PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

Nos. 12-3151 & 12-3152

________________

In re: GREGORY JOSEPH MILLER; 

TAMMY LYNN MILLER,

Debtors

ETTINGER AND ASSOCIATES, LLC

v.

GREGORY JOSEPH MILLER; TAMMY LYNN MILLER,

Appellants

________________

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action Nos. 5-12-cv-00503 / 5-12-cv-00830)

District Judge: Honorable Legrome D. Davis

________________

Argued: June 10, 2013

Before: McKEE, Chief Judge, 

AMBRO, and NYGAARD, Circuit Judges
2

(Opinion filed : September 16, 2013)

Susan J. Deely, Esquire (Argued)

125 B East Broad Street

Bethlehem, PA 18018

Thomas L. Lightner, Esquire

Lightner Law Offices

4652 Hamilton Boulevard

Allentown, PA 18103

Counsel for Appellants

Demetrios H. Tsarouhis, Esquire (Argued)

Suite 200

21 South 9th Street

Allentown, PA 18102

Counsel for Appellees

________________

OPINION OF THE COURT

________________

AMBRO, Circuit Judge

In the underlying bankruptcy action, Neil Ettinger and 

Ettinger and Associates, LLC (jointly and severally,

“Ettinger”) filed an adversary complaint objecting to the 

discharge of legal fees owed by Tammy and Gregory Miller 

(the “Millers”), Ettinger’s former clients and the debtors in 

bankruptcy. The Bankruptcy Court threw out the complaint, 

which asserted that the Millers’ outstanding debt was 
3

nondischargeable because it was obtained via fraud, and 

imposed a $20,000 sanction against Ettinger jointly with his

bankruptcy counsel, Demetrios Tsarouhis. The District Court 

vacated this ruling on the ground that the sanctions order 

violated the procedural “safe harbor” requirements of Fed. R. 

Bankr. P. 9011, but it refused to remand the case for further 

consideration under Rule 9011 “[b]ecause it is too late to cure 

the safe harbor violation.” Dist. Ct. Mem. Order at 22 (June 

28, 2012). Moreover, because “the Bankruptcy Court based 

its decision to sanction on Rule 9011,” the District Court 

would “not opine in the first instance on whether sanctions 

grounded in some other authority would have been 

appropriate.” Id. Yet it also refused to remand to the 

Bankruptcy Court for that consideration. We agree with the 

District Court’s legal conclusion on Rule 9011, but remand 

the case with instruction to permit the Bankruptcy Court to 

consider alternative avenues to impose sanctions.

I. BACKGROUND

The Millers retained Ettinger in January 2008 to 

represent them in a landlord/tenant dispute. Over a 23-month 

period, Ettinger ran up a bill of approximately $43,000, 

although the dispute was ultimately settled for $9,500. 

During the course of this litigation, the Millers paid Ettinger 

approximately $20,000 in legal fees. Even before the 

landlord-tenant matter had been resolved, however, Ettinger 

sought relief in Pennsylvania state court in an attempt to 

accelerate the speed at which he was being paid the 

outstanding amount owed—close to $23,000. He twice 

petitioned the court to withdraw as a counsel, first based on 

the Millers’ alleged failure to pay (in October 2009), and then

due to their professed “lack of cooperation” in the underlying 

dispute (in December 2009).
4

Both petitions were rejected, though the Millers were 

ordered to make “good faith” payments in exchange for 

continued representation.1

A. Bankruptcy Court Proceedings

 Despite their continued payments, 

Ettinger sued the Millers in March 2010, asserting claims for 

breach of contract and quantum meruit. The Millers filed for 

Chapter 7 bankruptcy protection the following month, giving 

rise to these proceedings.

After the Millers filed for Chapter 7 bankruptcy,

Ettinger—acting through Tsarouhis—filed an adversary 

proceeding in the Bankruptcy Court in August 2010 in an 

attempt to prevent the discharge of the Millers’ remaining 

legal debt to him.

2

 1 The Millers faced mounting financial difficulties during the 

pendency of the landlord/tenant dispute, attributable in part to 

their legal debt and exacerbated by personal circumstances 

(e.g., both were out of work due to medical conditions). 

Nonetheless, they complied with the court order and made 

regular payments to Ettinger of $100 to $200 per month.

