Brickwood Contractors v. Datanet Engineering , 369 F.3d 385 ( 2004 )

ON REHEARING EN BANC
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRICKWOOD CONTRACTORS, 
INCORPORATED,
Plaintiff-Appellant,
v.  No. 00-2324
DATANET ENGINEERING,
INCORPORATED; JOHN V. CIGNATTA,
Defendants-Appellees.

BRICKWOOD CONTRACTORS, 
INCORPORATED,
Plaintiff-Appellee,
v.  No. 00-2325
DATANET ENGINEERING,
INCORPORATED; JOHN V. CIGNATTA,
Defendants-Appellants.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CA-98-1265-AMD)
Argued: October 28, 2003
Decided: May 26, 2004
Before WILKINS, Chief Judge, and WIDENER, WILKINSON,
NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ,
TRAXLER, KING, GREGORY, SHEDD, and DUNCAN,
Circuit Judges.
2 BRICKWOOD CONTRACTORS v. DATANET ENGINEERING
Reversed by published opinion. Judge Traxler wrote the majority
opinion, in which Chief Judge Wilkins and Judges Wilkinson, Nie-
meyer, Williams, Michael, Motz, Gregory, Shedd, and Duncan
joined. Judge Widener wrote an opinion concurring in the judgment.
Judge Luttig wrote an opinion concurring in part and concurring in
the judgment. Judge King wrote an opinion concurring in the judg-
ment.
COUNSEL
ARGUED: James Joseph Tansey, Washington, D.C., for Appellant.
James F. Lee, Jr., LEE & MCSHANE, P.C., Washington, D.C., for
Appellees. ON BRIEF: Brandon M. Gladstone, LEE & MCSHANE,
P.C., Washington, D.C.; Edward J. Pesce, EDWARD J. PESCE, P.A.,
Ellicott City, Maryland, for Appellees.
OPINION
TRAXLER, Circuit Judge:
Brickwood Contractors, Inc., filed suit against Datanet Engineering
and John Cignatta (together, the "defendants"), asserting claims of
defamation and tortious interference with business relations. After the
district court granted summary judgment in favor of the defendants,
the defendants filed a motion seeking sanctions under Rule 11 of the
Federal Rules of Civil Procedure. The district court imposed against
Brickwood sanctions in the amount of $15,000. Brickwood appealed,
and a panel of this court reversed the sanctions order. Sitting en banc,
we likewise reverse the district court’s order imposing sanctions.1
1
The defendants filed a cross-appeal challenging the amount of sanc-
tions awarded by the district court. Because we reverse the imposition of
sanctions, we need not consider the cross-appeal.
BRICKWOOD CONTRACTORS v. DATANET ENGINEERING 3
I.
The facts underlying this dispute are as follows. After submitting
the lowest bid, Brickwood entered into a contract with Charles
County, Maryland, to repair, clean and restore a water storage tank.
K&K Painting, a losing bidder, submitted a bid protest to the county,
asking that Brickwood’s contract be terminated. The bid protest
included a letter written to K&K by defendant John Cignatta, presi-
dent of defendant Datanet Engineering, Inc. In his letter, Cignatta
stated that the "containment method" being used by Brickwood in
connection with the removal of lead paint from the water tank vio-
lated various OSHA regulations, and the letter used the word "illegal"
several times when describing the containment method being used.
See J.A. 10-11. The county later terminated Brickwood’s contract, but
for reasons unconnected to the bid protest. After losing the county
contract, Brickwood filed an action in federal district court against
Cignatta and Datanet, asserting that the Cignatta letter amounted to
defamation and tortious interference with business relations. The dis-
trict court granted summary judgment in favor of the defendants, and
Brickwood appealed.
A few days after judgment had been rendered but before Brick-
wood filed its notice of appeal, the defendants filed with the district
court and served on Brickwood a motion requesting monetary sanc-
tions under Rule 11 of the Federal Rules of Civil Procedure. In the
motion, the defendants claimed that Brickwood frivolously filed this
action, failed to reevaluate its case throughout discovery, and filed a
meritless response to their summary judgment motion. Brickwood
filed an opposition to the sanctions motion, but did not argue that the
defendants failed to comply with Rule 11’s 21-day "safe-harbor" pro-
visions. See Fed. R. Civ. 11(c)(1)(A). The district court held the sanc-
tions motion in abeyance pending a decision by this court on the
summary judgment ruling. After this court affirmed that decision, see
Brickwood Contractors, Inc. v. Datanet Eng’g, Inc., No. 99-1818,
2000 WL 292641 (4th Cir. March 21, 2000), the district court
imposed Rule 11 sanctions against Brickwood in the amount of
$15,000.
Brickwood appealed the sanctions, arguing that the defendants’
Rule 11 motion did not comply with the safe-harbor provisions set
4 BRICKWOOD CONTRACTORS v. DATANET ENGINEERING
forth in Rule 11(c)(1)(A). Although Brickwood did not raise the safe-
harbor issue before the district court, a panel of this court nonetheless
concluded that the defendants’ failure to comply with Rule
11(c)(1)(A) precluded the imposition of sanctions. The panel there-
fore reversed the district court’s order imposing sanctions. See Brick-
wood Contractors, Inc. v. Datanet Eng’g, Inc., 335 F.3d 293 (4th Cir.
2003). After a call for a poll by a circuit judge, a majority of active
circuit judges voted to vacate the panel opinion and rehear the case
en banc. We now reverse the district court’s order imposing sanctions
against Brickwood.
II.
At the center of this case is Rule 11(c)(1)(A), which states:
A motion for sanctions under this rule shall be made sepa-
rately from other motions or requests and shall describe the
specific conduct alleged to violate subdivision (b). It shall
be served as provided in Rule 5, but shall not be filed with
or presented to the court unless, within 21 days after service
of the motion (or such other period as the court may pre-
scribe), the challenged paper, claim, defense, contention,
allegation, or denial is not withdrawn or appropriately cor-
rected.
Fed. R. Civ. P. 11(c)(1)(A).
The requirements of the rule are straightforward: The party seeking
sanctions must serve the Rule 11 motion on the opposing party at
least twenty-one days before filing the motion with the district court,
and sanctions may be sought only if the challenged pleading is not
withdrawn or corrected within twenty-one days after service of the
motion. See id. Because the rule requires that the party submitting the
challenged pleading be given an opportunity to withdraw the plead-
ing, sanctions cannot be sought after summary judgment has been
granted. See Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 152
(4th Cir. 2002) (explaining that "the ‘safe harbor’ provisions of Rule
11(c)(1)(A) preclude the serving and filing of any Rule 11 motion
after conclusion of the case"); see also In re Pennie & Edmonds LLP,
323 F.3d 86, 89 (2nd Cir. 2003) ("[T]he ‘safe harbor’ provision func-
BRICKWOOD CONTRACTORS v. DATANET ENGINEERING 5
tions as a practical time limit, and motions have been disallowed as
untimely when filed after a point in the litigation when the lawyer
sought to be sanctioned lacked an opportunity to correct or withdraw
the challenged submission."); Ridder v. City of Springfield, 109 F.3d
288, 297 (6th Cir. 1997) (noting that because of the requirements of
Rule 11(c)(1)(A), "a party cannot wait until after summary judgment
to move for sanctions under Rule 11").
It is clear from the language of the rule that it imposes mandatory
obligations upon the party seeking sanctions, so that failure to comply
with the procedural requirements precludes the imposition of the
requested sanctions. See, e.g., Elliott v. Tilton, 64 F.3d 213, 216 (5th
Cir. 1995) ("The plain language of [Rule 11(c)(1)(A)] indicates that
this notice and opportunity prior to filing is mandatory. Plaintiffs did
not comply with this procedural prerequisite. Therefore, the sanction
and payment of costs and attorneys’ fees ordered by the district court
cannot be upheld under Rule 11."); accord Gordon v. Unifund CCR
Partners, 345 F.3d 1028, 1030 (8th Cir. 2003); Radcliffe v. Rainbow
Constr. Co., 254 F.3d 772, 789 (9th Cir. 2001); AeroTech, Inc. v.
Estes, 110 F.3d 1523, 1528-29 (10th Cir. 1997); Ridder, 109 F.3d at
296; Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1328 (2d Cir.
1995). In addition, the rule serves to limit the power of the district
court to impose sanctions under the rule, by expressly conditioning
the court’s authority to impose sanctions upon compliance with the
safe-harbor provisions. See Fed. R. Civ. P. 11(c) ("If, after notice and
a reasonable opportunity to respond, the court determines that subdi-
vision (b) has been violated, the court may, subject to the conditions
stated below, impose an appropriate sanction . . . .") (emphasis
added).
