No Rule 11 Sanctions for Cat-and-Mouse Evasion of Service or Failure to File Answer, but Inherent Power Sanctions May Be Warranted

From Ali v. Tolbert, 636 F.3d 622 (D.C. Cir. 2011):

By its terms, Rule 11 applies to "[r]epresentations to the Court" made in "presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper." Fed R. Civ. P. 11(b) (2006). In Hilton Hotels Corp. v. Banov, 899 F.2d 40, 283 U.S. App. D.C. 232 (D.C. Cir. 1990), we noted that six other circuits had concluded, applying the version of Rule 11 then in effect, the "emphasis on the need to perform a 'reasonable inquiry' before 'sign[ing]' a 'pleading, motion, or other paper' suggests that the rule authorizes sanctioning an attorney only for unreasonably filing such a submission." 899 F.2d at 44-45 (emphasis in original)' see also Chambers v. NASCO, Inc., 501 U.S. 32, 41, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991) ("Rule 11 . . . governs only papers filed with a court"). The current version of the Rule, promulgated in 1993, is at least as emphatic in its focus on "Representations to the Court" in "a pleading, written motion, or other paper" that is "present[ed] to the court." See Milltex Indus. Corp. v. Jacquard Lace Co., 55 F.3d 34, 37 n.5 (2d Cir. 1995) ("In the instant case, the district court found Rule 11 of the Federal Rules of Civil Procedure inapplicable because the misconduct it observed did not involve any pleading or paper submitted to the court. We find this aspect of the district court's decision unexceptionable.") (internal citation omitted). In this case, the court made clear that Noble's sanctionable conduct was not his representation in a document presented to the court but the failure to present a document — namely, a verified answer — in response both to the summons and complaint served on Noble three times and to the motion for entry of default — in combination with the "cat and mouse game" Noble played to evade service. See 235 F.R.D. at 4. Because the sanctioned misconduct did not involve representations in a document presented to the court as required under Rule 11, we vacate the sanction award.

Notwithstanding Noble's conduct is not sanctionable under Rule 11, sanctions may nonetheless be warranted under the district court's inherent authority, which "enables courts to protect their institutional integrity and to guard against abuses of the judicial process with contempt citations, fines, awards of attorneys' fees, and such other orders and sanctions as they find necessary, including even dismissals and default judgments." Shepherd v. Am. Broad. Cos., 62 F.3d 1469, 1472, 314 U.S. App. D.C. 137 (D.C. Cir. 1995); see generally Chambers, 501 U.S. at 43-46 (describing extent of inherent judicial authority). Accordingly, we remand for the district court to consider whether to exercise its inherent authority to sanction Noble. To support a sanction under this authority, the court must make a finding by clear and convincing evidence that Noble committed sanctionable misconduct that is tantamount to bad faith. Shepherd, 62 F.3d at 1472 (clear and convincing evidence); Roadway Exp., Inc. v. Piper, 447 U.S. 752, 767, 100 S. Ct. 2455, 65 L. Ed. 2d 488 (1980) (bad faith).

Share this article:

Share on facebook
Share on twitter
Share on linkedin
Share on email

Recent Posts