James Elliott and Joseph Defley v. Leander H. Perez, Jr., Etc., Eugene E. Leon, Jr., Etc., and Frank Klein

pairment actually compensated was greater

provides administrative cer both

tainty finality.8 and settlements with inequitable seem

The BRB’s result might impose

in some instances in that it

liability employer though on an even greater part

worker did not incur the of his However,

disability employer. with that

even in those cases in which such result

obtains, inequitable it is no more than the itself,

aggravation rule which makes an

employer employee’s liable for the com-

plete disability. Court, As noted employer employee

“an takes an as he Bludworth,

finds him.” F.2d at 1049.

Congress mechanism, has created its own fund, second-injury mitigate any aggravation

harshness from the rule.

III. Conclusion rule,

The aggravation well established interpretation LHWCA, is cur-

tailed in justifica- the instant case without

tion and statutory authority. without If aggravation modified, rule is to be Higginbotham, Patrick E. Circuit Congress proper alone is the forum for Judge, specially concurring filed opinion. such I respectfully action. dissent. Joseph Defley,

James ELLIOTT and

Plaintiffs-Appellants, PEREZ, Jr., etc.,

Leander H.

Defendant,

Eugene Leon, Jr., etc., E. and Frank

Klein, Defendants-Appellees.

No. 83-3243. Appeals,

United States Court of

Fifth Circuit. 7, 1985.

Feb. Thus, interpretation again moting inexpensive BRB’s compensation con- fast and policy pro- sistent rendering of the LHWCA in the worker and in settlements final. Gravel, Jr.,

Camille F. Dow, Anna E. La., Rouge, Baton for James Elliott. Fawer, Orleans, La., Michael S. New Joseph Defley. Butler, Orleans,

Peter La., J. New Eugene Leon. Gallinghouse, Margaret

Gerald J. Anne Bretz, Orleans, La., New for Frank Klein. CLARK, Before Judge, Chief HIGGINBOTHAM, BROWN and Circuit Judges. BROWN,

JOHN R. Judge: Circuit This case concerns the judi- doctrines of prosecutorial cial and immunity. The Dis- Court, (E.D.La.1983), trict F.Supp. plaintiffs’ dismissed the judge state and an assistant district attor- damages ney resulting from their acts. We find that the absolute constitutional govern- tort accorded to some requires ment officials judge the trial heightened demand pleading standards of plaintiffs in cases in which that doctrine going play. come into In cases against governmental involving officials likely require defense of we judges of trial demand that the plaintiff’s complaint state with factual de- particularity tail and the basis for the claim necessarily why includes the defend- successfully ant-official cannot maintain immunity. the defense of We therefore (as judgment Klein vacate Leon) and remand to the district court. Shenanigans Plaquemines in appeal This results from a series of early in days events over several 1981 cen tering special grand the activities Parish, jury sitting Plaquemines in Louisia grand jury impaneled na.1 had been August investigate assertedly 1979 to illegal dealings of certain officials individuals, the Parish. Five who are alleged plaintiffs' complaints appellate 1. We recite the facts as brief. suit, closely

parties to this were connected Elliott copies distributed of the letter to grand jury: defendant Leander H. the members grand jury the next Perez, Jr., Plaquemines Parish dis- was the Perez, morning. assistant attorney district originally attorney trict who convened the Klein, and then district appar- Leon grand jury; defendant Frank Klein was ently did not know about the letter at this Perez; attorney district first assistant point. February On days two before its Leon, Jr., Eugene E. was then defendant term lapse, grand was to the jury indicted of the 25th Judicial District Perez for the theft of million in $43 Parish grand jury impan- Court which was funds and company, his Develop- Delta eled; plaintiff James Elliott was the fore- ment, for the theft of million in $72 Parish grand jury; man of the Jo- funds. Jr., seph Defley, E. was a witness before sought Elliott out a member of the dis grand jury eigh- on occasions. For two attorney’s trict office sign the indict months, grand jury performed teen its ment, as he and the other members of the investigation public corruption. into grand jury thought that some sort of offi evening February On the 1981— cial authorization necessary was to validate days grand four before the term of the the instrument. The ad hoc district attorn jury expire Elliott, grand jury was to — ey3 sign refused to Judge because Leon foreman, envelope received an at his home had him authority told his only extended containing copies a letter and several concerning matters Chalin, Perez’ brother Defley, the In Defley witness. the letter legal and Perez was the advisor to the expressed attorney the view that district grand jury for other matters. Klein simi Perez’ deceased father had illegally larly sign refused to the indictment. He “bilked” the Parish out of a substantial said that as a member Perez’ staff he begin number valuable mineral leases participate could not in the indictment of ning in by diverting the 1930s them to his the district attorney, nor of corporation company, Development Delta Company, of which major Perez was a owner. suggested Inc. Hé that Perez and his Elliott Judge then contacted Leon for his sisters, brother and who were then the Leon, advice. He Judge asked major shareholders of Development, Delta responsible officer special grand for the culpable father, were as as their deceased jury, to direct an officer of the court to grand jury and that the should indict them sign the Judge indictment. Leon assured Perez, for various crimes. the letter stat Elliott that he arrange would a conference ed, might refusing also be indicted for with the Attorney State General on the investigate prosecute pub the theft of day. matter the next He told Elliott that lic Defley urged funds. Elliott to share the grand jury adjourn should day. for the “ideas” the letter other mem grand and, jury bers of the in closing, February Still on Klein informed Per kept asked that the letter “gener out of ez of pending indictments him al circulation.”2 Development. and Delta At noon day, that addition, attached to the letter was a resolu- Department of Louisiana and the U.S. Justice Defley previously pro- tion which stated he had necessary take whatever criminal or civil action posed to Parish’s Commission Council. The public moneys to secure return of all lands and required accounting resolution gorgement a strict and dis- unlawfully Development diverted to Delta Development from Delta and various its shareholders. family members of the Perez of all funds re- public ceived in connection with leases on lands any grand 3. Perez had recused himself from required in the Parish. It also certain oil com- Perez, jury proceedings relating to Chalin O. his panies in the Parish to turn over to the Commis- president brother. Chalin was Commis- companies sion Council all funds that those object investiga- sion Council and was an pay Development would otherwise to Delta Judge appointed Duple- tion. Leon had Giles J. profits its shareholder's as from mineral leases attorney chin to act in Perez’ stead as district ad Lastly, request- lands. the resolution hoc for those matters. Attorney ed the U.S. for the Eastern District Perez, Klein, met at Later Perez Judge day, Leon filed the bills. Defley and charged, arrested, Elliott were discuss the outside the Parish to restaurant confined, post forced bond for their prepare a Klein to Perez asked situation. release.6 attorney to recuse the district motion for with the indict

