Michael J. Dubisky, Tr. for the V.S. Trust I v. E. Keith Owens, 849 F.2d 1034 (7th Cir. 1988). · Go Syfert
Michael J. Dubisky, Tr. for the V.S. Trust I v. E. Keith Owens, 849 F.2d 1034 (7th Cir. 1988). Cases Citing This Book View Copy Cite
72 citation events (9 in the last 25 years) across 16 distinct courts.
Strongest positive: Tai Matlin v. Spin Master Corp. (ca7, 2020-11-10)
Treatment trajectory · 1988 → 2026 · click a year to view as-of
1988 2007 2026
Top citers, strongest first. 39 distinct citers. How cited ↗
cited Cited as authority (rule) Tai Matlin v. Spin Master Corp.
7th Cir. · 2020 · confidence medium
Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir. 1988).
cited Cited as authority (rule) Tai Matlin v. Spin Master Corp.
7th Cir. · 2020 · confidence medium
Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir. 1988).
discussed Cited as authority (rule) Bell v. Lantz
7th Cir. · 2016 · confidence medium
Relying on our decisions in Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir. 1988), and Leffler v. Meet, 936 F.2d 981, 987 (7th Cir. 1991), Bell asserts that all parties and their counsel have a continuing obligation to mitigate costs and fees by immediately taking action to terminate a case where possible.
cited Cited as authority (rule) Kathrein, Michael L. v. McGrath, Brigid
7th Cir. · 2007 · confidence medium
So counsel must correlate “his response, in terms of hours and funds expended, to the merit of the claims.” Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988).
discussed Cited as authority (rule) Divane, William T. v. Krull Electric Co
7th Cir. · 2003 · confidence medium
“A party defending against a frivolous paper has a duty under Rule 11 to mitigate its legal fees and expenses by resolving frivolous issues quickly and efficiently.” Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir. 1988).
cited Cited as authority (rule) Harding University v. Consulting Services Group, L.P.
N.D. Ill. · 1999 · confidence medium
Dubisky v. Owens, 849 F.2d 1034, 1038 (7th Cir.1988).
discussed Cited as authority (rule) Capital Factors, Inc. v. Homeline Corp. (In Re General Plastics Corp.) (2×)
Bankr. S.D. Florida · 1995 · confidence medium
However, “[a] party defending against a frivolous paper has a duty under Rule 11 to mitigate its legal fees and expenses by resolving frivolous issues quickly and efficiently.” Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988) (citations omitted).
cited Cited as authority (rule) In re Mraz
4th Cir. · 1995 · confidence medium
See id.; Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988).
cited Cited as authority (rule) Moise Katz v. Household International, Inc., Donald C. Clark and Edwin P. Hoffman
7th Cir. · 1994 · confidence medium
See, e.g., Pollution Control Industries of America v. Van Gundy, 21 F.3d 152, 155-56 (7th Cir.1994); Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988).
discussed Cited as authority (rule) Pollution Control Industries of America, Inc., a Missouri Corporation v. Linda R. Van Gundy, Jack J. Genova and Michael J. Genova
7th Cir. · 1994 · confidence medium
As we explained in Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988): *156 Rule 11 authorizes the district court to award as a sanction “reasonable expenses” which may include “a reasonable attorney’s fee.” The reasonableness requirement by its nature hinges on the particular facts and circumstances presented in a given case and looks not only to the hours and billing rate involved in responding to the other party’s sanetionable conduct, but also to the appropriateness of the response taken.
cited Cited as authority (rule) Matter of Pierce
Bankr. N.D. Ind. · 1994 · confidence medium
Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988).
discussed Cited as authority (rule) Richardson Greenshields Securities Inc. v. Mui-Hin Lau
S.D.N.Y. · 1993 · confidence medium
In imposing sanctions under Rule 11, “the court must consider to what extent a defending party’s injury could have been avoided or was self-inflicted.” Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988). 2.
discussed Cited as authority (rule) Durr v. Intercounty Title Co. of Illinois
N.D. Ill. · 1993 · confidence medium
There is of course an analogy in Fed.R.Civ.P. 11 litigation, where our Court of Appeals has taught that fee shifting is inappropriate unless a like opportunity to cure the violation as a matter of mitigation has been afforded to the offending party (see, e.g., Dubisky v. Owens, 849 F.2d 1034, 1038-39 (7th Cir. 1988)).
