Opinion
Case No. 13-00535 Adversary Proceeding No. 13-10036
06-12-2014
In re MICHAEL LAWRENCE ROSEBAR, Debtor. DAVID BROOKS, Plaintiff, v. MICHAEL LAWRENCE ROSEBAR, Defendant.
The document below is hereby signed.
__________
, Jr.
United States Bankruptcy Judge
(Chapter 7)
Not for publication in
West's Bankruptcy Reporter.
MEMORANDUM DECISION AND ORDER DENYING MOTION FOR SANCTIONS
The plaintiff Brooks has filed a Motion for Sanctions (Dkt. No. 61), seeking sanctions against the defendant's attorney, William C. Johnson, Jr., pursuant to Fed. R. Bankr. P. 9011 and 28 U.S.C. § 1927 with respect to the filing by Johnson of various pleadings containing what Brooks alleges are unsupported contentions. I will deny Brooks' Motion for Sanctions without prejudice.
Federal Rule of Bankruptcy Procedure 9011 (the analog of Fed. R. Civ. P. 11) contains a safe harbor provision that requires a 21-day period between serving and filing the sanctions motion to give the other party the opportunity to withdraw or correct the filing at issue. In particular, Rule 9011(c)(1)(A) provides in part:
The motion for sanctions may not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.Here, Brooks served the Motion on May 5, 2014 by first class mail. Twenty-one days later was May 26, 2014. However, because Rule 9011 provides that the safe harbor period is "21 days after service," and because Brooks served the Motion by mail, Rule 9006(f) applies, requiring that three days be added to the 21-day safe harbor time period. See In re Miller, 730 F.3d 198, 205 (3d Cir. 2013) (determining that the requirement to add three days for mail service provided in Rule 9006(f) applies to Rule 9011's 21-day safe harbor provision). Therefore, the last day of the safe harbor period was May 29, 2014. Brooks filed his Motion on May 28, 2014, one day before the safe harbor period ended. Because Brooks failed to wait the required number of days after serving the Motion to file the Motion, it is
Rule 9011(c)(1)(A) requires that the motion for sanctions be served as provided in Rule 7004 and Rule 7004(b) requires service by mail. In addition, under Fed. R. Bankr. P. 9006(f), "[w]hen there is a right or requirement to act or undertake some proceedings within a prescribed period after service and that service is by mail . . . three days are added after the prescribed period would otherwise expire."
ORDERED that the a Motion for Sanctions (Dkt. No. 61) is DENIED without prejudice to the refiling of that motion in accordance with Rules 9011 and 9006(f).
[Signed and dated above.] Copies to: All counsel of record.