concurring.
The sanctions imposed by the district court pursuant to the 1983 version of Federal Rule of Civil Procedure 11 were warranted, though for a reason other than “extensive, persistent and unwarranted litigation.”
The 1983 version of Rule 11 authorized the imposition of sanctions for conduct tied to a particular pleading. See In Re Ruben, 825 F.2d 977, 984 (6th Cir.1987) (“Rule 11 is concerned with the signing of frivolous pleadings and other papers”). The 1993 Amendments to Rule 11 expanded its reach to conduct related to the case as a whole in making sanctionable a litigant’s insistence on a position after it is no longer tenable. Fed. R.Civ.P. 11 (1993) (advisory committee notes). Included in this expansion was a safe harbor provision affording a litigant notice and the opportunity to react to an alleged violation prior to being sanctioned.
In imposing sanctions under the 1983 version of Rule 11 for “extensive, persistent and unwarranted litigation,” the district court therefore relied upon an improper basis. Such conduct did not become sanctionable until the 1993 version of Rule 11 which provided the protection of a safe harbor provision.
While the basis upon which the district court imposed sanctions was incorrect, the deficient responses filed by Runfola to the motions for summary judgment do provide a proper basis upon which to impose sanctions under the 1983 version of Rule 11. I therefore concur in the decision to affirm.