New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

Sanctions — Post-Trial Rule 11 Motion Must Satisfy 21-Day Safe Harbor

Download PDF

The defendant in Saldibar v. Delray One, Inc., 2008 U.S. Dist. LEXIS 61470 (S.D. Fla. Aug. 12, 2008), moved for sanctions after trial on the theory that the plaintiff’s case was doomed to lose at trial. The motion, however, was too late for the plaintiff to correct or withdraw its offending positions because the defendant did not file the motion until after it had won the case. Motion denied for failure to honor safe harbor:

The Eleventh Circuit allows Rule 11 motions to be filed after entry of final judgment. See Baker v. Alderman, 158 F.3d 516, 523 (11th Cir. 1998) ("Rule 11 motions are collateral to an action and are not barred if filed after a dismissal order, or after entry of judgment.") (citations omitted). Although the Eleventh Circuit has not addressed the applicability of the safe harbor period to post-judgment Rule 11 motions, the Seventh Circuit has held that Rule 11 motions filed after entry of a final judgment must still comply with the 21 day safe harbor period. See Divane v. Krull Electric Co., 200 F.3d 1020, 1026 (7th Cir. 1999) (holding that Rule 11 motion filed more than 21 days before entry of final judgment satisfied safe harbor requirement). The safe harbor provision still applies even though the instant motion is a "renewed" motion. See Zhu v. Federal Housing Finance Bd., 2007 U.S. Dist. LEXIS 32398, 2007 WL 675646, *4 (D. Kan., May 1, 2007) (denying renewed motion for Rule 11 sanctions based partly on same conduct as initial motion because renewed motion failed to comply with safe harbor provision). The Court realizes the inconvenience of serving a Rule 11 motion on opposing counsel during the middle of a jury trial, but it has found no authority for the proposition that the 21 day safe harbor period is inapplicable during such time. R.B. Ventures v. Shane, 2000 U.S. Dist. LEXIS 10170, 2000 WL 1010400, *2 (S.D.N.Y., Jul. 20, 2000) recognized that "a factual account first given at mid-trial, in the presence of the jury, obviously cannot be subjected to the 'safe harbor' curative provision[]" of Rule 11, but R.B. Ventures involved oral trial testimony that did not accord with pre-trial depositions or pleadings. Accordingly, R.B. Ventures distinguished the oral testimony from "pre-trial papers" and exempted the testimony from Rule 11. See id. Here, Plaintiff argued both at trial and in numerous written pre-trial filings that he was entitled to FLSA protection.

Defendant has unquestionably failed to comply with the safe harbor provision of Rule 11. Allowing the motion to proceed in this context would vitiate the safe harbor provision because Plaintiff's counsel had no notice that its position at trial would be the target of a future Rule 11 motion: Defendant's prior Rule 11 motion was denied, and Plaintiff reasonably relied on same at trial.

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

RICO: (1) Victim vs. Perpetrator Enterprises — (2) § 1962(b): Elements of a Violation — (3) Meaning of “Interest” and “Control” in § 1962(b) — (4) The Defendant in a § 1962(b) Action Need Not Be an Enterprise; The Victim Must Be An Enterprise — (5) Acquisition/Maintenance Injury Required (6) Aiding and Abetting Liability under RICO

Rule 11 Sanctions: Request for Bill of Particulars re Sanctions Proceeding Reviewed for Abuse of Discretion — Court’s Discretion Narrows As Severity of Sanction Increases OR When It Initiates the Sanction Proceeding Itself — Particularly Strict Abuse of Discretion Standard Applied — “Rule 11 Does Not License a District Court to Sanction Any Action by an Attorney or Party That It Disapproves of” (Good Quote) — Failure to Provide Identify Specific Pleading and Detail Specific, Objectionable Conduct within that Pleading Violates Due Process — Failure to Provide Notice That Most Severe Sanction May Be Imposed Violates Due Process — Failure to Provide Notice That “Scarlett Letter Sanction” (Mandatory Circulation of Sanctions Order) Or Other Sanction That Could Leave Indelible Imprint on Career Might Be Imposed Violates Due Process — Notice That Law Firm Might Be Sanctioned Insufficient to Afford Notice to Firm Lawyer and Managing Partner That He Might Be Sanctioned — Refusal to Impose Additional Sanction Until Impact of Other Imposed Penalties (Not Sanctions) Ascertained to See Whether Sanction Needed