himself from involvement urging At Leon’s Klein filed an Elliott from the telephoned Klein ments. against Defley other bill of information one restaurant, decision and told him Perez’ 25), (February charging week later him himself from the recuse staff again jury tampering, relating to his matter.4 February 15 letter to Elliott.7 again day. February 27, Attorney Klein met later On the State

Perez and Gen- point Defley’s supersede learned of eral moved Perez’ office in at some Perez arising criminal matters out of the it had been distributed to letter and that special grand jury. activities sought He grand jury members. granted motion year was almost a later on district of the Jefferson Parish at advice 24, 1982, pursuant February to a writ is- private lawyer. Both torney and of a told by Supreme sued the Louisiana on Court discharge grand jury the him to move May charges against 1981. All Elliott by it outside influe since had been tainted Defley dropped. and were thereafter nce.5 morning February day one On the Quick A in Abort Federal Court of the term of the the official end before brought Defley separate Elliott and suits presented Perez special grand jury, seeking compensatory punitive and dam discharge Judge a motion to the Leon ages stemming depriva from the asserted Defley’s along letter. The grand jury, by rights tion of their civil the defendants.8 grand jury motion stated that the had complaints substantially Their were identi “completed the for which it was function ultimately cal and were consolidated. completed report had impaneled and on thing put The most critical the presented by to it the District —which all offenses in the middle of a constitutional Attorney.” Judge by formal decree Leon game charge guessing the loose that —was grand jury discharged the ordered that Perez, Klein, and Leon conspired telephoned He morning. then as of that prosecution through the criminal and dis- grand the Elliott and told him and charge grand injure jury report to his courtroom. jury members grand jury had indict- because arrived, Judge they Leon advised When ed Perez. grand jury had been dis- them every con- inquire This claim—on which serious charged. He did not of them question pleaded in stitutional turns —was had matters further whether following fashion in blunderbuss each report. Judge Leon also told El- complaints: of the liott that Perez had filed bills of informa- charging Defley Complainant with con- ac- tion Elliott and further shows Perez, H. by extort as evidenced tions of defendants LEANDER PER- spiring to EZ, JR., Defley’s to Elliott. FRANK KLEIN and EUGENE letter prosecution Although apparently himself from the recusal motion was 7. Perez did recuse 4. 18, 1981, tampering charge May presented jury prepared, to the court. until it was never almost three later. months However, lawyers not have known both plaintiffs expressly pending under 42 Perez 8. The sued U.S.C.. about indictments They Development. also sued the 25th §§ & 1986. and Delta Court, Attorney District the State Gen- Judicial eral, injunctive itself for relief State eventually recused 6. Over a month later Perez jury charges, tampering from the extortion prosecution the extortion himself point yet dropped. been which at that had not charges. LEON, JR., PEREZ, purposes E. the defendants defense, of the immunity as de- conspired KLEIN and LEON to deter Supreme clared Court and this force, through intimidation threat the Court, we conclude allowing broadly- prosecution complainant criminal complaints, worded such as those of the improper discharge special plaintiffs here, which leaves to traditional verdict, grand jury to influence the pretrial depositions, interrogatories, and re- presentment spe- and indictment of the quests for admission development grand jury specifically [plaintiff cial the real underlying claim, effec- special grand as foreman Elliott] tively eviscerates important functions and jury complainant in injure his protections of official immunity. person property on account of the special grand jury action taken The Immunity Doctrine voting the indictment of defendant Modern product doctrine is the PEREZ, JR., LEANDER H. and Delta explicit judicial balancing usually Inc., Development Company, which in- adverse interests implicated which are lawfully dictments had been assented to brought by suits private persons injured by ought and which indictments to have the acts public officials. signed by person been in authority and On one side private are the desire to prior returned discharge official obtain redress for governmentally im special grand jury. date of the posed injuries and the interest (Emphasis added). punishment both and deterrence offi [of any discovery Prior to or responsive wrongdoing]____ cial among Foremost pleadings, Perez and Klein moved to dis countervailing] pub interests is the [the miss them based on their shielding lic aim of officials from liability immunity prosecutors as to suits so do overly not become cau money damages. Judge for Leon filed a performance tious in the of their duties.10 similar motion based on his absolute immu This balance was thoughtfully articulated nity judge. as a The District Court denied oft-quoted passage an from Gregoire v. motion, Perez’ granted motion but Klein’s Biddle, (2d Cir.1949), 177 F.2d 579 cert. treating both as motions for summary denied, 949, 803, 339 U.S. 70 94 S.Ct. L.Ed.