 In his adversary complaint, Ettinger raised 

2 Under Fed. R. Bankr. P. 4007(a), “any creditor may file a 

complaint to obtain a determination of the dischargeability of

any debt.” Section 523 of the Bankruptcy Code lists various 

types of debt that may be exempted from discharge, one of 

which is for “services . . . to the extent obtained by . . . false 

pretenses, a false representation, or actual fraud.” 11 U.S.C. 

§ 523(a)(2)(A). Every objection to the discharge of a debt 

alleged to have been obtained by false pretenses or fraud must 

be brought as an “adversary proceeding,” see Fed. R. Bankr. 

P. 7001(4), which litigation closely resembles a civil 

proceeding before a federal district court judge. These 

proceedings are governed by Part VII of the Federal Rules of 
5

allegations of fraud and misrepresentation, though in previous 

proceedings he had characterized the Millers’ alleged failure 

to pay as a purely contractual claim. The Bankruptcy Court 

held a trial on the adversary complaint in April 2011, 

immediately after which it found in favor of the Millers on 

the dischargeability of their debt. As outlined below, whether

(and when) Ettinger and Tsarouhis may have engaged in 

sanctionable behavior during the litigation of the adversary 

complaint was a recurring issue throughout the bankruptcy

proceedings.

1. Initial Motion for Sanctions

On January 31, 2011, the Millers filed and served on 

Ettinger and Tsarouhis a Rule 9011 Motion for Sanctions 

(“Initial Motion”). It asserted that Ettinger’s complaint was 

“filed to harass and cause [them] to incur additional fees and 

further delay” and “for absolutely no reason other than . . . to 

retaliate against [them].” Millers’ Mot. for Rule 9011 

Sanctions ¶ 13, Jan. 31, 2011. The following day, February 1, 

2011, the Millers withdrew the Initial Motion without 

explanation and served a copy of their withdrawal request on 

Ettinger and Tsarouhis.

On February 23, 2011, the Millers re-filed and reserved a motion substantively the same as their Initial 

Motion. The Bankruptcy Court ruled shortly thereafter that 

“the 9011 Motion is premature, shall be held in abeyance, and 

shall not be heard until after the merits of this adversary 

proceeding have been determined.” Scheduling Order at 2, 

Feb. 25, 2011.

 

Bankruptcy Procedure, Fed. R. Bankr. P. 4007(e), as 

supplemented by the Federal Rules of Civil Procedure.
6

2. Litigation of Adversary Complaint

Although not asserted in his complaint, Ettinger 

apparently believed that, at some time during his 

representation of the Millers, a bankruptcy attorney advised 

them they could avoid paying Ettinger’s bill by filing for 

bankruptcy. During discovery, the Millers admitted that they 

had met previously with Pennsylvania bankruptcy attorney 

James Kutkowski; however, they indicated that they had 

consulted him regarding refinancing rather than bankruptcy.

Kutkowski was deposed on March 18, 2011. In his 

deposition, Kutkowski first indicated that he “might” have 

discussed bankruptcy at a meeting with Gregory Miller but 

that he “really truthfully [did not] remember.” In response to 

a follow-up question, Kutkowski testified that he was “fairly 

confident that [he] did discuss briefly the option of 

bankruptcy.” Kutkowski also testified at the trial on

Ettinger’s adversary complaint, held on April 19, 2011, at 

which he indicated he did not remember whether he had 

discussed bankruptcy at his meeting with Mr. Miller, but that 

“it [was] reasonable that it may have come up.” 

At the conclusion of the April 19 trial, the Bankruptcy 

Court issued a bench ruling in favor of the Millers, 

categorically rejecting Ettinger’s claim that the Millers’

prepetition debt for legal fees was nondischargeable. It 

recounted the twelve reasons asserted by Ettinger for 

nondischargeability, “none of which were accurate or correct 

and some of which were offensive.” Following the issuance 

of its dischargeability ruling, the Court told the Millers to file 

a revised 9011 Motion.
7

3. Amended Rule 9011 Motion

In accord with the Bankruptcy Court’s order, the 

Millers filed and served an amended motion for sanctions

against Ettinger and Tsarouhis.

3

The Bankruptcy Court granted the Amended Motion. 

Rejecting Ettinger and Tsarouhis’ procedural argument that 

Rule 9011’s safe harbor was violated, the Court found that the 

21-day notice requirement was satisfied by the first filing (on 

January 31) and re-filing (on February 23) of the Millers’ 

Initial Motion, during which period Ettinger and Tsarouhis 

could have taken—yet elected not to take—corrective action 

with respect to their sanctionable conduct. 

