As the above list indicates, Plaintiff CareFirst exhibited a pattern of conduct throughout this litigation evidencing a problem with meeting deadlines, an inattention to detail, an inability to follow court orders, a problem with complying with court rules, and an penchant for blaming others when problems arose. See Cannon v. Cherry Hill Toyota, Inc., 190 F.R.D. 147, 161 (D.N.J. 1999) (observing that "[t]he invocation of [a district court's] inherent powers is particularly appropriate when an attorney's conduct has been pervasive and amounts to violations of several rules, and appears . . . to demonstrate a course of bad faith actions that transcend any rule or rules of the Court"). These problems, which occurred constantly, indicates a lack of sincerity and diligence on Plaintiff CareFirst's part to properly prosecute this case.
In fact, a recent decision of the United States District Court for the District of New Jersey flatly rejected the argument the government raises here. In Cannon v. Cherry Hill Toyota. Inc, 190 F.R.D. 147 (D.N.J. 1999), the defendant moved for a preclusion order under Rule 37(c)(1), arguing that such an order was appropriate because the plaintiff, at her deposition, failed to identify a witness' name and address. The court denied the motion, stating: Defendant . . . completely ignores Rule 37(c)(1)'s express reference to Rules 26(a)
The scope of a court's inherent power is very broad, and it includes the authority to control admission to its bar and to discipline attorneys who appear before it, including those admitted pro hac vice. Chambers, 501 U.S. at 43, 111 S.Ct. 2123; In re Tutu Wells Contamination Litig., 120 F.3d 368, 383 (3d Cir. 1997) (explaining that federal courts have many disciplinary sanctions available, including the power to control admission to its bar, discipline attorneys, and disqualify counsel); In re Corn Derivatives Antitrust Litig., 748 F.2d 157, 160 (3d Cir. 1984) ("One of the inherent powers of any federal court is the admission and discipline of attorneys practicing before it."); Cannon v. Cherry Hill Toyota, 190 F.R.D. 147, 161 (D.N.J. 1999) (court's inherent power "may be invoked to regulate the conduct of lawyers appearing before it and, when necessary, may be invoked to impose sanctions on those lawyers who violate the Rules of Professional Responsibility, the Federal Rules of Civil Procedure, the Local Rules or the general obligations of attorneys practicing in the federal courts to work towards a just, speedy and efficient resolution of claims"). This District has expressly endorsed our courts' authority to discipline attorneys practicing here, whether they are licensed in New Jersey or admitted pro hac vice.
It also disserves parties and debases both the legal profession and the judicial system. See In re Abbott, 925 A.2d 482, 485 (Del.2007); see also Snyder v. Secretary of Health & Human Services, 117 F.3d 545, 549 (Fed.Cir.1997) (condemning the use of language similar to that employed here); Cannon v. Cherry Hill Toyota, Inc., 190 F.R.D. 147, 161–62 (D.N.J.1999) (making the same point in the context of motions practice in the trial court); Gregoire v. Nat'l Bank of Alaska, 413 P.2d 27, 42–43 (Alaska 1966). Further, using such degrading and disparaging rhetoric appears to “cross [ ] the line from acceptable forceful advocacy into unethical conduct.... ‘Lawyers are not free, like loose cannons, to fire at will upon any target of opportunity which appears on the legal landscape.
Fed.R.Civ.P. 37(a)(2)(A). In Cannon v. Cherry Hill Toyota, 190 F.R.D. 147 (D.N.J. 1999), the Court held that sending a fax and demanding a response by the next business day and threatening to file a motion to compel is a token effort rather than a sincere effort. Id. at 153.
The “safe harbor” provision of Rule 11 requires a moving party to serve a motion for sanctions under Federal Rule of Civil Procedure 5, and to allow for the opposing party to take remedial action “within 21 days after service or within another time the court sets.” Fed.R.Civ.P. 11(c)(2): see Cannon v. Cherry Hill Toyota, Inc., 190 F.R.D. 147, 158-59 (D.N.J.1999).
L. CIV. R. 7.2(a) (“Affidavits, declarations, certifications and other documents of the type referenced in 28 U.S.C. § 1746 shall be restricted to statements of fact within the personal knowledge of the signatory.”); see also Cannon v. Cherry Hill Toyota, Inc., 190 F.R.D. 147, 158 (D.N.J. 1999) (“[T]he Court must disregard the contents of an improper certification ....”).
Where, as here, a certification “contains factual or legal argument . . . the Court must disregard the contents of [the] improper certification and may impose sanctions upon the attorney who files it.” Cannon v. Cherry Hill Toyota, Inc., 190 F.R.D. 147, 158 (D.N.J. 1999).
However, Rule 11's "safe harbor" provision provides that a party seeking sanctions must serve the motion papers on his adversary, but not file the motion for 21 days after service to give his adversary an opportunity to withdraw the offending pleading or motion. Cannon v. Cherry Hill Toyota, Inc., 190 F.R.D. 147, 159 (D.N.J. 1999) (citing Fed. R. Civ. P. 11(c)(1)(A)). Gant has not certified or otherwise demonstrated that he has complied with Rule 11's safe harbor provision.
"If the twenty-one day period is not provided the motion must be denied." Schaefer Salt Recovery, 542 F.3d at 99 (emphasis added); see also Cannon v. Cherry Hill Toyota, Inc., 190 F.R.D. 147, 159 (D.N.J. 1999) (denying Rule 11 motion where the court could not determine if movant had complied with the safe harbor provision); Carofino v. Forester, 450 F. Supp. 2d 257, 274 (S.D.N.Y. 2006) (denying Rule 11 motion that did not comply with the separate motion provision). Here, the PennyMac Defendants filed their motion to dismiss and for sanctions (Doc. 51) on June 11, 2018.