holding that revivor did not relate back to validate the otherwise timely commencement of an action when revivor occurred after the expiration of the period of limitations because relation back would prejudice the opposing party’s statute of limitations defense
How later courts described this case
- holding that revivor did not relate back to validate the otherwise timely commencement of an action when revivor occurred after the expiration of the period of limitations because relation back would prejudice the opposing party’s statute of limitations defense
- refusing to toll statute of limitations for period in which plaintiff sought relief from NLRB because prior resort to the NLRB “was not a prerequisite to review in federal court”
- “{Hudson’s] holding rested on the improper purpose of the employer and the harassing nature of the counterclaim”
- "Rule 11 permits sanctions [for frivolousness] only where the pleading as a whole is frivolous.” But, "[a]n entire pleading has a harassing or improper purpose if the litigant included one of the claims or allegations with that purpose."
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Townsend v. Holman Consulting Corp., 929 F.2d 1358 (1990)
869 F.2d 1235, 1242 (9th Cir. 1989) (declining to follow Lingle and permitting filing of Rule 11 application after entry of final order), abrogated on other grounds by Townsend v. Holman Consulting Corp., 929 F.2d 1358
The opinion
WIGGINS, Judge,
concurring:
I concur in part I of the opinion and in the judgment affirming the district court. I write separately because I detect in part II of the majority opinion a tolerance of single, post-judgment motions for sanctions that accumulate all manner of perceived misdeeds occurring during the course of the litigation. Although a rigid rule prohibiting such motions in all cases may be inappropriate, we owe a duty to the bar to tilt the district courts away from such action. The majority opinion, in my view, does not do so.
The complaint by Community Electric was filed on January 13, 1986. It alleged violations of the Sherman Act, the Racketeer Influence and Corrupt Organizations Act and several related California state law claims. The complaint was proper in form and content and no challenge was then made to it by the defendants.
The powers, rights and privileges of the plaintiff, Community Electric, had been suspended by the California Secretary of State before the filing of this lawsuit. The defendants asserted that Community Electric lacked the capacity to sue. Community Electric thereupon acted to restore its capacity, shortly before trial but after the statute of limitations had expired under California law. This sequence of events poses the issue discussed in part I of the opinion.
Nothing in defendant’s arguments suggest that the plaintiff acted improperly in filing its claim and thereafter reviving its corporate powers to overcome the consequence of an earlier failure to pay corporate taxes. That we conclude that the ac *1247 tions of Community Electric did not save it from the defense of the statute of limitations is of no special consequence to the motion for sanctions. There is always a loser in contested litigation.
In sum, the district court concluded that the plaintiff’s claim was barred by the statute of limitations and it granted defendant’s motion for summary judgment. Within 30 days thereafter, defendant moved for sanctions against the plaintiff. That motion was denied.
Under the circumstances herein set forth, I believe the district court should be affirmed because the motion for sanctions comes too late to serve its intended purpose. Accordingly, it is unnecessary to discuss at length the propriety of the court’s ruling on the merits of the request for sanctions.
We considered the issue presented here —the propriety of a single post-judgment request for sanctions for various alleged acts of misconduct occurring during the pretrial and trial period — in Matter of Yag-man, 796 F.2d 1165 (9th Cir.1986). We concluded there that such a request “flies in the face of the primary purpose of sanctions, which is to deter subsequent abuse.” 796 F.2d at 1183 . Deterrence, we held, is furthered by punishing the offender at the time of the transgression. Id.
We did not hold in Yagman that the preference for avoiding a post-judgment lump sum claim for sanctions is an inflexible rule. But in those cases in which such a claim may be appropriate, we held that an early notice to the offending attorney that a continuation of misconduct may result in a sanction is the desired procedure. Id. at 1184 (“... if the purposes of the rules are to be served, the sanctionable behavior should be brought to the immediate attention of the offending attorney.”)
The majority opinion makes reference to Matter of Yagman. It concludes that Yag-man holds that the timing of a sanctioned motion is committed to the sound discretion of the district court. Majority Opinion, p. 1242. The majority does not read Yagman as I do. I believe it stated a strong preference for an earlier filing of a motion for sanction than occurred here.
I believe we are doing a disservice to the bench and to the bar in approving the procedure followed in this case. We should simply affirm the denial of sanctions because it appears that the motion was not timely filed.