 They responded by arguing

in part that the Millers’ Amended Motion did not comply

with Rule 9011’s “safe harbor” provision. That provision 

requires 21 days between serving and filing a sanctions 

motion, during which period the challenged conduct may be 

remedied.

On the merits, the Bankruptcy Court concluded that all 

actions taken by Ettinger and Tsarouhis after Kutkowski’s 

March 18 deposition were sanctionable. That deposition 

testimony, the Court concluded, established that the Millers 

had not attempted to discharge fraudulently their legal fees by 

filing for bankruptcy protection. It described Kutkowski’s 

deposition as the “linchpin” on which its decision turned. 

Because this left the complaint without factual support, the 

Court found that the continued prosecution by Ettinger and 

Tsarouhis warranted sanctions. Subsequently, it ordered them

to pay an aggregate sanction of $20,000. That sum was to be 

 3 The Millers filed a second amended motion days later,

which was essentially identical to the first. We refer to these 

motions jointly as an “Amended Motion.”
8

held in escrow pending approval of the Millers’ attorneys’ 

fees application, then be distributed between the Millers and 

their counsel in accord with a stipulated agreement submitted 

to and approved by the Court. 

B. District Court Decision

The parties filed cross-appeals, and in June 2012 the 

District Court reversed the Bankruptcy Court’s sanction

decision on procedural grounds. The District Court 

concluded that the sanction could not stand because the 

Millers had failed to comply with the notice requirements of 

Rule 9011. Specifically, it found that the Millers’ withdrawal 

and re-filing of their Initial Motion did not provide Ettinger 

and Tsarouhis with fair notice of the conduct claimed to 

violate Rule 9011, and that, even if this motion had triggered 

the safe harbor period, the Millers failed to wait the required 

number of days after service before re-filing (because service 

by mail added three days to the period). It also criticized the 

Bankruptcy Court’s reliance on conduct that was raised for 

the first time in the Amended Motion, which was filed after 

trial and thus too late for Ettinger and Tsarouhis to cure the 

offensive conduct.

Because curing the safe harbor violation was no longer 

possible (i.e., it was impossible to provide Ettinger and 

Tsarouhis 21 days during which they might correct the 

sanctionable conduct), the District Court refused to remand 

the issue to the Bankruptcy Court for further proceedings. 

While it noted there were several other mechanisms by which 

the Bankruptcy Court could have sanctioned Ettinger and 

Tsarouhis, the District Court refused to consider the 

appropriateness of sanctions under any of those alternative 

options in light of the Bankruptcy Court’s sole reliance on 

Rule 9011. Apparently for that reason, a remand to consider 

those options was refused. 
9

II. JURISDICTION & STANDARD OF REVIEW

The Bankruptcy Court had jurisdiction over the initial 

proceedings under 28 U.S.C. § 1334. The District Court 

exercised jurisdiction to review the bankruptcy appeal 

pursuant to 28 U.S.C. § 158(a). We have appellate 

jurisdiction to review the District Court’s ruling under 28 

U.S.C. §§ 158(d) and 1291.

“We exercise plenary review over the District Court’s 

appellate review of the Bankruptcy Court’s decision and 

exercise the same standard of review as the District Court in 

reviewing the Bankruptcy Court’s determinations.” Schubert 

v. Lucent Techs. Inc. (In re Winstar Commc’ns, Inc.), 554 

F.3d 382, 389 n.3 (3d Cir. 2009) (citing Fellheimer, Eichen & 

Braverman, P.C. v. Charter Techs., Inc., 57 F.3d 1215, 1223 

(3d Cir. 1995) [hereinafter “FE&B”]). “[W]e review a 

bankruptcy court’s ‘legal determinations de novo, its factual 

findings for clear error, and its exercises of discretion for 

abuse thereof.’” In re Michael, 699 F.3d 305, 308 n.2 (3d 

Cir. 2012) (quoting In re Goody’s Family Clothing Inc., 610 

F.3d 812, 816 (3d Cir. 2010)).

The imposition or denial of sanctions is subject to 

abuse-of-discretion review. Teamsters Local Union No. 430 

v. Cement Express, Inc., 841 F.2d 66, 68 (3d Cir. 1988) 

(citing Gaiardo v. Ethyl Corp., 835 F.2d 479, 485 (3d Cir. 

