UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALAN J. TRUELOVE,
Plaintiff-Appellant,

v.
                                                                        No. 95-3009
VIRGINIA R. HEATH; FRANK
MEADOWS; HARRY OLTHOFF,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CA-94-1068-2)

Submitted: March 26, 1996

Decided: May 22, 1996

Before HALL, ERVIN, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed in part, reversed in part by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Alan J. Truelove, Appellant Pro Se. Robert Bruce Rae, RAE, BERG-
STROM & RAE, P.L.C., Virginia Beach, Virginia; William Frederick
Burnside, Virginia Beach, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Each of the Appellees in this case filed a motion in the district
court for Fed. R. Civ. P. 11 sanctions against Appellant Alan J. True-
love. The district court granted the motions and ordered Truelove to
pay sanctions to Virginia R. Heath in the amount of $1,883.33, to
Frank Meadows in the amount of $1,437.50, and to Harry Olthoff in
the amount of $1,437.50. For the reasons that follow, we reverse the
portion of the district court's order imposing sanctions in favor of
Meadows and Olthoff and affirm the remainder of the order.

I.

In November 1994, Truelove filed a civil action alleging that
Defendants violated his constitutional rights by making false state-
ments to the Norfolk Juvenile and Domestic Relations District Court
during a hearing to determine custody of Truelove and Heath's two
children. Truelove sued Heath, as well as Meadows and Olthoff, ther-
apists who treated his children, under 42 U.S.C.§§ 1983, 1985(3)
(1988).

On January 6, 1995, Heath sent Truelove a letter informing him
that, pursuant to Rule 11, he had twenty-one days to withdraw or dis-
miss his complaint. Heath stated that she intended to file a motion for
sanctions if, at the end of the twenty-one day period, Truelove had not
withdrawn his complaint. On April 21, Meadows and Olthoff sent a
similar letter to Truelove.

On May 2, the district court granted Appellees' motions to dismiss,
finding that Truelove had failed to state a § 1983 claim because none
of the Appellees were state actors. In addition, the district court held
that Truelove's complaint was insufficient to state a § 1985(3) claim
because it contained only conclusory allegations of conspiracy. In
addition, Truelove's allegations that Defendants discriminated against
him based on his national origin (Truelove is a dual citizen of
England and the United States) were unsupported by the factual alle-
gations of his complaint. Truelove did not appeal the dismissal of his
action.

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Heath filed a motion for Rule 11 sanctions on May 16, and Mead-
ows and Olthoff did likewise on June 2. The district court determined
that sanctions were appropriate. After Defendants submitted state-
ments of costs and attorney fees, the court ordered Truelove to pay
sanctions in the amounts specified above. Truelove timely appealed.

II.

On appeal, Truelove contends that Meadows and Olthoff's motion
did not satisfy the twenty-one day "safe harbor" provision in Rule 11
because the case was dismissed before the twenty-one day period had
expired. We agree.

In 1993, Rule 11 was amended, and a "safe harbor" provision was
added. The relevant provision of Rule 11 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).

In interpreting Rule 11, we give the rule its plain meaning. Pavelic
& Le Flore v. Marvel Entertainment Group, 493 U.S. 120, 123
(1989). When interpretation is necessary, we consider the purposes of
the rule, including the deficiencies in its prior form that the 1993 revi-
sions were intended to address. See Cooter & Gell v. Hartmax Corp.,
496 U.S. 384, 392 (1990).

Meadows and Olthoff argue that they served Truelove twenty-one
days before filing for sanctions with the court, and thus, they com-
plied with Rule 11. However, the safe harbor provision was intended
to allow the timely withdrawal of pleadings to protect an offending

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party from sanctions. Fed. R. Civ. P. 11 advisory committee's note.
The advisory committee's note on the 1993 amendment also states
that "[g]iven the `safe harbor' provisions. . . a party cannot delay
serving its Rule 11 motion until conclusion of the case (or judicial
rejection of the offending contention)." Ordinarily, a motion for sanc-
tions should be served promptly after the inappropriate paper is filed.
Id.

In this case, Meadows and Olthoff delayed five months after the
complaint was filed before serving Truelove with a motion for sanc-
tions. The record reflects that this delay was unnecessary. This con-
clusion is further supported by the fact that Heath served her motion
based on the same pleading over three months before Meadows and
Olthoff did so.

When a Rule 11 movant fails to serve the other party twenty-one
days prior to filing a motion for sanctions with the court, sanctions
should be denied. Elliott v. Tilton, 64 F.3d 213, 216 (5th Cir. 1995)
(plain language of the rule makes safe harbor notice mandatory);
Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1329 (2d Cir. 1995).
Eleven days after Truelove was served with the motion for sanctions,
the district court dismissed the action. Although he was served before
the conclusion of the case, the action was dismissed before the
twenty-one day period had expired. Rule 11 and the accompanying
note both plainly state that a litigant should have twenty-one days in
which to rectify an offending allegation or contention. Once the dis-
trict court dismissed his case, Truelove was no longer able to correct
his error. Therefore, Truelove was not given the twenty-one day
period mandated by Rule 11. Accordingly, we reverse the portion of
the order of the district court granting Meadows and Olthoff's motion
for sanctions.

III.

It is undisputed that Heath served and filed her motion in accor-
dance with Rule 11. We have reviewed the record and the district
court's opinion and find no reversible error in the district court's grant
of Heath's motion for sanctions. Accordingly, we affirm the award of
sanctions to Heath on the reasoning of the district court. Truelove v.
Heath, No. CA-94-1068-2 (E.D. Va. Oct. 20, 1995). We dispense

                     4
with oral argument, because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED IN PART; REVERSED IN PART

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