Whether a motion for Rule 11 sanctions may be granted despite the movants' failure to serve the motion prior to filing

QUESTION PRESENTED Federal Rule of Civil Procedure 11(c)(2) provides that a motion for sanctions “must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets.” The Federal Circuit affirmed the grant of a motion for Rule 11 sanctions and the award of $95,966.90 in attorney fees against pro se litigants Nazir Khan and Iftikhar Khan (collectively “Khan’), despite the movants’ undisputed failure to serve Khan with the motion for sanctions at any time prior to filing the motion. The question presented is as follows: Whether—in line with holdings from the Second, Third, Fourth, Fifth, Sixth, Eighth, Ninth, and Tenth Circuits—a motion for Rule 11 sanctions may be granted only if the motion is served more than 21 days before filing, as required by Rule 11(c)(2); or whether a Rule 11 motion may instead be granted despite the movants’ failure to serve the motion prior to filing, as the Seventh and Federal Circuits have held.