Rule 11(c)(1)(A) thus establishes conditions precedent to the impo-
sition of sanctions under the rule. If those conditions are not satisfied,
the Rule 11 motion for sanctions may not be filed with the district
court. If a non-compliant motion nonetheless is filed with the court,
the district court lacks authority to impose the requested sanctions.2
2
The failure of a party to comply with the safe-harbor requirements
affects only the district court’s authority to impose sanctions requested
by a party under Rule 11(c)(1)(A). For example, failure to comply with
6 BRICKWOOD CONTRACTORS v. DATANET ENGINEERING
In this case, the defendants did not serve their Rule 11 motion on
Brickwood before filing it with the district court. Moreover, because
the defendants waited until after summary judgment had been
granted, Brickwood could not have withdrawn or otherwise corrected
the complaint even if the motion had been served before it was filed.
It seems clear, then, that the defendants utterly failed to comply with
the procedural requirements of Rule 11(c)(1)(A). The conclusion that
the defendants failed to comply with the procedural requirements of
Rule 11(c)(1)(A) would be enough, at least in most cases, to require
reversal of the district court’s imposition of sanctions. See, e.g.,
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990) (con-
cluding that a district court’s decision to impose Rule 11 sanctions
should be reviewed for abuse of discretion); Gordon, 345 F.3d at
1030 ("The district court’s awarding of sanctions against Appellant in
contravention of the explicit procedural requirements of Rule 11 was
an abuse of discretion.").
As mentioned previously, however, Brickwood did not argue
below that the defendants’ failure to comply with Rule 11(c)(1)(A)
precluded an award of sanctions under Rule 11. The defendants con-
tend that Brickwood’s failure to raise the safe-harbor issue below pre-
vents it from raising that issue on appeal. See, e.g., Williams v.
Professional Transp., Inc., 294 F.3d 607, 614 (4th Cir. 2003) ("Issues
raised for the first time on appeal are generally not considered absent
exceptional circumstances."); Muth v. United States, 1 F.3d 246, 250
(4th Cir. 1993) ("As this court has repeatedly held, issues raised for
the first time on appeal generally will not be considered."). The ques-
tion, then, is whether we should in this case apply the general rule that
we will not consider issues raised for the first time on appeal.
the safe-harbor provisions would have no effect on the court’s authority
to sua sponte impose sanctions under Rule 11(c)(1)(B), to award costs
pursuant to 28 U.S.C.A. § 1927, or to impose sanctions within its inher-
ent power, see United States v. Shaffer Equipment Co., 11 F.3d 450, 461-
62 (4th Cir. 1993).
BRICKWOOD CONTRACTORS v. DATANET ENGINEERING 7
A.
A fundamental exception to the general rule, of course, involves
issues relating to the court’s subject-matter jurisdiction. "Federal
courts are not courts of general jurisdiction; they have only the power
that is authorized by Article III of the Constitution and the statutes
enacted by Congress pursuant thereto." Bender v. Williamsport Area
Sch. Dist., 475 U.S. 534, 541 (1986). Subject-matter jurisdiction can-
not be conferred by the parties, nor can a defect in subject-matter
jurisdiction be waived by the parties. See United States v. Cotton, 535
U.S. 625, 630 (2002). Accordingly, questions of subject-matter juris-
diction may be raised at any point during the proceedings and may
(or, more precisely, must) be raised sua sponte by the court. See
Bender, 475 U.S. at 541 ("[E]very federal appellate court has a spe-
cial obligation to satisfy itself not only of its own jurisdiction, but also
that of the lower courts in a cause under review, even though the par-
ties are prepared to concede it.") (internal quotation marks omitted).
If the requirements of Rule 11(c)(1)(A) can be viewed as limitations
on the district court’s subject-matter jurisdiction, then Brickwood’s
failure to timely raise the Rule 11(c)(1)(A) issue would be irrelevant.
We conclude, however, that Rule 11(c)(1)(A) does not implicate the
district court’s subject-matter jurisdiction, a conclusion that is largely
compelled by the Supreme Court’s recent decision in Kontrick v.
Ryan, 124 S. Ct. 906 (2004).3
3
A divided panel of this court has previously concluded that Rule
11(c)(1)(A) does not implicate the district court’s subject-matter jurisdic-
tion. See Rector v. Approved Fed. Sav. Bank, 265 F.3d 248, 253-54 (4th
Cir. 2001). Because we are sitting en banc, we are not obligated to fol-
low Rector, and we could overrule it were we to conclude that it was
wrongly decided. See, e.g., United States v. Lancaster, 96 F.3d 734, 742
& n.7 (4th Cir. 1996) (en banc). As we will explain, however, we believe
that the Rector majority properly rejected the jurisdictional argument.
We also note that both the First Circuit and the Ninth Circuit have at
least implicitly concluded that the safe-harbor provisions do not impli-
cate the court’s subject-matter jurisdiction. See Retail Flooring Dealers
of America v. Beaulieu of America, LLC, 339 F.3d 1146, 1150 n.5 (9th
Cir. 2003) (noting that safe-harbor issue had not been raised at the dis-
trict court level, but reaching the issue in order "to prevent manifest
injustice."); Nyer v. Winterthur Int’l, 290 F.3d 456, 460 (1st Cir. 2002)
(refusing to consider whether the safe-harbor provisions had been com-
plied with because the issue had not been raised before the district court).
8 BRICKWOOD CONTRACTORS v. DATANET ENGINEERING
In Kontrick, a creditor filed an objection to the discharge of a
Chapter 7 debtor. Although the objection was not timely under Rule
4004 of the Federal Rules of Bankruptcy Procedure, the debtor did
not raise the timeliness issue until after the bankruptcy court consid-
ered the merits of the creditor’s objection and determined that dis-
charge should be denied. See id. at 912-13. In a motion for
reconsideration, the debtor argued that the bankruptcy court lacked
jurisdiction over the creditor’s claim because it was untimely filed.
The bankruptcy court rejected that argument and concluded that the
debtor forfeited the right to question the timeliness of the objection
by not raising the issue before the bankruptcy court ruled on the mer-
its of the objection. The district court and the court of appeals agreed
with the bankruptcy court, both concluding that the timeliness provi-
sions of the relevant bankruptcy rules were not jurisdictional and
could be forfeited if not timely raised. See id. at 913.
The Supreme Court agreed with this conclusion. The Court noted
that Congress had clearly granted the bankruptcy court subject-matter
jurisdiction over the creditor’s objection to the discharge of the debtor
and that there were no "built-in time constraints" contained in any of
the statutes governing objections to discharge. Id. at 914. Because the
district court had subject-matter jurisdiction over the creditor’s claim
and court procedural rules "do not create or withdraw federal jurisdic-
tion," id. (internal quotation marks omitted), the Court concluded that
the time constraints in the rule did not implicate the bankruptcy
court’s subject-matter jurisdiction. Instead, the Court described the
bankruptcy rule as a "claim-processing rule[ ]" that "d[id] not delin-
eate what cases bankruptcy courts are competent to adjudicate." Id.
The court rejected the debtor’s argument that, while the rule did not
implicate the court’s subject-matter jurisdiction as that phrase is com-
monly understood, the rule had "the same import as provisions gov-
erning subject-matter jurisdiction" and that a debtor should therefore
be permitted to raise the timeliness question at "any time in the pro-
ceedings, even initially on appeal or certiorari." Id. at 915. The court
explained:
The equation Kontrick advances overlooks a critical differ-
ence between a rule governing subject-matter jurisdiction
and an inflexible claim-processing rule. Characteristically, a
BRICKWOOD CONTRACTORS v. DATANET ENGINEERING 9
court’s subject-matter jurisdiction cannot be expanded to
account for the parties’ litigation conduct; a claim-
processing rule, on the other hand, even if unalterable on a
party’s application, can nonetheless be forfeited if the party
asserting the rule waits too long to raise the point.
Id. at 916. Applying the approach of the Kontrick court to this case
leads us to conclude that the safe-harbor provisions of Rule 11 do not
implicate the district court’s subject-matter jurisdiction.
Kontrick makes it clear that the term "jurisdictional" should be
used very carefully: "Clarity would be facilitated if courts and liti-
gants used the label ‘jurisdictional’ not for claim-processing rules, but
only for prescriptions delineating the classes of cases (subject-matter
jurisdiction) and the persons (personal jurisdiction) falling within a
court’s adjudicatory authority." Id. at 915. We believe the Court’s rec-
ommendation is applicable here. There is no question that Congress
has granted federal district courts subject-matter jurisdiction over the
category of case before us—one between completely diverse parties
where the amount in controversy exceeds $75,000. See 28 U.S.C.A.
