Rule 11.Signing pleadings and motions; representations to the court; sanctions

Reporter’s Notes—2025 Amendment: This amendment deletes Rule 11(e), captioned “Use of Declaration In Place of Notarization,” which authorized use of a declaration whenever these rules required the filing of a statement made under oath, an affidavit, or a notarized document. Rule 11(e) did not apply when an oath, affidavit, or notarization was required by statute. Amendments to 4 V.S.A. § 27b by 2023, No. 46, § 4, permit a broadening of the declaration rule. These changes are incorporated in simultaneously adopted Rule 43(h), titled “Declaration In Place of Affidavit or Oath.” Rule 43(h) authorizes use of a declaration without exception whenever a rule or court order requires filing or service of an affidavit or a statement signed under oath.

Reporter’s Notes—2024 Amendment: Rule 11(a) is amended to require every pleading, written motion, and other document that requires a signature to include the signer’s telephone number. The primary purpose of this change is to assist self-represented litigants who wish to contact an opposing attorney by telephone.

Reporter’s Notes—2022 Amendment: Rule 11(e) is added at the suggestion of the Supreme Court to make permanent an emergency provision permitting use in a civil action of remote means to obtain attestations of parties. The rule applies whenever these rules otherwise require the filing of a statement made under oath, an affidavit, or a notarized document. It is a narrower version of 28 U.S.C. § 1746, which applies to statutory requirements as well. A similar provision was originally adopted April 6, 2020, as Administrative Order 49, ¶ 17(a), and after April 30, 2020, continued in more elaborate form as Act of April 28, 2020, 2019 No. 95 (Adj. Sess.), § 7. Act 95 expired with the end of the executive emergency in June 2021. The terms of Act 95 were virtually identical to those of 4 V.S.A. § 27b, adopted effective June 19, 2019, applicable to filings by registered electronic filers in the Judiciary’s electronic filing system and adopted by reference in 2020 V.R.E.F. 9(e)(1)(A). Rule 11(e) incorporates the language of Act 95 and of 4 V.S.A. § 27b and is intended to make those provisions applicable in all civil proceedings. Paragraph (1) permits a party required to make a statement under oath, or similar sworn statement, to file instead a declaration that the statement is true, subject to the penalty of perjury under 13 V.S.A. § 2904(b) or to judicial sanction. Paragraph (2) expressly provides that notarization of that statement is not required. Paragraph (3) makes clear that Rule 11(e) does not apply to oath, affidavit, or notarization requirements expressly provided by statute. See, e.g., 10 V.S.A. § 8005; 12 V.S.A. § 4967; 14 V.S.A. § 1853; 17 V.S.A. § 2982.

Reporter’s Notes—2011 Amendment: See Reporter’s Notes to simultaneous amendment making the Vermont Rules for Electronic Filing permanent.

Reporter’s Notes—2010 Amendment: Rules 4(b), (l)(3); 5(b), (e), (f); 6(a), (e); 10(d); 11(a), (b); 26(g); 40(a), (b); 45(a)(1)(G); 77(c), (d); 79(a)(1), (2); 79.1(g) of the Vermont Rules of Civil Procedure rules are amended or added to conform to the Vermont Rules for Electronic Filing as adopted by simultaneous emergency amendment. See Reporter’s Notes to those rules.

