Commercial Litigation and Arbitration

Sanctions — Rule 11 Safe Harbor — Need to Amend Motion

The 21-day safe harbor was introduced in the 1993 amendments to Rule 11. There are a couple of wrinkles to the safe harbor about which there is a paucity of case law. Both arise from the requirement in what is now Rule 11(c)(1)(A) that:

A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

The first question is whether the motion that is filed must be identical to the motion that is served. The target of the motion may, for example, withdraw some of the challenged material and not all of it in response to the Rule 11 challenge. Or the movant may decide to move on fewer than all grounds and eliminate one or more. Does a new motion have to be served again in these circumstances or may the revised motion be filed? It has always struck me that there would be no point in requiring service of an amended motion in these circumstances because the target is on notice of, and refused to amend or withdraw, everything still at issue. (Sanctions: The Federal Law of Litigation Abuse § 17(A)(2) (3d ed. Supp. 2007). District Judge Mark Bennett, dealing with the latter situaion (the pared down motion), came to the same conclusion in Ideal Instruments, Inc. v. Rivard Instruments, Inc., 2007 U.S. Dist. LEXIS 48668 (N.D. Iowa July 3, 2007).

The second question is whether a brief must be served with the motion. This often arises in the context of local rules that require that a brief accompany a motion. Does that mean that the movant has to brief his or her Rule 11 motion before sending it over 21 days before filing, in accordance with Rule 11(c)(1)(A)? That isn’t what the rule says, and it is not essential to commence the 21-day safe harbor period. Nor does it make a lot of sense since the whole purpose of the safe harbor is to cut down on litigation, and litigation costs, in sanctions practice. The target of the sanctions motion in Ideal argued that the movant’s inclusion of its brief as part of its motion at the time of filing (but not at the time of service) transgressed Rule 11(c)(1)(A). The Court rejected the objection, accurately observing that: ‛Rule 11 says nothing about requiring service of the brief in support of a Rule 11 motion to trigger the twenty-one day ‘safe harbor.’“ Held, sanctions in the form of attorneys' fees and expenses awarded under Rule 11, 28 U.S.C. § 1927 and the inherent power of the Court.

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