EDWIN RECTOR; EDWIN RECTOR, Trustee; EDWIN RECTOR 1995 CHARITABLE REMAINDER TRUST v. Approved Federal Savings Bank

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 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. No. 01-1191 
KINNIER,
Defendants-Appellees,
and
COOPERS & LYBRAND, LLP; PRICE
WATERHOUSE; PATRICK M.
BARBERICH; GRAY LAMBE,
Defendants. 
Appeal from the United States District Court
for the Eastern District of Virginia at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-99-499-A)
Argued: June 6, 2001
Decided: September 11, 2001
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Gregory wrote the majority
opinion, in which Judge Williams joined. Judge King wrote a dissent-
ing opinion.

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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.
OPINION
GREGORY, Circuit Judge:
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.
I.
On April 9, 1999, Virginia attorney Edwin Rector ("Rector"), per-
sonally and as trustee for the Edwin Rector 1995 Charitable Remain-
der Trust ("the Trust"), filed suit against Approved Financial
Corporation, Approved Financial Federal Savings Bank, Coopers and
Lybrand, PriceWaterhouse Coopers, Allen D. Wykle, Stephen R. Kin-
ner, 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. § 1344. The order allowed
Rector and the Trust to file an amended complaint, which they did on
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August 10, 1999. Among other things, Rector and the Trust amended
the complaint by changing the ad damnum clause from 60 billion dol-
lars 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, Rec-
tor and the Trust contend that they did not receive the motion until
September 27, 1999, in contravention of the 21-day "safe harbor" pro-
vision 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 sub-
mitted 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. Rec-
tor v. Approved Financial Corp., Civil Action No. 99-499-A (E.D.
Va. Jan. 14, 2000). On appeal, though, this Court vacated and
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remanded the suit, explaining that the district court applied an incor-
rect 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 dis-
tributions 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 condomin-
ium in Florida. He pays approximately $2,000/month on the home
mortgage and approximately $450/month on the condominium mort-
gage, 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
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[In re] Kunstler[, 914 F.2d 505 (4th Cir. 1990),] analysis
have been met and the amount of the sanction is appropriate.
II.
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 find-
ings 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 jurisdic-
tional 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 har-
bor" provision. The primary purpose for this amendment was to pro-
vide 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-
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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 "manda-
tory" or an "absolute requirement." See Ridder, 109 F.3d at 294 (safe
harbor provision is "absolute requirement"); Aerotech, Inc. v. Estes,
110 F.3d 1523, 1529 (10th Cir. 1997) (safe harbor provision is "man-
datory"); 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)
(reversing sanctions award in part because no evidence indicated
compliance with safe harbor period); Thomas v. Treasury Manage-
ment Ass’n, 158 F.R.D. 364, 369 (D. Md. 1994) (finding that failure
to comply with the "absolute[ ] prerequisite" of the safe harbor provi-
sion precludes imposition of sanctions).
While these cases may stand for the proposition that the safe harbor
provision is mandatory, they do not stand for the proposition that it
is jurisdictional.1 Not only do the cases fail to define the requirement
as a rule of jurisdiction, but nothing in the language of the Rule sup-
ports such a conclusion. While Rule 11 does, indeed, state that a sanc-
tions motion "shall be served" at least 21 days before it is filed, the
Rule also states that the motion "shall be made separately from other
motions" and "shall describe the specific conduct" violating Rule 11.
Fed. R. Civ. P. 11(c)(1)(a) (emphasis added). Neither Rector nor the
Trust contends that federal courts lack jurisdiction over Rule 11
motions that are not "made separately from other motions" or those
that do not "describe the specific conduct" purportedly violating Rule
11. The use of the word "shall" is not determinative to this analysis.
Further evidence that the safe harbor provision is not jurisdictional
is found in the Advisory Committee Notes accompanying Rule 11.
The Notes explain that the safe harbor provision was added to Rule
1Despite its assumptions to the contrary, the dissent concedes that none
of these cases held the safe harbor provision jurisdictional. Post at 13-14.
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11, in part, to help reduce the number of sanctions motions filed in
the courts. The number would be reduced not by narrowing the
courts’ jurisdiction, but by giving litigants a specific amount of time
in which to withdraw an offending filing or allegation before a motion
is filed. As the Notes explain, "[u]nder 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 withdrawal of a contention will protect a party against a
motion for sanctions." Fed. R. Civ P. 11 Advisory Committee Notes
(1993 Amendments). This, in turn, would "reduce the number of
motions for sanctions presented to the courts." Id. Nothing in the
Advisory Committee Notes suggests that the number of motions filed
would be reduced by narrowing the power of the federal courts to
address such motions. The Notes simply do not address the courts’
authority to entertain Rule 11 motions, regardless of whether the
motions were filed in compliance with or in violation of the safe har-
bor provision.
