forth the name of the court, the venue, the title of the action, the file number, and a designation as in s. 802.01 (1). If a pleading contains motions, or an answer or reply contains cross claims or counterclaims, the designation in the caption shall state their existence. In the complaint the caption of the action shall include the standardized description of the case classification type and associated code number as approved by the director of state courts, and the title of the action shall include the names and addresses of all the parties, indicating the representative capacity, if any, in which they sue or are sued and, in actions by or against a corporation, the corporate existence and its domestic or foreign status shall be indicated. In pleadings other than the complaint, it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. Every pleading commencing an action under s. 814.61 (1) (a) or 814.62 (1) or (2) and every complaint filed under s. 814.61 (3) shall contain in the caption, if the action includes a claim for a money judgment, a statement of whether the amount claimed is greater than the amount under s. 799.01 (1) (d).

802.04(2) (2) Paragraphs; separate statements. All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate claim or defense whenever a separation facilitates the clear presentation of the matters set forth. A counterclaim must be pleaded as such and the answer must demand the judgment to which the defendant supposes to be entitled upon the counterclaim.

802.04(3) (3) Adoption by reference; exhibits. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.

802.04 History History: Sup. Ct. Order, 67 Wis. 2d 585, 621 (1975); 1975 c. 218; Sup. Ct. Order, 171 Wis. 2d xix (1992); 1995 a. 27; 2007 a. 97.

802.05 802.05  Signing of pleadings, motions, and other papers; representations to court; sanctions.

802.05(1) (1)  Signature. Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer's address and telephone number, and state bar number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.

802.05(2) (2) Representations to court. By presenting to the court, whether by signing, filing, submitting, or later advocating a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following:

802.05(2)(a) (a) The paper is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

802.05(2)(b) (b) The claims, defenses, and other legal contentions stated in the paper are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

802.05(2)(c) (c) The allegations and other factual contentions stated in the paper have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

802.05(2)(d) (d) The denials of factual contentions stated in the paper are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

802.05(3) (3) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that sub. (2) has been violated, the court may impose an appropriate sanction upon the attorneys, law firms, or parties that have violated sub. (2) or are responsible for the violation in accordance with the following:

802.05(3)(a) (a) How initiated.

802.05(3)(a)1. 1. `By motion.' A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate sub. (2). The motion shall be served as provided in s. 801.14, but shall not be filed with or presented to the court unless, within 21 days after service of the motion or such other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion reasonable expenses and attorney fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

802.05(3)(a)2. 2. `On court's initiative.' On its own initiative, the court may enter an order describing the specific conduct that appears to violate sub. (2) and directing an attorney, law firm, or party to show cause why it has not violated sub. (2) with the specific conduct described in the court's order.

802.05(3)(b) (b) Nature of sanction; limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subds. 1. and 2., the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney fees and other expenses incurred as a direct result of the violation subject to all of the following:

802.05(3)(b)1. 1. Monetary sanctions may not be awarded against a represented party for a violation of sub. (2) (b).

802.05(3)(b)2. 2. Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.

802.05(3)(c) (c) Order. When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.

802.05(4) (4) Prisoner litigation.

802.05(4)(a) (a) A court shall review the initial pleading as soon as practicable after the action or special proceeding is filed with the court if the action or special proceeding is commenced by a prisoner, as defined in s. 801.02 (7) (a) 2.

802.05(4)(b) (b) The court may dismiss the action or special proceeding under par. (a) without requiring the defendant to answer the pleading if the court determines that the action or special proceeding meets any of the following conditions:

802.05(4)(b)1. 1. The action or proceeding is frivolous, as determined by a violation of sub. (2).

802.05(4)(b)2. 2. The action or proceeding is used for any improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation.

802.05(4)(b)3. 3. The action of proceeding seeks monetary damages from a defendant who is immune from such relief.

802.05(4)(b)4. 4. The action or proceeding fails to state a claim upon which relief may be granted.

802.05(4)(c) (c) If a court dismisses an action or special proceeding under par. (b) the court shall notify the department of justice or the attorney representing the political subdivision, as appropriate, of the dismissal by a procedure developed by the director of state courts in cooperation with the department of justice.