judgment. The granted Judge Court also (1950): 1363 Leon’s motion to dismiss. It entered final judgments as to Klein Leon go It does indeed saying without 54(b), under F.R.Civ.P. plain official, to which the an who is in guilty using fact of timely tiffs appeal.9 noticed their powers spleen upon vent his oth- ers, or personal for motive not An Absolute Need Trial Courts to public good, connected with the should Pleading Demand Clear escape liability not injuries for the he cause; and, The so phrasing argua- possible blunderbuss of if it were plaintiffs’ practice ble claims in the complaints, (just complaints confine such to the quoted) presents initially guilty, this Court an it deny would be monstrous to goes issue which recovery. heart the “immu- justification doing so nity” damage from long suits accorded cer- is that impossible it is to know whether government tain officials. In view of the the claim is well founded until the case appeal 9. Perez did not appeal Trial Court’s order as reviewed on in the interest of Collins, 721, to him. Williams v. 728 F.2d economy). Cf. (5th Cir.1984) (district 724-27 deny- court order ing immunity, though claim of absolute even Court, Term, Supreme 10. The 1981 96 Harv.L. judgment, per appealable before final se Co- 4, (1982); Schuck, Suing Rev. 229 see also Our "sufficiently if questions hen order free of fact Court, Congress, Liability Servants: The and the present law”); question as to Metlin v. Damages, Sup.Ct. Public 1980 of Rev. Officials for Palastro, 353, (5th (order Cir.1984) 729 F.2d 355 281, 281-85. denying qualified immunity may claim of

