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Frivolousness Case Analysis

By: dmc-admin//July 16, 2007//

Frivolousness Case Analysis

By: dmc-admin//July 16, 2007//

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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.

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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.

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David Ziemer can be reached by email.

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