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finding that the served draft, which alleged different grounds for sanctions, was not sufficient under Rule 11
Summary of this case from Uptown Grill, LLC v. ShwartzOpinion
Civil Action No. 04-825 c/w, No. 04-841 Section: "E"(2).
August 5, 2004
ORDER AND REASONS
The defendants' Tasso Taylor, III, et al, motion to dismiss C.A. No. 04-825 was granted on June 9, 2004. Record document # 29. Also on June 9, 2004, on motion of Tasso Taylor, III et al, plaintiffs in consolidated C.A. No. 04-841, that action was remanded to the 22nd JDC for St. Tammany Parish. Record document # 28. However, on June 8, 2004, Tasso Taylor, III, et al filed a motion for sanctions pursuant to Fed.R.Civ.Pro. 11 against Wells Fargo Home Mortgage, Inc., and their attorneys, Stephen W. Rider, Esq., and the McGlinchey Stafford Law Firm in C.A. No. 04-825. Record document # 25. Subsequently, the Taylors filed a motion for an award of attorney's fees pursuant to 28 U.S.C. § 1447(c) in C.A. No. 04-481. All motions are opposed.
The motion for Rule 11 sanctions is denied. Section (c) of Rule 11 provides for the imposition of sanctions on the offending attorney if the court determines that section (b) has been violated, subject to service of the motion describing the specific conduct alleged to be sanctionable on the offending party at least 21 days before the motion is presented to the court. The 21 day waiting period between service of a motion for sanctions and filing or presenting that motion to the court is a type of "safe harbor" provision added to Rule 11 by amendment in 1993. Elliot v. Tilton, 64 F.3d 213, 216 (5th Cir. 1996). Its purpose is to give parties at whom the motion is directed an opportunity to withdraw or correct the offending contention.Id. "The plain language of the rule indicates that this notice and opportunity prior to filing is mandatory." Id. The Taylors sent a draft of a different motion for sanctions, alleging different grounds for sanctions, to Wells Fargo's counsel on April 7, 2004. That is not sufficient to fulfill the Rule 11 requirements. Moreover, the Court does not find that Wells Fargo's conduct, or its counsel's conduct, violated the Rules of Professional Conduct as alleged.
The motion for attorney's fees pursuant to 28 U.S.C. § 1447(c) is denied. The decision as to whether to award attorneys fees pursuant to the statute is within the Court's discretion. The Court finds the motion for attorney's fees, filed 28 days after the order of remand, is untimely. See Fed.R.Civ.P. 54(d)(2)(B). Moreover, the Court finds that the removing party asserted colorable grounds for removal, although the matter was ultimately remanded.
Accordingly,
IT IS ORDERED that the Taylors' motion for Rule 11 sanctions and motion for attorney's fees pursuant to 28 U.S.C. § 1447(c) are DENIED.