802.05(4)(d) (d) The dismissal of an action or special proceeding under par. (b) does not relieve the prisoner from paying the full filing fee related to that action or special proceeding.

802.05(5) (5) Inapplicability to discovery. Subsections (1) to (3) do not apply to disclosures and discovery requests, responses, objections, and motions that are subject to ss. 804.01 to 804.12.

802.05 History History: Sup. Ct. Order, 67 Wis. 2d 585, 622 (1975); 1975 c. 218; 1987 a. 256; Sup. Ct. Order, 161 Wis. 2d xvii (1991); Sup. Ct. Order, 171 Wis. 2d xix (1992); 1997 a. 133; Sup. Ct. Order No. 03-06, 2005 WI 38, 278 Wis. 2d xiii; Sup. Ct. Order No. 03-06A, 2005 WI 86, 280 Wis. 2d xiii; 2005 a. 253.

802.05 Note Comments: When adopted in 1976, former ss. 802.05 was patterned on the original version of Rule 11 of the Federal Rules of Civil Procedure (FRCP 11). Subsequently, the legislature adopted in 1978 s. 814.025, entitled costs upon frivolous claims and counterclaims. Circuit courts have used essentially the same guidelines in the determination of frivolousness under both sections. See Jandrt v. Jerome Foods, 227 Wis. 2d 531, 549, 597 N.W.2d 744 (1999). Section 814.025(4), adopted in 1988, provided that "to the extent s. 802.05 is applicable and differs from this section, s. 802.05 applies." Subsection (4) was adopted pursuant to 1987 Act 256, the same Act that updated section 802.05 to conform with the 1983 amendments to FRCP Rule 11. However, FRCP 11 has since undergone substantial revision, most recently in 1993. The court now adopts the current version of FRCP 11, pursuant its authority under s. 751.12 to regulate pleading, practice and procedure in judicial proceedings. The court's intent is to simplify and harmonize the rules of pleading, practice and procedure, and to promote the speedy determination of litigation on the merits. In adopting the 1993 amendments to FRCP 11, the court does not intend to deprive a party wronged by frivolous conduct of a right to recovery; rather, the court intends to provide Wisconsin courts with additional tools to deal with frivolous filing of pleadings and other papers. Judges and practitioners will now be able to look to applicable decisions of federal courts since 1993 for guidance in the interpretation and application of the mandates of FRCP 11 in Wisconsin.

802.05 Note 802.05 (3) Sanctions. Factors that the court may consider in imposing sanctions include the following: (1) Whether the alleged frivolous conduct was part of a pattern of activity or an isolated event; (2) Whether the conduct infected the entire pleading or was an isolated claim or defense; and (3) Whether the attorney or party has engaged in similar conduct in other litigation. Sanctions authorized under s. 802.05(3) may include an award of actual fees and costs to the party victimized by the frivolous conduct.

802.05 Note 802.05 (4) Prisoner litigation. On April 17, 1998, the legislature amended [former] section 802.05 as part of the Prisoner Litigation Reform Act. 1997 Act 133, s. 14. The legislature added language that requires courts to perform an initial review of pleadings filed by prisoners and permits dismissal if the pleadings are frivolous, used for an improper purpose, seek damages from a defendant who is immune, or fail to state a claim. This language has been retained in s. 802.05, as repealed and recreated by this Sup. Ct. Order.

802.05 Note 1993 Federal Advisory Committee Notes to Rule 11 of the Federal Rules of Civil Procedure. The 1993 Federal Advisory Committee Notes to Rule 11 of the Federal Rules of Civil Procedure are printed for information purposes and have not been adopted by the court.

802.05 Note Purpose of revision. This revision is intended to remedy problems that have arisen in the interpretation and application of the 1983 revision of the rule. For empirical examination of experience under the 1983 rule, see, e.g., New York State Bar Committee on Federal Courts, Sanctions and Attorneys' Fees (1987); T. Willging, The Rule 11 Sanctioning Process (1989); American Judicature Society, Report of the Third Circuit Task Force on Federal Rule of Civil Procedure 11 (S. Burbank ed., 1989); E. Wiggins, T. Willging, and D. Stienstra, Report on Rule 11 (Federal Judicial Center 1991). For book-length analyses of the case law, see G. Joseph, Sanctions: The Federal Law of Litigation Abuse (1989); J. Solovy, The Federal Law of Sanctions (1991); G. Vairo, Rule 11 Sanctions: Case Law Perspectives and Preventive Measures (1991).

