Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-21-1994

Simmerman, et al v. Corino, et al
Precedential or Non-Precedential:

Docket 93-5080




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               UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT



                        No. 93-5080


       NANCY SIMMERMAN, each individually, dba CHILD
        CARE CENTER, dba SERENDIPITY PRE-SCHOOL, dba
          WEE CARE CENTER; HERBERT SIMMERMAN, each
          individually, dba CHILD CARE CENTER, dba
        SERENDIPITY PRE-SCHOOL, dba WEE CARE CENTER;
     PAUL SIMMERMAN, each individually, dba CHILD CARE
  CENTER, dba SERENDIPITY PRE-SCHOOL, dba WEE CARE CENTER


                            v.

      JOHN CORINO, Cape May County Prosecutor; ROBERT G.
    WELLS, First Assistant Prosecutor of Cape May County;
   ANTONIA COWAN, Assistant Prosecutor of Cape May County;
  MARIE HAYES, Investigator for Cape May County Prosecutor;
  OFFICE OF THE PROSECUTOR OF CAPE MAY COUNTY; BETTY VEACH,
 each individually and as parents and natural guardians for
    CHRISTOPHER SAMUEL VEACH, a minor; SAMUEL VEACH, each
    individually and as parents and natural guardians for
CHRISTOPHER SAMUEL VEACH, a minor; CHRISTOPHER SAMUEL VEACH,
 a minor; VERONICA LEIDER, each individually and as parents
and natural guardians of RONALD J. "RONNIE" LEIDER, a minor;
 RONALD LEIDER, each individually and as parents and natural
   guardians of RONALD J. "RONNIE" LEIDER, a minor; RONALD
      J. "RONNIE" LEIDER, a minor; DICK CRANE, Bureau of
   Licensing of the Division of Youth and Family Services;
    SUSAN MANION, Institutional Abuse Unit Administrator;
        DYFS BUREAU LICENSING; DYFS INSTITUTIONAL ABUSE
 INVESTIGATION UNIT; DIVISION OF YOUTH AND FAMILY SERVICES,
    (DYFS); DEPARTMENT OF HUMAN SERVICES; THOMAS FLANAGAN,
    Investigator for State Department of Criminal Justice;
   EUGENE PETRELLA, STATE TROOPER; DAVID KENNA, DETECTIVE;
     JUSTIN J. DINTINO, COLONEL, New Jersey State Police,
  NEW JERSEY STATE POLICE; ANNE BURGESS, DR.; PAMELA KANE;
     MARTIN FINKEL, DR.; RICHARD ROES, NOS. 1 through 25;
                      STATE OF NEW JERSEY

            Mark S. Guralnick, Esq., and
            Law Offices of Mark S. Guralnick,

                                      Appellants



                                                               1
          Appeal from the United States District Court
                 for the District of New Jersey
                 D.C. Civil Docket No. 92-00194



            Submitted Under Third Circuit LAR 34.1(a)
                        December 17, 1993

          Before:    GREENBERG and ROTH, Circuit Judges
                    and FULLAM, District Judge0


                (Opinion filed:    June 21, 1994)

James S. Webb, Jr., Esquire
5102 New Jersey Avenue
P.O. Box 530
Wildwood, NJ 08260
     Attorney for Cape May County Appellees

Robert J. Del Tufo
Attorney General of New Jersey
Mary C. Jacobson
Assistant Attorney General
Joseph L. Yannotti
Assistant Attorney General
John M. Fahy
Don E. Catinello
Deputy Attorneys General
Office of Attorney General of New Jersey
Department of Law & Public Safety
Richard J. Hughes Justice Complex
Trenton, NJ 08625
     Attorneys for the State of New Jersey Appellees

Daniel H. Greenberg, Esquire
501 Madison Avenue, Room 406
New York, NY 10022
      Attorney for Appellee Burgess

Mark S. Guralnick, Esquire
Garber & Guralnick
1288 State Highway 73, Suite 120
Mount Laurel, NJ 08054
      Attorney for Appellants

0
Honorable John P. Fullam, United States District Court Judge for
 the Eastern District of Pennsylvania, sitting by designation.


                                                               2
                        OPINION OF THE COURT


ROTH, Circuit Judge:



            The plaintiffs' attorney, Mark S. Guralnick, appeals

the district court's imposition of sanctions in the amount of

$7,000 pursuant to Fed. R. Civ. P. 11.0   Several months after the

district court disposed of the underlying action through a grant

of summary judgment on some claims and the dismissal of others,

it imposed sanctions on its own initiative.    The court based its

order upon a finding that the fatal deficiencies of the

plaintiffs' claims "should have [been] revealed to Mr. Guralnick"

in the course of a "reasonable investigation" of the law and the

facts of the case.    Simmerman v. Corino, No. 92-194, slip op. at
8 (D.N.J. Jan. 25, 1993)(order and opinion denying motion for

attorney's fees under 42 U.S.C. § 1988 and imposing sanctions

pursuant to Fed. R. Civ. P. 11); Appellant's Appendix ("App.") at

129, 136.

            Although Mr. Guralnick appeals on a number of grounds,

we do not find it necessary either to address the culpability of

his conduct, or to determine whether the district court abused

its discretion in determining that sanctions were warranted.

Rather, we find that the order imposing sanctions must be vacated

because the court's actions were inconsistent with the

0
 We note that Fed. R. Civ. P. 11 was amended on December 1, 1993,
during the pendency of this appeal. Our decision is based upon
the rule as it existed prior to that amendment.


                                                                     3
supervisory rule adopted by this court in Mary Ann Pensiero, Inc.

v. Lingle, 

(3d Cir. 1988).     In that case, motivated

by a concern that Rule 11 motions be filed and decided in a

timely manner, we adopted a requirement that "all motions

requesting Rule 11 sanctions be filed in the district court

before the entry of a final judgment."    

  Though

Pensiero dealt with the timing of a motion filed by a party, we

find that the rule is equally applicable where the trial court

properly invokes its authority to initiate the imposition of

sanctions.    When the trial court believes that sanctions are

warranted, then, it should decide the issue prior to or

concurrent with its disposition of the case on the merits.

Although sanctions may have been warranted in this case, their

imposition more than three months after the entry of final

judgment was untimely.

          Furthermore, we note that, even had the award of

sanctions been timely, the district court's failure to comport

with the requirements of procedural due process -- that is,

notification that sanctions were under consideration and the

provision of some opportunity to respond prior to their

imposition -- would similarly require a reversal and remand in

this case.

                                  I.

                                  A.

             The underlying action was a civil case brought by the

plaintiffs after they were acquitted of criminal charges

involving the alleged sexual abuse of children.    Plaintiffs

                                                                     4
Nancy, Herbert and Paul Simmerman previously operated the Wee

Care Day Care Center in Cape May, New Jersey.   In late 1989,

after reports by several children, the plaintiffs were

investigated and eventually indicted on child abuse charges. They

were acquitted after a full trial; in turn, they filed this civil

suit against many of the private individuals, officials, and

public entities involved in the prosecution of their case. Mr.

Guralnick served as their attorney in this civil matter.

          The complaint filed by Mr. Guralnick asserted claims

under 42 U.S.C. § 1983 and the Federal Racketeering Influenced

and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (RICO), as

well as various pendent state law claims.   As relevant to the

matter before us, the complaint named as defendants the State of

New Jersey, the New Jersey Department of Human Services, the New

Jersey Division of Youth and Family Services Bureau of Licensing

and Institutional Abuse Investigation Unit, the New Jersey

Division of State Police, the directors and administrators of

several of these agencies, a medical doctor, a police

investigator, a state trooper, and a state police detective.

These will be referred to collectively as the State defendants.

In addition, the plaintiffs sued the Cape May County Prosecutor's

Office and several of its employees, two psychiatric experts, and

the parents of two of the children who testified during the

criminal trial.

          In essence, the complaint sought damages for alleged

wrongful treatment of the plaintiffs during their criminal

prosecution.   The full complaint is reprinted in the Appellant's


                                                                    5
Appendix at 1-77.   A sampling of its seventeen counts reads as

follows: the complaint charged the existence of a "scheme" to

"set-up" and "frame" the plaintiffs (App. at 27-28); it claimed

that because of the "concerted unlawful and malicious detention,

. . . indictment, . . . public prosecutions of the Plaintiffs,

[and] sham proceedings," plaintiffs were deprived of their

liberty without due process of law and deprived of the equal

protection of the laws (App. at 18); it alleged that the expert

witnesses committed fraud in their testimony (Appellant's App. at

65-66); it sought relief for "gross and willful oppression and .

. . willful abuse of process" by the parents who reported the

alleged abuse and caused criminal complaints to be filed against

the plaintiffs (App. at 49-50, 62); and it charged the defendants

with the intentional infliction of emotional distress (App. at

63).

          The State defendants responded by filing a motion for

dismissal and/or summary judgment, and each of the remaining

defendants followed with similar motions.   After hearing argument

on the motions, the court on October 23, 1992 granted summary

judgment to all defendants on the § 1983 claims, dismissed the

RICO claim, and declined to exercise supplemental jurisdiction

over the remaining state law claims.   Simmerman v. Corino, 804 F.

Supp. 644 (D.N.J. 1992).   On appeal, the district court's order

was affirmed without opinion by this court.   Simmerman v. Corino,

(3d Cir. 1993).

                                B.



                                                                   6
           The present appeal arises from the district court's

actions in sua sponte imposing sanctions on Mr. Guralnick on

January 25, 1993, more than three months after the court had

disposed of the underlying case.   Although another, individual

defendant had previously sought and been awarded sanctions

against Mr. Guralnick,0 the January 25 sanctions were imposed on

the court's own initiative and awarded to the State defendants.

           At the time that the court decided to sanction Mr.

Guralnick, it had before it an application by the State

defendants for an award of attorney's fees pursuant to 42 U.S.C.

§ 1988.0   That application had been filed on December 9, 1992,

six weeks after the case had been dismissed, and it requested

fees and costs of more than $22,000.



0
 Defendant Dr. Anne Burgess filed a motion for fees and Rule 11
sanctions on August 14, 1992, two months prior to the court's
dispositive ruling. On November 13, 1992, the district court
granted the motion for sanctions, finding that the complaint was
devoid of support in both law and fact. Simmerman v. Corino, No.
92-194, slip op. at 8 (D.N.J. Nov. 13, 1992)(order and opinion
granting motion for Rule 11 sanctions); App. at 126. The court
ordered that Mr. Guralnick be liable for Dr. Burgess' costs and
attorney's fees, and it requested that Dr. Burgess' counsel
submit an affidavit on the amounts incurred in defending the
case. Before that was done, and before the court could set a
fixed amount under the sanctions order, Mr. Guralnick brought an
appeal before this court. That appeal, No. 92-5704, was
dismissed for want of jurisdiction because the district court's
order was not yet final.
0
 In relevant part, 42 U.S.C. § 1988(b) provides:

           In any action or proceeding to enforce a
           provision of section[] . . . 1983 . . . of
           this title, . . . the court, in its
           discretion, may allow the prevailing party .
           . . a reasonable attorney's fee as part of
           the costs.


                                                                   7
           The court found that the defendants were eligible for

an award under § 1988; however, emphasizing the discretionary

language of the statute, it declined the award and chose to

impose Rule 11 sanctions instead.   Citing our decision in Brown

v. Borough of Chambersberg, 

, 276-77 (3d Cir. 1990),

the court explained its concern that an award under § 1988 could

only be authorized against the plaintiffs themselves, rather than

against plaintiffs' attorney.   The court found it significant

that the plaintiffs should not necessarily have known that their

action was deficient, but rather that "it was the responsibility

of plaintiffs' attorney to determine whether any of those alleged

wrongs were actionable under § 1983" and to so advise his

clients.   Simmerman v. Corino, No. 92-194, slip op. at 5 (D.N.J.

Jan. 25, 1993)(order and opinion denying motion for attorney's

fees under 42 U.S.C. § 1988 and imposing sanctions pursuant to

Fed. R. Civ. P. 11); App. at 133.   Finding Mr. Guralnick, rather

than his clients, to be at fault in the filing of this

action,0the court reasoned that it was inappropriate to hold

plaintiffs responsible for the reimbursement to which the State

defendants were entitled.   As such, the court denied fees under §

1988 and turned to Rule 11 as an "alternative theor[y] of

liability for attorney's fees and costs.   Simmerman v. Corino,
No. 92-194, slip op. at 7 (D.N.J. Jan. 25, 1993)(order and

opinion denying motion for attorney's fees under 42 U.S.C. § 1988

0
 For example, the court explained that the § 1983 claims were
disposed of on the grounds of Eleventh Amendment and absolute and
qualified immunity doctrines -- legal theories that would not be
known to an ordinary non-attorney plaintiff.


                                                                    8
and imposing sanctions pursuant to Fed. R. Civ. P. 11); App. at

135.

          Without notice to Mr. Guralnick that sanctions were

under consideration, and without providing him the opportunity to

explain his actions in preparing and filing the case, the court

then imposed sanctions.    Finding the § 1983 claims to be

unsupported by factual allegations and concluding that "a

reasonable investigation into the law of § 1983 would have

revealed to Mr. Guralnick that plaintiffs' claims were

untenable," the court found that counsel's pleadings violated the

requirements of Rule 11.    The court settled upon $7,000 as an

appropriate sanction and ordered that amount paid to the State

defendants.

                                II.

           Because Mr. Guralnick appeals from a final order of the

district court, this court has jurisdiction pursuant to 28 U.S.C.

§ 1291.   On review, we apply an abuse of discretion standard to

all aspects of the district court's Rule 11 determination. Cooter

& Gell v. Hartmarx Corp., 

, 2461 (1990); CTC
Imports & Exports v. Nigerian Petroleum Corp., 

, 577

(3d Cir. 1991), cert. denied sub nom., Aham-Neze v. Sohio Supply

Co., 

(1992); Mellon Bank Corp. v. First Union Real

Estate, 

, 1413 (3d Cir. 1991).   That is, we evaluate

the court's factual determinations, legal conclusions, and choice

of an "appropriate sanction" with substantial deference,

considering not whether we would make the same precise

determinations, but only whether those determinations are

                                                                   9
contrary to reason or without a reasonable basis in law and fact.

For example, a district court would abuse its discretion if it

"based its ruling on an erroneous view of the law or on a clearly

erroneous assessment of the evidence."   Cooter & 

.

                               III.

                                A.

           Rule 11 imposes three specific duties upon attorneys

practicing before the federal courts. It provides in part:
          Every pleading, motion, and other paper of a
          party represented by an attorney shall be
          signed by at least one attorney of record . .
          . . The signature of an attorney or party
          constitutes a certificate by the signer that
          the signer has read the pleading, motion, or
          other paper; that to the best of the signer's
          knowledge, information, and belief formed by
          reasonable inquiry it is well grounded in
          fact and is warranted by existing law or a
          good faith argument for the extension,
          modification, or reversal of existing law[;]
          and that it is not interposed for any
          improper purpose, such as to harass or to
          cause unnecessary delay or needless increase
          in the cost of litigation. . . . If a
          pleading, motion, or other paper is signed in
          violation of this rule, the court, upon
          motion or upon its own initiative, shall
          impose upon the person who signed it, a
          represented party, or both, an appropriate
          sanction . . . .

Fed. R. Civ. P. 11.   The rule thus provides that an attorney who

fails to either 1) read the pleading; 2) make a reasonable

inquiry into the factual and legal legitimacy of the pleading; or

3) file the pleading only for a proper purpose, shall be

sanctioned.   The standard for testing an attorney's conduct is

that of what was objectively reasonable under the circumstances.


                                                                  10
Eavenson, Auchmuty & Greenwald v. Holtzman, 

, 540 (3d

Cir. 1985).   To comply with this standard, counsel "must conduct

'a reasonable investigation of the facts and a normally competent

level of legal research to support the presentation.'"    

(citing Lieb v. Topstone Indus., 

, 157

(3d Cir. 1986)).

          We have emphasized that Rule 11 targets abuse, making

sanctions appropriate only if "the filing of the complaint

constituted abusive litigation or misuse of the court's process."

Teamsters Local Union No. 430 v. Cement Express, Inc., 

, 68 (3d Cir.), cert. denied sub nom. Herman Bros., Inc. v.

Teamsters Local Union No. 430, 

(1988).     Thus, the

mere failure of a complaint to withstand a motion for summary

judgment or a motion to dismiss should not be thought to

establish a rule violation.   However, once that standard has been

met, the language of the rule "seeks to dispel apprehensions that

efforts to obtain enforcement will be fruitless by insuring that

the rule will be applied . . . ."    Notes of Advisory Committee on

Rules, 1983 Amendment, Fed. R. Civ. P. 11.    See also Cooter &

.

                                B.

          Although the court has both the authority and the duty

to assure compliance with the requirements of the rule,0 we find


0
 "Authority [for courts to impose sanctions on their own motion]
has been made explicit in order to overcome the traditional
reluctance of courts to intervene unless requested by one of the
parties. The detection and punishment of a violation of the
signing requirement . . . is part of the court's responsibility

                                                                     11
that the court abused its discretion in imposing sanctions on its

own initiative more than three months after it had disposed of

the underlying case.   In Pensiero, we adopted a supervisory rule

to guide the courts and the parties on the appropriate timing for

the filing and consideration of Rule 11 motions.    In that case, a

motion for sanctions was filed by a defendant who prevailed in a

motion for summary judgment.    However, the motion was filed only

after the appeal on the merits had been docketed and an

affirmance order received from this court.    The district court

granted sanctions against the defendants and this court reversed

on the ground that there was no rule violation because there was

adequate compliance with the pre-filing inquiry requirement.     In

addition, however, we adopted a supervisory rule aimed at

eliminating piecemeal review:   we held that "counsel seeking Rule

11 sanctions must file their motions before entry of final

judgment in district court."    

.   See also

Mellon Bank Corp. v. First Union Real Estate, 

, 1413

(3d Cir. 1991)(request for sanctions after entry of final

judgment untimely); Hilmon Co. v. Hyatt Int'l., 

, 251

n.1 (3d Cir. 1990)(same).

          The logic of Pensiero applies equally to sua sponte
consideration of sanctions by the district court.   There we

emphasized the undesirability of separate appeals concerning

merits and fee questions and noted that,
          [i]n general, the dictates of due process
          should not necessitate prolonged

for securing the system's effective operation." Notes of Advisory
Committee on Rules, 1983 Amendment, Fed. R. Civ. P. 11.


                                                                   12
          consideration in the district court to assess
          Rule 11 sanctions once a violation has been
          established.

.   There is no inordinate burden in

requiring the district court to raise and resolve any Rule 11

issues prior to or concurrent with its resolution of the merits

of the case. Such timing will, furthermore,
          conserve judicial energies. In the district
          court, resolution of the issue before the
          inevitable delay of the appellate process
          will be more efficient because of current
          familiarity with the matter. Similarly,
          concurrent consideration of challenges to the
          merits and the imposition of sanctions avoids
          the invariable demand on two separate
          appellate panels to acquaint themselves with
          the underlying facts and the parties'
          respective legal positions.

context of a possible Rule 11 violation, the

court and opposing party are in similar positions.    Both know of

the rule and its requirements, and both possess similar

information about the conduct and the pleadings of counsel.    The

Advisory Committee Notes accompanying the rule explain that
notice should be given promptly upon the discovery of a rule

violation.   There is no reason why prompt action should be

required of an opposing party and yet not similarly required of

the court.   At the time that the court decided the motions for

summary judgment and dismissal, it had before it the identical

information that it relied upon three months later in imposing

the sanctions.   Nothing was to be gained by delay.   If sanctions

had truly been appropriate, the court should have imposed them at




                                                                  13
that time.0   Their imposition three months later was an abuse of

discretion.

                                C.

          While the Pensiero violation is sufficient to require

reversal in this case, we find it necessary to comment briefly

upon another, equally sufficient error.   That is the failure of

the district court to comply with the requirements of procedural

due process in the course of imposing the sanctions.

          Sanctions are not to be assessed without full and fair

consideration by the court.   They often entail a fine which may

have more than a token effect upon an attorney's resources.   More

0
 We note that the precise timing of the sanctions in this case
further supports the rationale of Pensiero and casts doubt on the
sanctions' underlying validity. As established, the court had
the authority to initiate the imposition of sanctions at the time
of summary judgment and dismissal, if it believed that a rule
violation had occurred. In fact, because the disposition on the
merits and the decision on sanctions were based on the same,
underlying absence of factual and legal support in the complaint,
such would have been the logical time to do so. Yet the court
did not do so.
          Rather, the court used Rule 11 as a fee-shifting device
only after finding, on motion by a party, that the State
defendants were entitled to recover fees pursuant to 42 U.S.C.
§1988. Apparently it was because the court did not want the
plaintiffs to be personally liable for those fees that it
addressed the issue of the Rule 11 liability of counsel.
          Interestingly, the State defendants did not themselves
request sanctions, though it is a common practice to make such a
request when moving for fees under 42 U.S.C. § 1988. Most likely
this was because they filed six weeks after the entry of final
judgment and because they knew of the rule of Pensiero. Certainly
the court was aware of Pensiero: before it granted Dr. Burgess'
motion for sanctions, it acknowledged that she properly complied
with Pensiero by filing her motion two months before the case was
dismissed. Where the court has not, of its own initiative,
imposed sanctions when they were properly due, it would be an odd
result indeed to permit the court to later accomplish that which
a party, because of improper delay, could not request.


                                                                   14
importantly, they act as a symbolic statement about the quality

and integrity of an attorney's work -- a statement which may have

tangible effect upon the attorney's career.    Thus the Supreme

Court, in recognizing the inherent power of a court over the

members of its bar, acknowledged that the limits of procedural

due process circumscribe the manner in which otherwise proper

sanctions may be imposed.    It held that sanctions "should not be

assessed lightly or without fair notice and an opportunity for a

hearing on the record." Roadway Express, Inc. v. Piper, 

, 2464 (1980).    Likewise, this court repeatedly has held in

both inherent power and Rule 11 sanctions cases that,
          [i]n the absence of extraordinary
          circumstances, procedural due process
          requires notice and an opportunity to be
          heard before any governmental deprivation of
          a property interest.

Eash v. Riggins Trucking Inc., 

, 570 (3d Cir.
1985)(in banc).    See also Jones v. Pittsburgh Nat'l Corp., 

, 1357 (3d Cir. 1990)("Prior to sanctioning an attorney,

a court must provide the party to be sanctioned with notice of

and some opportunity to respond to the charges."); Notes of

Advisory Committee on Rules, 1983 Amendment, Fed. R. Civ. P. 11

("The procedure obviously must comport with due process

requirements.").

          The precise form of procedural protection required

will, of course, vary with the circumstances of the case.    With

regard to the notice component, however, we have held that the

mere existence of the rule does not satisfy the requirement.

; Gagliardi v. McWilliams, 

,


                                                                    15
82-83 (3d Cir. 1987).     The party sought to be sanctioned is

entitled to particularized notice including, at a minimum, 1) the

fact that Rule 11 sanctions are under consideration, 2) the

reasons why sanctions are under consideration, and 3) the form of

sanctions under consideration.    

this information

can a party respond to the court's concerns in an intelligent

manner.   Similarly, the precise form of counsel's opportunity to

respond will vary with the circumstances and is a decision

committed to the discretion of the court.    There may be times

when an oral or evidentiary hearing will be necessary to aid in

the court's factfinding.    At other times the opportunity for

counsel to fully brief the issue will suffice.

           At bottom, however, there must be notice and some

opportunity to respond.    Here, there was neither.   In Eash, we

explained the salutary effects of these procedural 

.    They assist the attorney by ensuring an

adequate and meaningful opportunity to explain the conduct at

issue.    They assist the court by ensuring adequate time for full

consideration of the issue in light of the attorney's

explanation.   Finally, they provide a record that facilitates

review on appeal.    This case merely proves the rule that these

procedural protections may have substantive effect upon outcome.

Had Mr. Guralnick been able to respond, whether orally or in

writing, the court would not have been forced to base its




                                                                     16
decision on assumptions about the parties' actions and state of

knowledge.0

          Perhaps most importantly, sua sponte imposition of

sanctions cannot serve the intent of Rule 11.   The purpose of the

rule is to foster accountability and to deter abuse.   

-95.   Yet, "[i]f Rule 11 is effectively to deter

abuses in federal civil litigation and not to deter much else in

addition, it seems to us that both those who are sanctioned

(specific deterrence) and others (general deterrence) must

understand what the abuses were and have some sense of how to

correct them in the future."   American Judicature Society, Rule

11 in Transition: The Report of the Third Circuit Task Force on

Federal Rule of Procedure 11 29 (Stephen B. Burbank, rep. 1989).

The dialogue that is permitted by notice and an opportunity to

respond can only facilitate such understanding.

                               IV.

          Having concluded that the imposition of sanctions in

this case was contrary to the supervisory rule adopted by this

court in Pensiero, as well as the requirements of the Due Process


0
 For example, the court based its conclusion that plaintiffs bore
no fault in the filing of the lawsuit upon its observation that
"It does not appear to the court that plaintiff[s] should have
known their action against the State defendants was legally
deficient." Simmerman v. Corino, No. 92-194, slip op. at 5
(D.N.J. Jan. 25, 1993)(order and opinion denying motion for
attorney's fees under 42 U.S.C. § 1988 and imposing sanctions
pursuant to Fed. R. Civ. P. 11); App. at 133. Surely some
inquiry beyond the face of the complaint -- inquiry into the
actual state of plaintiff's knowledge -- would have assisted the
court by allowing it to base its conclusions on fact rather than
assumption.


                                                                   17
Clause of the Fifth Amendment, we will reverse the order of the

district court and vacate the award of sanctions to the State

defendants.




                                                                  18
FULLAM, J., Concurring

          Because the practice of issuing prospective rulings in

the purported exercise of "supervisory power" is firmly

entrenched, I agree that this court's decision in Mary Ann

Pensiero, Inc. v. Lingle, 

(3rd Cir. l988), compels

reversal of the sanction order involved in this appeal. I do not
agree, however, that Pensiero does more than require that motions
for sanctions be filed before final judgment; the Pensiero court

did not purport to 'supervise' the timing of the district court's
ruling on such motions, except perhaps to the extent of urging

that the ruling be made with sufficient speed to enable

consolidation of the sanction appeal with the appeal on the

merits.   In the present case, there was no motion for sanctions;

and the issue was first raised some three months after judgment.
Under any view of the matter, I agree that this was too late.

          I join in Part III(C) of the majority opinion.




                                                                 19