§ 1332 (West 1993 & Supp. 2003); Caterpillar Inc. v. Lewis, 519 U.S.
61, 68 (1996)). And the parties point us to no statute that withdraws
or otherwise limits this grant of subject-matter jurisdiction with
regard to a procedurally defective Rule 11 motion, nor have we found
any such statute. The absence of such statutory withdrawal or limita-
tion makes it difficult to conclude that the safe-harbor provisions of
Rule 11 affect the district court’s subject-matter jurisdiction. See Kon-
trick, 124 S. Ct. at 914 ("Only Congress may determine a lower fed-
eral court’s subject-matter jurisdiction."); Owen Equip. & Erection
Co. v. Kroger, 437 U.S. 365, 370 (1978) (explaining that "it is axiom-
atic that the Federal Rules of Civil Procedure do not create or with-
draw federal jurisdiction"); Snyder v. Harris, 394 U.S. 332, 337-38
(1969) (explaining that the Court’s "rule-making authority [is] limited
by the inability of a court, by rule, to extend or restrict the jurisdiction
conferred by a statute") (internal quotation marks omitted); Fed. R.
Civ. P. 82 ("These rules shall not be construed to extend or limit the
jurisdiction of the United States district courts . . . .").
We recognize, of course, that there are some court rules that are
consistently described as "jurisdictional." For example, cases refer to
10 BRICKWOOD CONTRACTORS v. DATANET ENGINEERING
Rule 4 of the Rules of Appellate Procedure, which governs the time
for filing a notice of appeal, as "mandatory and jurisdictional." See,
e.g., Browder v. Director, Dep’t of Corr., 434 U.S. 257, 264 (1978);
Alston v. MCI Communications Corp., 84 F.3d 705, 706 (4th Cir. 1996).4
Rules governing the timing of certain post-trial motions, such as Rule
59 of the Rules of Civil Procedure, have also been described as juris-
dictional. See, e.g., Schneider v. Fried, 320 F.3d 396, 402 (3rd Cir.
2003) (concluding that district court lacks jurisdiction to grant
untimely Rule 59 motion); Weissman v. Dawn Joy Fashions, Inc., 214
F.3d 224, 230 (2nd Cir. 2000) ("Neither Rule 50(b) nor Rule 59(b)
gives a district court the power to grant an extension, and we have
stated that Rule 6(b) makes the ten-day time limitation jurisdictional
so that the failure to make a timely motion divests the district court
of power to modify the trial verdict.") (internal quotation marks and
alterations omitted). Given Kontrick’s admonition that court rules of
procedure "do not create or withdraw federal jurisdiction," 124 S. Ct.
at 914, and its directive to use the term "jurisdiction" only in limited
circumstances, it is perhaps possible that the Court might begin to
describe such rules not as jurisdictional but instead as inflexible
claim-processing rules. Assuming, however, that such rules are prop-
erly described as jurisdictional, we do not believe that Rule 11(c) can
be so described.
Broadly speaking, district courts have subject-matter jurisdiction
over the first round of litigation proceedings, and the courts of appeal
have jurisdiction over the second round. In that sense, then, in the lan-
guage of Kontrick, different "classes of cases" fall within the "adjudi-
catory authority" of district courts and appellate courts—district
courts have authority over trials and appellate courts have authority
over appeals. Id. Appellate Rule 4 is thus jurisdictional in that it
establishes the point of time at which the subject-matter jurisdiction
of the district court ends and that of the court of appeals begins. See
Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)
4
We note, however, that at least in civil cases, Rule 4 reflects the com-
mands of 28 U.S.C.A. § 2107, which provides, inter alia, that notices of
appeal in civil cases must be filed within thirty days after the entry of
judgment. See 28 U.S.C.A. § 2107(a). Thus, it is the statute that estab-
lishes jurisdictional time limits for filing notices of appeal. Rule 4 simply
implements this statutory command.
BRICKWOOD CONTRACTORS v. DATANET ENGINEERING 11
("The filing of a notice of appeal is an event of jurisdictional
significance—it confers jurisdiction on the court of appeals and
divests the district court of its control over those aspects of the case
involved in the appeal."). The rules governing the timing of post-trial
motions likewise involve drawing the temporal line marking the point
when the district court’s jurisdiction over a case ends and the jurisdic-
tion of the appellate court begins.
Rule 11, however, serves no similar purpose. Rule 11 simply sets
forth, albeit in mandatory terms, the conditions under which sanctions
may be imposed while the case is before the district court. Rule 11
is not directed at determining the point in time when subject-matter
jurisdiction over a single case shifts from one court to another.
Because the purpose and operation of Rule 11 are far different from
those of the other rules discussed above, we do not believe that Rule
11 should be placed in the same category as those jurisdictional rules.5
Instead, we believe that Rule 11(c) and the safe-harbor requirements
set forth in subsection (c)(1)(A), like the bankruptcy rule before the
Supreme Court in Kontrick, are properly characterized as "inflexible
claim-processing rule[s]." Kontrick, 124 S. Ct. at 916.
We recognize that the language of the bankruptcy rule at issue in
Kontrick is substantially different from the language at issue in this
case. Rule 11(c) expressly limits the power of the district court to
impose sanctions, whereas the bankruptcy rule in Kontrick simply
establishes a time for filing an objection, without including any limi-
tation on the court’s power to act on an untimely objection.6 But we
do not believe that the rule’s limitation on a district court’s power is
determinative of the jurisdiction question.
5
Moreover, because Rule 11 sanctions must now be sought while the
action is pending before the district court, it would be most unusual to
conclude that Rule 11 operates to deprive the court of subject-matter
jurisdiction over a procedural issue inextricably intertwined with the
merits of an active, pending case over which the court otherwise has
subject-matter jurisdiction.
6
See Fed. R. Bankr. P. 4004(a) ("In a chapter 7 liquidation case a com-
plaint objecting to the debtor’s discharge . . . shall be filed no later than
60 days after the first date set for the meeting of creditors.").
12 BRICKWOOD CONTRACTORS v. DATANET ENGINEERING
First, we note that neither Rule 4 of the Rules of Appellate Proce-
dure nor Rule 59 of the Rules of Civil Procedure contains language
expressly limiting the power of the court to act on an untimely filing,
yet these rules are considered to be jurisdictional. This suggests that
it is not the language of the rule so much as the purpose of the rule
that is determinative of the subject-matter jurisdiction question. And
as discussed above, the purpose of Rule 11 does not provide a basis
for attaching jurisdictional significance to the rule’s procedural
requirements.
Moreover, there are other limitations on a district court’s power to
act that do not act as limitations on the court’s subject-matter jurisdic-
tion. For example, a district court lacks the power to enter judgment
against a party over whom the court lacks personal jurisdiction. See
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999)
("Personal jurisdiction . . . is an essential element of the jurisdiction
of a district court, without which the court is powerless to proceed to
an adjudication.") (internal quotation marks and alterations omitted);
Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee,
456 U.S. 694, 702 (1982) ("The requirement that a court have per-
sonal jurisdiction . . . . represents a restriction on judicial power
. . . as a matter of individual liberty."). Nonetheless, unlike subject-
matter jurisdiction, the requirement of personal jurisdiction may be
waived. See Ruhrgas, 526 U.S. at 584; Insurance Corp. of Ireland,
456 U.S. at 703. Thus, even if the district court in fact lacked personal
jurisdiction over a party, the failure to timely raise the defense may
result in the enforcement of a judgment that the district court was, in
one sense, powerless to render.
Similarly, a district court surely lacks the power to enter judgment
in favor of a party who has not alleged or proved a cognizable cause
of action. Nonetheless, the ultimate failure of a complaint to state a
cause of action does not deprive the district court of subject-matter
jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
89 (1998) ("It is firmly established in our cases that absence of a valid
(as opposed to arguable) cause of action does not implicate subject
matter jurisdiction."); Bell v. Hood, 327 U.S. 678, 682 (1946)
("Jurisdiction . . . is not defeated . . . by the possibility that the aver-
ments might fail to state a cause of action on which petitioners could
actually recover. For it is well settled that the failure to state a proper
BRICKWOOD CONTRACTORS v. DATANET ENGINEERING 13
cause of action calls for a judgment on the merits and not for a dis-
missal for want of jurisdiction.").
