Fortner v. Pelton

Full title: DARRELL FORTNER, and JENNIFER FORTNER, d/b/a Diamond/Dundee Tree Service…

Court: United States District Court, D. Colorado

Date published: Jun 27, 2008

Civil Action No. 06-cv-02148-LTB-BNB (D. Colo. Jun. 27, 2008)

Opinion

Civil Action No. 06-cv-02148-LTB-BNB.

June 27, 2008

ORDER

BOYD BOLAND, Magistrate Judge

This matter is before me on the County Defendants' Motion to Strike Plaintiffs Motion for Temporary Restraining Order, Preliminary Injunction, Permanent Injunction, and Order to Show Cause and Request for Attorney's Fees [Doc. #107, filed 11//14/07] (the "Motion to Strike"). The Motion is DENIED.

On October 25, 2007, the plaintiffs filed "Plaintiffs' Motion for Temporary Restraining Order, Preliminary Injuction [sic], Permanent Injunction, and Order to Show Cause" [Doc. #102] (the "Motion for Injunctive Relief"). The defendants request that the Motion for Injunctive Relief be "be summarily DENIED and that the County Defendants be awarded all appropriate relief pursuant to Fed.R.Civ.P. 11(c)." Motion to Strike, p. 3.

Rule 11, Fed.R.Civ.P., provides that a motion for sanctions must be served pursuant to Rule 5, "but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets." Fed.R.Civ.P. 11(c)(2). This safe harbor provision serves to "protect litigants from sanctions whenever possible in order to mitigate Rule 11's chilling effects, formaliz[e] procedural due process considerations such as notice for the protection of the party accused of sanctionable behavior, and encourag[e] the withdrawal of papers that violate the rule without involving the district court, thereby avoiding sanction proceedings whenever possible and streamlining the litigation process." 5A Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 1337.2 at 722 (3rd ed. 2004). Failure to comply with the safe harbor provision "will result in the rejection of the motion for sanctions. . . ." Id. § 1337.2 at 723; Roth v. Green, 466 F.3d 1179, 1192-91 (10^th Cir. 2006).

The defendants do not address the safe harbor provision, nor do they demonstrate that they have complied with it. Accordingly,

IT IS ORDERED that the Motion is DENIED.