Can I Recover Attorneys’ Fees For An Opponent’s Rule 11 Violation?

Every litigator is aware of, or should be aware of, Federal Rule of Civil Procedure 11 (“Rule 11”), a rule which has long been the subject of commentary and criticism. Rule 11 requires an attorney who presents a pleading, written motion, or other paper to a court to certify that (1) the paper is not presented for an improper purpose, and (2) reasonable inquiry has been made into the factual and legal contentions. Sanctions may be imposed when the certification is deemed false.

Although in existence for many decades, Rule 11 was rarely invoked until it was amended in 1983. The 1983 amendments encouraged courts to award sanctions and opened the door to widespread Rule 11 litigation. After this amendment, there was a dramatic increase in motions for sanctions. Following this surge in sanctions litigation, the rule was amended again in 1993.

The current rule allows for attorneys’ fees as a possible sanction. However, practitioners should be aware of the amended rule’s significant limitations:

  1. Rule 11 applies only to motions, pleadings, and papers filed with the court.
  2. There is a 21 day safe harbor. After serving the opposing party with a Rule 11 motion, the moving party must wait 21 days before filing the motion with the court, giving the other party an opportunity to cure the alleged violation by withdrawing or correcting its papers.
  3. The “main objective of the Rule is not to reward parties who are victimized by litigation; it is to deter baseless filings and curb abuses.” The amendments to the rules make clear that a court is discouraged from awarding monetary sanctions to the other party except in “unusual circumstances.”

Furthermore, any party looking to file a Rule 11 sanctions motion must be sure to have a strong argument against his or her opponent –sanctions may also be imposed against the party who files a frivolous sanctions motion.

The bottom line? Rule 11 may provide an option to recover fees where the other party files a clearly non-meritorious paper, but is not a viable option for recovering fees in most circumstances.


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Turning the Tables: Effective Strategies for Shifting the Burden of Attorneys’ Fees

Further Reading and References:

Fed. R. Civ. P. 11.

Nuvasive, Inc. v. Madsen Medical, Inc., 2015 WL 5638210, at *3 (S.D. Cal. Sept. 24, 2015); NCC Business Services, Inc. v. Lemberg & Associates, LLC, 2015 WL 5553773 (M.D. Fla. Sept. 18, 2015).

Bus. Guides, Inc. v. Chromatic Commc’ns Enters., Inc., 498 U.S. 533, 553-54 (1991) (citations omitted).

Fed. R. Civ. P. 11, Notes of Advisory Committee on Rules-1993 Amendment.