discussed Cited as authority (rule) Richardson Greenshields Securities Inc. v. Lau
S.D.N.Y. · 1992 · confidence medium
In imposing sanctions under Rule 11, “the court must consider to what extent a defending party’s injury could have been avoided or was self-inflicted.” Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988).
discussed Cited as authority (rule) Brandt v. Schal Associates, Incorporated
7th Cir. · 1992 · confidence medium
Because of the complexity of the facts and issues in Crescent's claims, the Schal defendants cannot be faulted for failing to handle the case by less expensive or informal means like those that this court recommended in Dubisky v. Owens, 849 F.2d 1034, 1038 (7th Cir.1988).
discussed Cited as authority (rule) Brandt v. Schal Associates, Inc.
7th Cir. · 1992 · confidence medium
Because of the complexity of the facts and issues in Crescent’s claims, the Schal defendants cannot be faulted for failing to handle the case by less expensive or informal means like those that this court recommended in Dubisky v. Owens, 849 F.2d 1034, 1038 (7th Cir.1988).
cited Cited as authority (rule) D'Aquino v. Citicorp/Diner's Club, Inc.
N.D. Ill. · 1991 · confidence medium
Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988).
discussed Cited as authority (rule) William R. Leffler and Shirley Jolliff, Cross-Appellees v. Ralph Meer, Cross-Appellants, and Howard Shake, Cross-Appellants
7th Cir. · 1991 · confidence medium
In Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988), we held that “[a] party defending against a frivolous paper has a duty under Rule 11 to mitigate its legal fees and expenses by resolving frivolous issues quickly and efficiently.” Moreover, there should be some proportionality between the merits of the plaintiff’s claim and the hours expended by defense.
discussed Cited as authority (rule) Beth Spiller, and Stephen Smiley Brown v. Ella Smithers Geriatric Center
5th Cir. · 1990 · confidence medium
Thus, the Fifth Circuit imposes a so-called “duty to mitigate” on the nonviolating party. 9 Id.; Napier v. Thirty or More Unidentified Federal *348 Agents, 855 F.2d 1080 , 1092 (3d Cir.1988); Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988).
discussed Cited as authority (rule) Melrose v. Shearson/American Express
7th Cir. · 1990 · confidence medium
See In re Central Ice Cream Co., 836 F.2d 1068, 1074 (7th Cir.1987); Szabo Food Service, 823 F.2d at 1075, 1084-85 . 47 "A party defending against a frivolous paper has a duty under Rule 11 to mitigate its legal fees and expenses by resolving frivolous issues quickly and efficiently." Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988).
cited Cited as authority (rule) Hurst v. General Dynamics Corp.
Del. Ch. · 1990 · confidence medium
Thomas, 836 F.2d at 876 ; Dubisky v. Owens, 849 F.2d 1034, 1036 (7th Cir.1988) (citation omitted).
discussed Cited as authority (rule) Brandt v. Schal Associates, Inc.
N.D. Ill. · 1990 · confidence medium
Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988) (citations omitted) articulates this familiar proposition: A party defending against a frivolous paper has a duty under Rule 11 to mitigate its legal fees and expenses by resolving frivolous issues quickly and efficiently.
discussed Cited as authority (rule) Melrose v. Shearson/American Express, Inc.
7th Cir. · 1990 · confidence medium
“A party defending against a frivolous paper has a duty under Rule 11 to mitigate its legal fees and expenses by resolving frivolous issues quickly and efficiently.” Dubisky v. Owens, 849 F.2d 1034,1037 (7th Cir.1988).
discussed Cited as authority (rule) Wonder Corp. v. Chase Manhattan Bank (In Re Wonder Corp.)
Bankr. D. Conn. · 1989 · confidence medium
Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988) (quoting INVST Financial Group, Inc. v. Chem-Nuclear Sys., Inc., 815 F.2d 391 , 404 (6th Cir.1987), cert. denied, 484 U.S. 927 , 108 S.Ct. 291 , 98 L.Ed.2d 251 (1987)).
cited Cited as authority (rule) First National Bank of Lincolnshire v. Cloud (In Re Cloud)
N.D. Ill. · 1989 · confidence medium
Fed.R.Civ.P. 11; Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988).
cited Cited as authority (rule) Wielgos v. Commonwealth Edison Co.
N.D. Ill. · 1989 · confidence medium
Mitigation Wielgos properly says Edison should not recover fees that never should have been incurred in the first place (see, e.g., Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988)).
