Rector v. Approved Federal Savings Bank
| Decision Date | 06 June 2001 |
| Docket Number | No. 01-1191,01-1191 |
| Citation | 265 F.3d 248 |
| Parties | (4th Cir. 2001) EDWIN RECTOR; EDWIN RECTOR, Trustee; EDWIN RECTOR 1995 CHARITABLE REMAINDER TRUST, Plaintiffs-Appellants, v. APPROVED FEDERAL SAVINGS BANK; APPROVED FINANCIAL CORPORATION; ALLEN D. WYKLE; STEPHEN R. KINNIER, Defendants-Appellees, and COOPERS & LYBRAND, LLP; PRICE WATERHOUSE; PATRICK M. BARBERICH; GRAY LAMBE, Defendants. Argued: |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeal from the United States District Court for the Eastern District of Virginia at Alexandria. Claude M. Hilton, Chief District Judge.
Affirmed by published opinion. Judge Gregory wrote the majority opinion, in which Judge Williams joined. Judge King wrote a dissenting opinion.
COUNSEL ARGUED: Thomas Hunt Roberts, THOMAS H. ROBERTS & ASSOCIATES, P.C., Richmond, Virginia, for Appellants. Glen Michael Robertson, PAYNE, GATES, FARTHING & RADD, P.C., Norfolk, Virginia, for Appellees.
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
In this case of first impression, we must decide whether the 21-day "safe harbor" provision of Fed. R. Civ. P. 11 is a non-waivable rule of jurisdiction. We hold that it is not a jurisdictional rule and affirm the district court's assessment of sanctions.
On April 9, 1999, Virginia attorney Edwin Rector ( "Rector"), personally and as trustee for the Edwin Rector 1995 Charitable Remainder Trust ("the Trust"), filed suit against Approved Financial Corporation, Approved Financial Federal Savings Bank, Coopers and Lybrand, PriceWaterhouse Coopers, Allen D. Wykle, Stephen R. Kinner, Peter Coode, Patrick M. Barberich, and Gray Lambe (collectively "Approved"), seeking "at least 60 billion dollars" in compensatory damages and an additional 20 billion dollars in punitive damages. The suit arose from a 1995 agreement in which Rector and the Trust agreed to sell to Approved all of Rector's majority interest in First Security Federal Savings Bank. Closing occurred on September 11, 1996. Rector and the Trust claimed that the contract required Approved to pay "at least 20 billion dollars" more than the $3,157,743 purchase price.
On July 3, 1999, the district court dismissed Rector and the Trust's conspiracy, RICO, and fraud claims, finding that they failed to state fraud and RICO with particularity and that no private right of action existed for bank fraud under 18 U.S.C. S 1344. The order allowed Rector and the Trust to file an amended complaint, which they did on August 10, 1999. Among other things, Rector and the Trust amended the complaint by changing the ad damnum clause from 60 billion dollars to "an infinite amount of money." On September 17 1999, the district court granted Approved's motion to dismiss all claims.
On September 27, 1999, Approved filed a motion for sanctions under Fed. R. Civ. P. 11. The motion states that Approved served it on Rector and the Trust on June 11, 1999. In this appeal, though, Rector and the Trust contend that they did not receive the motion until September 27, 1999, in contravention of the 21-day "safe harbor" provision of Rule 11. Approved concedes that it "cannot now confirm the notice was [served] as intended." Appellees' Br. at 4 n.2. Rather, Approved states that
[o]n June 11, 1999, [Approved] served[Rector and the Trust] with [its] Objections to Plaintiffs' First Request for Production of Documents, [its] initial Motion to Dismiss . .. and [its] Memorandum in Support of such motion. [It] also believed that the Federal Express package containing these three items also included a Notice of Motion and Motion for the Award of Litigation Expenses and so certified that pleading. . . . [Approved] cannot confirm that the notice and motion were included in the June 11, 1999 Federal Express packet as intended and as believed and it is possible that a clerical error resulted in their inadvertent omission.
Appellees' Br. at 16 n.4. Additionally, counsel for another party submitted an affidavit stating that he was not served with the motion until September 27, 1999.
Importantly, though, Rector and the Trust's opposition to the motion for sanctions argued only that they conducted an appropriate pre-filing investigation. They did not argue that the motion failed to comply with the 21-day "safe harbor" provision of Rule 11.