Reporter’s Notes—1996 Amendment: Rule 11 is amended to conform to the 1993 amendment of Federal Rule 11. That amendment was intended to alleviate substantial problems that had arisen in the administration of the federal rule as last revised in 1983. See Committee Notes to 1993 Amendment of Federal Rule 11. Vermont adopted the revised federal rule in 1984. See Reporter’s Notes to 1984 Amendment of Rule 11. Although Vermont has experienced far less difficulty with the rule, some of the same problems are present. The amendments will substantially improve the practice. The 1993 amendment of Federal Rule 11 was summarized in the federal Committee Notes as follows: 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 Rules 26 through 37. The amendment divides the rule into subdivisions (a)-(d). Rule 11(a) carries forward, with some changes in language, provisions of the former rule covering required signatures and steps to be taken if they are omitted. Note that, in contrast to the federal rule, the present amendment protects the privacy of pro se litigants by omitting the requirement that the telephone number of the signer of a paper be given. This amendment also specifies that the required address is the signer’s “mailing” address. Former language concerning answers under oath and the effect of a signature has been eliminated as obsolete or unnecessary. The latter point is now covered in subdivision (b). Rule 11(b) restates the obligations of the signer of a paper to the court in expanded form. In the words of the federal Advisory Committee: 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 .... The rule applies only to assertions contained in papers filed with or submitted to the court . . . . 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 . . . . 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 . . . to gather and confirm the evidentiary basis for the allegation. Tolerance of factual contentions in initial pleadings . . . 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 . . . . .... Denials of factual contentions involve somewhat different considerations . . . . 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. 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 . . . should certainly be taken into account in determining whether paragraph (2) has been violated . . . . As to sanctions, the federal Committee Notes point out that the new rule further emphasizes candor “by generally providing protection against sanctions if [litigants] withdraw or correct contentions after a potential violation is called to their attention.” Thus, under Rule 11(c)(1)(A), a motion for sanctions may not be filed with the court unless the opposing party has failed to rectify the situation within 21 days after service of the motion. Rule 11(c)(2) provides a variety of sanctions, including nonmonetary directives such as striking a paper or issuing a reprimand, monetary penalties payable to the court, or payment of attorney’s fees or expenses to the moving party. The court has significant discretion in imposing a sanction tailored to the conduct in question and may consider factors such as “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; [and] what amount is needed to deter similar activity by other litigants.” Committee Notes to 1993 Amendment of Federal Rule 11. The federal Advisory Committee states that sanctions should be imposed on the persons—whether attorneys, law firms, or parties—who have violated the rule or who may be determined to be responsible for the violation. The person signing, filing, submitting, or advocating a document has a nondelegable responsibility to the court, and in most situations is the person to be sanctioned for a violation. Absent exceptional circumstances, a law firm is to be held also responsible when . . . one of its partners, associates, or employees is determined to have violated the rule . . . . The revision permits the court to consider whether other attorneys in the firm, co-counsel, other law firms, or the party itself should be held accountable for their part in causing a violation. When appropriate, the court can make an additional inquiry to determine whether the sanction should be imposed on such persons, firms, or parties either in addition to or, in unusual circumstances, instead of the person actually making the presentation to the court . . . . Sanctions that involve monetary awards . . . may not be imposed on a represented party for causing a violation of subdivision (b)(2), involving frivolous contentions of law. Monetary responsibility for such violations is more properly placed solely on the party's attorneys . . . . This restriction does not limit the court's power to impose sanctions or remedial orders that may have collateral financial consequences upon a party, such as dismissal of a claim, preclusion of a defense, or preparation of amended pleadings. .... Rule 11 motions should not be made or threatened for minor, inconsequential violations of the standards prescribed by subdivision (b). They should not be employed as a discovery device or to test the legal sufficiency or efficacy of allegations in the pleadings; other motions are available for those purposes. Nor should Rule 11 motions be prepared to emphasize the merits of a party's position, to exact an unjust settlement, to intimidate an adversary into withdrawing contentions that are fairly debatable, to increase the costs of litigation, to create a conflict of interest between attorney and client, or to seek disclosure of matters otherwise protected by the attorney-client privilege or the work-product doctrine . . . . .... As under former Rule 11, the filing of a motion for sanctions is itself subject to the requirements of the rule and can lead to sanctions. However, service of a cross motion under Rule 11 should rarely be needed since under the revision the court may award to the person who prevails on a motion under Rule 11 --whether the movant or the target of the motion --reasonable expenses, including attorney's fees, incurred in presenting or opposing the motion. Rule 11(d) is intended to leave the policing of discovery practice to the standards and sanctions of Rules 26(g) and 37. In conclusion, the federal Advisory Committee notes that “Rule 11 is not the exclusive source for control of improper presentations of claims, defenses, or contentions,” noting that a court may also look to statutory provisions for award of attorney’s fees, the contempt power, inherent judicial power, or other remedial provisions of the rules. However, inherent powers should not be relied on if appropriate sanctions can be fashioned under Rule 11 or similar provisions, and “the procedures specified in Rule 11 . . . should ordinarily be employed when imposing a sanction under the court’s inherent powers.” The parties also retain the ability to bring action for malicious prosecution or abuse of process, and, of course, the court, the lawyers, and the parties have access to the professional discipline process in an appropriate case.