cited Cited as authority (rule) Robb v. Sowers (In Re Sowers)
Bankr. N.D. Ind. · 1989 · confidence medium
Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988) (citations omitted).
examined Cited as authority (rule) Painewebber, Inc. v. Can Am Financial Group, Ltd. (3×) also: Cited "see"
N.D. Ill. · 1988 · confidence medium
In awarding sanctions, “the court must consider to what extent a ... party’s injury ... was self-inflicted.” Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988).
discussed Cited "see" Children's Village v. Greenburgh Eleven Teachers' Union Federation of Teachers, Local 1532
S.D.N.Y. · 1994 · signal: see · confidence high
See Dubisky v. Owens, 849 F.2d 1034 (7th Cir.1988); Thomas v. Capital Security Services, 836 F.2d 866 (5th Cir.1988) (en banc); Brown v. Federation of Medical Boards, 830 F.2d 1429 (7th Cir.1987); In re Yagman, 796 F.2d 1165 (9th Cir.1986).
cited Cited "see" Robert Colton v. Memorial Drive Trust
6th Cir. · 1993 · signal: see · confidence high
See Dubisky v. Owens, 849 F.2d 1034 (7th Cir.1988) (discussing a party's duty to mitigate its damages in a Rule 11 context).
discussed Cited "see" Curtis Hendrix, Mayer, Brown & Platt, Non-Party v. Wayne Naphtal and First Family Homes, a California Corporation
1st Cir. · 1992 · signal: see · confidence high
See Duhisky v. Owens, 849 F.2d 1034, 1037-38 (7th Cir.1988) (party seeking dismissal for lack of diversity jurisdiction failed to mitigate because it did not first raise question of diversity "informally” in a letter or phone call).
cited Cited "see" Vista Manufacturing, Inc. v. Trac-4, Inc.
N.D. Ind. · 1990 · signal: see · confidence high
See Dubisky v. Owens, 849 F.2d 1034 .
cited Cited "see" Autotech Corp. v. NSD Corp.
N.D. Ill. · 1989 · signal: see · confidence high
See Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988).
discussed Cited "see" Napier v. Thirty or More Unidentified Federal Agents, Employees or Officers
3rd Cir. · 1988 · signal: see · confidence high
See Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988) (“A party defending against a frivolous paper has a duty under Rule 11 to mitigate its fees and expenses by resolving frivolous issues quickly and efficiently.”); Thomas v. Capital Sec.
discussed Cited "see" Napier v. Thirty or More Unidentified Federal Agents, Employees or Officers
3rd Cir. · 1988 · signal: see · confidence high
See Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988) ("A party defending against a frivolous paper has a duty under Rule 11 to mitigate its fees and expenses by resolving frivolous issues quickly and efficiently."); Thomas v. Capital Sec.
cited Cited "see, e.g." Montrose Chemical Corp. v. American Motorists Ins.
C.D. Cal. · 1995 · signal: see, e.g. · confidence medium
See, e.g., Dubisky v. Owens, 849 F.2d 1034, 1037-38 (7th Cir.1988).
discussed Cited "see, e.g." Silva v. Witschen
1st Cir. · 1994 · signal: see also · confidence medium
Services, Inc., 836 F.2d 866, 879 (5th Cir. 1988); see also Dubisky v. Owens, 849 F.2d 1034, 1037 (7th 11Another Linder claim that attorney fees are not allow- able under Rule 11 directly contradicts the express language of Fed.
discussed Cited "see, e.g." Silva v. Witschen
1st Cir. · 1994 · signal: see also · confidence medium
Services, Inc., 836 F.2d 866, 879 (5th ______ _____________________________ Cir. 1988); see also Dubisky v. Owens, 849 F.2d 1034, 1037 (7th ___ ____ _______ _____ ____________________ 11Another Linder claim that attorney fees are not allow- able under Rule 11 directly contradicts the express language of Fed.
cited Cited "see, e.g." Richard Silva v. Peter Witschen, City of East Providence, Stephen Linder
1st Cir. · 1994 · signal: see also · confidence medium
Services, Inc., 836 F.2d 866, 879 (5th Cir.1988); see also Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir.1988) (similar).
Retrieving the full opinion text from the archive…
Michael J. DUBISKY, Trustee for the V.S. Trust I, Plaintiff-Appellant,
v.
E. Keith OWENS, Et Al., Defendants-Appellees
87-1590.
Court of Appeals for the Seventh Circuit.
Jul 21, 1988.
849 F.2d 1034
C.D. Kasson, Burditt Bowles & Radzuis, Ltd., Chicago, 111., for plaintiff-appellant., Roberta H. Klein, Patterson, Belknap Webb & Tyler, Los Angeles, Cal., for defendants-appellees.
Posner, Flaum, Eschbach.
Cited by 46 opinions  |  Published
FLAUM, Circuit Judge.