An analogy can be drawn to the statutes of limitation context. A
statute of limitation requires a litigant to file a claim within a speci-
fied period of time. If the litigant files the claim after the time period
expires, the defendant may assert the statute of limitation as an affir-
mative defense. Importantly, the litigant’s untimely filing does not
preclude the court from addressing the claim; the court does not lack
jurisdiction simply because the litigant filed an untimely claim.
Rather, the court may address the claim, limited only by the defen-
dant’s assertion of a statute of limitation defense. Moreover, the
defendant may waive the defense by failing to raise it.
Similarly, a movant filing under Rule 11 must serve the motion at
least 21 days before filing it with the court. If the movant files the
motion less than 21 days after giving notice, the party against whom
the motion is filed may assert the 21-day safe harbor provision as a
defense. Should the litigant fail to do so, the defense is waived.
A distinction, on the other hand, can be made with Fed. R. App.
P. 4, which states that, "[i]n a civil case . . . the notice of appeal . . .
must be filed with the district court clerk within 30 days after the
judgment or order appealed from is entered." Courts clearly consider
the Rule’s 30-day limitation "mandatory and jurisdictional." Browder
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v. Director, Dep’t. of Corrections, 434 U.S. 257, 264 (1978); Shah v.
Hutto, 722 F.2d 1167, 1167 (4th Cir. 1983) (en banc). No court,
though, has used such language to describe Rule 11’s safe harbor pro-
vision, instead calling it merely "mandatory" or an "absolute prerequi-
site."
Moreover, a significant difference exists between Fed. R. App. P.
4 and Fed. R. Civ. P. 11. Rule 4 "set[s] a definite point of time when
litigation shall be at an end, unless within that time the prescribed
application has been made; and if it has not, to advise prospective
appellees that they are freed of the appellant’s demands." Browder,
434 U.S. at 264 (quoting Matton Steamboat Co. v. Murphy, 319 U.S.
412, 415 (1943)). Rule 4 allows for finality by requiring the filing of
a document with the court within a specific period of time. Rule 11,
on the other hand, does no such thing, merely instructing litigants
about the time periods involved in the service and filing of a motion
for sanctions.
Accordingly, we hold that the 21-day safe harbor provision of Rule
11 is not jurisdictional and may be waived.2 Here, it is undisputed that
2Even if we were to find the safe harbor provision a jurisdictional rule,
we nonetheless would find it waivable. While subject matter jurisdiction
"delimits federal-court power" and serves institutional interests by
"keep[ing] the federal courts within the bounds" prescribed by the Con-
stitution and Congress, it "must be policed by the courts" at all times and,
thus, is not waivable. Ruhrgas, AG v. Marathon Oil Co., 526 U.S. 574,
583 (1999). On the other hand, personal jurisdiction restricts a court’s
jurisdiction over the person, "protect[ing] individual rights." Id. Personal
jurisdiction "represent[s] a restriction on judicial power . . . as a matter
of individual liberty." Id. at 584. Thus, "a party must insist that the limi-
tation be observed, or he may forgo that right, effectively consenting to
the court’s exercise of adjudicatory authority." Id. (quoting Insurance
Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694,
702 (1982)). Accordingly, personal jurisdiction is waivable. Id.
Here, the safe harbor provision was added to Rule 11 primarily to pro-
vide litigants the opportunity of avoiding sanctions by withdrawing
offending filings or contentions within the 21-day period and, thereby,
reducing the number of sanctions motions brought before the courts. See,
e.g., Ridder, 109 F.3d at 294. Thus, the provision protects litigants; it
does not establish a structural limitation on the power of the courts.
Accordingly, it was incumbent upon Rector and the Trust to "insist that
the limitation be observed, or . . . forgo that right[.]"
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neither Rector nor the Trust objected to Approved’s service of the
Rule 11 motion until the case reached this Court on its second appeal,
after remand.3 Neither Rector nor the Trust raised the argument to the
district court in the first instance nor raised it to this Court in their
first appeal. When presented with that appeal, we vacated the district
court’s opinion and remanded solely "so that the district court may
apply the proper standard in assessing the Rule 11 sanctions." Rector,
2000 WL 1294238 at *1. Our remand order did not allow the district
court to consider any issue other than the proper assessment of the
sanction amount.4 Rector and the Trust’s failure to raise Approved’s
failure to comply with the 21-day safe harbor provision in the district
court in the first instance constituted a waiver of this argument.