1477 tried, damage Harlow all claims. and that submit has been defense officials, well as the the innocent as Fitzgerald, 800, 2727, 457 U.S. 102 S.Ct. a trial and to the guilty, the burden of (1982), L.Ed.2d 396 Court discussed outcome, would danger of its inevitable problems appli which had arisen the most ardor of all but dampen the two-prong, subjec cation former resolute, irresponsible, in the the most or tive/objective qualified test immunity unflinching discharge of their duties. first enunciated it in Wood v. Strick at 581.11 land, U.S. 95 S.Ct. weighed the conflict As courts have (1975).14 The Harlow court L.Ed.2d con ing values inherent pointed experience out that under acknowledged cept, they have Wood many courts had considered an offi evenly. For always tip do not those scales subjective good question cial’s faith to abe govern especially sensitive officials whose fact, requiring inquiry extensive factual or constitutional status mental functions jury prospect and resolution and the suit, complete protection from require of adverse U.S. determination. recognized the defense Supreme Court has 2737-38, 816, 102 S.Ct. at 73 L.Ed.2d at Likewise, immunity.12 those of “absolute” 409. The Court then addressed the weak require officials whose functions do approach: ness of this complete liability insulation from have tra now is clear that substantial costs qualified, ditionally [i]t accorded a been litigation subjective “good immunity.13 attend the faith” government faith officials. traditionally immunity theory has While general subject- costs [There are] liability freedom from for dam- focused on ing officials to the risk of trial —distrae-. empha- ages, Supreme Court has also governmental their tion officials from which result sized the substantial costs duties, action, discretionary merely subjecting public from officials inhibition 13. Under standard, qualified immunity balancing This act has been a recurrent government liability shielded in discussions of the doctrine. officials are theme 800, 814, See, damages e.g., Fitzgerald, Harlow v. for civil insofar their conduct does 2727, 2736, clearly statutory L.Ed.2d 407-08 not violate or con- 102 S.Ct. 73 established (1982) (citing quoted passage); rights person Econo- stitutional of which a reasonable v. Butz 478, 505-06, 2894, mou, Fitzgerald, have v. U.S. 98 S.Ct. 2909- would known. Harlow 457 438 818, 2738, 11, 895, (1978) (weighing U.S. at 102 S.Ct. at 73 L.Ed.2d at 410. 57 L.Ed.2d 915-17 recognized injured immunity Qualified providing has been for cer- interests in “redress officials, "deter[ring] from tain Executive Branch nomou, see v. Eco- citizen” and federal officials Butz 478, 2894, committing wrongs” against the 438 U.S. 98 S.Ct. 57 L.Ed.2d constitutional aids, (1978), governors required protect and their see "need to officials who are 895 232, 1683, Rhodes, public Scheuer v. 416 U.S. 94 S.Ct. exercise their discretion and the related officers, (1974), encouraging vigorous police exercise of L.Ed.2d 90 see interest in 40 547, 555, 1213, Ray, authority”). U.S. 87 S.Ct. Pierson v. 386 official (1967). 18 L.Ed.2d 288 12. Officials enjoying immunity to suits absolute 14. The Wood court divided the qualified damages legislators, money acts immu- include for see, objective subjective legislative e.g., nity capacity, Eastland v. defense into ele- in their 491, Fund, objective an offi- 421 U.S. ments. The element involves United States Servicemen's 1813, (1975), judges, knowledge respect for basic consti- L.Ed.2d 324 cial's 95 S.Ct. 44 acts, see, rights. subjective component e.g., Stump Sparkman, judicial tutional re- their v. Wood, 1099, 349, "permissible intentions." 420 S.Ct. 55 L.Ed.2d 331 fers to U.S., 435 U.S. 98 322, (1978), initiating Under this prosecutors, at 95 S.Ct. at 1000-01. for acts test, see, qualified immunity e.g., was de- pursuing prosecution, Imbler v. Pacht- the defense of a 409, 984, man, reasonably should 47 L.Ed.2d feated if an official "knew or U.S. 96 S.Ct. 128 424 (1976), performing pros- action he took within the have known that the other executive officers functions, sphere responsibility would violate adjudicative of official or see v. ecutorial Butz 2894, 478, Economou, rights [plaintiff], or if S.Ct. 57 the constitutional U.S. 98 (1978), action with malicious intention to the President of the he took the 895 L.Ed.2d 731, States, rights deprivation or Fitzgerald, a of constitutional cause United Nixon v. 322, (1982). injury____” S.Ct. at 1001. Id. at 73 L.Ed.2d 349 102 S.Ct. people public from accepted and service____ of able This Circuit has likewise deterrence premise subjec- protected that the inquiry into official Judicial should from pretrial be sheltered trial and may prepa therefore entail tive motivation ration as liability. well as depos- Williams broad-ranging discovery and the Collins, (5th Cir.1984).16 728 F.2d persons, including an ing of numerous together Harlow and can Williams be read colleagues. In- professional official’s stating precept a basic of immunity doc peculiarly kind can be quiries subjecting trial, trine —that officials to tra government. disruptive effective discovery, ditional or concerning both acts 816-17, at 73 L.Ed.2d at 102 S.Ct. likely for which are immune undercuts omitted). (footnotes at 409-10 protection governmental disrup from public In order to free officials from the immunity tion official purposed is their faith in proving burden of tak afford. Whether the immunity official’s actions, ing eliminated official Court qualified, or allowing per but subjective qualified element of the im haps preliminary the most proceedings expressed munity The Harlow court test. immunity-barred squarely claim runs qualified its belief that the new Harlow protective counter to the doctrine’s basic permit standard would “the reso purpose: that officials free to exercise many on sum lution of insubstantial claims their duties and functions without fear Id., U.S., judgment.” having at their mary attentions distracted subsequent unhappy unsuc S.Ct. 2739. Consonant with desire to litigants. cessful shield officials from the diversion of energies through their the forced defense through As this court the words of challenges gov taken in their actions recently explained Rubin in a case capacities, the Court ernmental held that involvingjudicial immunity: question until resolution of threshold do, Judges may, and on depart occasion application defense, of an judicial griev- from their roles and inflict “discovery should not be allowed.” Id.15 ous hurt on others. Often the allega- Harlow therefore was born out of the ex judges hyper- tions misconduct are recognition perience-based that until the unprovable; bolic and either untrue or can time the trial court determine whether person sometimes but ... a who is a there is a substantial basis the claim of judge intentionally commits mischie- immunity, those entitled to official immuni Nevertheless, vous act. while courts are ty only should be free not from ultimate blind to human vices that trial, liability, but also and the oft- robe, they lurk behind have struck preliminaries overwhelming society’s time of modern balance favor of im- litigation. munity. wrong A committed recognize aspect ordinarily immunity appealable). 15. We that this of Harlow dealt ified not The immediately "qualified" the extent of or Supreme apparently Court will examine dis However, “good immunity tinction, faith” defense. its granted as it has certiorari deter eliminating subjective for rationale intent appealability denying quali mine of orders inquiry immunity faith eliminate Kleindienst, immunity, Forsyth —to fied see v. 729 frustrating interferences with continued of- nom., (3d Cir.1984), granted F.2d 267 cert. sub arising very ficial duties litigation process applies from the nature 322, U.S.-, — Forsyth, v. Mitchell 105 S.Ct. greater with even — (1984). 83 L.Ed.2d 259 special force where the official's functions or constitutional status accords an absolute immu- nity denying 16. We held that in Williams orders Moreover, damage as suits. immunity of absolute before trial or final Higginbotham emphasized for us has dis- “[the] disposition immediately appealable, are 728 qualified tinction between absolute and nity immu- 726, right F.2d at for otherwise “the at stake [to language may well survive Harlow's not litigation] from be free the burdens of would qualified immunity.” Williams the function v. irretrievably lost the continuation [be] 721, (5th Cir.1984). Collins, 728 726 n. 6 F.2d proceedings. at But see trial court 725. note Moore, see, Kenyatta But v. 744 F.2d 1179 at supra. 15 Cir.1984) (5th (orders denying qual- ] 1183-1185