Michael J. Dubisky, Trustee for the V.S. Trust I, appeals from the district court’s order sanctioning him in the amount of $36,117 under Federal Rule of Civil Procedure 11 for filing a complaint that incorrectly alleged diversity jurisdiction. On appeal, Dubisky concedes that Rule 11 sanctions were properly imposed, but argues that the defendants failed to mitigate their damages and that the district court abused its discretion by awarding the defendants the entire amount of attorney’s fees incurred in defending the litigation. We reverse.

I.

On March 19, 1986 Dubisky filed suit in the United States District Court for the Northern District of Illinois to recover a substantial investment in Comark, a California limited partnership which became insolvent. Dubisky’s suit named as defendants the various parties that participated in the formation and operation of Comark, including Oppenheim, Appel, Dixon and Co. (OAD), Comark’s auditors. [1] The complaint alleged that OAD committed professional malpractice and performed its work on behalf of Comark in a negligent manner.

Dubisky’s complaint asserted that the district court had subject matter jurisdiction over the dispute under 28 U.S.C. § 1332 because there was complete diversity of citizenship between the plaintiff and defendants. The complaint, as properly construed by the district court, alleged that Dubisky was an Illinois citizen for diversity purposes. Specifically, the complaint provided that:

Plaintiff, Michael J. Dubisky, an individual, was at all times up to August, 1983 domiciled in and a citizen of the state of Illinois____ Subsequent to August, 1983, plaintiff has resided in Brookfield, Wisconsin, although he continues to own the residence in Downers Grove, Illinois and intends to reside there again.

The complaint also alleged that OAD was a California professional corporation with its principal place of business in California and that none of OAD’s members were domiciled in or citizens of Illinois. This allegation was incorrect. It is now undisputed that OAD was a general partnership, not a corporation, and that several OAD partners were citizens and residents of Illinois.

On May 28, 1986, OAD filed a motion to dismiss the complaint for lack of subject matter jurisdiction under Rule 12(b)(1) or, in the alternative, for improper venue under Rule 12(b)(3) (hereinafter the “motion to dismiss”). [2] Because a general partnership is deemed to be a citizen of each state in which its partners are citizens, Elston Investment, Ltd. v. David Altman Leasing Corp., 731 F.2d 436 (7th Cir.1984), OAD was a citizen of Illinois for diversity purposes, and complete diversity was therefore lacking. The district court correctly granted the motion to dismiss for lack of subject matter jurisdiction.

[*1036] In conjunction with its ruling on subject matter jurisdiction, the district court also granted OAD’s motion for sanctions under Rule 11. The district court stated:

The obvious failure of plaintiff and his counsel to make “reasonable inquiry” as to fundamental jurisdictional facts before the filing of the complaint and counsel’s attempt to obfuscate the issues, through the filing of numerous pages of irrelevant argument on personal jurisdiction which did not address the questions of subject matter jurisdiction and venue raised by the OAD defendants’ motion, constitute the basis for the court’s imposition of sanctions.

