Commercial Litigation and Arbitration

Sanctions — Inclusion of Show-Cause Language in Magistrate Judge’s Report Rather than Stand-Alone Order Satisfies Rule 11(c)(3)

From Brunig v. Clark, 2009 U.S. App. LEXIS 3513 (5th Cir. Feb. 17, 2009):

Brunig's brief asserts that the district court never issued a show cause order. This assertion misstates the record — the magistrate report's final section described Brunig's conduct, recommended that the district court judge impose sanctions, and directed Brunig "[i]f [he] chooses to show cause why sanctions may not be warranted in this case." This report was filed September 24, 2007, over two months before the district court ordered sanctions on December 7, 2007. Brunig had ample time to show cause why sanctions should not be entered. And, in fact, on October 10, 2007 Brunig did object to the magistrate judge's sanctions recommendation in a document styled "Robert A. Brunig's Objection to Report & Recommendation." Brunig's quibble that he was not given notice through a show cause order is incorrect.

[Footnote 18] We find no fault in the fact that the show cause order occurred in the magistrate report instead of in a separate, stand-alone order. Rule 11 requires that sanctions motions by parties "be made separately from other motions and requests." There is no corollary requirement for sua sponte show cause orders.

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