1479 to ferret all of his hold- official actions and the remedied might on occasion be graver therefor, Much purpose a tortfeasor. either for the ing judge reasons system justice done to would be being plead specifically, harm able more or for fabric, social consequently to the and prospective use trial would defeat however, judges to account by requiring purpose and frustrate the function and they judicial why took the reasons immunity qualified and osten- action, themselves and to absolve sibly conferred on the official. im- improper motive or other charges of immunity is Absolute propriety. public goals sought by official system justice in a an essential shield Indeed, immunity procedural. are not judges to “exercise depends on its that very objec fundamental go to substantive independence their functions with that 8 tives. To the extent F.R.Civ.P. apolo- consequences,” not fear of without conflict, practices present under it judges who gia for the errant behavior way adapt trial court must find a malovently. or injudiciously act full procedures to assure effectuation of (5th Sams, F.2d 189 v. 734 Thomas right, Enabling this substantive since the omitted). Cir.1984) (footnotes provides Act18 the rules shall not here, Where, complaint al- plaintiffs’ as abridge, enlarge modify any substantive broad, conclusory leges in indefinite right. officials, each government terms that two addition, discovery use of liberal entitling each to claim having the status directly the basis of a claim is establish has, capacity, official vio- direction in odds the Court’s Harlow groundwork is plaintiffs’ rights, lated government officials entitled to immu- duties, disruption the official’s laid burdens, stress, nity freed from the protections poli- and frustration pretrial the diversions of the anxieties and underlying the doctrine. cies preparations. One federal trial to do? What is a we, courts,19 and other have Actually, just face it as another thing may he not do: application of Rule 8 where tightened the pleading’s the notice liber lawsuit litigation compels very nature of the it. pre 817 counts on policy of F.R.Civ.P. al invoking cases In the now familiar discovery the factual ba to ascertain § consistently require the 1983 we U.S.C. claim, here, a defense. for the sis facts, specific merely not claimant to state especially Allowing pretrial depositions, allegations.20 governmental conclusory adversely of the those taken 1983); Gibson, necessary a claim under Han Conley § to state 355 U.S. 78 S.Ct. Mound, (5th (1957) 679 F.2d 497 that a son v. Town Flower established the rule L.Ed.2d 80 facts, Cir.1982) legal allege (pleader must complaint be dismissed for failure should not 1983); claim under prove § conclusions to state a could no state a claim unless the Wells, (5th Cir.1978) F.2d 1016 support Johnson v. his claim which would set of facts in 45-46, (in allege applicant must 1983 action § Id. at 78 S.Ct. at entitle him to relief. would, proved, long staple warrant the relief he if has been a 101-02. This standard N.C.A.A., (5th seeks); by literally F.2d 1028 supported Parish v. practice federal 1975) (conclusory allegations no substitute Cir. Barber v. Motor Vessel of cases. See hundreds discriminatory CAT," (5th Cir.1967). showing in of actual for factual 372 F.2d 626 "BLUE Whiteside, (5th tent); Cir. 505 F.2d 32 Cook v. (1982); United States v. U.S.C. § 18. 28 1974) (complaint a claim insufficient to state 584, 589-90, Sherwood, 61 S.Ct. facts). allege where it failed to under 1983 § 1058, 771, (1941). L.Ed. 1063 85 (1st Staviskey, F.2d 31 v. 560 See also Slotnick 1077, denied, Cir.1977), U.S. 98 S.Ct. cert. 434 Wilson, pointed 737 out in Hobson v. 19. As was 1268, (1978) (complaints cannot 55 L.Ed.2d 783 (D.C.Cir.1984), every other circuit re- 1 F.2d they contain con to dismiss if survive motion specificity quires of in the at least a minimum support clusory allegations their but do not 30, rights complaints. Id. at n. pleading of civil facts), cited to material claims with references cases). (listing 87 County approval Sparks Duval Ranch v. 976, (en banc), (5th 1979) Co., Roberts, Cir. See, 978 e.g. 1022 604 F.2d v. 726 F.2d Arsenaux 20. 1339, 943, denied, S.Ct. 63 Cir.1982) (more allegations U.S. 100 (5th conclusory cert. 445 than 1480 cases, Likewise, judges 28 U.S.C. have the carry in habeas tools to out this