Dubisky v. Owens, No. 86 C 1920, mem. op. at 10-11 (N.D.Ill. Oct. 22, 1986) (emphasis in original) [available on WESTLAW, 1986 WL 12042]. The district court ordered OAD to file a “verified statement of the reasonable expenses incurred including attorneys’ fees resulting from the Rule 11 violation of plaintiff and his counsel.” Id. at 11. Counsel for OAD filed such a statement indicating that OAD’s attorneys had spent 211 hours on the litigation and seeking a total sanction of $36,117. [3] The district approved the entire sum stating that “the amount sought by OAD (1) was reasonably incurred in defending the Dubisky litigation and (2) is an appropriate amount under ... Rule 11.” Dubisky v. Owens, No. 86 C 1920, mem. op. at 4 (N.D.Ill. Feb. 26, 1987) (order approving OAD’s petition for fees and costs) [available on WEST-LAW, 1986 WL 7486].

II.

A.

Rule 11 states in part:

If a pleading ... is signed in violation of this rule, the court ... shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading ..., including a reasonable attorney’s fee.

Fed.R.Civ.P. 11 (emphasis added). When Rule 11 is violated, the district court must impose sanctions against the offending party. Brown v. Federation of State Medical Bds., 830 F.2d 1429, 1433 (7th Cir.1987). We reverse the amount or type of sanctions awarded only if we find that the district court abused its discretion. Id. at 1434.

The issue raised by this case is the amount of fees and costs that OAD is entitled to recover under Rule 11. Dubisky first argues that OAD violated its duty to mitigate its injury. Accordingly, in Dubi-sky’s view, only a small portion of the jurisdictional expenses should be recoverable under Rule 11. Second, even if OAD’s efforts specifically related to having Dubi-sky’s suit dismissed for lack of subject matter jurisdiction were consistent with its duty to mitigate, Dubisky claims that a substantial portion of the $36,117 awarded in sanctions was related to work done by OAD’s counsel in preparation for defending the underlying merits of the dispute. Du-bisky reasons that the phrase “because of” indicates that Rule 11 contains a causation requirement. He then argues that a dismissal of his suit for lack of diversity only resulted in a change of forum because he has intervened as a plaintiff in a suit brought in California state court by other investors. As a result, OAD is forced to incur substantially the same expenses defending the California suit, and therefore only the expenses related to subject matter jurisdiction were caused by the improper filing in federal court.

The district court found OAD’s conduct consistent with its duty to mitigate and explicitly rejected Dubisky’s argument that the award should be limited to those fees directly related to the incorrect allegation of subject matter jurisdiction. The court first observed that Dubisky violated Rule 11 by filing his complaint, not by filing a[*1037] single, distinct motion. The court then reasoned that “[t]he improperly filed complaint is causally related ... to all defendants’ legal costs.” Dubisky v. Owens, No. 86 C 1920, mem. op. at 3 (N.D.Ill. February 26, 1987) (order approving OAD’s petition for fees and costs). It therefore concluded that OAD was entitled to all of the attorneys’ fees and costs which it incurred “in connection with the Dubisky litigation” and that the sum sought by OAD “was reasonably incurred.” Id. at 3, 4. Because we hold that OAD violated its duty under Rule 11 to mitigate its damages we do not treat as a separate issue the question of whether fees and expenses beyond the issue of subject matter jurisdiction are recoverable.

B.