Thus, a court’s power to act simply is not co-extensive with its
subject-matter jurisdiction. That is, a district court may have subject-
matter jurisdiction over a case but yet lack the power to act on a par-
ticular claim made within that case. While it may be tempting to
equate an express limitation on a court’s power to act, like that con-
tained in Rule 11, with a limitation on the court’s subject-matter juris-
diction, we must remain mindful of the Supreme Court’s admonition
in Kontrick to reserve the jurisdictional label "only for prescriptions
delineating the classes of cases (subject-matter jurisdiction) and the
persons (personal jurisdiction) falling within a court’s adjudicatory
authority." Kontrick, 124 S. Ct. at 915. Rule 11 does not delineate a
class of cases that the district court is authorized to hear, but instead
sets forth inflexible rules governing the circumstances under which
Rule 11 sanctions may be sought and granted. The district court,
therefore, does not lose subject-matter jurisdiction over a sanctions
request simply because the requesting party failed to comply with
Rule 11’s safe-harbor requirements. And because Rule 11(c)(1)(A)
does not implicate the district court’s subject matter jurisdiction, the
issue of whether a party has complied with the rule is subject to for-
feiture if not timely raised.7
In his separate opinion, Judge Luttig suggests that in addition to the
jurisdictional and claim-processing rules discussed by the Supreme
Court in Kontrick, there is a third category of rules: Rules which do
not implicate a court’s subject-matter jurisdiction, but are nonetheless
not forfeitable by a party, and which must be enforced by a court
without regard to whether compliance with the rule was timely (or
7
While cases often use the terms "forfeit" and "waive" interchange-
ably, there is an important distinction. "Whereas forfeiture is the failure
to make the timely assertion of a right, waiver is the intentional relin-
quishment or abandonment of a known right." United States v. Olano,
507 U.S. 725, 733 (1993) (internal quotation marks omitted). In this case,
there is no suggestion that Brickwood was aware of and intentionally
relinquished its right to rely on the safe-harbor provisions of Rule 11.
Brickwood thus did not waive but instead forfeited the Rule 11(c)(1)(A)
issue.
14 BRICKWOOD CONTRACTORS v. DATANET ENGINEERING
ever) raised by the appropriate party. Judge King expresses a similar
view in his separate opinion. While their approach to the question is
not without appeal, we believe that the Supreme Court at least implic-
itly rejected such an approach in Kontrick.
The petitioner in Kontrick acknowledged that the bankruptcy rule
at issue there did not affect the bankruptcy court’s subject-matter
jurisdiction. The petitioner nonetheless argued that given the unequiv-
ocal language of the rule and the fact that the Bankruptcy Rules place
limits on the bankruptcy court’s power to extend the time limit set
forth in the rule, the rule should be treated as if it were a jurisdictional
rule and thus should not be forfeitable. See Kontrick, 124 S. Ct. at
915; see also Brief of Petitioner, 2003 WL 21396448, at *12-19;
Reply Brief of Petitioner, 2003 WL 22038388, at *5-8. The Supreme
Court rejected that argument:
Though Kontrick concedes that Rules 4004 and
9006(b)(3) are not properly labeled "jurisdictional" in the
sense of describing a court’s subject-matter jurisdiction, he
maintains that the Rules have the same import as provisions
governing subject-matter jurisdiction. A litigant generally
may raise a court’s lack of subject-matter jurisdiction at any
time in the same civil action, even initially at the highest
appellate instance. Just so, Kontrick urges, a debtor may
challenge a creditor’s objection to discharge as untimely
. . . any time in the proceedings, even initially on appeal or
certiorari.
The equation Kontrick advances overlooks a critical dif-
ference between a rule governing subject-matter jurisdiction
and an inflexible claim-processing rule. Characteristically, a
court’s subject-matter jurisdiction cannot be expanded to
account for the parties’ litigation conduct; a claim-
processing rule, on the other hand, even if unalterable on a
party’s application, can nonetheless be forfeited if the party
asserting the rule waits too long to raise the point.
Kontrick, 124 S. Ct. at 915 (footnote and citations omitted). This anal-
ysis seems to indicate that only issues relating to (true) subject-matter
jurisdiction are not subject to the general rule that issues not timely
BRICKWOOD CONTRACTORS v. DATANET ENGINEERING 15
raised are forfeited. Thus, we find it difficult to square the Court’s
rejection of the petitioner’s argument in Kontrick with the existence
of a third category of non-jurisdictional-yet-not-forfeitable rules.
While the Supreme Court may yet recognize such a category, we do
not believe it would be proper for us to do so now.
To summarize, we conclude that the safe-harbor provisions of Rule
11 are inflexible claim-processing rules and that a district court
exceeds its authority by imposing sanctions requested through a
procedurally-deficient Rule 11 motion. However, because Rule 11’s
safe-harbor provisions do not implicate the district court’s subject-
matter jurisdiction, claims of non-compliance with those provisions
are subject to the general rule requiring issues to be first raised with
the district court. Failure to timely raise the safe-harbor issue amounts
to a forfeiture of the issue.
B.
Our conclusion that the safe-harbor protections of Rule 11 are not
jurisdictional and can be forfeited if not timely raised does not, how-
ever, end our inquiry. The rule that issues raised for the first time on
appeal will not be considered is a general rule only. Under certain cir-
cumstances, this court is free to consider issues that would otherwise
be forfeited. See, e.g., Williams, 294 F.3d at 614 ("Issues raised for
the first time on appeal are generally not considered absent excep-
tional circumstances.").
In criminal cases, a court’s power to consider an untimely-raised
issue is governed by Rule 52(b) of the Federal Rules of Criminal Pro-
cedure, see Fed. R. Crim. P. 52(b) ("A plain error that affects substan-
tial rights may be considered even though it was not brought to the
court’s attention."), as fleshed out by the Supreme Court in United
States v. Olano, 507 U.S. 725 (1993) (setting forth standards to guide
the determination of whether a forfeited error should be corrected
under Rule 52(b)). While the Federal Rules of Civil Procedure con-
tain no equivalent to Rule 52(b), federal courts have long recognized
their inherent power to address issues that were not timely raised. See,
e.g., New York Cent. R.R. v. Johnson, 279 U.S. 310, 318-19 (1929)
("The public interest requires that the court of its own motion, as is
its power and duty, protect suitors in their right to a verdict, uninflu-
16 BRICKWOOD CONTRACTORS v. DATANET ENGINEERING
enced by the appeals of counsel to passion or prejudice. Where such
paramount considerations are involved, the failure of counsel to par-
ticularize an exception will not preclude this court from correcting the
error.") (internal citation omitted); Washington Gas Light Co. v. Vir-
ginia Elec. & Power Co., 438 F.2d 248, 251 (4th Cir. 1971) ("[I]f
deemed necessary to reach the correct result, an appellate court may
sua sponte consider points not presented to the district court and not
even raised on appeal by any party.").
This court has held that the approach set out by the Supreme Court
in Olano should also be applied in civil cases. See Taylor v. Virginia
Union Univ., 193 F.3d 219, 239-40 (4th Cir. 1999) (en banc) ("Before
we can exercise our discretion to correct an error not raised below in
a civil case, at a minimum, the requirements of [Olano] must be satis-
fied."), abrogated in part on other grounds by Desert Palace, Inc. v.
Costa, 539 U.S. 90 (2003). Under the Olano standard, there must be
an error, that error must be plain, and the error must affect the appel-
lant’s substantial rights. See Olano, 507 U.S. at 732; Taylor, 193 F.3d
at 240. Even if these requirements are met, this court is not required
to correct the error. See Olano, 507 U.S. at 735 ("If the forfeited error
is plain and affects substantial rights, the court of appeals has author-
ity to order correction, but is not required to do so.") (internal quota-
tion marks and alteration omitted); United States v. Stockton, 349
F.3d 755, 761 (4th Cir. 2003) (explaining that the correction of a plain
error "remains within the discretion of the appellate court"). We
should exercise our discretion to correct the error only if we can con-
clude, "after examining the particulars of the case, that the error seri-
ously affects the fairness, integrity or public reputation of judicial
proceedings." Taylor, 193 F.3d at 240.8
8
Cases from this circuit have used somewhat varying descriptions of
the circumstances under which an unpreserved error in the civil context
will be addressed on appeal. See, e.g., Dixon v. Edwards, 290 F.3d 699,
719 (4th Cir. 2002) (stating that the court will address an unpreserved
error if there is plain error or if the refusal to address the issue "would
result in a fundamental miscarriage of justice"); National Wildlife Fed.
v. Hanson, 859 F.2d 313, 318 (4th Cir. 1988) (explaining that an
unpreserved error may be addressed if the error is plain and refusal to
consider it would result in a miscarriage of justice). While these opinions
do not engage in the same step-by-step analysis of the issue as did the
en banc court in Taylor or the Supreme Court in Olano, we believe that
these short-hand articulations of the proper standard, would, in applica-
tion, lead to the same result as would a more formal application of the
Olano-Taylor standard.
BRICKWOOD CONTRACTORS v. DATANET ENGINEERING 17
In our view, the first three Olano requirements are easily satisfied
in this case. Because the defendants failed to comply with Rule 11’s
safe-harbor provisions, it was error to impose the sanctions requested
by the defendants. See Olano, 507 U.S. at 732-33 ("Deviation from
a legal rule is ‘error’ unless the rule has been waived."); id. at 733-34
("If a legal rule was violated during the district court proceedings, and
if the defendant did not waive the rule, then there has been an ‘error’
. . . despite the absence of a timely objection."). The error is plain,
because at least by the time of appeal, caselaw from this and other cir-
cuits made it clear that Rule 11’s safe-harbor provisions are manda-
tory. See United States v. Promise, 255 F.3d 150, 160 (4th Cir. 2001)
(en banc) ("To be plain, an error must be clear or obvious, at least by
the time of appeal. An error is clear or obvious when the settled law
of the Supreme Court or this circuit establishes that an error has
occurred. In the absence of such authority, decisions by other circuit
courts of appeals are pertinent to the question of whether an error is
plain.") (internal quotation marks and citations omitted). Finally, the
error affected Brickwood’s substantial rights, because it was sub-
jected to Rule 11 sanctions that the district court was not empowered
to impose, given the defendants’ failure to comply with Rule
11(c)(1)(A). See Olano, 507 U.S. at 734 (explaining that an appel-
lant’s substantial rights are affected by an error that "affected the out-
come of the district court proceedings").
After carefully considering the particular circumstances of this case
and the purposes behind the safe-harbor provisions of Rule 11, we
also conclude that correction of the Rule 11 error is warranted. As the
Sixth Circuit explained in Ridder v. City of Springfield, the safe-
harbor provisions were added to Rule 11 in order "to reduce Rule 11’s
volume, formalize appropriate due process considerations of sanctions
litigation, and diminish the rule’s chilling effect." Ridder, 109 F.3d at
294. In addition,
[b]y providing immunity from sanctions through self-
regulation, the ‘safe harbor’ period also serves the stream-
lining purpose that the 1983 architects of Rule 11 originally
envisioned. Undoubtedly, the drafters also anticipated that
civility among attorneys and between bench and bar would
be furthered by having attorneys communicate with each
18 BRICKWOOD CONTRACTORS v. DATANET ENGINEERING
other with an eye toward potentially resolving their differ-
ences prior to court involvement.
Id. (citation omitted). Allowing the imposition of sanctions to stand
in this case, where there was not even an attempt to comply with the
requirements of the safe-harbor provisions, would surely frustrate
these important goals. Moreover, as discussed above, the very struc-
ture of the safe-harbor provisions makes it clear that a sanctions
motion must be served and filed before the conclusion of the case.
Rule 11(c)(1)(A) provides a "safe harbor" only if the party against
whom sanctions are sought in fact has an opportunity to withdraw the
challenged pleading. In this case, the defendants did not seek sanc-
tions until after summary judgment had been granted against Brick-
wood, thus making it impossible for Brickwood to re-consider its
position in the face of a sanctions request.
In sum, a consideration of the purposes underlying Rule
11(c)(1)(A) and the extent to which these purposes would be frus-
trated by affirming the imposition of sanctions in this case suggests
that the interests of justice would best be served by the exercise of our
discretion to correct the improperly imposed sanctions. This conclu-
sion is strengthened when we consider the fact that all the parties
involved in this case were equally blameworthy in creating the error.
That is, as counsel for both sides readily admitted at oral argument,
Rule 11(c)(1)(A) was not complied with by the defendants or raised
by Brickwood because they were simply unaware of it. Under these
circumstances, we believe it would be unjust for Brickwood to bear
the full weight of the consequences of an unfamiliarity shared by all
involved. Therefore, after careful consideration of all the relevant cir-
cumstances, we believe it proper to exercise our discretion to correct
the error raised by Brickwood for the first time on appeal, and we
therefore reverse the district court’s order imposing Rule 11 sanc-
tions.
We pause to emphasize that the determination of whether to exer-
cise our discretion to correct an unpreserved error is a case-specific
one. See Singleton v. Wulff, 428 U.S. 106, 121 (1976) ("The matter
of what questions may be taken up and resolved for the first time on
appeal is one left primarily to the discretion of the courts of appeals,
to be exercised on the facts of individual cases."). Thus, a decision to
BRICKWOOD CONTRACTORS v. DATANET ENGINEERING 19
correct (or not to correct) an error in a particular case may provide lit-
tle guidance in a later case arising under substantially different cir-
cumstances. For example, the majority in Rector, after concluding
that Rule 11’s safe-harbor provisions were subject to forfeiture, did
not elect to consider the forfeited Rule 11 issue. However, in Kirby
v. Allegheny Beverage Corp., 811 F.2d 253 (4th Cir. 1987), a case
relied upon by the panel that originally heard this case, the court
elected to correct a Rule 11 error that had not even been raised by the
sanctioned party on appeal. See id. at 256 n.2. Because the facts in
Rector differ so substantially from the facts in the case at bar, we do
not believe Rector to be inconsistent with the decision in Kirby or in
this case.9 Nonetheless, given the important purposes served by Rule
11(c)(1)(A) and the mandatory nature of its language, we believe that
in most cases involving failure to comply with the safe-harbor provi-
sions, a proper application of the Olano-Taylor standards will lead to
correction of the error.
9
In Rector, this court assumed for purposes of its opinion that the
defendant did not comply with the safe-harbor requirements. The facts
of that case, however, demonstrate the problems of proof that can be cre-
ated by a failure to timely raise a Rule 11(c)(1)(A) compliance question.
The plaintiffs’ original complaint in that case was filed in April 1999.
The Rule 11 sanction motion was filed in September 1999, but the
motion itself stated that it had been served on the plaintiffs in June 1999,
along with various other documents. The plaintiffs objected to the
requested sanctions, but only on the grounds that the complaint was not
sanctionable; the defendant’s failure to comply with the safe-harbor
requirements was not raised. Sanctions were imposed, and the plaintiffs
appealed, but they still did not question whether the defendant had com-
plied with the safe-harbor provisions. This court vacated the imposition
of sanctions and remanded, and the district court re-imposed sanctions.
Only in the second appeal of the sanctions award did the plaintiffs argue
that the defendant had not complied with the safe-harbor requirements.
While the defendant believed that it had served the motion in June 1999
as indicated on the motion itself (which would have satisfied the require-
ments of Rule 11), the defendant by the time of the second appeal
(approximately two years after the sanctions were first imposed) was no
longer in a position to prove that it had in fact complied with Rule
11(c)(A)(1). See Rector, 265 F.3d at 249-51.
20 BRICKWOOD CONTRACTORS v. DATANET ENGINEERING
III.
To summarize, we conclude that the safe-harbor provisions of Rule
11(c)(1)(A), while mandatory, do not implicate the district court’s
subject-matter jurisdiction and thus may be forfeited if not timely
raised. In this case, Brickwood forfeited the safe-harbor compliance
issue by not raising it before the district court. Nonetheless, exercising
our discretion to notice and correct plain errors, we conclude that the
district court erred by imposing sanctions on Brickwood in the face
of the defendants’ failure to comply with the requirements of Rule
11(c)(1)(A). Accordingly, we hereby reverse the district court’s order
imposing sanctions on Brickwood.
REVERSED
WIDENER, Circuit Judge, concurring:
I concur in the result.
My opinion in this case is expressed in the panel opinion, Brick-
wood Contractors, Inc. v. Datanet Eng’g, Inc., 335 F.3d 293 (4th Cir.
2003), which has not changed.
LUTTIG, Circuit Judge, concurring in part and concurring in the
judgment:
Federal Rule of Civil Procedure ("FRCP") 11(c) provides that a
court "may" impose sanctions based on a party’s motion, but specifies
that the imposition of sanctions is "subject to the condition[ ]" that the
movant comply with the safe harbor provisions listed in subdivision
(c)(1)(A). I concur in the majority’s opinion to the extent that the
majority concludes that Rule 11’s safe harbor provisions are "manda-
tory," in the sense that "failure to comply with th[ose] procedural
requirements precludes the imposition of the requested sanctions";
that Rule 11(c) "serves to limit the power of the district court to
impose sanctions under the rule, by expressly conditioning the court’s
authority to impose sanctions upon compliance with the safe harbor
provisions"; and that the safe harbor provisions are thus "conditions
precedent to the imposition of sanctions" such that "[i]f a non-
BRICKWOOD CONTRACTORS v. DATANET ENGINEERING 21
compliant motion nonetheless is filed with the court, the district court
lacks the authority to impose the requested sanctions." Ante at 5. I
believe that these conclusions follow from the plain text of Rule 11.