Rule 37(c)(1) Sanctions: (1) Exclusion of Expert Testimony Reviewed for Abuse of Discretion Even When It Results in Summary Judgment — (2) Whether Physicians Must File 26(a)(2)(B) Report Depends on Whether They Formed Their Opinions for Litigation Or in the Course of Medical Treatment — (3) Party Seeking to Avoid Exclusion of Its Expert for Noncompliance with Rule 26 Bears Burden of Showing Harmlessness or Substantial Justification — (4) Expert Report Subject to Exclusion If It Is Conclusory and Does Not Meet the Level of Rigor Required by Rule 26(a)(2)(B)

RICO: The Statute Defines Enterprise Broadly, “But That Breadth Is Not Without Limit” (Good Quote) — Enterprise Inadequately Pled Where Plaintiffs Fail to Name the Common Purpose, Explain How the Relationships Among the Defendants Allowed Them to Advance That Purpose, Or Specify the Period of Time Sufficient to Achieve That Purpose — In a Particular Case, the Pattern of Racketeering May Be Sufficient to Infer the Existence of an Association-in-Fact Enterprise, But Pattern Does Not Necessarily Establish Enterprise — A RICO Conspiracy May Exist Regardless of Whether the Substantive RICO Violation Is Consummated, But the Substantive Violation Must Be Adequately Pled

RICO: (1) Claim Accrued When Plaintiff Suffered, and Was Aware of, Her Injury — Overt Retaliation in Her Employment As A Result of Reporting Another Employee’s Sexual Misconduct — Not When a Report Confirming that Misconduct Later Became Public; (2) Inhouse Lawyer’s Conclusion No Sexual Misconduct Occurred Is a Mere Expression of a Legal Conclusion, Not Deception Warranting SOL Reprieve Due to Equitable Tolling or Fraudulent Concealment — Plaintiff Exhibited Lack of Diligence in Failing to Consult Own Counsel or Challenge Inhouse Counsel’s Conclusion; (3) Causation: Plaintiff Must Prove Her Injuries Were Directly Caused by the Predicate Acts — (4) Concealment of Report Commissioned by Employer Directly Harmed Employer (by Exposing It to Liability) and Victims of Sexual Misconduct, and Only Indirectly Harmed Plaintiff Who Suffered Retaliation in Her Employment for Reporting the Misconduct

RICO: Without Injury to Business or Property, Injury Resulting from RICO Violation Is Not Actionable under RICO — Meaning of “Property” in § 1964(c) — Meaning of “Business” in § 1964(c) — Mere “Expectancy Interests” ≠ Business or Property — Loss of NCAA Eligibility = Loss of a Status, Not Loss of Property — Pecuniary Losses (Here, Attorney’s Fees) Flowing from a Non-Cognizable Injury Are Not Recoverably via RICO

RICO: Enterprise Not Sufficiently Distinct from Defendant Where Enterprise Allegedly Consisted of the Defendant Corporation, Corporate Employees, Their Counsel and “Friends”

FRAP 38 Sanctions Should Not Lightly Be Awarded on the Ground That an Incorrect Argument Was Frivolous — “An Appeal Can Be Weak, Indeed Almost Hopeless, Without Being Frivolous” (Good Quote) — There Must Be “No Legitimate Basis for Pursuing the Appeal” (Good Quote)

Severe Emotional Distress and Trauma ≠ RICO Injury — Parents’ Voluntary Financial Support of Adult Daughter Who Was Forced to Sign Over Her Annuity in Violation of RICO Not Proximately Caused by RICO Violation — Injury Is Derivative, Not Direct (Intimation of Different Result if Financial Support Required by Law) — RICO Injury Is Requirement for Statutory Standing (12(b)(6) Issue), Not Constitutional Standing (12(b)(1) Issue)

RICO — Neither Filing a Complaint Nor Issuing a Press Release Constitutes Wire Fraud — Litigation Privilege Is Absolute and Bars All Tort Claims Other Than Malicious Prosecution — Abuse of Process Claim Barred (California Law)

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice