Frivolousness
Case Analysis
July
16, 2007
If
nothing else comes of this case, it should be expected that, the next time the
court makes a rule change, it will consider whether its application should be
retroactive and state so explicitly.
Even
if the court doesn’t, however, the court has issued an opinion that will
provide guidance for lower courts in deciding whether a new rule is retroactive.
Most
helpful, it declared the Wisconsin standard — whether retroactive application
would impose an unreasonable burden on the party — to be the equivalent of
the federal standard — whether retroactive application is “just and
practicable.”
As
a result, lower courts and attorneys have a wide range of federal court decisions
to cite as persuasive authority.
The
downside is the court doesn’t offer much itself as to when retroactive application
would impose an unreasonable burden, other than to cite to the federal courts.
The
dissent of Judge Anderson at the court of appeals, holding that retroactive application
would be unreasonable in this case, would have been more helpful.
The
defendant had two real options in this case, other than the one it chose: move
for sanctions under the old law prior to July 1, 2005; or move for sanctions under
the new law after July 1, 2005 but before the summary judgment hearing on July
5.
The
latter is wholly impracticable. 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.
This
very scenario arose in the federal case of Ridder v. City of Springfield, 109
F.3d 288 (6th Cir. 1997), after the new Rule 11 was adopted.
The
court wrote, “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 fewer days before summary judgment is granted could not
comply with the safe harbor provision.
The
first option fares slightly better, but would still would have been burdensome.
The
new rule was adopted Mar. 31, 2005, effective July 1, 2005. Thus, the defendant
could have filed a motion for frivolousness during that three-month period. Instead,
the defendant moved for summary judgment on April 5, 2005.
One
of the main reasons why the Supreme Court changed the rules was to expedite findings
of frivolousness. Under the old rules, parties waited until after they won their
cases, and then moved for attorney fees and costs. Filing a frivolousness motion
while a summary judgment motion was pending would have been viewed by a circuit
court as putting the cart before the horse.
A court
presented with a motion for attorney fees and costs while the summary judgment
motion was pending would likely have deferred its consideration until after considering
the summary judgment anyway, concluding that the best way to determine whether
the action is frivolous is to decide the summary judgment motion.
A
main purpose of the new rule was to encourage parties to file such motions early
in proceedings, before the parties incur exorbitant attorney fees, and to not
allow waiting until proceedings have concluded — the standard time under
the old rule.
Thus,
while it would not necessarily have been an unreasonable burden on the defendant
to have filed a frivolousness motion prior to July 1, 2005, it would have been
contrary to general practice in the circuit courts.
In
fact, it would have been contrary to the general practice that the new rule was
designed to change. Thus, remanding the matter to the circuit court, rather than
squarely addressing whether it would have been unreasonably burdensome, itself
unnecessarily prolongs proceedings that two lower courts have already found frivolous.
Click
here for Main Story.
David
Ziemer can be reached by email.
