Pro Se Litigants: Application of a Single Objective Standard Under Frcp 11 to Reduce Frivolous Litigation
| Publication year | 1993 |
When Rule 11 of the Federal Rules of Civil Procedure was amended in 1983, the Advisory Committee on Civil Rules sought to remedy the failure of the previous rule to effectively deter abuses of pleadings and other papers.(fn1) The text of Rule 11 was therefore changed from requiring a subjective inquiry of the signer's "good faith" to an objective test focusing on the reasonableness of the inquiry behind the pleading or other paper.(fn2) While the previous rule did not address the application of Rule 11 to pro se litigants, the Advisory Committee included specific language in the amended rule making pro se litigants subject to Rule 11 sanctions.(fn3)
Cases brought by pro se litigants make up a significant portion of the dockets of Federal District Courts.(fn4) The vast majority of pro se cases arise from pro se inmate claims, pro se tax cases against the Internal Revenue Service, and pro se civil rights plaintiffs.(fn5) However, difficulties exist when a court is faced with applying Rule 11 to such pro se litigants because pro se litigants have no formal legal training.(fn6)
Sometimes courts are faced with cases where a pro se litigant has filed a claim where the law is well-settled against the pro se litigant.(fn7) In some instances, the pro se litigant may have researched the legal basis of the claim, but not grasped that the claim is frivolous.(fn8) In other cases, the litigant files the claim knowing that there is no basis in law.(fn9) And in the most obvious cases, the pro se litigant has filed the same claim more than once(fn10) or has filed several frivolous lawsuits that were previously dismissed by the court.(fn11) Courts may confront any or all of these situations when presented with claims filed by pro se litigants.
Discrepancies exist, however, in how courts apply Rule 11 to pro se litigants.(fn12) Under a strict reading of the language, Rule 11 should apply equally to all parties including attorneys, represented parties, and pro se litigants. In looking at cases where Rule 11 sanctions have been sought against pro se litigants, however, there are inconsistencies in how the rule is applied. Some courts still look for evidence of subjective bad faith,(fn13) even though the Advisory Committee Notes and United States Supreme Court have stated that Rule II involves an objective test.(fn14) Other courts purport to apply an objective test, but they consider pro se litigants' status and special circumstances when deteraiining whether Rule 11 has been violated.(fn15) Still other courts apply an objective test, but they do not consider the status of a pro se litigant when determining if Rule 11 has been violated. Rather, these courts treat all parties alike and only consider a pro se litigant's status when determining an appropriate sanction, not when determining whether to sanction.(fn16)
There are several problems inherent in the lack of a clear standard for the application of Rule 11 to pro se litigants. First, pro se litigants cannot be certain of the conduct to which they are expected to conform when courts use different standards. For instance, courts that look for subjective bad faith or that consider pro se litigants' special circumstances when determining if Rule 11 was violated generally treat pro se litigants more leniently.(fn17) Second, judges have no clear standard for evaluating the conduct of pro se litigants, which leads to inconsistent application of Rule 11 sanctions. Third, party opponents of pro se litigants cannot be certain of when it is appropriate to pursue Rule 11 sanctions.
In addition, several policy concerns are raised with respect to the application of Rule 11 to pro se litigants. First, there is the concern of protecting the interests of parties who must face pro se litigants and incur the time and expense of defending potentially frivolous and vexatious claims.(fn18) A second, but related, concern is the cost in time and resources incurred by the judicial system in adjudicating pro se litigants' claims.(fn19) The final concern is the application of Rule 11 in a manner that will not have a chilling effect on pro se litigation and that does not inhibit pro se litigants' meaningful access to the court system.
This Comment addresses the application of Rule 11 sanctions to pro se litigants and argues that based on the language of Rule 11, the concerns expressed in the Advisory Committee Note to Rule 11, and the primary goal of Rule 11 to deter abusive pleadings, a single objective standard should be applied to all parties-attorneys, represented parties, and pro se litigants-to determine whether Rule 11 has been violated. Under this single objective standard, a pro se litigant's lack of legal representation should be considered only in determining the severity of the sanction, not in determining whether Rule 11 has been violated.
Section I of this Comment evaluates the language of Rule 11 as amended in 1983 and the accompanying Advisory Committee Note. In Section II, the varying approaches that courts have taken to the application of Rule 11 to pro se litigants are examined through specific Rule 11 cases. Section III discusses the rationale and arguments supporting the application of a single objective test to pro se litigants. Finally, Section IV examines how a single test should be applied to pro se litigants and the proper standards that may factor into the adjudication of a motion for Rule 11 sanctions against a pro se litigant.
I. Rule 11 of the Federal Rules of Civil Procedure and the Advisory Committee Notes
Rule ll(fn20) was amended in 1983(fn21) because experience with the original version indicated that it was not deterring abusive practices of pleadings and other motions.(fn22) In fact, a study of litigation activity between 1938 and 1976 revealed that Rule 11 motions were filed in only nineteen cases and that violations were found in only eleven of those cases.(fn23)
Also considered by the Advisory Committee were several areas of confusion. First, there was confusion as to the circumstances that would trigger disciplinary action under Rule ll.(fn24) Second, there was confusion as to the standard of conduct expected of those parties signing pleadings and motions.(fn25) Finally, there was confusion as to the range of available and appropriate sanctions.(fn26)
In addressing these areas of confusion, the Advisory Committee sought to accomplish a number of goals. The primary goal was to cure the abuses that were apparent under the application, or lack thereof, of the original Rule ll.(fn27) However, the Advisory Committee also sought to reduce the demonstrated reluctance of courts to apply Rule 11 by emphasizing the responsibilities imposed on those persons signing pleadings and other motions.(fn28) By creating an objective inquiry, the Advisory Committee hoped to create more concrete standards.(fn29) Additionally, by stressing individual responsibility and increasing the applicability of sanctions to a broader set of circumstances, the Advisory Committee sought to streamline the litigation process and to reduce the number of frivolous claims.(fn30)
To accomplish these goals, the amended rule places an affirmative duty on the person signing the pleading or other paper. Whereas the original version of Rule 11 focused on the subjective intent of the signer,(fn31) the amended rule focuses on the reasonableness of the signer's pre-filing inquiry.(fn32) Therefore, Rule 11 imposes a two-part certification requirement on the signer of a pleading: (1) the signer must make a reasonable pre-filing inquiry, and (2) the signer must not submit the pleading or motion for an improper purpose.(fn33)
The reasonable inquiry requirement is broken down into two aspects: facts and law. Under amended Rule 11, a party's complaint must be "well-grounded in fact" and "warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law . . . ."(fn34) This inquiry is an objective consideration of "reasonableness under the circumstances."(fn35)
The improper purpose prong of the Rule 11 inquiry appears, on the surface, to require a subjective evaluation of the signer's intent in filing a pleading or motion. However, the improper purpose prong is properly evaluated under an objective test and may be proven by evidence of successive filings and/or harassment.(fn36) The Advisory Committee intended these objective tests to be more stringent than the original subjective intent inquiry.(fn37) The Advisory Committee also believed that an objective standard would provide more definite criteria to determine when Rule 11 is violated and it would allow a greater range of circumstances to result in Rule 11 violations. Finally, the Advisory Committee believed that the amended rule would provide a stronger deterrent to the filing of improper and abusive pleadings.(fn38)
II. Rule 11 in Application
Courts have interpreted Rule 11 and its application to pro se litigants differently. As illustrated below, these differing approaches have led to inconsistent results.
In determining whether a pro se litigant has violated Rule li, a small number of...
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