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Fed.R.App.P. 38 and Fed.R.Civ.P. 11 — Request for Sanctions in Appellate Brief Does Not Satisfy Motion Requirements

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From Cody v. Palmyra Park Hosp., Inc., 2010 U.S. App. LEXIS 20822 (Oct. 5, 2010):

***Palmyra makes a request for sanctions under Fed.R.Civ.P. 11 and 28 U.S.C. § 1927. Rule 11(b)(3) requires that a party must have knowledge, information or belief that her "factual contentions have evidentiary support or . . . will likely have evidentiary support after a reasonable opportunity for further investigation or discovery." Fed.R.Civ.P. 11(b)(3). Rule 11(c) provides that sanctions may be imposed on parties that violate Rule 11(b), and that these sanctions may be requested via a motion or ordered on the court's own initiative. Fed.R.Civ.P. 11(c). Additionally, any attorney who multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to pay excess costs, expenses and attorneys' fees. 28 U.S.C. § 1927. Further, "[i]f a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee." Fed.R.App.P. 38.

We have repeatedly held that an issue not raised in the district court and raised for the first time in an appeal will not be considered. *** Additionally, sanctions for a frivolous appeal may be ordered, but they must follow a motion or notice from the court and a reasonable opportunity to respond. Fed.R.App.P. 38. Palmyra's request for sanctions, made in its Answer Brief, is not enough to satisfy the requirements of Rule 38. See Smith v. Kitchen, 156 F.3d 1025, 1030 (10th Cir. 1997).

Palmyra failed to move for Fed.R.Civ.P. 11 sanctions in the district court, and has failed to file a motion for Fed.R.App.P. 38 sanctions here. Accordingly, we deny its request for sanctions.

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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.

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