Frivolous
Case Analysis
Sept.
27, 2006
The
court gave two options for how the defendant could have recovered
sanctions because of the frivolous suit: move for sanctions under
the old law prior to July 1, 2005; or move for sanctions under
the new law between July 1, 2005 and the summary judgment hearing
on July 5.
Actually,
however, only the first option would likely be feasible. Under
the new law, a party must give his opponent 21 days to withdraw
the purportedly frivolous claim before moving the court for sanctions.
Here,
the summary judgment hearing was held, and summary judgment granted,
on July 5, 2005. Thus, a request for sanctions made after July
1 could not comply with the 21-day safe harbor.
The
court in the case at bar cites Ridder v. City of Springfield,
109 F.3d 288 (6th Cir. 1997), with approval.
In
Ridder, the court addressed this very scenario, stating, “A
party must now serve a Rule 11 motion on the allegedly offending
party at least twenty-one days prior to conclusion of the case
or judicial rejection of the offending contention. If the court
disposes of the offending contention before the twenty-one day
‘safe harbor’ period expires, a motion for sanctions
cannot be filed with or presented to the court. Any other interpretation
would defeat the rule’s explicit requirements.” Ridder,
109 F.3d at 295.
Thus,
a motion filed four or less days before summary judgment is granted
could not comply with the safe harbor provision.
At
some point, an attorney is going to file a sec. 802.05 motion
on his opponent, and even though summary judgment is granted less
than twenty-one days later, the attorney will seek sanctions from
the court.
At
this point, the court will have a problem: the language from Ridder
makes clear that the safe harbor provision was not complied with;
but the language from the court of appeals in the case at bar
will suggest that it was. The court will have to decide whether
the court of appeals’ language is binding precedent or dicta.
-
David Ziemer
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David
Ziemer can be reached by email.