1987)). A court considering and imposing sanctions must 

“articulate sufficient reasons for its determination of what is 

the appropriate sanction to apply,” and “provide a sufficient 

basis for reviewing its exercise of discretion.” Stuebben v. 

Gioioso (In re Gioioso), 979 F.2d 956, 961 (3d Cir. 1992)). 

Absent record support for imposing sanctions, remand to the 

bankruptcy court is appropriate. See, e.g., DeLauro v. Porto

(In re Porto), 645 F.3d 1294, 1306 (11th Cir. 2011) (“[W]e 

must remand this case to the bankruptcy court so that it can 
10

either flesh out its reasons for sanctioning [the party] or 

decide that he is not to be sanctioned.”); see also In re 

Gioioso, 979 F.2d at 961 (citing cases).

III. ANALYSIS

On appeal, the Millers challenge the District Court’s 

procedural dismissal on the ground that they “substantially 

complied” with Rule 9011’s safe harbor requirements. 

Specifically, they argue that the Initial Motion was sufficient 

to put Ettinger and Tsarouhis on notice of the allegedly 

sanctionable conduct, and that the District Court erroneously 

included three additional days, based on service by mail, 

when computing the safe harbor period. The Millers also 

assert that the District Court erred in concluding they could 

not recover for behavior occurring after filing their Initial 

Motion. In the alternative, the Millers assert that, even 

assuming Rule 9011’s procedural prerequisites were not met, 

the District Court should have remanded because there are 

other means by which the Bankruptcy Court could properly 

impose sanctions. 

A. Rule 9011 Overview

Rule 9011 requires, inter alia, that attorneys’ 

submissions to the court not be “presented for any improper 

purpose, such as to harass or to cause unnecessary delay or 

needless increase in the cost of litigation,” that legal 

assertions be “warranted by existing law,” and that “factual 

contentions have evidentiary support.” Fed. R. Bankr. P. 

9011(b). If any of these requirements is violated, a court has 

the discretion—“after notice and a reasonable opportunity to 

respond”—to impose sanctions, which may be initiated by 

motion or sua sponte by the court. Id. 9011(c).
11

Rule 9011’s safe harbor provides that, if a party is 

moving for sanctions, the “motion for sanctions may 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 prescribe), the challenged paper, claim, defense, 

contention, allegation, or denial is not withdrawn or 

appropriately corrected.” Id. 9011(c)(1)(A). Only after this 

21-day “safe harbor” period may the moving party file its 

motion with the court. Id.

“The purpose of the safe harbor is to give parties the 

opportunity to correct their errors, with the practical effect 

being that ‘a party cannot delay serving its Rule [90]11 

motion . . . until conclusion of the case (or judicial rejection 

of the offending contention).’” In re Schaefer Salt Recovery, 

Inc., 542 F.3d 90, 99 (3d Cir. 2008) (quoting Fed. R. Civ. P. 

11 advisory committee’s notes (1993 amendments) 

[hereinafter “Rule 11 Advisory Notes”]).4

The safe harbor provisions were intended to 

“protect litigants from sanctions whenever 

possible in order to mitigate Rule [90]11’s 

chilling effects, formalize procedural due 

process considerations such as notice for the 

protection of the party accused of sanctionable 

behavior, and encourage the withdrawal of 

papers that violate the rule without involving 

the . . . court.”

 As the Tenth 

Circuit Court explained:

 4 “Bankruptcy Rule 9011 is the equivalent sanctions rule” to 

Rule 11 of the Federal Rules of Civil Procedure, Landon v. 

Hunt, 977 F.2d 829, 833 n.3 (3d Cir. 1992), and “cases 

decided pursuant to [Rule 11 also] apply to Rule 9011,’” In re 

Gioioso, 979 F.2d at 960.
12

Roth v. Green, 466 F.3d 1179, 1192 (10th Cir. 2006) (quoting 

5A Charles Alan Wright & Arthur R. Miller, Federal 

Practice and Procedure § 1337.2 (3d ed. 2004)).

B. Compliance with Safe Harbor Requirements

As an initial matter, we address the technical 

prerequisites for satisfaction of Rule 9011’s procedural safe 

harbor provision. The District Court concluded correctly that 

strict compliance with the safe harbor rule is required. As we 

explained in Schaefer Salt, “[i]f the twenty-one day period is 

not provided, the motion must be denied.” 542 F.3d at 99.5

We note, as did the District Court, that there is a split 

of authority regarding whether re-filing an initially 

 

Rule 9011 “imposes mandatory obligations upon the party 

seeking sanctions, so that failure to comply with the 

procedural requirements precludes the imposition of the 

requested sanctions.” Brickwood Contractors, Inc. v. Datanet 

Eng’g, Inc., 369 F.3d 385, 389 (4th Cir. 2004) (en banc).

