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Rule 11 doesn’t extend to notice of dismissal

Where defendants’ attorneys argued a statement in a notice of voluntary dismissal filed by plaintiffs’ attorneys violated Rule 11, their motion for sanctions was denied because Rule 11’s “later advocating” provision did not extend to the dismissal notice.


The original complaint alleged a RICO conspiracy in which one subset of the defendants provided funding to the second subset of the defendants, affiliated with the Big Valley Band of Pomo Indians, so that the second subset could provide consumer loans at rates that exceed Virginia’s state usury laws while remaining immune from recourse (due to tribal sovereign immunity) as part of a so­called rent-a-tribe scheme.

On Nov. 11, 2020, the defendants’ attorneys sent plaintiffs’ counsel a safe harbor letter which warned that the complaint’s allegations about the non-tribal defendants were unfounded and that failure to retract them would result in the defendants’ moving for sanctions. In response the plaintiffs’ attorneys submitted a notice of voluntary dismissal in which they dismissed the non-tribal defendants from this case. The defendants have now moved for sanctions based upon a statement in that dismissal notice and a filing in a separate case pending before this court.


The defendants provide extensive argument that the allegations as to the non-tribal defendants were unfounded from the beginning. Were the court to find that either the dismissal notice or the Williams filing fall within the scope of potentially sanctionable conduct, it would then be necessary to determine whether the plaintiffs’ attorneys had a reasonable basis for making the claims in question. But because neither filing is even in-principle sanctionable under Rule 11’s “later advocating” provision, the court need not reach the question regarding the evidentiary basis on which the plaintiffs made their filing.

The text of the rule states “[b]y presenting to the court a pleading, written motion, or other paper–whether by signing, filing, submitting, or later advocating it–an attorney or unrepresented party certifies …” The text of the rule itself indicates that the “later advocating” provision on which the defendants base their argument refers to oral advocacy.

Plaintiffs’ attorneys deny that the filing in question constitutes later advocating. And the defendants’ attorneys’ arguments do not succeed in establishing that the plaintiffs’ attorneys have engaged in impermissible “later advocating” of unfounded claims because they do not properly attempt to do so, instead in each brief moving directly to the conclusory claim that the plaintiffs’ filings, because they are [assumed to be] an instance of “later advocating,” warrant sanctions.

There is no basis in the text of Rule 11, the committee notes or any of the very scant authorities cited by the defendants to justify the application of sanctions for the dismissal filing. Their position runs contrary to the text and purpose of Rule 11 as well as all identifiably relevant case law.

The arguments regarding the Williams filing are dealt with quite straightforwardly. The court will not impose sanctions because the court lacks authority to do so. Rule 11 governs written submissions and later advocacy of those submissions in a particular case; it gives a court no authority to sanction conduct in any other cases or any form of conduct not explicitly specified in the text of Rule 11.

The argument as to why the plaintiffs’ attorneys conduct in Williams should be sanctioned fails for a second reason: the advisory committee notes make clear that Rule 11 does not, as a general matter, require the retraction of contentions that are later shown to be ungrounded. These points are jointly dispositive of the issue: The plaintiffs’ attorneys did not, as the defendants argue, have a duty to withdraw their filing; and even if they did, an act or failure to act with regard to a different case is not sanctionable in this case.

Defendants’ motion for sanctions denied.

Mann v. Gomez, Case No. 3:20-cv-820, June 9, 2022. EDVA at Richmond (Payne). VLW 022-3-245. 21 pp.

VLW 022-3-245

Virginia Lawyers Weekly