Reporter’s Notes—1984 Amendment: Rule 11 is amended as part of the series of amendments to follow recent amendments to F.R.C.P. See Reporter’s Notes—1984 Amendment to Rule 7. The amendment includes three changes: (1) the expansion of the list of filings that must be signed in accordance with the rule, to include a “motion, or other paper”; (2) the broadening of the certification made by signing a paper subject to the rule; and (3) the modification of the sanctions that can be imposed on one who signs a paper in violation of the rule. See generally Advisory Committee Note to 1983 Amendment to F.R.C.P. 11, 97 F.R.D. 198-201 (1983). The first change is mostly a clarification since Rule 7(b)(2) made the rules applicable to the signing of a pleading also applicable to the signing of a motion. While the added language technically covers discovery papers, Rule 26(g) now imposes specific obligations on those who file discovery papers. See Reporter’s Notes—1984 Amendments to Rule 26. The second change is to make the Rule 11 certification more meaningful. It now applies to a party who appears pro se. For the first time, it requires the signer to make a “reasonable inquiry” into whether the paper is well grounded in fact and warranted under the law. Formerly, the signature certified only that the paper was not interposed for delay. With the amendment, the certification excludes “any improper purpose,” including “needless increase in the cost of litigation.” The third change makes sanctions more appropriate to the violation and easier to impose. The former sanction of striking the pleading is now imposed only for failure to sign the paper. This sanction has rarely been used. See Advisory Committee Note to 1983 Amendment to F.R.C.P. 11, 97 F.R.D. at 199. Other sanctions were not specified, and the rule required that the violation be wilful. The rule now specifies that sanctions can include payment of expenses caused by the paper filed in violation of the rule, including attorney’s fees. There is no requirement that the violation be wilful. The sanction can be imposed on the lawyer or the client, as appropriate. The court can impose the sanction on motion of a party or on its own initiative. The amendment will apply in District Court because this rule is incorporated into D.C.C.R. 11.

Reporter’s Notes: This rule, substantially similar to Federal Rule 11, places the primary responsibility for accuracy of the pleadings and good faith in the use of process upon the attorney by requiring his signature on pleadings and process and subjecting him to the threat of disciplinary action for wilful violation of the rule. In addition, the obligations of the rule are incorporated in other rules by reference. See Rules 4(i) (return of service); 5(d) (papers filed after complaint); 7(b)(2) (motions); 8(b) (denials); 8(e)(2) (alternative pleadings); 62(c) (immediate execution). Somewhat similar obligations were imposed as to pleadings under former Chancery Rules 9, 13, 44, 45. See also 12 V.S.A. §§ 1022, 4323 (now superseded); former County Court Rule 28.2. Despite the literal language of Rule 11, the attorney’s signature is not required upon writs of attachment and trustee summonses issued by the clerk under Rules 4.1(b)(2), 4.2(b), (j). The rule does away with the verification required by former Chancery Rules 8, 24, except as may be required by other provisions of the rules or by statute. Provisions of the rules requiring verification include Rules 4.2(e) (trustee’s disclosure); 23.1 (shareholders’ derivative action); 27(a)(1) (petition to perpetuate testimony before action); 65(a) (temporary restraining order); 80(b) (complaint for divorce). The rule also eliminates the rule of chancery practice, found in Vermont case law, that a verified answer must be overcome by testimony of two witnesses or of one witness and corroborating circumstantial evidence. See Phelps v. Root, 78 Vt. 493, 63 A. 941 (1906). This change is consistent with the de-emphasis of the pleadings generally and the free availability of discovery