Roth v. Green - 466 F.3d 1179 (10th Cir. 2006)

Rule:

Fed. R. Civ. P. 11 provides that requests for sanctions must be made as a separate motion, i.e., not simply included as an additional prayer for relief in another motion. The motion for sanctions is not, however, to be filed until at least 21 days (or such other period as the court may set) after being served. These provisions are intended to provide a type of "safe harbor" against motions under Rule 11 in that a party will not be subject to sanctions on the basis of another party's motion unless, after receiving the motion, it refuses to withdraw that position or to acknowledge candidly that it does not currently have evidence to support a specified allegation. To stress the seriousness of a motion for sanctions and to define precisely the conduct claimed to violate the rule, the 1993 revision provides that the "safe harbor" period begins to run only upon service of the motion. In most cases, however, counsel should be expected to give informal notice to the other party, whether in person or by a telephone call or letter, of a potential violation before proceeding to prepare and serve a Rule 11 motion. 

Facts:

Plaintiffs Stephen Roth and Ellen Gumeson, represented by attorney Robert Mulhern, filed suit under 42 U.S.C. § 1983 against various Colorado municipalities, counties, and local and state employees, arguing that the stop and search of their car, as well as their ensuing arrest, was unconstitutional. The district court granted defendants' motions to dismiss and/or for summary judgment. Roth and Gumeson appealed. While the appeal was pending the district court granted defendants' motions for sanctions and fees against attorney Mulhern.

Issue:

Did the district court err in granting defendants' motions for Fed. R. Civ. P. 11 sanctions against Mulhern?

Answer:

Yes

Conclusion:

The court noted that, although defendants all sent Mulhern warning letters well in advance of filing their motions for sanctions, it was uncontroverted that they did not, as required by Fed. R. Civ. P. 11(c)(1)(A), serve him with copies of their actual motions for sanctions twenty-one days prior to filing those motions. Reversing, the court concluded that defendants' letters were not sufficient to satisfy the requirements of subsection (c)(1)(A), and thus the district court abused its discretion in granting defendants' motions for Fed. R. Civ. P. 11 sanctions. Further, the motions for sanctions should have been denied because they were not filed until after the district court had dismissed the complaint. In the second appeal, Roth and Gumeson contended that the district court, in determining the reasonableness of the fee award, abused its discretion by failing to take into account their inability to pay. Vacating the award, the court held that Roth and Gumeson’s ability to pay was not a relevant factor in determining whether to award fees, but was a relevant factor for the district court to consider in determining the amount of the fee award.