Advisory Committee Note to Rule 11 Does Not Create Any Exception to the 21-Day Safe Harbor Requirement

From Fierro v. Gallucci, 2011 U.S. App. LEXIS 10388 (2d Cir. May 23, 2011):

Here, the district court was required to deny plaintiffs' motion for sanctions for failure to comply with the 21-day "safe harbor," which requires Rule 11 motions to be served on the opposing party 21 days prior to their filing, in order to afford that party an opportunity to withdraw their allegedly sanctionable claims. See Fed. R. Civ. P. 11(c)(2); Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1328 (2d Cir. 1995). The Rule 11 Advisory Committee Note cited by plaintiffs, which provides that a court may award attorneys' fees to the "target" of a Rule 11 motion, does not create an exception to the safe harbor requirement.

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