Revisiting Motions to Sanction Faithless Litigants and / or their Faithless Attorneys
by Hon. Mitchell Kaplan (Ret.)
Voice of the Judiciary
I was asked to write a “View from the Bench” concerning my experiences and impressions in ruling on motions brought under Mass. R. Civ. P. 11(a) (Rule 11) and G. L. c. 231, § 6F (§ 6F) to sanction lawyers and/or parties for asserting frivolous claims or defenses. As I have now been retired from the Superior Court bench for a year and a half, this is a view from the bench as seen through my rear-view mirror. In reviewing my rulings on the motions for sanctions that came before me, it became clear that I often found them to be an aggressive litigation tactic rather than a well-supported request for this extraordinary relief, and rarely granted them.
I began by searching my data base of opinions that I authored from 2013 to 2020. In general, my criteria for saving an opinion were that the memorandum was at least a few pages in length and applied some law to facts. My search generated 17 opinions in which I ruled on motions brought under Rule 11 or § 6F: 15 denied sanctions and two awarded them. I am certain that I decided many more Rule 11 and § 6F motions with marginal orders or very brief written statements. Since I am quite certain that I never allowed a Rule 11 or § 6F motion without a substantive opinion, these are the only two sanction motions that I allowed. More about them in a moment.
One genre of Rule 11 motions which I nearly always denied without an opinion were the Rule 11 motions that were appended to a substantive motion or opposition. Examples are an opposition to a motion for summary judgment that both opposes the motion and requests Rule 11 sanctions for having served it, or, conversely, a motion to dismiss a complaint that joins with it a motion under Rule 11 to sanction the attorney who filed the complaint. I suspect that in most of these cases the Rule 11 pleading was really the moving lawyer’s attempt to signal me that the opposition’s position was so manifestly without any merit that I should simply reject it out of hand, rather than a genuine request for sanctions. Personally, I never received that signal in the intended manner. Rather, I considered these motions to be overly aggressive litigation tactics of no value to me. A Rule 11 motion constitutes an allegation that an attorney has willfully acted in bad faith in pursuing a course of action. It ought not be filed until the court has ruled on the underlying claim or motion; it should acknowledge the seriousness of the allegation; and it should be well supported in the moving papers.
I suspect that I am not the only judge who received a motion for Rule 11 sanctions filed in response to a Rule 11 motion; in other words, a demand for sanctions for having been served with a demand for sanctions. I found this an especially unimpressive round of pleadings by both parties.
Nearly all my written opinions on sanctions addressed § 6F. Perhaps this is because § 6F motions can be filed only after an order or a judgment has entered. Further, since § 6F expressly requires the court to hold a hearing and issue a “separate and distinct finding” that the offending claim or defense was “wholly insubstantial, frivolous and not advanced in good faith,” the moving party tends to more thoroughly support and brief its position. Although, as noted, I allowed only two of these motions for sanctions, a number of them required serious consideration. I believe that the bar that the moving party must clear to recover an award under § 6F is a very high one, and appropriately so. The movant must show both that all or substantially all of the claims or defenses asserted were frivolous and that they were not advanced in good faith—in other words that the party acted with an actual intention to harass or increase the costs of the litigation or some other similar bad motive.
In retrospect, I was always reluctant to impose Rule 11 or § 6F sanctions. I considered them far more serious than the more common discovery sanctions awarded under Mass. R. Civ. P. 37. Indeed, the SJC has suggested that conduct that violates Rule 11 is likely also a breach of the Rules of Professional Conduct. As I read my old opinions, I came across several decisions in which I denied the motion, but commented that it presented a close question; I guess that I felt some manner of admonition to the lawyer was warranted. In one case, I found the facts on which a claim was premised “far fetched” but not “impossible” and therefore not frivolous. In another, I found the legal argument which had expressly been rejected by another Superior Court judge highly unlikely to succeed but not yet decided by an appellate court, although I also suggested that not every pleading literally permitted by the rules is necessary to a fair and efficient resolution of disputed issues. In at least a few opinions, my decision to deny sanctions was clearly colored by the conduct of the moving party. When both parties had been overly aggressive, uncooperative, and contentious throughout the litigation, I was not disposed to order sanctions against either.
An issue that arose with some frequency was considerable delay in filing a sanctions motion. In two cases I was asked to award § 6F sanctions many months after judgments entered following jury waived trials—tried by another judge. In another, a sanctions motion was filed more than a year after I entered summary judgment on nearly all of plaintiff’s many claims. As noted above, § 6F expressly requires the court to make “a separate and distinct finding” that substantially all claims or defenses were frivolous and proffered in bad faith. In Powell v. Stevens, the Appeals Court explained that a §6F motion should be filed immediately after the relevant verdict, ruling, or order because “[a]t that moment, the total circumstance of the case are full and fresh in the mind of the judge.” I relied on Powell in several opinions. Frankly, considering how many cases a judge touches in a busy civil session each week, I thought it unfair, even cruel, to ask a judge to revisit a complex decision months after it issued. In affirming my last decision denying sanctions, the Appeals Court extended the Powell timeliness requirement to Rule 11 motions as well. von Schönau-Riedweg v. Continuu Energy Technologies, LLC.
The two cases in which I awarded sanctions involved egregious conduct. In one, I allowed a motion to dismiss a complaint with leave to amend to plead additional facts, but cautioned the plaintiff’s attorney that he should take care to be certain that he had a good faith basis to add the allegations. He amended, but clearly ignored the good faith basis part of my ruling. In the other case, the sanctions motion followed a trial that included a malicious prosecution claim in which a jury expressly found that the defendant had filed his complaint without a good faith basis for the facts alleged—a finding with which I fully concurred.
Perhaps, there were instances in which I might have resolved a close question in favor of an award of sanctions, but I don’t think any judge enjoys sanctioning an attorney. Certainly, sanctions should be reserved for truly egregious cases where the claims or defenses are “wholly insubstantial” and the lawyer or client has purposely acted in a malicious manner.
Mitchell Kaplan retired from the Superior Court in 2020. Prior to serving on the Superior Court, he was a partner at Choate, Hall & Stewart. He is presently working with JAMS as a mediator and arbitrator.