as an ancillary procedure under the rules. The same result could have been achieved in former practice by waiver of verification under Chancery Rule 25. Annotations Applicability. Affidavits. Attorney’s fees award. Hearings. Review. Sanctions. Standards. Applicability. Because attorney’s efforts to obtain materials from court-ordered psychiatric evaluation were in the nature of discovery requests, motion for sanctions against attorney was properly governed by V.R.C.P. 26 and 37, rather than Rule 11. Bigelow v. Bigelow, 171 Vt. 100, 759 A.2d 67, 2000 Vt. LEXIS 164 (2000). Affidavits. Verification of a complaint is abolished by this rule except where specifically provided for by rule or statute; thus complaint will not be considered an affidavit to support a summary judgment. Spargo v. Governor's Commission on Administration of Justice, 135 Vt. 333, 376 A.2d 757, 1977 Vt. LEXIS 621 (1977), overruled in part, Johnson v. Harwood, 2008 VT 4, 183 Vt. 157, 945 A.2d 875, 2008 Vt. LEXIS 6 (2008). Attorney’s fees award. Although attorney’s fees may also be awarded in exceptional cases in which a litigant acted vexatiously or in bad faith, a party may not defeat the safe-harbor provision of this rule by invoking the same residual powers of equity and justice that form the basis of the rule and its requirements. Bowman v. Ackerman, 2004 VT 112, 177 Vt. 589, 865 A.2d 1120, 2004 Vt. LEXIS 321 (2004) (mem.). Town was not entitled to attorney fees against foreclosure plaintiff, as it neither served plaintiff with a separate motion for Rule 11 sanctions nor gave plaintiff the requisite 21 days after such service to withdraw foreclosure claim against town. Bennington Realty, LLC v. Jard Co., 169 Vt. 538, 726 A.2d 56, 1999 Vt. LEXIS 7 (1999) (mem.). Trial court’s award of attorney’s fees in civil lawsuit was reasonable where defendant, herself a trial attorney, repeatedly sought unnecessary continuances and voluntarily failed to appear at trial. Cameron v. Burke, 153 Vt. 565, 572 A.2d 1361, 1990 Vt. LEXIS 16 (1990). Hearings. Court did not abuse its discretion in addressing the issue of V.R.C.P. 11 sanctions against trial counsel during the hearing on defendant’s motion for a stay; even though holding a separate hearing on the Rule 11 violations may have been preferable, the court’s conduct was not so egregious as to rise to the level of an abuse of discretion. Gilbert v. Gilbert, 163 Vt. 549, 664 A.2d 239, 1995 Vt. LEXIS 61 (1995). Review. Where the trial court made a Rule 11 motion upon its own initiative on the ground that defendant’s gender-bias claim was without support in law or fact and the purported violation was discussed at the hearing but where the court’s order neither concluded that Rule 11 was violated nor gave any indication as to why sanctions were imposed and where in fact the court’s order recognized that defense counsel, in a supplemental memorandum, cited provisions of 15 V.S.A. § 665(c) as legal support for her claim of gender bias, the trial court’s order could not be upheld; the trial court needed to provide findings that defendant violated Rule 11, or acted in bad faith or vexatiously in filing the motion for stay, in order to support the award. Gilbert v. Gilbert, 163 Vt. 549, 664 A.2d 239, 1995 Vt. LEXIS 61 (1995). Trial court determinations on motions for sanctions will only be reversed where there is abuse of discretion. State v. Delaney, 157 Vt. 247, 598 A.2d 138, 1991 Vt. LEXIS 175 (1991). Sanctions. While a prefiling injunction under Rule 11 gave the pro se father the option of either having a licensed attorney sign his filings or obtaining permission from the family division before filing further pleadings, the order required clarification because it did not inform the father of an appropriate procedure to follow for requesting court permission to file future pleadings. Fox v. Fox, 2022 VT 27, 216 Vt. 460, 280 A.3d 354, 2022 Vt. LEXIS 29 (2022). Trial court properly imposed a prefiling injunction against a pro se father, as it found that he was filing vexatious, harassing, and