But despite these categorical-sounding conclusions, the majority
goes on to hold that if no objection is made to a movant’s non-
compliance with the safe harbor provisions, and sanctions on that
motion are imposed by the lower court, this court may yet address
that error if such meets the "case-specific" and ultimately "discretion-
[ary]" requirements of plain-error review. Ante at 18. On this score,
I do not believe that the majority accords sufficient weight to Rule
11(c)’s express conditions on the court’s authority to impose sanc-
tions. If it is correct that a movant’s non-compliance with the safe
harbor provisions deprives a court of the power to impose sanctions
on a party’s motion, then I, like Judge King, am quite doubtful that
that power is recovered through a party’s failure to note the error. See
post at 30. I certainly do not believe such to be required, and espe-
cially not by the Supreme Court’s recent opinion in Kontrick v. Ryan,
124 S. Ct. 906 (2004). While I, too, would reverse the district court’s
imposition of Rule 11 sanctions on Brickwood, in my view the defen-
dants’ non-compliance with the safe harbor provisions, even though
not objected to below, necessitates reversal of the sanctions. To the
extent that the majority holds that reversal on this ground is not
required, I concur only in the judgment of the court.
I.
As suggested by the majority, Kontrick rested on a dichotomy
between mandatory "rule[s] governing subject-matter jurisdiction,"
which cannot be waived by a party and thus can be raised at any stage
in a proceeding (although not collaterally), and "inflexible claim-
processing rule[s]," which, "even if unalterable on a party’s applica-
tion, can nonetheless be forfeited if the party asserting the rule waits
too long to raise the point." Ante at 8-9. As framed by the majority,
the question of whether Brickwood forfeited its right to assert the
defendants’ non-compliance with the safe harbor provisions by failing
to raise the issue until this appeal is to be decided by determining into
which of these two categories Rule 11(c) falls. In concluding that
Rule 11(c) is not "jurisdictional" within the intendment of Kontrick,
and thus can be forfeited, the majority distinguishes Rule 11(c) from
22 BRICKWOOD CONTRACTORS v. DATANET ENGINEERING
Federal Rule of Appellate Procedure ("FRAP") 4 and FRCP 59,
which in the past have been held to be "jurisdictional," and which the
majority contends are properly termed "jurisdictional" even post-
Kontrick.
I agree with the majority that Rule 11 is not "jurisdictional" within
the intendment of Kontrick. But I disagree with the majority that
Rules 4 and 59 are "jurisdictional" under Kontrick. As explained
below, however, I believe that, while neither Rule 4 nor Rule 59 (nor,
in the end, Rule 11(c)) fits within either of Kontrick’s categories, the
conditions of all three rules are unwaivable.
A.
As an initial matter, I believe the majority has overlooked the his-
torical and structural reasons that Rules 4 and 59 have been consid-
ered "jurisdictional," and consequently has erroneously dismissed the
relevance of Rule 11(c)’s text on the basis that "neither Rule 4 . . .
nor Rule 59 contains language expressly limiting the power of the
court to act on an untimely filing, yet these rules are considered to be
jurisdictional." Ante at 12. Although that description of the texts of
Rules 4 and 59 is literally correct, it has little relevance. The "jurisdic-
tional" character of these rules has been based not alone on their
wording, or even so much on their wording, but on the wording of
other rules, such as FRCP 6(b) and Federal Rule of Criminal Proce-
dure ("FRCrP") 45(b), which limit the court’s power to enlarge the
period in which the relevant rule (e.g., Rule 59) requires a party to act.1
1
For example, FRCP 6(b) initially provides that "the court for cause
shown may at any time in its discretion" order a period enlarged if
request is made before expiration of the period or, if a request is made
thereafter, for "excusable neglect." The rule then specifies, however, that
"[a court] may not extend the time for taking any action under Rules
50(b) and (c)(2), 52(b), 59(b), (d) and (e), and 60(b), except to the extent
and under the conditions stated in them." As the Court observed in Kon-
trick, it is Rule 6(b) (and its counterpart, FRCrP 45(b)) that are "manda-
tory and jurisdictional," 124 S. Ct. at 915 (quoting Robinson, 361 U.S.
at 228-29); Rule 59 is of the same character because of its reference in
Rule 6(b). FRAP 4 is likewise referenced by a similar provision, FRAP
26(b), which authorizes extensions of time for good cause generally, but
BRICKWOOD CONTRACTORS v. DATANET ENGINEERING 23
In fact, in holding that Rule 45(b) is "mandatory and jurisdic-
tional," the Supreme Court emphasized the importance of such lan-
guage. United States v. Robinson, 361 U.S. 220, 224-26 (1960). In
Robinson, the Court not only rested on Rule 45(b)’s "plain and clear"
language of restriction, reading it to prohibit a court’s recognition of
a late notice of appeal, but also explained that "[i]t is quite significant
that [the rule] not only prohibits the court from enlarging the period
for taking an appeal, but, by the same language in the same sentence,
also prohibits enlargement of the period for taking any action under
Rules 33, 34 and 35, except as provided in those Rules." Prior cases
interpreting the latter rules, the court emphasized, had concluded that
while, for example, the "literal language of Rule [33 regarding
motions for new trial] places . . . limit[s] only on the making of the
motion," Rule 45(b) "prescribe[s] precise times within which the
power of the courts must be confined." Id. at 224-26 (1960).
But even apart from the majority’s failure to recognize the histori-
cal and structural explanation for the characterization of Rules 4 and
59 as "jurisdictional," the majority’s explanation of how these rules
could be called "jurisdictional" under Kontrick cannot be reconciled
with the Supreme Court’s analysis in that case. After explaining that
"[o]nly Congress may determine a lower federal court’s subject-
matter jurisdiction" and discussing the misleading description of some
court rules as "jurisdictional" historically, the Kontrick Court urged
that "[c]larity would be facilitated if courts and litigants used the label
‘jurisdictional’ not for claim-processing rules, but only for prescrip-
tions delineating the classes of cases (subject-matter jurisdiction)
. . . falling within a court’s adjudicatory authority." 124 S. Ct. at 915
(emphases added). The majority attempts to characterize trials and
prohibits extending the time for filing a notice of appeal "except as
authorized in Rule 4." But perhaps even more important historically is
that the notice of appeal requirements for civil and criminal cases were
previously set forth in FRCP 73(a) and FRCrP 37(a)(2), and referenced
by the respective prohibitions on enlargements of time. The advisory
notes for Rule 4’s adoption make clear that the transitions from those
rules to Rules 4(a) (civil appeals) and (b) (criminal appeals) were made
"without any change of substance." Fed. R. App. P. 4, adv. comm. notes,
1967 adoption.
24 BRICKWOOD CONTRACTORS v. DATANET ENGINEERING
appeals as different "classes of cases" "in the language of Kontrick"
for the purposes of subject-matter jurisdiction and, while admitting
that the Supreme Court might eventually hold to the contrary, essen-
tially concludes that because the limitations of Rules 4 and 59 relate
to the transition of a case between trial and appeal, they are "jurisdic-
tional" as meant by Kontrick. Ante at 10-11.
Despite the precatory phrasing of Kontrick’s instruction as to the
proper use of "jurisdictional," there is no suggestion that the Court
meant for "subject-matter jurisdiction," the determination of which,
only paragraphs earlier, the Court explained was the exclusive prov-
ince of Congress, to have anything but its ordinary meaning, a mean-
ing that does not at all support the majority’s conclusions. Indeed, the
majority’s analysis in this regard neglects the axioms of "subject-
matter jurisdiction" recited in Kontrick and that opinion’s application
of those principles to support its analogous conclusion about the time
limitations at issue in that case. See 124 S. Ct. at 914. Quite simply,
just as with the "time constraints applicable to objections to discharge
. . . contained in Bankruptcy Rules" 4004(a) and (b) and 9006(b),
FRAP 4 and FRCP 59 are "Court-prescribed ‘rules of practice and
procedure’" authorized by the Rules Enabling Act, in this case 28
U.S.C. § 2072. Id. "It is axiomatic that such rules do not create or
withdraw federal [subject-matter] jurisdiction." Id.; accord Willy v.
Coastal Corp., 503 U.S. 131, 135 (1992) ("federal courts, in adopting
rules, [a]re not free to extend or restrict the jurisdiction conferred by
a statute.").
That such is undeniably true for Rule 59 is borne out by the Federal
Rules of Civil Procedure’s explicit command that "[t]hese rules shall
not be construed to extend or limit the [subject-matter] jurisdiction of
the United States district courts." Kontrick, 124 S. Ct. at 914 (quoting
Fed. R. Civ. P. 82).
