The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
Plaintiff Roberto Castro filed this employment discrimination suit against the City of New York, the Department of Education of the City of New York, and the Service Employee International Union, as well as against two individuals, Tom Mitchell and David Rodriguez. In response, Rodriguez filed a motion to dismiss the claims against him individually, in which he sought sanctions against Castro and his attorney under Rule 11 of the Federal Rules of Civil Procedure. This request for sanctions did not comply with Rule 11 because it was not made separately from the motion to dismiss, and thereafter Rodriguez filed a second motion for sanctions. That motion, however, was also procedurally improper because Rodriguez did not wait until 21 days after service of the motion on Castro before he filed it. Castro has since voluntarily withdrawn his claim against Rodriguez. Because Rodriguez's motion does not comply with Rule 11's procedural requirements, and because the imposition of sanctions sua sponte is not warranted here, Rodriguez's motion for Rule 11 sanctions is denied.
Castro filed this action pro se on April 13, 2009. See Complaint, filed Apr. 13, 2009 (Docket # 2). On September 14, 2009, Rodriguez, through counsel, sent a letter to District Judge William H. Pauley indicating his intention to file a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (6) on the ground that "Mr. Rodriguez is an individual, not an employer, and is therefore not personally liable under Title VII or the ADEA." See Memorandum Endorsement, filed Sept. 22, 2009 (Docket # 13). On September 28, 2009, an attorney, Jennese Torres, submitted a letter to Judge Pauley, notifying the Court that she had been retained by Castro. See Letter from Jennese A. Torres to Hon. William H. Pauley, filed Oct. 14, 2009 (Docket # 14). After a pretrial conference held on November 13, 2009, Judge Pauley issued a scheduling order permitting Castro to file an amended complaint by December 18, 2009. See Scheduling Order, filed Nov. 18, 2009 (Docket # 17). Castro, through his attorney, filed an amended complaint on December 18, 2009 that once again named Rodriguez as a defendant. See Amended Complaint, filed Dec. 18, 2009 (Docket # 18).
On January 20, 2010, Rodriguez filed a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) and (6). See Notice of Motion, filed Jan. 20, 2010 (Docket # 23). His notice of motion and memorandum of law also sought sanctions against Castro and Torres pursuant to Fed. R. Civ. P. 11. See id.; Memorandum of Law in Support of Defendant David Rodriguez's Motion to Dismiss, filed Jan. 20, 2010 (Docket # 24), at 9-11. This motion was in violation of Fed. R. Civ. P. 11(c)(2), however, which requires that a Rule 11 motion be made "separately from any other motion."
Accordingly, on February 17, 2010, Rodriguez both served and filed a new motion under Rule 11 that sought only sanctions and no other relief. See Notice of Motion, filed Feb. 17, 2010 (Docket # 31); Memorandum of Law in Support of Defendant David Rodriguez's Motion for Sanctions, filed Feb. 17, 2010 (Docket # 32). On April 7, 2010, Judge Pauley "so ordered" a stipulation signed by counsel for plaintiff and Rodriguez dismissing plaintiff's claims against Rodriguez with prejudice. See Notice of Voluntary Dismissal Pursuant to F.R.C.P. 41(a)(1)(A)(i), filed Apr. 7, 2010 (Docket # 37). Judge Pauley then referred the sanctions motion to the undersigned, see Order of Reference to a Magistrate Judge, filed Apr. 15, 2010 (Docket # 38), following which Castro's attorney filed an affirmation in opposition to the motion, see Plaintiffs' Opposition to Defendant's Motion for Sanctions, filed Apr. 16, 2010 (Docket # 40), and Rodriguez filed reply papers, see Reply Affirmation, filed Apr. 23, 2010 (Docket # 42); Reply Memorandum of Law in Further Support of Defendant David Rodriguez's Motion for Sanctions, filed Apr. 23, 2010 (Docket # 43).
On May 13, 2010, this Court issued an order directing Rodriguez to show cause why his Rule 11 motion should not be denied inasmuch as it had been filed within 21 days of its service on Castro in violation of Rule 11(c)(2). See Order, filed May 14, 2010 (Docket # 44). The Order noted that Rule 11 motions filed less than 21 days after service must be denied and that the pending motion was served and filed on the same day, February 17, 2010. Id. It also noted that the previously-filed motion for sanctions (Docket # 20), filed on January 20, 2010, was invalid because it had not been made separately from the motion to dismiss as required by Fed. R. Civ. P. 11(c)(2). Id. at 1 n.1. Finally, the Order indicated that Rodriguez's motion for sanctions could not be refiled inasmuch as the challenged claim had since been withdrawn by stipulation. Id. at 1. Both parties submitted letters in response to the Court's Order. See Letter from Jared M. Lefkowitz, dated May 17, 2010 (Docket # 46) ("Lefkowitz Letter"); Letter from Jennese Torres, dated May 28, 2010 (Docket # 47).
