In Martin Leigh PC  v.  Leyh, No. 22-1975 (8th Cir. Apr. 3, 2024), an Eighth Circuit panel holds that when a party had already been dismissed from an action for two months, it is too late to invoke Rule 11 by operation of the Fed. R. Civ. P. 11(c)(2) 21-day safe-harbor provision.

“On October 5, 2018, almost two months after being dismissed from the case, [defendant] Martin Leigh served [plaintiff’s attorney] Leyh with a motion for sanctions and a letter warning that the motion would be filed with the district court after thirty days ‘unless [the issue was] resolved to the firm’s satisfaction.’ Martin Leigh then filed the motion for sanctions on November 16, 2018. Just two weeks later, Leyh filed a motion to dismiss the sanctions motion for lack of subject matter jurisdiction. In his written reply to the motion, Leyh noted that he had not been given the opportunity to respond to the safe harbor letter . . . . Leyh quoted the Advisory Committee’s Note for Rule 11, which states, ‘a party cannot delay filing its Rule 11 motion until conclusion of the case (or judicial rejection of the offending contention).’”

Notwithstanding the belated filing, the district court awarded sanctions: a $50,000 penalty and $107,710.10 in attorney fees.

The Eighth Circuit reverses and remands. The panel acknowledges that the sanctioned attorney’s “tactics . . . were an abuse of the legal system,” possibly subject to 28 U.S.C. § 1927, inherent powers, or other sanctions provisions. All the same, the panel holds that the formalities of Rule 11(c)(2) must be observed to invoke Rule 11. “Martin Leigh served its motion for sanctions on October 5, 2018, a month and a half after it had been dismissed from the case. Thus, Leyh was not afforded an opportunity to remedy the sanctionable conduct and avoid the sanction.”

The district court “speculated that even if Leyh had been given the opportunity, he would not have dismissed the claims, given his colorable record in this case. But assumptions do not excuse compliance with the text of Rule 11.”

The district court also found that there was substantial compliance with the safe-harbor provision when the defendant “cited potential Rule 11 problems in its motion for summary judgment,” and thus put counsel “on notice of these concerns and should have withdrawn the offensive pleadings after receiving the warning.” Yet “Rule 11 specifically says, ‘[t]he motion must be served’ on the other party 21 days before being filed in court,” so “a single sentence about potential violations does not comply with the text of Rule 11.”

Finally, though the Advisory Committee’s Notes recommends informal notice to the other party, “informal notice is only a ‘professional courtesy,’ Penn, LLC v. Prosper Bus. Dev. Corp., 773 F.3d 764, 767 (6th Cir. 2014), not the official notice that starts the 21–day safe harbor period. It is clear from the plain language of the rule that, in order for the district court to contemplate imposing Rule 11 sanctions, the offending party can receive official notice only through a proposed motion, which ‘unambiguously alerts the recipient’ of the sending party’s intentions.”