Sanctions — District Court Must Decide Pending Rule 11 Motion before Entering Final Judgment

The Third Circuit held in Gary v. Braddock Cemetery, 2008 U.S. App. LEXIS 2533 (3d Cir. Feb. 5, 2008) that it is error for a District Court not to resolve a pending Rule 11 (or, by implication, any other sanctions motion) prior to entering final judgment. The Third Circuit has a unique a supervisory rule "that counsel seeking Rule 11 sanctions must file their motions before entry of final judgment in the district court." Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 92 (3d Cir. 1988). This is rarely implicated in Rule 11 cases any more because the 21-day safe harbor adopted in 1993 essentially requires pre-judgment motions (otherwise the target will not have the rule-guaranteed option of withdrawing the offending paper, and this renders the motion untimely). But the Gary case shows that the Pensiero doctrine has legs. What it doesn’t have is an effective enforcement method. If the District Judge isn’t interested in deciding the motion before the entry of final judgment, many movants will not want to incur the expense of an appeal to redress it.

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