 5 The Millers argue our more recent decisions indicate that 

“substantial compliance” with the safe harbor is sufficient, 

citing In re Mondelli, 508 F. App’x 131 (3d Cir. 2012). Not 

only is this a not precedential opinion on which reliance for 

legal rulings is unavailing, Mondelli is distinguishable, as it

involved not the period of the safe harbor but rather the form 

of notice—i.e., a “notification letter” sent in lieu of formal 

service of the Rule 9011 motion. Id. at 135. Moreover, 

several courts of appeals have disagreed with the proposition 

that such notification letters may satisfy the safe harbor’s 

procedural requirements. See, e.g., Roth, 466 F.3d at 1192; 

Barber v. Miller, 146 F.3d 707, 710 (9th Cir. 1998); Ridder v. 

City of Springfield, 109 F.3d 288, 296 (6th Cir. 1997).
13

noncompliant Rule 9011 motion after 21 days provides fair 

notice for such sanctions. Compare Tahfs v. Proctor, 316 

F.3d 584, 589 (6th Cir. 2003) (suggesting re-filing may cure 

previous safe harbor noncompliance), Jefferson v. Mass. Mut. 

Life Ins. Co., No. 3:07-0715, 2008 WL 4724326, at *6 (M.D. 

Tenn. Oct. 24, 2008) (same), and Muhammad v. Louisiana, 

Nos. 99-3742/2694, 2000 WL 1876350, at *2–3 (E.D. La. 

Dec. 21, 2000) (same), with In re New River Dry Dock, Inc., 

461 B.R. 642, 646 (Bankr. S.D. Fla. 2011) (rejecting reliance 

on premature filing to satisfy safe harbor), and Xiangyuan 

Zhu v. Fed. Hous. Fin. Bd., No. 04-2539-KHV, 2007 WL 

675646, at *4 (D. Kan. Mar. 1, 2007) (same). The District 

Court sided with the courts that have found this type of 

withdrawal-and-refiling fails to satisfy Rule 9011’s safe 

harbor. We need not resolve this issue, however, because 

even if the Millers’ Initial Motion started the safe harbor 

clock, they nonetheless failed to wait the requisite period 

before re-filing.

Here, the Millers filed and served the Initial Motion on 

January 31, 2011, making 21 days from service February 21, 

2011. However, because February 21 was a federal holiday, 

the safe harbor was extended until the following day 

(February 22), see Fed. R. Bankr. P. 9006(a)(1)(C), (a)(6)(A). 

The Millers served their motion for sanctions by mail in 

accord with the Bankruptcy Court’s rules of procedure. See 

id. 9011(c)(1)(A) (indicating sanctions motions must comply 

with Fed. R. Bankr. P. 7004’s service requirements); id.

7004(b) (requiring service by mail). When computing time 

for service by mail, three additional days are added after the 

prescribed period would otherwise expire. Id. 9006(f). 

Adding three days extended the safe harbor period to 

February 25, meaning the earliest the Millers could have refiled in compliance with Rule 9011’s notice requirements was 

February 26, 2011. Because they re-filed on February 23—

days before the safe harbor period had expired—their Initial 
14

Motion was procedurally defective, and any sanction based 

thereon was invalid.6

The Millers argue the additional three days for mail 

service should not be added to the 21-day period because they 

served Ettinger and Tsarouhis electronically as well as by 

mail. They rely solely on the Eastern District of 

Pennsylvania’s local rules, however, and do not cite any 

authority indicating these rules trump the Bankruptcy Court’s 

rules of procedure. Absent such support, we agree with the 

computation of time made by the District Court (which is 

surely familiar with its local rules) of the safe harbor period.

C. Sanctioning Post-Motion Conduct

The District Court also found another procedural 

problem with the sanctions imposed, this time regarding due 

process notice requirements. In particular, the Court 

expressed concern because the sanctions were based on facts 

additional to and different from those in the Initial Motion, 

yet the Millers’ Amended Motion, standing alone, 

undisputedly did not comply with the safe harbor provision. 