duplicative motions and was engaging in an escalating pattern of vexatious litigation and abusive behavior; he appeared to be motivated by the improper purpose of harassing the mother and needlessly increasing the cost of litigation; he repeatedly chose not to comply with relevant rules even after the judge or court staff instructed him on how to comply; his filings burdened the mother as well as the trial court and court staff; and the order would prevent duplicative filings and filings not based in fact or law. Fox v. Fox, 2022 VT 27, 216 Vt. 460, 280 A.3d 354, 2022 Vt. LEXIS 29 (2022). Sanction was warranted when the trial court identified five filings by plaintiff that plainly violated Rule 11 in that they were repetitive and unsupported by fact or law. In response to a show cause order, plaintiff relied on no law or rule to justify his submissions, but instead offered more of the same mere allegations of conspiracy between defendant and virtually every member of the judiciary coming into contact with this or other cases involving him. Zorn v. Smith, 2011 VT 10, 189 Vt. 219, 19 A.3d 112, 2011 Vt. LEXIS 10 (2011). By essentially barring plaintiff from appearing pro se, the trial court acted within its discretion in restricting, while not barring, plaintiff from filing additional materials in the present case when the recent history of the litigation reflected a pattern of chronic vexatious, baseless, and frivolous filings. Zorn v. Smith, 2011 VT 10, 189 Vt. 219, 19 A.3d 112, 2011 Vt. LEXIS 10 (2011). Applying a Rule 11 sanction essentially enjoining plaintiff from appearing pro se to “any pleading, complaint, motion, letter or other document” in the trial court was overbroad when there were no findings below of similar abuses by plaintiff in other litigation; accordingly, the sanction was revised to apply only to the present case and any derivatives raising the same claims. The sanction also required revision to permit plaintiff, pro se, to assert and prove that he was without the means to retain an attorney as necessary to comply with the order, because if plaintiff were indigent or without viable resources, the sanction as written would deny him access to justice. Zorn v. Smith, 2011 VT 10, 189 Vt. 219, 19 A.3d 112, 2011 Vt. LEXIS 10 (2011). Where defendants did not serve plaintiff with a separate sanctions motion before filing their motion in the superior court and did not file their motion in the court until long after they were dismissed from the case, plaintiff was never given the formal notice required by the rule; accordingly, the trial judge erred by granting defendants’ motion for sanctions. Bowman v. Ackerman, 2004 VT 112, 177 Vt. 589, 865 A.2d 1120, 2004 Vt. LEXIS 321 (2004) (mem.). Under the “safe-harbor” provision of this rule, sanctions are generally unavailable, as a matter of law, if the moving party fails to abide by its procedural requirements. Agency of Natural Resources v. Lyndonville Savings Bank & Trust Co., 174 Vt. 498, 811 A.2d 1232, 2002 Vt. LEXIS 237 (2002) (mem.). Sanctions against a represented party are not covered by this rule nor are sanctions based upon out-of-court activity. Agency of Natural Resources v. Lyndonville Savings Bank & Trust Co., 174 Vt. 498, 811 A.2d 1232, 2002 Vt. LEXIS 237 (2002) (mem.). Standards. Defender General properly denied publicly funded representation in an inmate’s post-conviction relief appeal because it asserted that the representation would violate the ethical and civil procedure rules. In re Bruyette, 2014 VT 30, 196 Vt. 261, 96 A.3d 1151, 2014 Vt. LEXIS 34 (2014). This rule requires a party’s attorney to reasonably inquire into status of facts and law before proceeding with case, and sufficiency of the signer’s inquiry is tested principally by what is objectively reasonable under the circumstances; sanctions are not likely to be imposed on a matter of first impression, even if there is contrary authority in other courts or when the law is not clear. State v. Delaney, 157 Vt. 247, 598 A.2d 138, 1991 Vt. LEXIS 175 (1991).