Rule 11 Sanctions — The Hidden Safe Harbor — Surviving Summary Judgment

The 21-day safe harbor to withdraw challenged papers stated in the text of Rule is well known. (It will go undercover on December 1, when it skulks from Rule 11(c)(1)(A) into hiding in Rule 11(c)(2), evidently renumbered on the theory that research is too easy if the rule numbers remain the same.) But the 21-day safe harbor isn’t the only one adopted in 1993 — it’s just the only one explicit in the text. The 1993 Advisory Committee Note, construing Rule 11(b)(3) and (4), observes that, ‛if a party has evidence ... suffic[ient] to defeat a motion for summary judgment ... it would have sufficient ‘evidentiary support’“ to defeat a Rule 11 motion brought under those subdivisions. Thus, the result in W.J.R. Assocs. v. Realty Equity Holdings, LLC, 2007 U.S. Dist. LEXIS 80102 (S.D.N.Y. Sept. 28, 2007): ‛Having survived a motion for summary judgment, it is clear that there is at least one genuine issue of material fact which justifies [plaintiff’s] continued litigation against [defendant]. Accordingly, sanctions are not justified.“ This safe harbor has its limits, however. It would not apply if, for example, summary judgment were denied for technical or procedural reasons that did not address the merits (e.g., the movant defaulted) or if summary judgment were to be denied because the nonmovant perpetrated a clear fraud on the court (e.g., by submitting a forged document). Joseph, Sanctions: The Federal Law of Litigation Abuse § 14(D)(4)(d) (3d ed. Supp. 2007).

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