The case for FRAP 4 is somewhat less straightforward due to the
absence of a counterpart to FRCP 82 in the Federal Rules of Appel-
late Procedure. As a general matter, Congress has not granted the
Supreme Court the authority to promulgate Federal Rules of Appel-
late Procedure that enlarge or diminish the subject-matter jurisdiction
of the courts of appeals, and the version of FRCP 82 contained in the
pre-2002 version of those rules (i.e., former FRAP 1(b)) reflected that
BRICKWOOD CONTRACTORS v. DATANET ENGINEERING 25
fact. See, e.g., 16A Charles A. Wright et al., Fed. Prac. & Proc. Juris.
3d § 3947.1 (1999 & Supp. 2004) (noting that "purported conflict"
between the prohibition of Rule 1(b) and the "jurisdictional" limita-
tions of Rules 3 and 4 "was not so much a direct conflict as it was
a reflection of the ‘chameleon quality’ of the word ‘jurisdiction.’")
(citation omitted). However, Rule 1(b) was deemed abrogated in
2002, in recognition of statutory amendments that allowed the
Supreme Court to issue rules "to define finality for purposes of [28
U.S.C. § 1291]" and "to authorize interlocutory appeals not provided
for by [28 U.S.C. § 1292]." Fed. R. App. P. 1, adv. comm. notes,
2002 amends. According to the Advisory Committee, once this power
was exercised with respect to these "unquestionably jurisdictional
statutes," some Federal Rules of Appellate Procedure would, in fact,
"extend or limit the jurisdiction of the courts of appeals," obsoleting
Rule 1(b). Id.
But FRAP 4 was not promulgated pursuant to either amendment,
nor is there any indication that Congress similarly delegated any
authority to the Supreme Court to interpret or expand on the statutory
time limits on civil appeals set forth in 28 U.S.C. § 2107 (which,
however, may be independently subject-matter jurisdictional, see
Kontrick, 124 S. Ct. at 914 & n.8). Of course, that Congress, in mak-
ing the above-noted amendments, felt compelled to explicitly autho-
rize the issuance of court rules of jurisdictional effect suggests that
court rules authorized by section 2072 alone lack such force, even
when they are similar to pre-existing statutory requirements.
B.
That Rule 11(c) is not subject-matter jurisdictional does not, as I
suggest above, resolve the question of its waivability. While it seems
clear that the Supreme Court meant to criticize the use of the label
"jurisdictional" for court rules that, like Rules 4 and 59, do not affect
a court’s subject-matter jurisdiction, there is little evidence to suggest
that Kontrick meant to upset the settled understandings of the effect
of non-compliance with these rules, notwithstanding a court’s statu-
tory jurisdiction over the subject matter of the case. The requirements
of Rule 4, for example, cannot be waived; accordingly, a court is not
prohibited from considering a belated motion to dismiss for an
untimely notice of appeal. See, e.g., Torres v. Oakland Scavenger
26 BRICKWOOD CONTRACTORS v. DATANET ENGINEERING
Co., 487 U.S. 312, 317 (1988). Thus, provided that the legal effect of
these rules was not changed sub silentio by the Court in Kontrick,
rules like these would comprise a third category of rules beyond the
two mentioned in Kontrick, presenting the question of whether Rule
11(c) might not fall within such a third category.
That said, the time limitations imposed by FRCP 6(b) on FRCP 59,
and by FRAP 26(b) on FRAP 4, are strikingly similar in language and
structure to the time limitations imposed by the Bankruptcy Rules in
Kontrick.2 While the latter rules lack the former’s pedigree, if Kontr-
ick truly requires that all court rules be either subject-matter jurisdic-
tional, and thus unwaivable, or "claim-processing rules," and thus
forfeitable, then principled distinction of the two sets of rules might
be impossible, meaning that both sets of rules could be waived.
Kontrick, however, was decided in the limited context of "plead-
ings" and responses thereto. From its opening sentence, which notes
(consistent with the Federal Rules of Bankruptcy Procedure) that
Ryan’s objections to discharge were included in a "pleading," 124 S.
Ct. at 910, to its ultimate description of the time limitations at issue
as "complaint-processing rules," id. at 918 (emphasis added), Kontr-
ick’s use of the rules governing, and terminology of, pleadings and
responses thereto is pervasive. The opinion concludes that, although,
by rule, FRCP 12(b)-(h) governed that adversary proceeding, and
FRCP 12(h) preserves certain defenses beyond the initial response,
under that rule "[o]nly subject-matter jurisdiction is preserved post-
trial." Id. at 917-18. Characterizing Kontrick’s argument as an affir-
mative defense, the Court held that because he "failed to assert the
time constraints . . . in a pleading or amended pleading responsive to
[the] amended complaint" and because that defense was not subject-
matter jurisdictional, it was forfeited. Id.
2
For example, both sets of rules require litigants make the required fil-
ing within a certain period. Both sets instruct "the court on the limits of
its discretion to grant motions for . . . enlargements" of the time for fil-
ing. Kontrick, 124 S. Ct. at 916. And both sets limit that discretion by
allowing a court to extend a period for cause if the request is made within
the period, but specify that for certain rules the court cannot extend the
period except "to the extent and under the conditions" stated in the par-
ticular rules. Compare Fed. R. Civ. P. 6(b) and Fed. R. App. Proc. 26(b)
with Fed. R. Bkrtcy. P. 4004(b), 9006(b)(3).
BRICKWOOD CONTRACTORS v. DATANET ENGINEERING 27
Given the obvious implications of Kontrick for other "jurisdic-
tional" court rules, I doubt that this emphasis was accidental and, in
any event, I would proceed on the assumption that it was not. Of par-
ticular note for Kontrick’s prospective applicability is that the relevant
requirements of Rule 12 apply only to defenses to "pleadings." That
term, of course, is one of art under the Federal Rules of Civil Proce-
dure, limited to those papers defined to be such in FRCP 7, a rule that
"distinguishes between ‘pleadings,’ which include [‘a complaint’ and]
‘an answer,’ and ‘motions and other papers.’)." Perry v. Sullivan, 207
F.3d 379, 382 (7th Cir. 2000). While a notice of appeal is (somewhat
obviously) not a "pleading" under these rules, neither are motions for
a new trial or for sanctions pursuant to Rule 11. An objection based
on non-compliance with the relevant time limitations for filing of
these documents is therefore not subject to Rule 12’s provisions
regarding the presentation and preservation of defenses to pleadings;
as such, Kontrick does not squarely control in such a context whether
that objection can be waived.
This is a fine distinction, but I think it is a real and justifiable one.3
The distinction runs throughout Kontrick, and stands ready to be
developed by the Court in the appropriate case. Especially given that
overruling by implication is disfavored, I believe that the ultimate
conclusions of the Rule 4 and 59 cases as to their character must
remain unchanged by Kontrick, and, accordingly, that these rules fall
into a third category of rules which, while not limiting the court’s
subject-matter jurisdiction, have the effect of jurisdictional limitations
and, therefore may neither be waived by a party, nor ignored by a court.4
3
If nothing else, this distinction is appropriate given the inapplicability
of the pleading framework (which makes the end of trial the deadline for
raising non-jurisdictional defenses) to objections to "motions and other
papers" that must be filed after the end of trial or, at least, could be so
filed.
4
While the issue is likely for the Supreme Court alone to decide, the
sounder course may be to hold that non-compliance with court rules like
Rule 4, which impose deadlines for filing motions or other papers (sepa-
rate from non-compliance with similar statutory commands), may be
subjected to plain-error review when not timely asserted (i.e., when for-
feited), but that such error, when plain and affecting substantial rights,
must be addressed. Even when the parties fail to notice non-compliance
28 BRICKWOOD CONTRACTORS v. DATANET ENGINEERING
II.
However this third category is precisely delineated, I believe that
it encompasses Rule 11(c) and that Rule’s safe harbor provisions.
Those provisions are sufficiently analogous, in language, structure,
and purpose, to either Rule 4 or Rule 59 as to warrant an equivalent
interpretation, as well as the overruling of Rector v. Approved Fed.
Sav. Bank, 265 F.3d 248 (4th Cir. 2001). In particular, I note that, as
with those rules (through reference to their respective restriction on
enlargements of time), Rule 11(c) places direct limitations on the
court’s authority to take a certain action except under certain condi-
tions. Indeed, if anything, the structural case for Rule 11(c)’s
unwaivability is slightly stronger, given that its conditions are more
directly linked to the ultimate action that is limited. That is, for Rule
6(b), it is the court’s authority to enlarge periods set for filing certain
papers that is expressly limited, from which it is inferred that recog-
nizing such papers when untimely is implicitly to enlarge the
restricted period. See Robinson, 361 U.S. at 224. Rule 11(c), however,
limits the court’s authority to grant sanctions on a party’s motion,
directly conditioning that authority on satisfaction of the Rule 11’s
safe harbor provisions.
