Rule 11 Safe Harbor — Email Notice — Substantial Compliance

Since 1993, Rule 11(c)(1)(A) has required that Rule 11 sanctions be sought in a separate motion that is served in ordinary course but may not presented to the court if the opposing party withdraws or corrects the challenged paper or contention within 21 days of receipt of the motion. Failure to afford 21 days' grace before filing the motion requires denial of the motion. The Rule 11 motion of the plaintiff in Paragon Marketing Group v. Nadair, 2007 U.S. Dist. LEXIS 2594 (E.D. Mich. Jan. 12, 2007), was filed less than 21 days after it was served in violation of this requirement. The movant argued that its antecedent email, which identified the violation and was sent more than 21 days before the motion was filed, comported with the spirit of Rule 11's safe harbor provision by giving defendant an opportunity to withdraw the allegedly offending paper. The District Judge rejected the argument that substantial compliance with the safe harbor was sufficient in the circumstances presented. However, the Judge accurately observed that, in other circumstances, some courts have forgiven non-compliance with the safe harbor under the rubrics of substantial compliance, impossibility of compliance, and waiver. (These issues are analyzed in § 17(A)(2) of Sanctions: The Federal Law of Litigation Abuse.)

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