April 30, 2020 Practice Points

Rule 11 Sanctions Are Not Fit for Every Occasion

There’s a time and a place for everything.

By Michael Stefanilo Jr.

The rules of civil procedure afford litigators numerous weapons to employ when confronted with diverse difficulties during the litigation process, including issues related to the conduct of opposing counsel. Yet, the threat of Rule 11 sanctions is often both overstated and misapplied by attorneys, particularly when cited in the context of discovery disputes. Critically, counsel should make certain to proceed with caution when actually filing a motion for sanctions under Rule 11, and be sure to adhere to all of the formalities of the rule’s proscriptive text. A proper submission to the court requires familiarity with both the substantive and procedural limitations and prerequisites of Rule 11(c)(2), and should be invoked sparingly.

In March 2020, the Southern District of New York took occasion to issue a reminder of the appropriate setting for Rule 11 sanctions and the manner in which to seek them. In Gym Door Repairs, Inc. v. Young Equip. Sales, Inc., No. 15-CV-4244 (JGK) (S.D.N.Y. Mar. 12, 2020), the court opined that the backdrop for the plaintiffs’ motion for sanctions against the defendants was improper, adopting a magistrate’s report and recommendation that the plaintiffs’ motion be denied. The court summarized:

More particularly, [the plaintiffs’] Rule 11 motion (1) was directed to a discovery dispute rather than to a proper subject of Rule 11; (2) failed to provide the requisite 21 day safe harbor notice required under Rule 11; and (3) improperly combined their Rule 11 motion with a motion under Rule 37, rather than making their Rule 11 motion separate from any other motion as Rule 11 requires.

Id. at *1. In Gym Door, the plaintiffs learned through a third-party Freedom of Information Law (in New York, referred to as “FOIL”) request that a small number of documents sought during discovery had not been produced by the defendants. This fact was unearthed after summary judgment had been entered in favor of the defense. As a result, the plaintiffs moved for Rule 11 sanctions against the offending parties.

As a threshold matter, the court confirmed that the additional records would not have impacted its decision to enter judgment against the plaintiffs at the Rule 56 stage. Regardless, the court held, the motion ran afoul of the strictures of Rule 11. First, the plaintiffs sought sanctions over a discovery dispute, which the court found was improper. Rule 11(c) limits the subject matter of a motion for sanctions to violations of the assurances enumerated in Rule 11(b). This includes only the improper presentation to the court of “a pleading, written motion, or other paper” through “signing, filing, submitting, or later advocating it” when one of four circumstances are not true “after an inquiry reasonable under the circumstances”:

  1. it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
  2. the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
  3. the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
  4. the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Fed. R. Civ. P. 11(b). In Gym Door, none of the aforementioned conditions applied to the conduct of the defendants, even if the records had been improperly withheld.

Second, the court took issue with the plaintiffs’ failure to “provide the requisite 21-day safe harbor notice required under Rule 11 . . .” Gym Door, supra, at *1. Rule 11(b)(2) prohibits a motion for sanctions to be filed with the court unless notice has been given to the offending party and a 21-day period is afforded for correction of the violation. Fed .R. Civ. P. 11(b)(2).

Finally, “a motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b).” Id. In Gym Door, the plaintiffs sought sanctions in conjunction with a motion filed under Rule 37. The court strictly interpreted the text of Rule 11 as prohibiting the combination of Rule 11 relief with that afforded by Rule 37. Gym Door, supra, at *1.

The lesson to be learned from Gym Door is straightforward but instructive: Attorneys should take extra precaution when seeking sanctions under Rule 11. The rules of civility would seem to suggest that motions for sanctions under Rule 11 not only be filed sparingly but, when appropriate, should (1) be submitted to the court in accordance with the procedural prerequisites of the rule’s text and (2) result from violations of the substantive assurances that the rule governs.

Michael Stefanilo Jr. is a partner at Brody, Hardoon, Perkins & Kesten, LLP in Boston, Massachusetts. 


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