Houdini ESQ
Is filing suit knowing there is no merit a trigger?Is not showing good faith by ignoring all request to participate in conferences and review evidence that will demonstrate that the complaint is frivolous a trigger?Is continuing to pursue when presented with the factcs showing the case has no merit and no chance of winning a trigger?Is accepting monies from a third party to financially pursue the case a trigger?Is filling suit against a competitor for the sole purpose of disrupting their business a trigger?Is filling suit against a former client because they decided to go with a competitor malicious and a trigger?
When Rule 11 has been violated, sanctions frequently, but not always require that the violating party pay the aggrieved party's costs and attorneys' fees. Sanctions are made to fit the particular case, but costs and attorneys' fees are a standard and sensible beginning. Take it from there.
Oxfurth v. Siemens A.G., 142 F.R.D. 424 (D.N.J. 1991), states that the purpose of Rule 11 is not to serve as a general fee shifting statute. In Oxfurth, an attorney was sanctioned by the court for abusing the judicial process by filing an improper lawsuit. The court held that sanctions were warranted and that the attorney should pay the opposing side's attorneys' fees and attend four legal seminars.
The court scolded the attorney, Frost, throughout the opinion for his conduct. The court stated:
It is nowhere made plain whether the judge cut his judicial teeth in traffic court, but the opinion went to some length to point out that Rule 11 was not a fee shifting statute. Still, the opposing side's attorneys' fees were set as sanctions. This seems to be the way the courts are applying Rule 11 in recent cases. First, it is carefully said that Rule 11 is not a fee shifting statute. Then, the adversary's attorneys' fees are ordered paid in full. In reality, it appears that Rule 11 is a fee shifting statute, so add up the bills, and ask for the money.
One court has expressly stated that Rule 11 can be used to shift attorney fees to a party that has abused another by frivolous or improper litigation. In Brandt v. Schal Associates, Inc., 960 F.2d 640 (7thCir. 1992), Circuit Judge Manion wrote a blistering opinion concerning the abuse of the judicial process. In Brandt, a dispute arose over a construction contract. The plaintiff's attorney prolonged the case for four years through extensive, unnecessary discovery. All the while, the lawsuit had no basis in law or fact. The United States District Court for the Northern District of Illinois assessed sanctions of $351,664.96 against the attorney. The court then added an additional $7,511.10 in sanctions when the attorney urged the court to modify the original sanction order. Finally, the court sanctioned the attorney an additional $84,388.60 as a "delay factor " for a total of $443,564.66.
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