Arguably, the case for the unwaivability of Rule 6(b), for example,
is made clearer by the juxtaposition of permissive language specify-
ing when an enlargement of time may be granted generally, with
restrictive language specifying for what rules it may not be granted
except as provided for in those same rules. See supra at 2 n.1. But,
in the end, this distinction is immaterial; as with the above-noted jux-
taposition, the phrasing "may, subject to the conditions stated below"
in Rule 11(c) suggests, on the one hand, a grant of discretion ("may"
with these rules, a court that takes the prohibited action has not complied
with its own obligation to ensure that mandatory prerequisites to that
action are fulfilled. Arguably, plain and substantial errors of this type
necessarily "seriously affect[ ] the fairness, integrity or public reputation
of judicial proceedings." United States v. Olano, 507 U.S. 725, 736
(1993). Of course, under this framework, non-compliance with such
rules, where the rule has been intentionally waived (as opposed to for-
feited), would remain unreviewable. See id. at 733.
 BRICKWOOD CONTRACTORS v. DATANET ENGINEERING 29
as opposed to "shall") to impose sanctions when warranted but, on the
other, makes clear that the exercise of that discretion is predicated on
satisfaction of the conditions listed in subdivision (c)(1)(A) ("subject
to the[se] conditions"). Indeed, as both the majority and Judge King
conclude, the safe harbor provisions must be read as conditions prece-
dent to granting sanctions. Such a construction is entirely consistent
with the Advisory Committee Notes regarding Rule 11(c), and in par-
ticular with its unequivocal statement that the amended rule now pro-
vides a "safe harbor" so that "a party will not be subject to sanctions
on the basis of another party’s motion unless, after receiving the
motion," the responding party declines its opportunity to modify or
withdraw its contention. Fed. R. Civ. P. 11, adv. comm. notes, 1993
amends. (emphases added); see also post at 31 & n.* (discussing
committee notes). Therefore, satisfaction of these conditions seems no
less a mandatory prerequisite to the imposition of Rule 11 sanctions
on a party’s motion, than compliance with the notice of appeal
requirements set out in Rule 4, which do not limit an appellate court’s
subject-matter jurisdiction, seems a "mandatory precondition to the
exercise of [appellate] jurisdiction."5
III.
It is not often that the Federal Rules of Civil Procedure grant a
court the discretionary authority to take a certain action, but expressly
prohibit the court’s exercise of that discretion except upon a party’s
compliance with specified conditions. When such is the case, and it
is clear that those conditions are mandatory prerequisites to the
court’s power to take that action — which is the interpretation of Rule
11(c) and the safe harbor provisions adopted by the majority, with
which I concur — I believe that unnoticed non-compliance with those
conditions, just as with the conditions of Rules 4, 59, and like rules,
requires more than just additional weight in an ultimately discretion-
ary plain-error analysis. But if I am wrong, and an objection of non-
5
Mann v. Lynaugh, 840 F.2d 1194, 1197 (5th Cir. 1988). The latter
phrase is reminiscent of explanations that have been offered in the past
— and that I expect will be offered more frequently after Kontrick — of
Rule 4’s traditional interpretation, given that the rule "do[es] not, in a
strict sense, affect the subject matter jurisdiction of the courts of
appeals." Wright, supra (citation omitted).
30 BRICKWOOD CONTRACTORS v. DATANET ENGINEERING
compliance with the safe harbor provisions may be forfeited, then no
one should be under any illusion as to the consequences: A principled
analysis would require the same for the traditionally "jurisdictional"
rules, such as Rules 4 and 59. It is for these reasons that I only concur
in part and concur in the judgment reached by the court today.
KING, Circuit Judge, concurring in the judgment:
My friend Judge Traxler has crafted a fine opinion for the en banc
Court, and I write separately to concur in the judgment. I agree that
"the defendants utterly failed to comply with the procedural require-
ments of Rule 11(c)(1)(A)," and I concur in the opinion’s reversal of
the sanctions imposed on Brickwood. See ante p. 6. Nevertheless, I
disagree with the conclusion that Brickwood forfeited the safe harbor
compliance issue by not raising it in the district court. See ante p. 13.
In my view, the issue of compliance with the safe harbor provision
can never be forfeited where a movant has disregarded it.
A court lacks authority to award Rule 11 sanctions (pursuant to
motion) if the Rule’s safe harbor provision — a mandatory condition
precedent to sanctions — has been breached. Rule 11(c) authorizes
the imposition of sanctions "[i]f, after notice and a reasonable oppor-
tunity to respond, the court determines that [the standard governing
representations to the court] has been violated." Fed. R. Civ. P. 11(c).
The court’s authority to impose an "appropriate sanction," however,
is specifically "subject to the conditions stated below," including the
safe harbor clause of Rule 11(c)(1)(A). Id. (emphasis added). The
mandate of Rule 11 (c)(1)(A) controls the initiation of a request for
Rule 11 sanctions, and its plain, scriptural term "shall not" imposes
a mandatory obligation on any movant: "A motion for sanctions under
this rule . . . shall not be filed with or presented to the court unless,
within 21 days after service of the motion . . . , the challenged paper,
claim, defense, contention, allegation, or denial is not withdrawn or
appropriately corrected." Fed. R. Civ. P. 11(c)(1)(A) (emphasis
added). The Advisory Committee on Rule 11 aptly described this pro-
vision as "a type of ‘safe harbor,’" stating:
[A] party will not be subject to sanctions on the basis of
another party’s motion unless, after receiving the motion, it
refuses to withdraw that position or to acknowledge can-
BRICKWOOD CONTRACTORS v. DATANET ENGINEERING 31
didly that it does not currently have evidence to support a
specified allegation.*
Fed. R. Civ. P. 11 advisory committee’s note.
As the majority properly recognizes, "[b]ecause the rule requires
that the party submitting the challenged pleading be given an opportu-
nity to withdraw the pleading, sanctions cannot be sought after sum-
mary judgment has been granted." See ante p. 4 (citing Hunter v.
Earthgrains Co. Bakery, 281 F.3d 144, 152 (4th Cir. 2002)); see also
Fed. R. Civ. P. 11 advisory committee’s note ("Given the ‘safe har-
bor’ provision[ ] . . . , a party cannot delay serving its Rule 11 motion
until conclusion of the case (or judicial rejection of the offending con-
tention)."). In this dispute, the Rule 11 motion was out of time. Con-
trary to the safe harbor clause, it was neither served nor filed until
after summary judgment had been awarded. As I observed in connec-
tion with a similar dispute, the plain language of Rule 11 mandates
that "a motion for sanctions cannot be properly filed or presented to
the court — period — unless the movant has complied with the safe
harbor provision." See Rector v. Approved Fed. Sav. Bank, 265 F.3d
248, 256 (4th Cir. 2001) (King, Circuit Judge, dissenting).
The issue addressed by the en banc Court — whether Rule 11 con-
stitutes an "inflexible claim-processing rule" or a rule that implicates
a court’s "jurisdiction" — is, in my humble opinion, an unnecessary
inquiry. Pursuant to Rule 11(c) and the mandatory condition prece-
dent stated therein, a court simply "has no initial authority to rule
upon the merits of the motion," and it may not "consider any collat-
eral fact (such as waiver [or forfeiture]) ostensibly bearing on the pro-
priety of its filing, apart from ascertaining whether the safe harbor
provision (or another of Rule 11’s procedural requisites) has been
*Rule 11 was revised in 1993 to incorporate the safe harbor provision.
Prior to this revision, "parties were sometimes reluctant to abandon a
questionable contention lest that be viewed as evidence of a violation of
Rule 11." Fed. R. Civ. P. 11 advisory committee’s note. However, "under
the revision, the timely withdrawal of a contention . . . protect[s] a party
against a motion for sanctions." Id. Accordingly, "[t]he revision . . .
places greater constraints on the imposition of sanctions," seeking to "re-
duce the number of motions for sanctions presented to the court." Id.
32 BRICKWOOD CONTRACTORS v. DATANET ENGINEERING
ignored." Id. In this case, as in Rector, the safe harbor clause was
ignored, thus ending our inquiry and precluding sanctions.
Although the opinion for the en banc Court reaches the proper
result, I am, pursuant to the foregoing, unable to agree with its analy-
sis. That said, I concur in the judgment.