Rule 11 authorizes the district court to award as a sanction “reasonable expenses” which may include “a reasonable attorney’s fee.” The reasonableness requirement by its nature hinges on the particular facts and circumstances presented in a given case and looks not only to the hours and billing rate involved in responding to the other party’s sanctionable conduct, but also to the appropriateness of the response taken. A party defending against a frivolous paper has a duly under Rule 11 to mitigate its legal fees and expenses by resolving frivolous issues quickly and efficiently. Brown, 830 F.2d at 1439; Schwarzer, Sanctions Under The New Federal Rule 11-A Closer Look, 104 F.R.D. 181, 202 (1985) (“obligation to mitigate is implicit” in the rule). Counsel “must mitigate damages by correlating his response, in terms of hours and funds expended, to the merit of the claims.” INVST Financial Group, Inc. v. Chem-Nuclear Systems, Inc., 815 F.2d 391, 404 (6th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 291, 98 L.Ed.2d 251 (1987) (footnote omitted). Further, the court must consider to what extent a defending party’s injury could have been avoided or was self-inflicted. Thomas v. Capital Security Services, Inc., 836 F.2d 866, 879 (5th Cir.1988) (en banc). This entails an examination of the promptness and method of bringing the frivolous conduct to the attention of both the court and the opposing party. See Fed.R.Civ.P. 11 advisory notes (“[a] party seeking sanctions should give notice to the court and the offending party promptly upon discovering a basis for doing so”). “If a baseless claim could have been readily disposed of by summary procedures, there is little justification for a claim for attorney’s fees and expenses engendered in lengthy and elaborate proceedings in opposition.” Thomas, 836 F.2d at 879 n. 19 (quoting Schwarzer, 104 F.R.D. at 200-201).

United Food & Commercial Workers Union Local No. 115 v. Armour and Co., 106 F.R.D. 345 (N.D.Cal.1985) is instructive on this point. In United Food the plaintiff filed a first amended complaint which alleged that Armour, the defendant, had refused to arbitrate a grievance when in fact the plaintiff should have known that Armour had agreed to arbitrate the claim. Armour filed a formal motion for summary judgment and Rule 11 sanctions. The district court granted both, but awarded a substantially smaller sanction than Armour sought. The court stated:

Under the particular circumstances of this case, what troubles the court greatly is the extensive amount of work Armour’s counsel did in utilizing the formal ... machinery of litigation, when Armour’s attorney might have brought about the same result by a less formal and less costly means.

Id. at 349. The court recognized that informal methods of resolution would not always be successful, but determined that Armour’s failure to attempt informal resolution under the facts of the case violated its duty to mitigate. The court stated: “The very reason why Unions’ counsel’s actions in this case were so egregious, makes this the kind of case were [sic] Armour should have immediately brought the frivolity of the action to the court’s attention” through a conference call or status conference. Id. at 350.

The present case is similar. Once OAD received Dubisky’s complaint, it was forced to begin to defend the suit. OAD’s counsel must have realized almost immediately that OAD, its client, was an Illinois[*1038] citizen for diversity purposes and that the complaint’s allegation to the contrary was incorrect. Further, it was also readily apparent that Dubisky’s complaint was ambiguous as to whether it alleged that he was a citizen of Illinois or Wisconsin for purposes of § 1332. Yet, defendants made no effort to contact plaintiff’s counsel. OAD chose instead to respond to Dubisky’s complaint by filing an extensive motion to dismiss for lack of subject matter jurisdiction or, in the alternative, improper venue. OAD’s motion and supporting legal memorandum were prepared at a substantial expense. Because Dubisky’s allegation of his citizenship was ambiguous, the defendants explored the jurisdictional and venue implications of each possible construction. This amount of effort is not consistent with OAD’s duty to mitigate under Rule 11. If OAD had contacted Dubisky and pointed out the apparent lack of complete diversity, Dubisky could have clarified his own citizenship, thereby eliminating OAD’s need to explore every possible construction of the facts. Dubisky may even have acknowledged his error, voluntarily withdrawn the complaint, and refiled in a proper forum. The problems related to diversity jurisdiction should and could have been resolved with minimal expense and effort on the part of both the parties and the courts.

OAD argues, however, that Dubisky’s subsequent behavior demonstrates that such an informal approach would have been futile. Upon receiving OAD’s motion to dismiss, Dubisky did not acknowledge his error. Rather, he asserted that complete diversity did in fact exist by claiming that the complaint properly alleged that he was a Wisconsin citizen for diversity purposes. [4] He also set forth an elaborate argument as to why the district court retained personal jurisdiction over the defendants, but did not directly address the venue issue raised by OAD. OAD incurred additional expenses responding to this memorandum. The district court succinctly summarized the situation when it stated that Dubisky “attempted to swing like a willow branch in the wind between the Illinois-Wisconsin border when making his arguments on jurisdiction and venue.” Dubisky v. Owens, No. 86 C 1920, mem. op. at 10 (N.D.Ill. Oct. 22, 1986).

