Attorney Fee Recovery Under Rules of Civil Procedure

The Federal Rules of Civil Procedure, as well as the procedural rules of many states, set forth provisions by which attorney fees can be recovered in the event of misbehavior.

In the federal rules, the primary provision of this kind is set forth in Rule No. 11, which states that every presentation to the court of a “pleading, written motion, or other paper” carries with it a certification that the person submitting it, after a “reasonable inquiry,” believes that: (1) the submission is not for an improper purpose such as harassment, delay, or increasing the cost of litigation; (2) the legal basis for the submission is not frivolous; and (3) all factual allegations are based on evidence or a reasonable belief that evidence will be forthcoming (and/or, in the case of a denial of a factual allegation, a reasonable belief or lack of information).

If a party believes it has been subjected to a filing that violates the above certification at any stage of the litigation, it may file a motion seeking sanctions. (There is no need to file a separate action.) Unlike most motions, the motion for sanctions must be presented to the other side 21 days before it is presented to the court. If, in that time, the opposing side withdraws the offending submission, the motion for sanctions becomes moot.

If the offending party does not withdraw its submission, it can be sanctioned in whatever amount the court deems proper as a deterrent against similar actions in the future. In addition to a sanction paid to the court, the offending party can be ordered to reimburse the movant for all attorney fees and related expenses cause by the underlying offending submission, including the fees and costs incurred in filing the motion for sanctions.

Motions for Rule 11 sanctions (and similar motions provided for in state courts), should not be filed lightly. Parties that file such motion and lose can, under the same rules, be made to pay the attorney’s fees of the prevailing side.

The information contained in this blog is not legal advice and should not be relied on as such. For legal advice or for answers to specific questions, please contact the blog's author.