Opinion
No. 01-2113-CM.
December 6, 2001
O R D E R
An order was issued on December 6, 2001 requiring Defendant Shawnee Mission Ford and its counsel to show cause why the Court should not require either or both of them to pay the reasonable expenses incurred by Plaintiffs in preparing the Motion to Compel at issue in the Court's December 6, 2001 Memorandum and Order. Counsel for Defendant Shawnee Mission Ford responded to the Court's show cause order on December 17, 2001 stating, in relevant part, that
Shawnee Mission Ford, its officers, and its employees had nothing to do with the delay and failure to timely respond to Plaintiffs' discovery. The lack of response stems wholly and completely from counsel for Shawnee Mission Ford's failure to properly monitor the file, and resolve difficulties with the internal handling of this file.
Defendant Shawnee Mission Ford's Response at p. 1 (doc. 38). Federal Rule of Civil Procedure 37(a)(4)(C) allows a court to impose sanctions where, as here, a motion to compel is granted in part and denied in part. Under that rule, the court may "apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner." Fed.R.Civ.P. 37(a)(4)(C). In this case, the Court deems it just to allow Plaintiffs to recover a portion, if not all, of the reasonable expenses, including attorney fees, that they incurred in bringing their Motion to Compel.
Having determined that Plaintiffs are entitled to recover at least a portion, if not all, of their reasonable expenses, the Court must next determine whether Shawnee Mission Ford's counsel or Shawnee Mission Ford itself should be required to pay the sanctions. To the extent possible, sanctions should be imposed only upon the person or entity responsible for the sanctionable conduct. White v. General Motors Corp. Inc., 908 F.2d 675, 685-86 (10th Cir. 1990) (imposing Rule 11 sanctions); McCoo v. Denny's, Inc., 192 F.R.D. 675, 697 (D.Kan. 2000) (imposing Rule 11, 26(g)(3), and 37(a)(4) sanctions); Starlight Int'l, Inc. v. Herlihy, 190 F.R.D. 587, 593 (D.Kan. 1999) (imposing Rule 26(g) and 37(b) and (d) sanctions); Giroux v. Farm Credit Bank of Wichita, No. 95-1499-MLB, 1997 WL 109733, at *1 (D.Kan. Feb. 13, 1997) (imposing Rule 37(a)(4) sanctions). The sanctioning of a party, as opposed to the party's counsel, "requires specific findings that the party was aware of the wrongdoing." McCoo v. Denny's, Inc., 192 F.R.D. at 697 (citing White, 908 F.2d at 685-86).
The Court is referring to counsel for Shawnee Mission Ford at the time the sanctionable conduct occurred, and not to counsel recently entering an appearance on behalf of Shawnee Mission Ford.
In the absence of any evidence that Shawnee Mission Ford was responsible for the sanctionable conduct here, the Court finds it appropriate to hold Shawnee Mission Ford's counsel solely responsible for paying the monetary sanctions. See Starlight Int'l, 190 F.R.D. at 594 (attorneys rather than parties responsible for insuring adequacy of responses to requests for production). The Court also finds it appropriate to assess the sanctions against counsel rather than Shawnee Mission Ford based on counsel's Rule 11 and Rule 26(g) obligations.
Pursuant to Kansas Rule of Professional Conduct 5.1 and the comment thereto, the partners or shareholders in a law firm are responsible for making reasonable efforts to assure that all lawyers in the firm conform to the rules of professional conduct. The Court therefore holds that the law firm representing Shawnee Mission Ford rather than the individual attorneys shall be responsible for payment of the expenses.
Under Rule 11, counsel has the duty to ensure that the legal and factual contentions he/she sets forth in every pleading are "warranted by existing law" and "have evidentiary support." Fed. R Civ. P. 11(b)(2) and (3). Rule 26(g)(2) expounds on that duty as it applies to responses and objections to discovery requests. It provides in pertinent part:
Every discovery request, response, or objection made by a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. . . . The signature of the attorney or party constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the request, response, or objection is:
(A) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; [and]
(B) not interposed for a any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation . . . .
Given the importance of this duty, Rule 26(g)(3) permits a court, upon motion or upon its own initiative, to impose sanctions upon the attorney making the certification, including payment of the reasonable expenses and attorney fees incurred because of the violation.
In light of the above rules, the Court concludes that Plaintiffs are entitled to recover at least a portion, if not all, of the reasonable expenses and fees incurred in conjunction with filing the referenced Motion to Compel and that Shawnee Mission Ford's counsel, rather than Shawnee Mission Ford, should be responsible for payment of such expenses and fees. To aid the Court is determining the proper amount of expenses, Plaintiffs' counsel shall file, on or before December 28, 2001, an affidavit itemizing the expenses, including attorney fees, that Plaintiffs incurred in bringing the referenced Motion to Compel. Defendant Shawnee Mission Ford shall have until January 7, 2002 to file a response to the affidavit. The Court will then issue a second order, apportioning the expenses and fees and specifying the amount and time of payment.
IT IS SO ORDERED.