IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS MomsWIN, LLC and ) ARIANA REED-HAGAR, ) Plaintiffs, ) ) CIVIL ACTION v. ) ) No. 02-2195-KHV JOEY LUTES, VIRTUAL WOW, INC., ) and TODD GORDANIER, ) ) Defendants. ) ) MEMORANDUM AND ORDER This matter comes before the Court on Plaintiffs Motion for Default Judgment And For Other Sanctions (Doc. #76) filed March 27, 2003. For reasons stated below, the Court sustains plaintiffs motion in part. Procedural History MomsWIN, LLC and Ariana Reed-Hagar bring state and federal claims against Joey Lutes, Virtual Wow, Inc. and Todd Gordanier, in connection with the creation and development of plaintiffs web site. Specifically, plaintiffs bring claims under the Kansas Uniform Trade Secrets Act, K.S.A. 60-3320 et seq., the Copyright Act of 1976, 17 U.S.C. 101 et seq., and the Lanham Act, 15 U.S.C. 1125(a). On October 10, 2002, defendants filed notice of withdrawal of counsel, D.A.N. Chase and James J. Kernell, and entry of appearance of substituted counsel, Tarak A. Devkota. (Doc. #43). 1 On October 14, 2002, plaintiffs served interrogatories and document production requests. Defendants did not timely 1 Devkota was not even admitted to practice in this Court until nearly three months later, on December 31, 2002.
respond and on November 22, 2002, Katherine Miller, plaintiffs attorney, sent Devkota a letter requesting discovery. Devkota did not respond. During the first two weeks of December, Miller left four telephone messages at Devkota s office. Devkota responded once, with a telephone message on December 16, 2002. The next day Miller faxed Devkota a second letter requesting discovery responses. That same day, Devkota advised Miller that defendants would begin to respond to plaintiffs discovery requests on December 18. He did not indicate when the responses would be served, 2 and on December 18, 2002, plaintiffs filed their motion to compel discovery pursuant to Rule 37(a), Fed. R. Civ. P. (Doc. #53). Defendants did not oppose plaintiffs motion and on January 10, 2003, Magistrate Judge David J. Waxse entered an order compelling defendants to answer plaintiffs discovery requests, without objections, by January 27, 2003. Three days late, on January 30, 2003, defendants served their responses. Plaintiffs then noticed the depositions of all three defendants for March 14 and 17, 2003. On March 14, plaintiffs deposed Joey Lutes and Virtual WOW. In his deposition, Lutes testified that the notarized signature on his interrogatory answers was not his. 3 The notarized signature which purports to be that of Joey Lutes is actually that of Devkota and, while Lutes had authorized Devkota to do whatever was necessary to provide discovery, 2 What it means to begin to respond to discovery is not clear. 3 The primary duty of a notary public is to acknowledge the authenticity of signatures. Dickey v. Roal Banks of Mo., 111 F.3d 580 (8th Cir. 1997). Thus, the notary public must either personally know that the signer is the person described, see State v. Farmer, 201 S.W. 955 (Mo. App. 1918), or take and preserve evidence of the signer s identity, see State v. Plass, 58 Mo. App. 148 (1894) and State v. Meyer, 2 Mo. App. 413 (1876). In Missouri, notary publics take an oath in which they swear to faithfully perform... all notarial acts in conformance with the law. Mo. Stat. 486.235. Gina R. Rodriguez, a notary public in Jackson County, Missouri, notarized Lutes signature. She is a legal assistant to Devkota, and she apparently knew that the signature was not genuine. This is a serious violation of a notary s duties which the Court must report to the State of Missouri. -2-
he did not authorize Devkota to sign his interrogatory answers. 4 To this date, Lutes has not personally signed the interrogatory answers. On March 17, 2003, plaintiffs took the deposition of Todd Gordanier. Gordanier also testified that the notarized signature on his interrogatory answers was not his. Gordanier testified that he had authorized Devkota to sign the answers, 5 but his signature bears no indication that someone other than Gordanier signed it, with or without his authorization. Furthermore, to date, Gordanier has not personally signed his interrogatory answers. On March 27, 2003, plaintiffs asked the Court to order default judgment, alleging that defendants have not complied with a court order, that they have submitted untimely interrogatory answers which bear false signatures, and that they have refused to produce Exhibit 12 (which was marked and identified in the Lutes deposition). Plaintiffs also ask the Court to schedule a hearing on plaintiffs damages and the amount of attorneys fees to be awarded. Alternatively, plaintiffs ask the Court to order (1) production of Exhibit 12, (2) a resumed deposition of Lutes and Virtual WOW at defendants expense, and (3) an award of plaintiffs attorneys fees incurred in connection with this motion. Six days after the deadline, without good cause or leave of Court, defendants filed an opposition to plaintiffs motion. 