Gordon v. Unifund Ccr Partners

• Citation: 345 F.3d 1028
• Decision Date: 10 October 2003
• Docket Number: No. 03-1402.,03-1402.
• Parties: Gardenia GORDON, Appellant, v. UNIFUND CCR PARTNERS, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1028

345 F.3d 1028

Gardenia GORDON, Appellant, v. UNIFUND CCR PARTNERS, Appellee.

No. 03-1402.

United States Court of Appeals, Eighth Circuit.

Submitted: September 11, 2003.

Filed: October 10, 2003.

Roy B. True, Kansas City, MO, for appellant.

Elizabeth A. Finkelstein, St. Louis, MO, for appellee.

Before MORRIS SHEPPARD ARNOLD, BEAM, and BYE, Circuit Judges.

BEAM, Circuit Judge.

The district court imposed sanctions against Gardenia Gordon's counsel (Appellant) following the dismissal of this case. Because Unifund did not request Rule 11 sanctions in a separate motion and did not follow the twenty-one day safe harbor rule set forth in Federal Rule of Civil Procedure 11(c)(1)(A), we hold that the district court abused its discretion in granting sanctions.

I. BACKGROUND

On November 27, 2000, the district court ordered Gordon to show cause why this case should not be dismissed for failure to prosecute because the docket had no record of service on Defendants. Gordon responded to the order on November 28, 2000, attaching proof of service on defendant Unifund, stating that Unifund had filed an answer, and acknowledging that Gordon had been unable to serve defendant Kort. Then, on December 11, 2000, Gordon filed a motion for default judgment based upon information that the district court docket showed no record of Unifund's answer.

Unifund filed a responsive pleading to Gordon's motion for default on December 26, 2000, arguing that it had answered, and attaching an August 21, 2000, date-stamped copy of that answer as an exhibit. In that same pleading, Unifund also sought sanctions against Appellant for filing and/or refusing to withdraw his motion for default. In support of its request, Unifund attached correspondence between the parties demonstrating that Appellant previously received a copy of Unifund's answer and thus had no basis for filing the motion for default. Unifund's answer had never appeared on the clerk's docket. Unifund later discovered that although the clerk's office received the pleading, the clerk inadvertently filed it in another case. Unifund attached copies of correspondence between it and Appellant demonstrating that Appellant was well aware of the potential "mix up," and that Unifund repeatedly asked Appellant to withdraw the motion or face sanctions.

In response, Appellant maintained that he had no other choice but to file the motion for default judgment because the file-stamped copy of Unifund's answer that he received was not proof of filing. Serving opposing counsel does not suffice as timely filing, and the district court had no record of filing. Appellant argued he was "simply playing by the rules."

The district court recognized that the clerk misfiled the answer and that Appellant had sufficient proof of such misfiling. The district court further concluded that Appellant was aware of the clerical error and had no reason to question the validity of the date-stamped answer by filing the motion for default. Because the correspondence between the parties' attorneys illustrated that Appellant engaged in dilatory tactics by filing the motion for default, the district court granted Unifund's request for sanctions. After the case was dismissed well over one year later, the court ordered Appellant to pay a monetary sanction and attorneys' fees totaling $4,700, with one-half paid to Unifund and one-half paid to Legal Aid.

II. DISCUSSION

Pursuant to the plain language of Federal Rule of Civil Procedure 11(c)(1)(A), party-initiated motions for sanctions "shall be made separately from other motions or requests and shall describe the specific conduct." Further, the motion is to be served pursuant to federal service requirements, but not filed with or presented to the court "unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged ... allegation ... is not withdrawn or appropriately corrected." Id.

The rule provides that requests for sanctions must be made as a separate motion, i.e., not simply included as an additional prayer for relief contained in another motion.... These provisions are intended to provide a type of "safe harbor" against motions under Rule 11 in that a party will not be subject to sanctions on the basis of another party's motion unless, after receiving the motion, it refuses to withdraw that position or to acknowledge candidly that it does not currently have evidence to support a specified allegation.

Fed.R.Civ.P. 11, Advisory Committee Notes (1993 Amendments) (emphasis added).

In this case, Appellant filed his motion for default judgment on December 11, 2000. On December 15, 2000, Unifund e-mailed Appellant, stating that if the motion for default judgment was not withdrawn, Unifund would request appropriate fees under Rule 11. Unifund made a final attempt to persuade Appellant to withdraw the motion for default judgment in a letter dated December 20, 2000, and requested Rule 11 sanctions on December 26, 2000, in its memorandum in reply to Appellant's motion for default judgment. Unifund did not, as Rule 11(c)(1)(A) requires, serve Appellant with a copy of its proposed Rule 11 motion, providing Appellant notice to withdraw the challenged motion twenty-one days prior to Unifund's filing of a motion with the court. Nor did Unifund file its motion for sanctions separately as required by Rule 11(c)(1)(A). Unifund merely requested sanctions in its responsive memorandum to the...