III.
For the foregoing reasons, the judgment of the district court is
affirmed.5
AFFIRMED
3The dissent refers to Rector and the Trust as "hapless" victims, Post
at 10, without any fault for any of the judicial events occurring after June
11, 1999, the date on which Approved purportedly served its Rule 11
motion. Post at 14, 16. In fact, Rector and the Trust are primarily at fault
for virtually every event that occurred after that date. Had they merely
notified the district court on or after September 27, 1999, when
Approved filed its Rule 11 motion, that Approved failed to comply with
the safe harbor provision, every event that occurred thereafter (including
this appeal) could have been avoided.
4Curiously, the dissent fails to even mention our previous opinion in
this case, Rector, 2000 WL 129438, which reviewed the merits of the
sanctions award and remanded and vacated the decision on the sole issue
of the amount of the sanctions award. Following remand, the only issue
before the district court, and before this Court on appeal, is the calcula-
tion of the sanction amount, not the propriety of the sanction award.
5We have reviewed Rector and the Trust’s remaining arguments and
find them to be equally without merit.
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KING, Circuit Judge, dissenting:
Stripped to its essence, the question before us is not whether a
party may defeat a motion for Rule 11 sanctions by complaining it has
received insufficient notice of the proceeding against it, and therefore
no meaningful opportunity to cure the alleged defect in its submission
to the court. The language of the Rule is plain, and the majority does
not contend otherwise: "A motion for sanctions under this rule . . .
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." Fed. R. Civ. P. 11(c)(1)(A) (emphasis added).
Rather, the question is whether any action (or inaction) on the part
of the party against whom sanctions are sought can somehow justify
disregarding Rule 11’s mandatory "safe harbor" provision, thereby
vitiating the institutional protections it affords. In this case, the major-
ity penalizes a hapless plaintiff for invoking the Rule only belatedly.
As a result, the defendants’ counsel — who was at least as much
responsible for protracting the unfortunate proceedings below — not
only escapes sanction for his lack of diligence, but delivers his clients
a windfall. Because I cannot subscribe to the "ignore it and hope it
goes away" approach advocated by the defendants and adopted by the
majority, I am constrained to dissent.
I.
It is, admittedly, difficult to marshal a meaningful response to the
majority’s implacable decree that the elementary command "shall
not" means something other than what it manifestly says. How should
one acknowledge the dawning reality that "[r]ed is grey and yellow
white?"1 I have no facile answer.
It is not as if others have paved the way gradually for the majori-
ty’s frolic into Wonderland.2 Up to now, every court that has
1"But we decide which is right. And which is an illusion." Graeme
Edge, The Day Begins/Late Lament, from the Moody Blues’ recording
Days of Future Passed (Deram Records 1967).
2I do not intend my glib hyperbole to convey the impression that my
fine colleagues in the majority — for whom I have profound respect and
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addressed the safe harbor provision has, in no uncertain terms, con-
firmed its gatekeeping aspect. See Ridder v. City of Springfield, 109
F.3d 288, 290 (6th Cir. 1997) (Rule 11 sanctions imposed against
plaintiff’s counsel disallowed for city’s failure to comply with the
safe harbor’s "explicit procedural requisite"); Elliott v. Tilton, 64 F.3d
213, 216 (5th Cir. 1995) (plaintiffs’ non-compliance with "procedural
prerequisite" of safe harbor provision required reversal of fees
assessed by district court against defense counsel pursuant to Rule
11); Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1328 (2d Cir.
1995) (sanctions under Rule 11 improperly imposed on plaintiff and
his counsel where "specific mandate" of safe harbor provision ignored).3
admiration — have given this case anything less than their most thought-
ful and serious consideration. The majority’s disregard of the prohibition
"shall not," however, brings to mind a famous encounter between a little
girl and a certain ovoid character (reputed to be prone to clumsiness):
"When I use a word," Humpty Dumpty said in rather a scorn-
ful tone, "it means just what I choose it to mean — neither more
nor less."
"The question is," said Alice, "whether you can make words
mean so many different things."
"The question is," said Humpty Dumpty, "which is to be mas-
ter — that’s all."
Lewis Carroll, Through the Looking-Glass and What Alice Found There
123 (The MacMillan Co. 1899) (1862).
