4.10 Burdens of Proof in Motion for Sanctions

• Library: Attorney Fees and Sanctions - Virginia and Federal Courts (Virginia CLE) (2016 Ed.)

4.10 BURDENS OF PROOF IN MOTION FOR SANCTIONS

The burden of demonstrating an entitlement to attorneys' fees is on the moving party. ³⁴³ "A party seeking attorneys' fees must present a request from which the correct amount may be computed with reasonable dispatch. The failure to do this justifies a rejection of the request." ³⁴⁴

"Whether it is sought under the Federal Rules of Civil Procedure or pursuant to a court's inherent powers, the precise burden of proof in a motion for sanction is unclear in the Fourth Circuit. However, proving that misconduct occurred by "clear and convincing" evidence, as opposed to by mere preponderance, certainly suffices, ³⁴⁵ some courts even finding that "a party must show that misconduct occurred by 'clear and convincing' evidence, as opposed to by a mere preponderance in order for the court to exercise its inherent power to sanction." ³⁴⁶

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Where dismissal is the requested sanction, courts have tended to require clear and convincing proof of misconduct (whether termed egregious, intentional, willful or bad faith). ³⁴⁷

Under section 1927, an "inability to pay . . . should be treated as reasonably akin to an affirmative...