A. Whether the Pending Motion is Valid
In disposing of a motion for Rule 11 sanctions, a district court "must adhere to the procedural rules which safeguard due process rights." Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 58 (2d Cir. 2000); accord Williamson v. Recovery Ltd. P'ship, 542 F.3d 43, 51-52 (2d Cir. 2008) (affirming district court's refusal to hold a Rule 11 hearing where movants "failed to meet the procedural requirements of Rule 11(c)"), cert. denied, 129 S.Ct. 946 (2009); Perpetual Sec., Inc. v. Tang, 290 F.3d 132, 142 (2d Cir. 2002) ("The district court's awarding of sanctions... in contravention of the explicit procedural requirements of Rule 11 was... an abuse of discretion."). Rule 11 requires that a motion for sanctions "be made separately from any other motion and... describe the specific conduct that allegedly violates Rule 11(b)." Fed. R. Civ. P. 11(c)(2). In addition, once the motion is served under Rule 5, "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." Id. This provision, commonly known as the "safe harbor provision," permits the subject of a sanctions motion "the opportunity to withdraw the potentially offending statements before the sanctions motion is officially filed." Storey v. Cello Holdings, L.L.C., 347 F.3d 370, 389 (2d Cir. 2003). A motion that fails to comply with the safe harbor provision of Rule 11 must be denied. See, e.g., Bryant v. Britt, 420 F.3d 161, 163 n.2 (2d Cir. 2005) (because movant "failed to comply with Rule 11(c)[(2)]," court found "no error in the district court's decision" to deny sanctions); Homkow v. Musika Records, Inc., 2009 WL 721732, at *20 (S.D.N.Y. Mar. 18, 2009) ("If a party seeking Rule 11 sanctions fails to comply with the safe-harbor provision... the motion must be denied."); Libaire v. Kaplan, 2008 WL 794973, at *15 (E.D.N.Y. Mar. 24, 2008) ("Notwithstanding [plaintiff's violation of Rule 11], defendants are not entitled to sanctions under Rule 11 due to their failure to comply with the safe harbor provision embodied in Rule 11(c)...."); Rojas v. Theobald, 2007 WL 2455133, at *9- 10 & n.8 (E.D.N.Y. Aug. 23, 2007) (denying motion for sanctions "for failure to comply with the 'safe harbor' provision of Rule 11"), aff'd, 319 F. App'x 43 (2d Cir. 2009); O'Callaghan v. Sifre, 242 F.R.D. 69, 75-76 (S.D.N.Y. 2007) (same); Benicorp Ins. Co. v. Nat'l Med. Health Card Sys., Inc., 447 F. Supp. 2d 329, 341 (S.D.N.Y. 2006) (same).
Rodriguez does not deny that, after serving the motion for sanctions on Castro, he failed to wait 21 days before filing it with the court. He argues, however, that it was not necessary for him to do so in light of statements made at a conference before Judge Pauley on November 13, 2009. See Lefkowitz Letter at 1-3. There is no transcript of the November 13 conference. Instead, Rodriguez's attorney recounts that at the conference he "explained to the Court that the claims against Mr. Rodriguez were meritless." Id. at 1. The only statements he attributes to Judge Pauley are contained in the following paragraph:
I advised Judge Pauley at the November 13, 2009 conference that I sought reimbursement of Mr. Rodriguez's attorneys fees in this action pursuant to Rule 11. In that regard, Judge Pauley then asked Ms. Torres whether she intended to serve an amended complaint. Ms. Torres indicated that she would be amending the complaint and the Court set December 18, 2009 as the deadline to do so.
Id. at 2. Rodriguez's attorney then goes on to characterize Judge Pauley as being "dismayed by the actions and behavior of Ms. Torres." Id. He conjectures that "it was clear to [Judge Pauley] that the complaint should immediately be dismissed as against Mr. Rodriguez." Id. He concludes that it was his "understanding and belief based upon all of the conduct and circumstances that Judge Pauley was setting the time period for an amended complaint, from November 13, 2009 to December 18, 2009, as the 'safe harbor' period." Id. He adds that his "understanding" on this matter "was bolstered because the Scheduling Order states that the deadline for 'motions to dismiss' was January 15, 2010, with opposition due by February 5, 2010." Id. at 3. He notes that "the briefing schedule [for motions to dismiss] does not contemplate the time needed to serve, wait 21 days, and then file a contemplated Rule 11 motion because Ms. Torres had stated to the Court at the conference that she would avail herself of the safe harbor period." Id.
Rodriguez's argument is not entirely clear, particularly since he has not cited any case law in support. To the extent he is arguing that Judge Pauley's statements at the conference eliminated the safe harbor time period for any future sanctions motion by Rodriguez, that argument is easily rejected as nothing recited by counsel suggests that Judge Pauley was doing so. Nor can any of these statements be construed as an ...