§ (see 2, Rules), Rule Habeas 2254 mission. consistently conclusory held court has is Foremost the recent amendments to allegations unsupported by allegations of 11.23 rule, F.R.Civ.P. Under the amended support are insufficient specific facts Advisory of as the notes Committee on This is even in constitutional claims.21 so reflect, language Rules is “new intend pro se petitions.22 ed to reduce the of reluctance courts greatest sanctions, Moore, is Probably importance impose see Federal Prac 117.05, being 1547, by able to ascertain what tice emphasizing burden of responsibilities attorney the real are order to determine of the and reen placed squarely obligations is those forcing by imposition defense of may judge. important, The trial Equally district sanctions.” 11, by “good words of former grounds wait on or other actions Rule motions parties Fortunately, support” which interpreted or counsel. “were 1021, 588, approval. Quoted U.S. McGougan, L.Ed.2d 777 and 449 101 S.Ct. 66 v. Green 744 483, nom; 1189, grounds (5th Cir.1984). L.Ed.2d on other sub F.2d at 1191 aff’d 24, 183, Sparks, U.S. Dennis v. 449 101 S.Ct. 66 Motions, Signing Pleadings, (1980). 11. 23. Rule L.Ed.2d 185 Papers; Other Sanctions. circuits, see, holdings e.g., For similar other Carver, (1st Cir.1979); Hurney 602 F.2d motion, v. 993 Every pleading, paper and other Center, Rights Albany Org. Day Care Inc. party represented by attorney a an shall be Welfare Schreck, (2d Cir.1972), v. F.2d 620 463 cert. by signed attorney at least one of record in 944, denied, 1393, 410 93 S.Ct. L.Ed.2d U.S. 35 name, his individual whose address shall be (1973); Charleroi, Borough 611 v. Rotolo 532 party represented by A stated. attorney who is not an (3d Cir.1976); Shepherd, F.2d 920 Place v. 446 motion, sign pleading, shall his or Cir.1971); (6th F.2d Cohen v. 1239 Ill. Institute paper Except other state his address. Cir.1978), (7th Technology, F.2d 658 581 cert. provided specifically by otherwise when rule denied, 1135, 1058, 439 U.S. 99 S.Ct. L.Ed.2d 59 statute, pleadings or need not be verified or (1979); Oliver, (8th Harley 97 Cir.1976); v. F.2d 1143 539 accompanied by equity affidavit. The rule in Casino, Airport Uston v. 564 F.2d Inc. that the averments of an answer under oath Cir.1977); (9th Nichols, Taylor 1216 v. 558 F.2d testimony be must overcome of two Cir.1977). (10th 561 or witnesses of one sustained witness cor- See, Heard, roborating e.g., Schlang (5th 21. circumstances is abolished. The v. F.2d 796 691 denied, Cir.1982), dismissed, signature appeal attorney party of an cert. 461 or constitutes a 951, 2419, plead- U.S. (1983); 1310 103 S.Ct. 77 L.Ed.2d certificate him read that he has Davis, (5th motion, Mayberry ing, paper; v. 608 F.2d 1070 or other that to the best of Cir.1979); Estelle, Cunningham information, knowledge, v. F.2d 536 82 and belief (5th Elliott, Cir.1976); Bryant v. F.2d 572 inquiry 472 formed after reasonable it is well (5th Cir.1973); Georgia, Grant v. F.2d 742 grounded 358 by existing in fact and is warranted (5th Cir.1966). required We a have also similar argument law or sion, modification, faith for the exten- pleading in level of federal habeas under cases law, existing or reversal See, e.g., 28 U.S.C. 2255. States v. § United interposed any improper and that it is not Jones, (5th denied, Cir.1980), 614 F.2d 80 cert. purpose, such as to to cause unnec- harass or 2174, 945, 100 S.Ct. 801 64 L.Ed.2d delay essary or needless increase in the cost (1980); States, (5th Ward v. United F.2d 305 486 motion, litigation. pleading, If a or other Cir.1973), denied, 990, cert. U.S. S.Ct. paper signed, is not it shall stricken unless 2398, (1974); Doyal v. L.Ed.2d 768 United signed promptly it is after the omission is States, (5th Cir.1972), denied, 456 F.2d 1292 cert. pleader called attention of the or mov- 409 U.S. (1972); 93 S.Ct. 34 L.Ed.2d 120 motion, pleading, paper If a or ant. States, v. United Bankston 433 F.2d 1294 rule, signed upon in violation of this the court (5th States, Cir.1970); Hackworth v. United initiative, upon or motion its own shall im- (5th Cir.1970). F.2d 1127 it, pose upon person signed repre- who both, party, appropriate or sented an sanc- Knighton Maggio, 22. See 740 F.2d tion, pay order include an (5th Cir.1984): party parties the other the amount of the claiming One ineffective assistance coun- expenses because reasonable incurred omissions; identify specific sel must acts or motion, filing pleading, paper, or other general conclusionary charges statements and attorney’s including a reasonable fee. particular professional will not suffice. The August effective Amendment pled proven. failure must be scheduling Amended Rule “makes legal elements” id. and factual and case have both standard of con- replaced by management express goal pretrial a an of “have been In con- more focused.” Id. (b) that is procedure.” duct Id. Both subdivisions and trast, language stresses the need “new the (c) early vigorous are aimed at and case into the inquiry prefiling both for some management by judge. the The “intention satisfy the law to affirmative facts and the encourage planning and is better man- rule____ stan- by the This duty imposed agement litigation. of Increased original stringent than the more dard is pretrial during process control the acceler- expected it thus is good-faith formula and processing and ates the termination of range circumstances will greater of that Flanders, Management cases. Case and Additionally, Id. trigger violation.” in Management Court United States Dis- in is instill federal trial rule the amended Courts, Federal Judicial trict Center the Rule should be judges a convictionthat 16(c) (1977).” advisory F.R.Civ.P. commit- expressed, since the applied read tee note. dispel rule the amended seeks to of [t]ext Finally, both amended Rules 11 and 16 en- apprehensions that efforts obtain carry explicit provisions for sanctions. If insuring be fruitless forcement will attorney require- cannot meet these the applied proper- when that rule will the ments, the courts heed trial should the The “sanctions” the ly word invoked. Advisory regard- the Committee words caption, example, stresses a deterrent 11: ing language Rule “The new is intend- dealing improper orientation reduce the ed to reluctance of courts to papers----

