H. B. 2129
(By Delegates Walters and Webb)
[Introduced February 17, 1997; referred to the
Committee on the Judiciary.]
A BILL to amend article four, chapter fifty-six of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, be amended by adding thereto a new section,
designated section seventy-two, relating to assessment of
attorney's fees, costs, sanctions and other damages for
filing or serving frivolous pleadings and motions.
Be it enacted by the Legislature of West Virginia:
That article four, chapter fifty-six of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
seventy-two, to read as follows:
ARTICLE 4. RULES AND PLEADING.
§56-4-72. Sanctions for frivolous pleadings and motions.
(a) Signing of pleadings and motions. -- The signature of an attorney or a party constitutes a certificate by him or her that he or she has read the pleading, motion or other paper; that to
the best of his or her knowledge, information and belief formed
after reasonable inquiry:
(1) It is well grounded in fact and is warranted by existing
law or a good faith argument for the extension, modification or
reversal of existing law;
(2) It is not interposed for any improper purpose, such as
to harass or cause unnecessary delay or needless increase in the
cost of litigation;
(3) That each allegation or other factual contention in a
pleading or motion has evidentiary support or is likely to have
evidentiary support after a reasonable opportunity for further
investigation or discovery; and
(4) That each denial in a pleading or motion is warranted
based on existing evidence or that any specifically identified
denial is reasonable based on lack of information or belief
formed after reasonable inquiry is made based upon all then
reasonably available factual information.
(b) Frivolous pleadings and motions defined. -- The filing
of a lawsuit, a defense thereto, a motion or other similar action
taken for a client is not frivolous merely because the facts have
not first been fully substantiated or because the lawyer expects
to develop vital evidence only through the discovery process.
The action is not frivolous even though the lawyer may believe that the client's position may ultimately fail.
A pleading, defense, motion or other action is frivolous,
however, if the client or lawyer desires to have the action taken
primarily for the purpose of harassing or maliciously injuring a
person or entity or if the lawyer is unable either to make a good
faith argument on the merits of the action taken or to support
the action taken by a good faith argument for an extension,
modification or reversal of existing law.
(c) Motion for sanctions. -- If a pleading, motion or
document is not signed, it shall be stricken, unless it is signed
promptly after the omission is called to the attention of the
pleader or movant. If a pleading, motion or other paper is
signed in violation of any of the foregoing rules, the court,
upon motion or upon its own initiative may impose upon the person
who signed it, a represented party or both an appropriate
sanction, which may include:
(1) An order to pay to the other party or parties the amount
of the reasonable expenses incurred because of the filing of the
pleading, defense, motion or other paper; and
(2) Reasonable attorney's fees.
In addition to the expenses or reasonable attorney's fees
imposed by a court, it may also sanction the person, party or
both who signed the pleading, defense, motion or other paper as
follows:
(A) A directive to the violator to perform, or refrain from
performing, an act or acts;
(B) Order that a monetary penalty to be paid into court;
(C) Strike any part or all of any pleading, defense or
motion signed in violation of this rule including any claim or
defense of either party.
The filing of a general denial may not be deemed to be a
violation of this section.
(d) Sanction orders. -- A court shall describe in any order
imposing expenses, attorney's fees or other sanctions under this
section, the particular conduct that the court has determined to
be in violation of the chapter and explain the basis for the
sanction imposed.
(e) Notice and opportunity to respond. -- The court shall
provide a person, party or both who is the subject of a motion
for sanctions under the aforementioned section, reasonable notice
of the allegations and a reasonable opportunity to respond to the
allegations.
This section applies only to pleadings and motions or other
similar document filed on or after its effective date.
Pleadings, motions or other similar documents filed or served
before the effective date of this section is governed by the law
applicable to pleadings or motions immediately before the
effective date of this action and that law is continued in effect for that purpose.
NOTE: The purpose of this bill is to provide for sanctions
in the form of the assessment of attorney's fees, costs and other
damages for the filing of frivolous lawsuits, pleadings and
motions.
This section is new; therefore, strike-throughs and
underscoring have been omitted.