Sometimes the law just doesn’t fit a case the way that it should. And when those cases have compelling facts, it can often be worthwhile to pursue a novel litigation strategy or theory.
However, how you pursue that novel strategy or theory matters. A poorly pleaded novel theory could lead to sanctions under FRCP Rule 11, or the many state law equivalents. Generally, pursuant to (b)(2) of FRCP Rule 11, novel legal claims and contentions require more than just a good faith belief. They must be grounded in existing law and/or supported “by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law.”
Your Purpose Must Be Objectively Not Improper
In addition to the (b)(2) requirements, it must be objectively clear that the pleading or claim has not been filed for an “improper purpose.” This generally includes harassment, delay, or increasing the costs of litigation.
Although a few circuits (the Second, Ninth and Tenth) all require that the complaint be frivolous as well as improper before sanctions will be ordered, other circuits are not so generous. Even in cases where there is a mix of proper and improper purposes and claims, courts can still order sanctions.
If you discover facts that make pursuing your novel theory untenable, you better figure out how to back off that theory, or you’ll end up engaging in sanctionable conduct.
If a competent attorney, after a reasonably inquiry into the facts and law of your case, would find it to be frivolous, you could find yourself in sanctionable waters. The “empty-head, pureheart” defense will not fly for clearly frivolous claims, and neither will a good faith defense (excepting in the Second Circuit). Furthermore, not only are complaints subject to sanctions for frivolity, but appeals are too, so really, you gotta know when to hold ’em and when to fold ’em and when to run.
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