See Dist. Ct. Mem. Order at 18 (noting “the Bankruptcy Court 

sanctioned Ettinger and Tsarouhis for conduct that had not 

even occurred at the time the Millers filed and served their 

initial Rule 9011 motions, but allowed the Millers to rely on 

these motions to satisfy the safe harbor [notice] 

requirement”). And by the time the Millers filed their 

Amended Motion, Ettinger and Tsarouhis had already lost at

trial on their adversary proceeding, and thus lost as well the 

chance to rectify their offending conduct.

 6 See also Dist. Ct. Mem. Order at 15–17 (finding the Millers’ 

premature re-filing an “additional and independent reason” 

for vacating the sanctions order).
15

Permitting a court to sanction a party for conduct 

occurring after the service and filing of a Rule 9011 motion is 

contrary to our recognition that “[d]ue process in the 

imposition of Rule 9011 sanctions requires ‘particularized 

notice.’” In re Taylor, 655 F.3d 274, 286 (3d Cir. 2011)

(quoting Jones v. Pittsburgh Nat’l Corp., 899 F.2d 1350, 

1357 (3d Cir.1990)). “Particularized notice” sufficient to 

comport with due process is provided where “a party is on

notice as to the particular factors that he must address if he is 

to avoid sanctions.” Jones, 899 F.2d at 1357; see also 

Simmerman v. Corino, 27 F.3d 58, 64 (3d Cir. 1994) 

(identifying three prerequisites of adequate notice as “1) the 

fact that Rule [90]11 sanctions are under consideration, 2) the 

reasons why sanctions are under consideration, and 3) the 

form of sanctions under consideration” (citation omitted)).

In addition, the purpose of Rule 9011 would not be 

advanced if a party could be sanctioned without ever having 

the opportunity to correct the offending behavior. See, e.g., 

Schaefer Salt, 542 F.3d at 99. Thus, “‘a party cannot delay 

serving its Rule [90]11 motion . . . until conclusion of the 

case (or judicial rejection of the offending contention),’” id.

(quoting Rule 11 Advisory Committee Notes), as it would 

effectively be too late to withdraw or correct the offending 

act(s). To conclude otherwise would allow a party seeking 

sanctions to deprive the target of the opportunity to escape 

them by withdrawal or correction, a crucial component of 

Rule 9011.
16

D. Other Available Sanctioning Tools

Aside from Rule 9011, however, there are various 

sources of authority by which bankruptcy courts may impose 

sanctions. The District Court identified some of these 

sanctioning tools, including “(1) on the Court’s own initiative 

pursuant to Rule 9011(c)(1)(B); (2) using the Court’s inherent 

power to sanction; or (3) under 11 U.S.C. § 105.” Dist. Ct.

Mem. Order at 20; see also 28 U.S.C. § 1927 (permitting 

courts to award costs against attorneys who “unreasonably 

and vexatiously” multiply proceedings). Notwithstanding its 

recognition of other avenues by which sanctions could have 

been imposed in this case—none of which contains a safe 

harbor timing provision, see, e.g., Brickwood Contractors, 

Inc., 369 F.3d at 389 n.2—the District Court refused to decide 

“in the first instance . . . whether sanctions grounded in some 

other authority would have been appropriate.” Dist. Ct. Mem. 

Order at 22. It did so apparently because “the Bankruptcy 

Court based its decision to sanction on Rule 9011” solely. Id.

Not taking the next step—to remand for “first 

instance” review—is where the District Court came up short. 

Because the aforementioned grounds for sanctions do not 

require compliance with any safe harbor provision, we 

conclude it erred by refusing to remand to allow the 

Bankruptcy Court to consider imposing sanctions a different 

way. Sanctions may be upheld, notwithstanding a safe harbor 

violation, if they are “clearly valid” under a different 

sanctioning mechanism. See Ginsberg v. Evergreen Sec., Ltd.

(In re Evergreen Sec., Ltd.), 570 F.3d 1257, 1273 (11th Cir. 

2009). Remand is necessary, however, to satisfy the due 
17

process requirements of adequate notice and an opportunity to 

respond before considering these alternate approaches.7

IV. CONCLUSION

We agree with the District Court that the sanctions 

order issued by the Bankruptcy Court pursuant to Rule 

9011(c)(1)(A) was procedurally defective, and therefore must 

be vacated. The Millers failed to wait the required days 

between serving and filing their Initial Motion, and they 

provided no advance notice with respect to the additional 

claims within their Amended Motion. Further, Rule 9011 

was an improper provision to penalize conduct that occurred 

well after the Millers initially moved for sanctions against 

Ettinger and Tsarouhis.

