Author
Edward D. Cavanagh

Citation
Edward D. Cavanagh, Mandating Rule 11 Sanctions? Here We Go Again!, 74 Wash. & Lee L. Rev. Online 31 (2017)

Published
June 20, 2017

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The House of Representatives has passed H.R. 720, a bill that would amend Rule 11 of the Federal Rules of Civil Procedure by re‑instituting mandatory sanctions for Rule 11 violations and essentially restoring Rule 11 to its contents under the 1983 amendments to the Federal Rules of Civil Procedure. The legislation would mandate imposition of monetary sanctions and eliminate any restrictions on when a Rule 11 motion could be filed. The bill would thus scuttle the 1993 Amendments, which (1) entrusted the sanctions decision to the sound discretion of the trial court; (2) provided a 21‑day safe harbor period that barred the filing of any sanctions motion until 21 days after the Rule 11 motion had been served; and (3) required that the sanction imposed be fashioned so as to deter future Rule 11 transgressions. Accordingly, H.R. 720 would deny trial courts leeway both in deciding whether to impose sanctions and in designing the sanction in a given case.

This article argues that: (1) the case for re-instituting mandatory sanctions has not been made, and the drafters of the bill point to no developments in federal civil litigation during the past 25 years that call for mandatory sanctions under Rule 11; (2) mandatory sanctions are counterproductive in that they serve to increase costs, lead to delays in resolution of cases, and create a hostile litigation environment; (3) mandatory sanctions are fundamentally unfair; and (4) any changes in Rule 11 are best made through rule-making rather than legislation. In the end, mandatory sanctions create more problems than they solve.