On January 14, 2000, the district court entered a Memorandum Order granting Approved's motion for sanctions and attorney's fees and ordering Rector and the Trust to pay Approved $33,503.82. Rector v. Approved Financial Corp., Civil Action No. 99-499-A (E.D. Va. Jan. 14, 2000). On appeal, though, this Court vacated and remanded the suit, explaining that the district court applied an incorrect standard in assessing the amount of the sanction. Rector v. Wykle, 230 F.3d 1353, 2000 WL 1294238 (4th Cir. 2000) (unpublished). The Court vacated the district court's judgment and remanded the matter "so that the district court may apply the proper standard in assessing the Rule 11 sanctions." Id. at *1. Notably, on appeal, Rector and the Trust did not argue that the sanctions motion failed to comply with the Rule's "safe harbor" provision.
During Rector's deposition following remand, he testified that the Trust contained assets of "something over" $1,000,000, that he is the Trust's sole income beneficiary, and that the Trust pays him two distributions annually in an amount equaling twelve percent of the Trust's assets. Rector testified that he received approximately $230,000 in income distributions from the Trust in 1999, received approximately $100,000 on June 30, 2000, and would receive the same amount on December 31, 2000. Rector testified that he also has several checking and savings accounts in a combined amount of approximately $163,000, and that he owns his home and a condominium in Florida. He pays approximately $2,000/month on the home mortgage and approximately $450/month on the condominium mortgage, which represent his only liabilities. Rector further testified that he is not married and has no financial dependents, and that the Trust similarly has no significant liabilities.
On this record, and without any argument by Rector or the Trust about Approved's service of the Rule 11 motion, the district court once again imposed a sanction of $33,503.82. Rector v. Approved Financial Corp., Civil Action No. 99-499-A (E.D. Va. January 4, 2001). In its January 4, 2001 Memorandum Opinion, the district court explained that
[t]he dismissal of the Complaints in their entirety, the find ing of Rule 11 liability for frivolous claims and the finding that the attorney's fees and costs sought were reasonable, supports this award of sanctions under Rule 11. In view of Rector's deposition concerning his and the Trust's ability to pay and the continuing litigation in state court after imposi tion of the sanction, it is clear that all of the elements of the [In re] Kunstler[, 914 F.2d 505 (4th Cir. 1990),] analysis have been met and the amount of the sanction is appropriate.
A district court's decision to impose Rule 11 sanctions is reviewed for abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 400-01 (1990). Thus, we review the district court's factual findings for clear error, id. at 401, and its legal conclusions de novo. Id. at 402.
The only meritorious argument raised in this appeal is whether the 21-day "safe harbor" provision of Rule 11 is a non-waivable jurisdictional rule. Under Fed. R. Civ. P. 11(c)(1)(a), a Rule 11 motion for sanctions "shall be served [on the opposing party] but shall not be filed with or presented to the court unless, within 21 days after service of the motion . . ., the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected." The Rule further provides that the motion "shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate" the Rule. Fed. R. Civ. P. 11(c)(1)(a).
Congress amended Rule 11 in 1993 by adding the 21-day "safe harbor" provision. The primary purpose for this amendment was to provide immunity from sanctions to those litigants who self-regulate by withdrawing potentially offending filings or contentions within the 21-day period. See, e.g., Ridder v. City of Springfield, 109 F.3d 288, 294 (6th Cir. 1997). The Advisory Committee Notes to Rule 11's 1993 Amendments explain that the
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 cur rently have evidence to support a specified allegation. Under the former rule, parties were sometimes reluctant to abandon a questionable contention lest that be viewed as evidence of a violation of Rule 11; under the revision, the timely with drawal of a contention will protect a party against a motion for sanctions.
Fed. R. Civ. P. 11 Advisory Committee Notes (1993 Amendments). Through this self-regulation, the amendment also worked "to reduce the number of motions for sanctions presented to the court." Fed. R. Civ. P. 11 Advisory Committee Notes (1993 Amendments).
Several courts have termed the "safe harbor" provision "mandatory" or an "absolute requirement." See Ridder, 109 F.3d at 294 (); Aerotech, Inc. v. Estes, 110 F.3d 1523, 1529 (10th Cir. 1997) (); Elliot v. Tilton, 64 F.3d 213, 216 (5th Cir. 1995) (same); Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1328 (2nd Cir. 1995) (); Thomas v. Treasury Management Ass'n, 158 F.R.D. 364, 369 (D. Md. 1994) (...
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