pleadings, motions or impose” impose emphasizing in the last sanctions ... And the words “shall court’s attention on responsibilities attorney sentence focus the and rein- impose pleading sanctions for the need to forcing obligations by imposition these and motion abuses. Id. 11, advisory of sanctions.” F.R.Civ.P. com- mittee notes. significant part of Rule Amended of the 1983 amend- approach the new all strongest emphasis It bears the that ments, Rule 16 are intended especially attorney’s sig Rule 11 under amended an of a trial place on the shoulders federal that, on a “to nature document certifies manager role of an active information, knowledge, of his best litigation process. director of whole it inquiry formed after reasonable belief very beginning since the This starts at the grounded is well in fact and is warranted punishment of a “detection and violation existing good argument part or a faith requirement is of the law signing extension, modification, securing sys- for the or reversal responsibility court’s operation,” law, existing tem’s effective F.R.Civ.P. ...” F.R.Civ.P. adviso note, note. advisory committee (emphasis supplied). ry committee ostensibly raising This means that in a case born Amended Rule 1624 was probable question immunity, counsel is “widespread feeling that amendment that, affirming for the after encourage pretrial manage necessary to making he inquiry, reasonable believes litiga ment that meets the needs of modern good faith that the defendant official can advisory committee tion.” F.R.Civ.P. 16 he successfully show has the defense re Consequently “extensively note. it was immunity. having means This also expanded meet chal of written belief, he is able state lenges litigation.” modern faith (3) 16(a) discouraging activities; wasteful 24. Rule conferences pretrial provides pretrial (4) through improving for such as: quality purposes thorough (1) and; more expediting action; preparation, disposition (2) (5) establishing continuing facilitating the settlement case. control early so the case not be because will protracted management; of lack of sistant, Judge those particularity what facts Leon is the with some center of are. every real against claim made them the plaintiffs, reach the we conclusion that this judge means to The trial has several not, allegations Court should on the loose plain- on specific facts which determine the of the complaint, “iffy” undertake the task relies, judge the can tiff from which draw (or availability determining both) legal the conclusion on the whether each ap- First, the the defense. pellants immunity. are entitled to Any can, must, compliance demand full with attempt only arduous, such would be not Rule 11. suspect. but the would result be We would running be the risk of declarations of law speci In to ensure sufficient order something might on which be. Vital- never ready tool in ficity, district courts have a ly important to 12(e) good the as is motion more defi the the F.R.Civ.P. complaint nite Once a a immunity, ought statement. doctrine of official we prose legislator, judge, or defendant state imperil application its or undermine its (or officer) adequately cutor raises similar strength opinions expressed on situa- immunity qualified the likely issue may — tions or circumstances which never district should on absolute—the court yet, likely have occurred. And that is require own the a detailed com us, happen court, neither when nor the trial plaint alleging particularity all materi vaguest has but the of notions about he al facts on which he contends will estab probable what the real facts are. right recovery, will lish his include pointed For the reasons out we think supporting detailed the contention vacating26 administration calls for plea that the cannot be sus judgment remanding the case for requirement a is not tained. Such without action the trial court consistent In Watson v. precedent in this court. opinion.27 Ault, (5th Cir.1976), ap 525 F.2d 886 we proved ques of a the district court’s use VACATED and REMANDED. develop order tionnaire in factual pro se prisoner complaints in bases of HIGGINBOTHAM, PATRICK E. concur- § 1983 actions. We said there: ring specially: complainants may respond required questionnaire necessary a way, his own inimitable Brown pleading auxiliary, in nature of way has threaded his to a sound result. It statement, motion for a more definite is a task threading because we must ac- 12(e) F.R.Civ.P., Rule in order that the exquisite commodate an confrontation: on legal court assess the factual hand, enjoy one defendants an immuni- bases of the claim asserted. ty beyond from suit which reaches Id. at 892.25 protects debilitating pro- from the them discovery; hand, cesses of on the conspiracy among Because Perez, Klein, Attorney, concepts the District pleading acceptance as- notice rest on pleadings appro- Although 25. While the class of which are district court below concluded 12(e) priate for motion under Rule has scope been within of