Although no one expects to be sanctioned, it is important to understand the process. The first civil litigation process essays in this two-part series dealt with the prefiling investigations necessary to meet the due diligence standards to avoid sanctions under Federal Rule of Civil Procedure 11. Regardless of the stage of litigation, the requirement in Rule 11 to provide notice of a motion for sanctions is mandatory.
The party seeking sanctions must send to the offending party a copy of the motion it plans to file describing the party’s specific objections and reasons for seeking sanctions. Even if there are apparent defects in the plaintiff’s filings, the defendant must comply with the notice requirement. A party should serve the Rule 11 motion promptly after the inappropriate paper is filed with the court. If filing is delayed too long, the court may consider the motion untimely. Therefore, counsel who seeks attorney fees must adhere to the strict notice requirements under Rule 11.
A court may award attorney fees and costs only upon a party’s motion. A party could also move that the court strike the challenged claims as an additional sanction. Defendants are prohibited from filing the motion for sanctions until 21 days after the plaintiff has been served. There is no mandatory safe harbor when Rule 11 is pursued sua sponte. A Rule 11 motion that is not in compliance with the mandatory safe harbor, like a motion that does not comply with the strict notice requirements, is subject to denial on that basis alone, even if the plaintiff’s filings are in fact deficient. Notwithstanding , defendants are not entitled to sanctions under Rule 11 due to their failure to comply with the safe harbor provision.
Subsequent filings, even those done to correct previously deficient filings, can also be subject to Rule 11 if the defendant finds the subsequent filings to be lacking either a reasonable inquiry or basis in fact. However, new notice of the deficiencies and a new 21-day safe harbor are required. Before imposing sanctions, the court must give the party against whom sanctions are sought an opportunity to respond as to why sanctions would be inappropriate. Several arguments could be raised in a challenge to a Rule 11 motion.