802.05 Annotation The rule retains the principle that attorneys and pro se litigants have an obligation to the court to refrain from conduct that frustrates the aims of Rule 1. The revision broadens the scope of this obligation, but places greater constraints on the imposition of sanctions and should reduce the number of motions for sanctions presented to the court. New subdivision (d) removes from the ambit of this rule all discovery requests, responses, objections, and motions subject to the provisions of Rule 26 through 37.

802.05 Note Subdivision (a). Retained in this subdivision are the provisions requiring signatures on pleadings, written motions, and other papers. Unsigned papers are to be received by the Clerk, but then are to be stricken if the omission of the signature is not corrected promptly after being called to the attention of the attorney or pro se litigant. Correction can be made by signing the paper on file or by submitting a duplicate that contains the signature. A court may require by local rule that papers contain additional identifying information regarding the parties or attorneys, such as telephone numbers to facilitate facsimile transmissions, though, as for omission of a signature, the paper should not be rejected for failure to provide such information.

802.05 Annotation The sentence in the former rule relating to the effect of answers under oath is no longer needed and has been eliminated. The provision in the former rule that signing a paper constitutes a certificate that it has been read by the signer also has been eliminated as unnecessary. The obligations imposed under subdivision (b) obviously require that a pleading, written motion, or other paper be read before it is filed or submitted to the court.

802.05 Note Subdivisions (b) and (c). These subdivisions restate the provisions requiring attorneys and pro se litigants to conduct a reasonable inquiry into the law and facts before signing pleadings, written motions, and other documents, and prescribing sanctions for violation of these obligations. The revision in part expands the responsibilities of litigants to the court, while providing greater constraints and flexibility in dealing with infractions of the rule. The rule continues to require litigants to "stop-and-think" before initially making legal or factual contentions. It also, however, emphasizes the duty of candor by subjecting litigants to potential sanctions for insisting upon a position after it is no longer tenable and by generally providing protection against sanctions if they withdraw or correct contentions after a potential violation is called to their attention.

802.05 Annotation The rule applies only to assertions contained in papers filed with or submitted to the court. It does not cover matters arising for the first time during oral presentations to the court, when counsel may make statements that would not have been made if there had been more time for study and reflection. However, a litigant's obligations with respect to the contents of these papers are not measured solely as of the time they are filed with or submitted to the court, but include reaffirming to the court and advocating positions contained in those pleadings and motions after learning that they cease to have any merit. For example, an attorney who during a pretrial conference insists on a claim or defense should be viewed as "presenting to the court" that contention and would be subject to the obligations of subdivision (b) measured as of that time. Similarly, if after a notice of removal is filed, a party urges in federal court the allegations of a pleading filed in state court (whether as claims, defenses, or in disputes regarding removal or remand), it would be viewed as "presenting" — and hence certifying to the district court under Rule 11 — those allegations.

802.05 Annotation The certification with respect to allegations and other factual contentions is revised in recognition that sometimes a litigant may have good reason to believe that a fact is true or false but may need discovery, formal or informal, from opposing parties or third persons to gather and confirm the evidentiary basis for the allegation. Tolerance of factual contentions in initial pleadings by plaintiffs or defendants when specifically identified as made on information and belief does not relieve litigants from the obligation to conduct an appropriate investigation into the facts that is reasonable under the circumstances; it is not a license to join parties, make claims, or present defenses without any factual basis or justification. Moreover, if evidentiary support is not obtained after a reasonable opportunity for further investigation or discovery, the party has a duty under the rule not to persist with that contention. Subdivision (b) does not require a formal amendment to pleadings for which evidentiary support is not obtained, but rather calls upon a litigant not thereafter to advocate such claims or defenses.

802.05 Annotation The certification is that there is (or likely will be) "evidentiary support" for the allegation, not that the party will prevail with respect to its contention regarding the fact. That summary judgment is rendered against a party does not necessarily mean, for purposes of this certification, that it had no evidentiary support for its position. On the other hand, if a party has evidence with respect to a contention that would suffice to defeat a motion for summary judgment based thereon, it would have sufficient "evidentiary support" for purposes of Rule 11.

