Rule 11—Use It Wisely
Last week we discussed how useful Rule 11 can be used to recoup reasonable expenses drawn from frivolous litigation in the context of a recent decision in Imprenta Services, Inc. et al. v. Karll et al., 20-cv-6177 (C.D. CA. Jul. 5, 2022) from Judge Wu of the Central District of California. But the power of Rule 11 – as with any weapon – must be employed diligently and with good judgment, as recently reiterated by Judge Calabrese of the Northern District of Ohio.
Plaintiff Harrison Prosthetic Cradle, Inc., (“Harrison”) filed suit in the District of Delaware against Watson Guide IP, LLC (“Watson”) alleging infringement of U.S. Patent No. 9,554,879 (the “’879 Patent”) in Harrison Prosthetic Cradle Inc. v. Watson Guide IP LLC, 22-cv-98 (D. Del. Jan. 25, 2022). Watson moved to dismiss the allegation for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). D.I. 8. In response, Harrison voluntarily dismissed the action. Dkt. 14.
The following day, Harrison filed a complaint in the Northern District of Ohio, again alleging infringement of the ’879 Patent by Watson, as well as other Watson-related entities, including Roe Dental Laboratory and Chrome Guided Systems (collectively, “Defendants”). Harrison Prosthetic Cradle Inc. v. Roe Dental Laboratory et al., 22-cv-003411 (N.D. Ohio Mar. 2, 2022) (the “Ohio Case”). Due to “an apparent typographical error,” Harrison alleged that venue was proper in the Northern District of Ohio because “Watson is a company organized under the laws of Delaware, having a principal place of business [in] California.” Dkt. 27, 2; Dkt. 1, 2. Watson moved to dismiss the Ohio Case for improper venue under Federal Rule of Civil Procedure 12(b)(3). Dkt. 16, 1. In its motion to dismiss, Watson also sought sanctions against Harrison, claiming that the venue hiccup was a failure to conduct a reasonable inquiry into the laws and the facts in breach of Rule 11. Id., 4-5.
Despite Rule 11 requiring that any sanctions motion must be filed separately from any other motion and also must be served on the opposing party at least 21 days before filing in order to allow for the correction of any alleged deficiency, Watson filed the combined motion without first serving the sanctions portion on Harrison. Fed. R. Civ. P. 11(c)(2). Finding Watson’s combined motion “facially defective and procedurally improper,” Judge Philip Calabrese ordered that Watson show cause for why Watson itself had not violated Rule 11. Dkt. 22.
Watson’s counsel filed two responses to the show-cause order. First, counsel argued that the failure to abide by the 21-day safe harbor require was due to a circuit-split on the sufficiency of sending a letter in lieu of serving the Rule 11 motion, and a failure to find precedential 6th Circuit case law requiring strict compliance with Rule 11’s procedural obligations. Dkt. 25, 3-4, Dkt. 26, 1-2. Watson’s counsel further argued that the grounds for dismissal were so integral to the request for sanctions that they warranted a combined motion. Dkt. 25, 7, Dkt. 26, 2-3.
Stopping just short of issuing sanctions on Watson, Judge Calabrese explained, “[a]lthough counsel’s efforts did not locate the relevant authority, and might even have been negligent, the Court is not prepared to say that even negligent diligence meets a standard of objective unreasonableness.” Dkt. 33, 14. The court, however, issued a stern reminder that “[t]hreatening sanctions casually or as a matter of course has no place among officers of the court—again, except in the most egregious cases and, then, only as a last resort” and that “[t]he type of conduct on display here threatens the civility and professionalism on which the Rules and the Court rely to resolve disputes.” Id., 13.
Judge Calabrese’s dicta reminds us that, while Rule 11 may be a useful tool against frivolous allegations, its use must be calculated, reasonable and supported by the record.
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