Month: February 2022

A Nasty Letter Isn’t A Sanctions Motion

Rule 11 has a safe harbor that allows the opposing party to withdraw an offending pleading within 21 days after he is served with the motion for sanctions. Many sanctions motions are denied because the party seeking sanctions writes a letter to the opponent, but does not actually serve a motion for sanctions. This court discussed this common problem and denied the motion for sanctions.

“Rule 11(b) provides that by presenting a pleading to a court, an attorney certifies that, after conducting a reasonable inquiry, evidentiary support exists for the factual allegations pled in the complaint. Fed. R. Civ. P. 11(b)(3). If a party believes that it has been served with a complaint for which no reasonable inquiry had been conducted, or for which no evidentiary support existed, then he may move for sanctions pursuant to Rule 11(c). Fed. R. Civ. P. 11(c)(1). The movant may not, however, file the motion for sanctions with the court unless the motion has been served on the non-moving party at least twenty-one (21) days prior to filing, and the non-moving party has not withdrawn or otherwise corrected the challenged writing within the twenty-one-day period. Fed. R. Civ. P. 11(c)(2). Compliance with the “21-day safe harbor” rule is a condition precedent to sanctions. RMC Publ’ns, Inc. v. Doe, No. 3:07-cv-3170-JFA, 2008 WL 11472127, at *3 (D.S.C. Feb. 5, 2008) (citing Brickwood Contractors, Inc. v. Datanet Eng., Inc., 369 F.3d 385, 393 (4th Cir. 2004)).

There is no dispute that Defendant failed to serve the motion for sanctions and memorandum prior to filing it with the Court. Instead, Defendant sent a letter to Plaintiff’s counsel on December 15, 2021, discussing the purported flaws in Plaintiff’s claims and demanding that she dismiss her claims with prejudice or Defendant “intends to file . . . a Rule 11 motion for sanctions…”. (Doc. No. 10-6, pp. 1, 6). Defendant argues that this letter satisfied the Rule 11 the safe harbor requirements. The Court disagrees. The Fourth Circuit has stated:

The requirements of the rule are straightforward: The party seeking sanctions must serve the Rule 11 motion on the opposing party at least twenty-one days before filing the motion with the district court, and sanctions may be sought only if the challenged pleading is not withdrawn or corrected within twenty-one days after service of the motion.

Brickwood, 369 F.3d at 389 (emphasis added); see also Hamlin v. TD Bank, No. 1:13-CV-00200-MR-DSC, 2014 WL 3101942, at *3, n.2 (W.D.N.C. July 4, 2014) (“The motion for sanctions must be served on the offending party at least twenty-one days before filing and must describe in detail the alleged offending conduct. Therefore, counsel’s letter threatening to file a motion for Rule 11 sanctions in the event that the motion to dismiss was granted was not sufficient to trigger the safe harbor provision of Rule 11(c)(2).”).”

McFee v. Carolina Pad, LLC, 3:21-cv-633-GCM (W.D. North Carolina February 15, 2022).

So the procedure is simple: prepare a motion for sanctions and serve it on the other party and wait 21 days before filing it with the court.

Ed Clinton, Jr.

Failure To Serve Initial Disclosures Did Not Merit Rule 37 Sanctions

The federal rules of civil procedure require each party to make initial disclosures. In Doe v. Coomes, No. 21-cv-67 (N.D. Oklahoma January 18, 2022), the plaintiff failed to serve initial disclosures. The defendant moved for Rule 37 sanctions. The motion was denied because the failure to serve timely disclosures was “harmless.”

However, Rule 37 calls for use-exclusion or other sanctions only if the failure to disclose harmed the receiving party. Examples of a harmless violation of the initial disclosure duty include “the failure to list as a trial witness a person so listed by another party.” Fed. R. Civ. P. 37, 1993 Advisory Committee Notes. As noted, Plaintiff has not identified individuals or documents other than those in Defendants’ disclosures. There has been no identified harm as contemplated under the rule.

Defendants argue that, nonetheless, the allegations in Plaintiff’s Complaint are “inherently prejudicial to the reputation of both CareATC as a company and Jeff Coomes as an individual.” (Doc. 20 at 4). However, they offer little basis to find that any alleged reputational harm might have been spared, had Plaintiff submitted her initial disclosures earlier. Contrary to Defendants’ assertion that the allegations have been “allowed to sit stagnant,” the Court ruled on all motions to dismiss within a matter of weeks after the end of the period for briefing those motions. Id.; see also Doc. 18. The Court shortly thereafter entered a Scheduling Order, under which the time period for discovery remains open until January 24, 2022. (SeeDoc. 19). Finally, as noted, Plaintiff’s initial disclosures identify the same individuals and documents Defendants have already identified