802.05 Annotation Denials of factual contentions involve somewhat different considerations. Often, of course, a denial is premised upon the existence of evidence contradicting the alleged fact. At other times a denial is permissible because, after an appropriate investigation, a party has no information concerning the matter or, indeed, has a reasonable basis for doubting the credibility of the only evidence relevant to the matter. A party should not deny an allegation it knows to be true; but it is not required, simply because it lacks contradictory evidence, to admit an allegation that it believes is not true.

802.05 Annotation The changes in subdivisions (b)(3) and (b)(4) will serve to equalize the burden of the rule upon plaintiffs and defendants, who under Rule 8(b) are in effect allowed to deny allegations by stating that from their initial investigation they lack sufficient information to form a belief as to the truth of the allegation. If, after further investigation or discovery, a denial is no longer warranted, the defendant should not continue to insist on that denial. While sometimes helpful, formal amendment of the pleadings to withdraw an allegation or denial is not required by subdivision (b).

802.05 Annotation Arguments for extensions, modifications, or reversals of existing law or for creation of new law do not violate subdivision (b)(2) provided they are "nonfrivolous." This establishes an objective standard, intended to eliminate any "empty-head pure-heart" justification for patently frivolous arguments. However, the extent to which a litigant has researched the issues and found some support for its theories even in minority opinions, in law review articles, or through consultation with other attorneys should certainly be taken into account in determining whether paragraph (2) has been violated. Although arguments for a change of law are not required to be specifically so identified, a contention that is so identified should be viewed with greater tolerance under the rule.

802.05 Annotation The court has available a variety of possible sanctions to impose for violations, such as striking the offending paper; issuing an admonition, reprimand, or censure; requiring participation in seminars or other educational programs; ordering a fine payable to the court; referring the matter to disciplinary authorities (or, in the case of government attorneys, to the Attorney General, Inspector General, or agency head), etc. See Manual for Complex Litigation, Second, s. 42.3. The rule does not attempt to enumerate the factors a court should consider in deciding whether to impose a sanction or what sanctions would be appropriate in the circumstances; but, for emphasis, it does specifically note that a sanction may be nonmonetary as well as monetary. Whether the improper conduct was willful, or negligent; whether it was part of a pattern of activity, or an isolated event; whether it infected the entire pleading, or only one particular count or defense; whether the person has engaged in similar conduct in other litigation; whether it was intended to injure; what effect it had on the litigation process in time or expense; whether the responsible person is trained in the law; what amount, given the financial resources of the responsible person, is needed to deter that person from repetition in the same case; what amount is needed to deter similar activity by other litigants: all of these may in a particular case be proper considerations. The court has significant discretion in determining what sanctions, if any, should be imposed for a violation, subject to the principle that the sanctions should not be more severe than reasonably necessary to deter repetition of the conduct by the offending person or comparable conduct by similarly situated persons.

802.05 Annotation Since the purpose of Rule 11 sanctions is to deter rather than to compensate, the rule provides that, if a monetary sanction is imposed, it should ordinarily be paid into court as a penalty. However, under unusual circumstances, particularly for (b)(1) violations, deterrence may be ineffective unless the sanction not only requires the person violating the rule to make a monetary payment, but also directs that some or all of this payment be made to those injured by the violation. Accordingly, the rule authorizes the court, if requested in a motion and if so warranted, to award attorney's fees to another party. Any such award to another party, however, should not exceed the expenses and attorneys' fees for the services directly and unavoidably caused by the violation of the certification requirement. If, for example, a wholly unsupportable count were included in a multi-count complaint or counterclaim for the purpose of needlessly increasing the cost of litigation to an impecunious adversary, any award of expenses should be limited to those directly caused by inclusion of the improper count, and not those resulting from the filing of the complaint or answer itself. The award should not provide compensation for services that could have been avoided by an earlier disclosure of evidence or an earlier challenge to the groundless claims or defenses. Moreover, partial reimbursement of fees may constitute a sufficient deterrent with respect to violations by persons having modest financial resources. In cases brought under statutes providing for fees to be awarded to prevailing parties, the court should not employ cost-shifting under this rule in a manner that would be inconsistent with the standards that govern the statutory award of fees, such as stated in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978).