Commercial Litigation and Arbitration

Rule 11 Sanctions — Improper Purpose

The sanctioned lawyer in Reinhardt v. EIU Group, Inc., 489 F.3d 405 (1st Cir. 2007), did not file a paper articulating a frivolous position. On the contrary, the position he advocated was accepted by the district court. But the way he got there earned him a sanction of 10 hours of pro bono representation. The issue was a dispute over clarifying the record. He rejected his adversary’s proposed language twice, at which point, rather than proposing any language of his own, he wrote:

‛Giving you guys the benefit of the doubt, you still haven't figured out my concerns. Rather than continue this game of 20 questions, why don't you go ahead and file your motion — consider the exchange of e-mail to have satisfied the ... obligation to confer — and I'll review it and respond as appropriate.“

The district court agreed with sanctioned counsel on the merits but imposed the pro bono sanction for ‛unnecessarily forcing defendants to litigate the issue and taking up court time and consequently burdening other individuals' rights to come before the court in a timely manner to have their issues litigated" (internal quotations and brackets omitted). The First Circuit affirmed under the improper-purpose clause of Rule 11 (Rule 11(b)(1)), the certification that every pleading, written motion, or other paper ‛is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.“ The Court reasoned that, had counsel ‛proposed that language in response to the defendants' attempts at negotiation, the need for motion practice likely would have been obviated.“ Sanction affirmed.

Note: Sanctioned counsel probably had good reason to be annoyed. Not every thought need be reduced to an email.

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