Frivolous Case Analysis

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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.

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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.