3Accord Barber v. Miller, 146 F.3d 707, 710 (9th Cir. 1998) (citing
Elliott and Hadges in reversing Rule 11 award against plaintiff’s counsel
where defendant failed to comply with safe harbor provision, noting that
"[a]n award of sanctions cannot be upheld under those circumstances");
Aerotech, Inc. v. Estes, 110 F.3d 1523, 1528-29 (10th Cir. 1997) (citing
Elliott and affirming magistrate judge’s refusal to award fees to defen-
dant "because the record failed to establish compliance with Rule 11’s
cure provision," id. at 1529); cf. Divane v. Krull Elec. Co., Inc., 200 F.3d
1020, 1026 (7th Cir. 1999) (citing Ridder and Barber for the proposition
that safe harbor provision "is not merely an empty formality").
The impressive array of circuit authority cited above has, cumula-
tively, been followed dozens of times by the lower courts within those
jurisdictions. District courts in other circuits, unconstrained by binding
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Nor could the majority have taken its cue from a higher authority.
As the Supreme Court has noted time and again, "[t]he word ‘shall’
is ordinarily ‘the language of command.’" Alabama v. Bozeman, 121
S. Ct. 2079, 2085 (2001) (citing Anderson v. Yungkau, 329 U.S. 482,
485 (1947) (quoting Escoe v. Zerbst, 295 U.S. 490, 493 (1935))). In
Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S.
26 (1998), the Court observed that "the mandatory ‘shall’ . . . nor-
mally creates an obligation impervious to judicial discretion." Id. at
35 (citing Anderson).4
The majority nonetheless imagines a hairline fracture in that other-
wise impermeable shield, see ante at 6, distinguishing a rule that is
"mandatory" from one that is "jurisdictional" (the latter, one might
surmise, means "really" mandatory). Hence, time limits for appeals
must be observed, but time limits for claims need not; jurisdiction
over the person can be waived, but jurisdiction over the subject matter
cannot. Ante at 7-8 & n.2. The safe harbor provision of Rule 11 is,
according to the majority, more like statutes of limitations and per-
precedent, have nonetheless uniformly arrived at the same conclusion.
See Vandanacker v. Main Motor Sales Co., 109 F. Supp. 2d 1045, 1053
(D. Minn. 2000) (adopting recommendation of magistrate judge that
Rule 11 motion be denied because movants had not fulfilled safe harbor
prerequisite: "[a]dequate time is . . . required for the [offending] party to
correct its improper conduct, before such serious sanctions would be
warranted"); Omega Sports, Inc. v. Sunkyong America, Inc., 872 F. Supp.
201, 203 (E.D. Pa. 1995) (plaintiff’s failure to comply with safe harbor
provision rendered any award of sanctions against defendant "unwar-
ranted"); Thomas v. Treasury Mgmt. Assoc., Inc., 158 F.R.D. 364, 369
(D. Md. 1995) (noting that compliance with safe-harbor provision "is
absolutely prerequisite").
4Although the Court’s use of the words "ordinarily" and "normally"
appear to contemplate an occasional deviation from the rule, there is
nothing abnormal or out of the ordinary about the safe harbor provision.
There are a few well-established exceptions to the mandatory nature of
"shall," e.g., Brock v. Pierce County, 476 U.S. 253 (1986) (holding that
government agencies are not necessarily divested of power to act after
specific date by which statute commands that particular action "shall" be
taken), but, up to now, none could be found in Rule 11.
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sonal jurisdiction, and less similar to appeal deadlines and subject
matter jurisdiction.
Although the majority correctly recites the black-letter law, it mis-
perceives the method behind the seeming madness. An untimely
claim may or may not be stricken, it is true, but a court cannot rule
either way until suit is filed. A party (or an entire action) might be
dismissed for lack of jurisdiction, but, absent a lawsuit, we may only
hypothesize. The point is that nothing prevents a party from filing an
otherwise valid complaint with stale claims, or against persons out-
side the court’s reach, or even in the wrong court. In each case, the
district court is authorized to determine its own jurisdiction, rendering
any facts relevant to the question appropriate for judicial consider-
ation.
By contrast, in accordance with the plain language of Rule 11, a
motion for sanctions cannot be properly filed or presented to the court
— period — unless the movant has complied with the safe harbor
provision. This is not to say that such motions are not, in actuality,
physically filed or presented; they obviously are. The court, however,
has no initial authority to rule upon the merits of the motion, or to
consider any collateral fact (such as waiver) ostensibly bearing on the
propriety of its filing, apart from ascertaining whether the safe harbor
provision (or another of Rule 11’s procedural requisites) has been
ignored. If the answer to this inquiry is in the affirmative, the
motion’s filing is, in effect, a nullity.