However, because there are various sanctioning tools 

available that are unaffected by this procedural problem, we 

conclude remand is the proper course to allow the Bankruptcy 

Court to consider those options. Thus we vacate the District 

Court’s order, and remand the case with instruction to remand 

to the Bankruptcy Court for proceedings consistent with this 

opinion.

 7 While our dissenting colleague believes that remand is 

inappropriate because the Bankruptcy Court considered yet 

chose not to use other sanctioning tools, we find no indication 

in the record that those other avenues were considered 

meaningfully. And because our reading of the record as a 

whole makes clear that the Court believed sanctions were 

warranted in this case, we conclude remand is the proper 

course.
1

McKEE, Chief Judge, concurring.

I agree that the sanctions order issued by the 

Bankruptcy Court pursuant to Rule 9011(c)(1)(A) was 

procedurally defective and therefore must be vacated. I also 

agree that a remand is appropriate to allow the Millers to 

pursue alternative avenues of securing sanctions against 

Ettinger. In joining Judge Ambro’s opinion, I do not suggest 

that a party should always be afforded the luxury of a “second 

bite of the apple” when failure to adhere to the procedural 

requirements of Rule 9011(c)(1)(A) negates the subsequent 

imposition of sanctions. However, I believe that a remand is 

required here because of Ettinger’s egregious conduct toward 

these clients.

The Millers paid Ettinger almost $20,000 towards his 

$43,000 bill and they were continuing to make good faith 

payments to him of $100 to $200 per month pursuant to a 

state court order. However, the Millers had fallen upon hard 

times and were struggling to keep their heads above water. 

Despite the financial hardship the Millers were facing, and 

despite the monthly payments they were making, Ettinger 

thought it appropriate to file an adversarial complaint against 

his clients in their bankruptcy preceding. He thus thought it 

appropriate to attempt to ensure that his clients’ debt to him 

would survive the “fresh start” that is the underlying purpose 

of bankruptcy. Not surprisingly, the Bankruptcy Court 

concluded that Ettinger’s conduct required the sanctions that 

the court imposed. 

I see no reason in law or equity to allow such conduct 

to escape sanction merely because of a counting error that 

arose from the fortuitous interposition of a three day 

weekend. Accordingly, I agree that Ettinger’s conduct 

justifies a remand so that the Bankruptcy court can decide 

whether to adopt an alternative mechanism for imposing 

sanctions. 
1

NYGAARD, Circuit Judge, dissenting in part.

I agree with most of the majority opinion, but come to 

a different conclusion on remanding. I would not order the 

District Court to send this cause back to the Bankruptcy Court

and, therefore, dissent in part.

In ordering the remand, with instructions that the 

bankruptcy judge consider other available sanctions, the 

majority disregards the fact that the judge did consider such 

avenues and rejected them. Put another way, despite a 

panoply of options available to him, the bankruptcy judge 

chose to limit his choice to Rule 9011. I would hold him to 

that decision. Note the record: after citing the “critical 

language” of Rule 9011(c) (limiting sanctions “to what is 

sufficient to deter repetition of such conduct or comparable 

conduct by others similarly situated”) the judge explained that 

the sanctions he imposed were not a question of fee shifting 

or repaying the debtors, but instead satisfied his “primary 

goal” of deterring other practitioners from undertaking the 

conduct he found so objectionable in the Appellees. 

Appendix at 160-161. When asked by Appellant’s counsel 

whether there were any additional sanctions to be had besides 

the $20,000.00 awarded under Rule 9011, the bankruptcy

judge’s response was clear: “No. So, it’s $20,000.00. That’s 

the sanction. That’s it.” Appendix at 161. The bankruptcy

judge rejected other avenues for sanctions available to him 

and, indeed, his citation to 11 U.S.C. § 105(a) in his 

subsequent order evinces knowledge of other vehicles for 

imposing sanctions. I also note that the Appellants 

themselves failed to explore or request sanctions through 

other means.
2

Contrary to this, however, my colleagues order the 

remand and come perilously close to expressing a position 

that sanctions should be awarded under different statutes, 

when, to my reading, the bankruptcy judge already rejected 

those avenues. I can make no other assumption than that my 

colleagues believe some other type of sanctions are required 

here. That however, is not our call nor is that issue before us. 

I would affirm the District Court in all aspects.