his .Klein acted quite deemed restricted under prosecutorial current immunity, that conclusion was Miller, Rules, Wright see C. and A. Federal Prac- part pleadings based in the sworn from an- (1969), largely tice and Procedure § be- remand, On other case. should, the district court availability discovery, cause of broad liberal rely pleadings, if it chooses to on these considering we are use of not here Rule acceptable see to it that these materials are 12(e) weapon parties, as a available to but summary judgment form for use on then comply rather as a tool available to the court to findings specific make extent fact these immunity. with the mandate situations provide pleadings outside for its deci- basis sion. judgment 26. This on the § includes Rutledge, claim. See Kush v. (1983). S.Ct. 75 L.Ed.2d 413 quired.” Realty one sue now Franchise of the idea that Interstate My no- his claim is. Corp. discover later what v. San Francisco Local Joint Exec- I power III Article tions of Article versus Workers, Culinary utive Board path, a more modest require me to follow (9th Cir.1976). F.2d While this I conclusion. reach the same but heighten effort in the antitrust cases to pleading requirements while 9(b) remaining pro- Procedure Federal Rule of Civil all averments of fraud or faithful to Fed.R.Civ.P. 8 has vides that been sub- “[i]n mistake, constituting the circumstances ject continuing debate, compare, e.g., par- or mistake shall be stated with fraud Hydro-Tech Corp. Corp., v. Sundstrand course, ticularity.” Congress, of sanc- (10th Cir.1982), 673 F.2d 1177 n. 8 Act, 9(b) Enabling in tioned Rule International, Sage Ltd. v. Cadillac § I not know where we U.S.C. but do F.Supp. (E.D.Mich.1981), Gauge, 507 it requirement authority find the to add supports attempt preserve our the es- enjoy im- against officials who immunity by requiring sence of the defense pled munity particu- shall be suit specific allegations here. necessary larity. Nor do I see that it is approach That such an is not a Rather, I result to do so. would con- 9(b) amendment to Rule but rather a that no claim is stated offi- clude convincing definition of the claim is more enjoy positions cials hold abso- who immunity context. If immunity pro immunity a statement of suffi- lute absent discovery pro tects a defendant from the true, which, if would demon- cient cess, does,1 as it and the statement immunity. the absence of If the of a strate filing grants complaint grants of a immediate ac- claim process, access to that as it discovery our cess to elaborate machine pleading, does under notice then a well- our teaches that such substantive law pleaded claim must overcome the immuni cases, immunity is not it access available course, ty. plaintiffs some Of will be un detailing for me that follows absent a claim able state without the benefit of negative immunity, facts sufficient to no discovery, though discovery might even words, federal claim is stated. facts, have surfaced sufficient denial of but is, instance, our task in the first one of prod some meritorious claims is the direct is; deciding what is short what the claim immunity uct of doctrine which plain meaning has no universal inde- weighed these losses when it struck the pendent of the nature of a claim. It does This, me, only policy balance. at least for suggest pleading no violence to notice plainer ground that I am on makes the sure pleading adequacy of a is case concluding that the accommodation of specific. pleading immunity presents notice This is from the effort to not dissimilar definition, question peculiarly of claim pleading in accommodate notice antitrust authority granted to us Arti within the plaintiff seeks relief for con- cases where a cle III. protected by prima duct which is facie This is far more than a semantical shell First Amendment under the Noerr-Pen- game. judicial problems, must We solve nington generally doctrine. P. Aree- See legislative problems. and we must not solve (1982 da, Supp.). Law Antitrust 1203.4b that it My effort has been to demonstrate circumstance, In this courts have said that judicial problem defining is a the content danger pendency that the mere “the — By here. we face chill the exercise of First action will —that path, I reach the same conclusion as the specific rights requires Amendment more join re- result. majority would otherwise be and therefore allegations than immunity by yet explicitly circum- the values of While the Court has not assured to vindicate right subject scribing possible offi- enjoying freedom where officials discovery concerning discovery processes, majority as the cials to trial traditional from all out, likely points are immune. opinion the Court has made efforts acts for which

Case Details

Case Name: James Elliott and Joseph Defley v. Leander H. Perez, Jr., Etc., Eugene E. Leon, Jr., Etc., and Frank Klein

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Feb 7, 1985

Citation: 751 F.2d 1472

Docket Number: 83-3243

Court Abbreviation: 5th Cir.