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Hastings Blawg

Beware of 'Netflix and Chill,' and Rule 11.

Taylor Hastings

Note* Our admittedly limited investigation of the facts cannot verify the accuracy of the following story: As the video below explains, a guy asked a girl to come over and Netflix and Chill. Apparently, it's much easier to woo women these days. Once the girl arrived, and fully prepared with wings, the two searched for a mutually agreeable program. Much to their chagrin, however, the content on Netflix failed to fully entertain them. Faced without any other meaningful option, the guy and girl began to hookup. One thing led to another, and that other just so happened to be the conception of a child. As a result, and without anyone to blame but Netflix, the girl's mother decided to sue Netflix for $50,000. 

Let the girl explain it herself: 

 

 

Among other things, this got us thinking about Rule 11. The Federal Rule 11 intends to protect against an attorney or party who brings a lawsuit on frivolous grounds. Consistent with how most state civil procedure laws developed, many state legislatures enacted parallel Rule 11 statutes that, for the most, align in language and interpretation with the federal rule. North Carolina's Rule 11(a) is as follows: 

Rule 11. Signing and verification of pleadings.

(a)        Signing by Attorney. - Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry 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, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper 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 this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.

That is a very difficult statute to get through. Courts have boiled it down to 3 basic requirements:

1. It must be factually accurate - at least upon information and/or belief.

2. When the signatory applies those facts to applicable law, there must be a legally cognizable claim that can redress the grievance.

3. Even if those 2 criteria exist, the signatory cannot bring the complaint for an improper purpose, like to harass the opposing party.

Several factors go into that analysis, like the time available to prepare the complaint, the evidence available, and the evidence available to the opposing party who won't or can't divulge the information prior to trial. The court has the power to sanction an attorney - a professional black mark - should the attorney bring a complaint for an improper purpose or if the complaint is not warranted in fact and/or law.

In application to the video above, it would be very unwise for the mother to bring the claim against Netflix. Even if factually accurate, no reasonable person would believe it would create a cause of action upon which a court could grant relief. Among many other issues in the story, one is the ubiquity with which young people use the term Netflix and Chill to mean precisely what occurred between the two in this video. Must be nice.

Rule 11 is terrifying. It keeps attorneys and vigilante plaintiffs grounded so that the courts are not a vehicle to air out irritations and controversies better suited for a different arena. It follows a policy of the courts to implore people to resolve differences outside of court - as mostly a product of overcrowded dockets, and not an inherent unwillingness to mediate conflict and provide justice. This is a good example of a dispute that probably will not see its day in court.