Although we acknowledge that Dubi-sky’s conduct upon having his error pointed out was far from exemplary, it does not excuse OAD’s failure to comply with its duty to mitigate. It is reasonable to believe that informal contact such as a phone call or letter in response to a frivolous paper will have a different effect on the party filing such a paper than a full blown motion and memorandum filed in court. The latter course of action may put an opponent on the defensive and render him or her less likely to admit an error. Dubi-sky might have acted differently if OAD’s counsel had notified him informally of the error with respect to OAD’s citizenship. If Dubisky had chosen to press his jurisdictional allegations despite OAD’s informal efforts, OAD would then have been required to and justified in filing its motion and supporting memorandum. Once its reasonable effort to mitigate proved fruitless, OAD would have been entitled to sanctions for the effort expended on these arguments. But because OAD did not contact Dubisky, we decline to hold that informal contact would have been futile.

We subscribe to the Fifth Circuit’s position in Thomas that litigants should be strongly encouraged to use the least expensive alternative to alert the court and the offending party of a possible Rule 11 violation, but emphasize that “what constitutes the appropriate alternative will vary depending on the nature of the case and the severity of the violation.” Thomas, 836[*1039] F.2d at 880 n. 20. In the case presently before us, the erroneous assertion of OAD’s citizenship in Dubisky’s complaint and the ambiguity as to Dubisky’s own citizenship should have been readily apparent to OAD’s counsel. OAD’s counsel should have suspected immediately that complete diversity might be lacking and contacted Dubisky’s counsel before embarking on a more costly and less effective course. We find that in failing to do this, OAD violated its duty to mitigate damages under Rule 11. We therefore hold that the district court erred in awarding OAD the entire $36,117 in fees and costs it incurred in defending the Dubisky litigation and remand this case to the district court for an award of sanctions consistent with this opinion. The decision of the district court is Reversed. [5]

1

. Two of OAD’s partners, Stephen Rubenstein and Kenneth Schwartz, were also named individually as defendants. For simplicity, we refer to both partners and the partnership itself collectively as "OAD.”

2

. As the quoted portion of the complaint indicates, it was ambiguous as to whether the complaint alleged that Dubisky was a citizen of Illinois or Wisconsin for purposes of diversity jurisdiction. The district court correctly determined that it alleged the former. If Dubisky had properly alleged Wisconsin citizenship, diversity would have been complete. Even if diversity was complete, however, the district court determined that venue in Illinois was not proper under 28 U.S.C. § 1391(a), because neither the plaintiff nor all of the defendants resided there, and the action arose in California, where all the operative facts of plaintiff’s claims against OAD occurred. Dubisky v. Owens, No. 86 C 1920, mem. op. at 7 (N.D.Ill. Oct. 22, 1986)[available on WESTLAW, 1986 WL 12042].

As a third alternative, OAD asked that if the “interest of justice” required that the suit not be dismissed, the case should at least be transferred to the Central District of California pursuant to 28 U.S.C. § 1406(a).

3

. The district court also awarded $20,651.03 in sanctions in favor of another defendant, Robinson, Wayne & Greenburg (RWG). Dubisky also appealed from this award, but by joint motion RWG and Dubisky moved to have the appeal dismissed with respect to RWG. This motion was granted on August 25, 1987.

4

. As noted, the district court properly interpreted the complaint as alleging that Dubisky was an Illinois citizen for diversity purposes. See infra text accompanying note 1. Dubisky explained the allegation in his complaint in the following manner:

The fact that Dubisky still owns a home in Downers Grove was highlighted to emphasize the fact that Dubisky has several substantial assets within this judicial district that are now in grave jeopardy as a result of [OAD's] acts. The Downers Grove property, however, does not alter the fact that Dubisky is currently a citizen of Wisconsin.

Plaintiff’s Memorandum in Opposition to Motion for Dismissal By [OAD] at 5-6.

5

. Accordingly, we also deny defendants' claim for sanctions under Fed.R.App.P. 38.