In this sense, the safe harbor provision is much like the "mandatory
and jurisdictional" time limits imposed on the filing of appeals by
Rule 4 of the Federal Rules of Appellate Procedure. See Panhorst v.
United States, 241 F.3d 367, 369-70 (4th Cir. 2001) (quoting Browder
v. Dir., Dep’t of Corrections, 434 U.S. 257, 264 (1978)). Except as
specifically provided by Rule 4, these time limits cannot be expanded,
equitably or otherwise. See id. at 370 (district courts possess "no
authority to extend the filing period"). The majority distinguishes the
safe harbor provision from Rule 4, ante at 7-8, based on its view that
no court has specifically invoked the mantra "jurisdictional" in con-
nection with the former.
I am not persuaded. In Ridder, the Sixth Circuit noted the presiding
magistrate judge’s observation, inter alia, that the safe harbor "re-
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quirement does not appear to be jurisdictional." 109 F.3d at 292. The
Ridder court took no specific issue with this statement, contained as
it was within a larger excerpt, but we may reasonably assume that its
accuracy was called into serious question by the very fact of reversal.
And there is little doubt in my mind that had the question been framed
in jurisdictional terms, the Sixth Circuit — and every other court that
has addressed the issue — would hold that no jurisdiction exists to
entertain a motion for Rule 11 sanctions absent compliance with the
safe harbor provision. The majority’s decision therefore creates a split
in authority with at least five other circuits and a host of district
courts. See supra note 3 and accompanying text.
II.
I understand and share the majority’s consternation with a plaintiff
who would file a complaint with scant basis in law or fact, seeking
to recover "an infinite amount of money." But Rector does not
deserve to stand alone against the full force of the majority’s wrath.
Had counsel for the defendants actually served Rector with the
motion for Rule 11 sanctions — as he erroneously certified to the
court that he had — Rector might have withdrawn his complaint, thus
avoiding the entire mess.
Consider just a partial list of what occurred in this case after June
11, 1999, the date on which Rector was, according to the erroneous
Certificate of Service accompanying the motion, purportedly made
aware that the defendants were seeking expenses and attorneys’ fees
pursuant to Rule 11:
• July 2, 1999 - Court hearing on Rector’s motion to bifur-
cate and defer RICO pleading issues
• July 22, 1999 - Court hearing on defendants’ motion to
dismiss
• July 23, 1999 - Complaint dismissed
• August 6, 1999 - Amended Complaint filed
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• September 17, 1999 - Following court hearing, Amended
Complaint dismissed
• September 27, 1999 - Motion for sanctions filed
• October 22, 1999 - Court hearing on motion for sanc-
tions
• January 14, 2000 - Motion granted and sanctions
awarded
• January 21, 2000 - Notice of appeal filed
• September 14, 2000 - Our opinion issues, vacating award
of sanctions and remanding cause
• October 10, 2000 - Judgment on appeal received in dis-
trict court
• December 15, 2000 - Court hearing on renewed motion
for sanctions
• January 4, 2001 - Sanctions again awarded
• January 29, 2001 - Notice of Appeal filed
• June 6, 2001 - Oral argument heard
J.A. 6-10B.
Of course, most of the above proceedings entailed complex written
submissions from the parties, obliging the court to read and contem-
plate each one. In light of all this, the majority’s assertion that the safe
harbor provision may be waived because it primarily "protects liti-
gants," with less regard for institutional interests, see ante at 8 n.2, is
baffling. Rule 11 could and should have fulfilled its overriding insti-
tutional purpose in this case by conserving the valuable time and
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resources of two federal courts. It did not, in fact, serve its intended
purpose here, but that was through no fault of Rector.5
III.
No award pursuant to Rule 11 ought to be made to the defendants
in this case, because their counsel failed to comply with the Rule’s
safe harbor provision prior to filing the motion for sanctions. The
majority, unwilling to adhere to the firmly established concept that
"no" means "no," holds to the contrary.
I respectfully dissent.
5I make two brief points in response to the assertions of my friend
Judge Gregory in footnote 4 of his majority opinion. Ante at 9 n.4.
First, imagine, if you will, we discovered on this appeal that we lacked
subject matter jurisdiction. We would be compelled to dismiss, despite
not having addressed the issue in the earlier appeal. The law of the case
doctrine "does not apply to issues not addressed by the appellate court."
United States v. Lujan, 243 F.3d 1181, 1186 (9th Cir. 2001).
Second, if we assume, arguendo, that the majority properly character-
izes our initial remand as a limited one, the district court on remand
could appropriately have determined the amount of the sanction award
to be zero, given the utter failure of the defendants to comply with the
Rule 11 safe harbor provision.
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