6 4 Further, Lutes purported signature bears no indication that someone signed it for him, with or without his authority. not genuine. 5 Rodriguez also notarized Gordanier s signature, apparently knowing that the signature was 6 D. Kan. Rule 6.1(e)(1), which became effective March 20, 2003, provides that [r]esponses to nondispositive motions (motions which are not motions to dismiss or for summary judgment) shall be filed and served within 14 days. Plaintiffs filed their motion on March 27, 2003, and defendants therefore had until April 10, 2003 to file any opposition. Defendants filed their opposition on (continued...) -3-
Analysis I. Defendants Answers To Plaintiffs Interrogatories On January 10, 2003, Judge Waxse ordered defendants to respond to plaintiffs discovery requests within ten days. Taking into account weekends and a federal holiday, that ten-day period expired January 27. Defendants did not provide their interrogatory answers until January 30, 2003. 7 Plaintiffs argue that the Court should disregard defendants answers because they were unsigned and untimely. Defendants acknowledge that the notarized signatures are not genuine, but argue that in their standard attorney-client contract, Lutes and Gordanier expressly authorized Devkota to sign their interrogatory answers. A. Rule 33 Interrogatory Answers Rule 33, Fed. R. Civ. P., expressly provides that interrogatories shall be answered in writing under oath,... signed by the person making them. While [c]ourts are aware that a party often will require and receive assistance from counsel in the preparation of responses to interrogatories,... it is not proper or acceptable for the attorney alone to sign or verify responses. 7 Moore s Federal Practice, 33.104[1] (2000). Rule 33 makes no exception where a party is unavailable to sign his or her answers. See McDougall v. Dunn, 468 F.2d 468, 472 (4th Cir. 1972); Cabales v. United States, 51 F.R.D. 498, 499 (S.D.N.Y. 1970). Furthermore, Devkota did not overtly sign as an authorized agent for his clients he forged their signatures and prevailed on his paralegal to fraudulently verify that the signatures were genuine. 6 (...continued) April 16, 2003. 7 On April 16, 2003, nearly three months after the deadline for their answers to plaintiffs interrogatories, defendants filed Defendant s [sic] Motion For Enlargement Of Time (Doc. #86) asking the Court to accept the answers which they had filed three days late. Judge Waxse overruled that motion by order dated May 8, 2003. (Doc. #100). -4-
In addition, he apparently took pains to disguise his handwriting, so that the signatures would appear to be authentic. The signatures provided by Devkota are not valid and, since defendants have not re-submitted answers with authentic signatures, they remain in violation of Judge Waxse s order of January 10, 2003. B. Rule 37 Sanctions Rule 37(b)(2) provides: If a party... fails to obey an order to provide or permit discovery, including an order under subdivision (a) of this rule... the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: * * * (C) an order striking out pleadings or parts thereof,... or rendering a judgment by default against the disobedient party. The harsh remedy of default judgment under Rule 37(b)(2)(C) is appropriate when a party s failure to comply [with discovery] has been due to... willfulness, bad faith, or any fault of [the party]. Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers, 357 U.S. 197, 212 (1958). In Nat l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639 (1970), the Supreme Court stated that the most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent. By the same token, a Rule 37 sanction must be just and specifically related to the claim which was at issue in the order to provide discovery. Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982). Rule 37(d), Fed. R. Civ. P., provides that: If a party... fails... to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories... the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among -5-
others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule. Here, defendants filed interrogatory answers three days late, without signing them. 8 Defense counsel compounded the problem by forging their signatures and procuring a fraudulent attestation from a notary public. From the record, however, it is not clear that defendants as opposed to their attorney acted willfully or in bad faith. Default judgment is a severe sanction, and Rule 37(b)(2) authorizes an alternative sanction which is more appropriate in this case: [i]n lieu of... the forgoing orders... the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. Defendants failure to comply with Judge Waxse s order of January 10, 2003 was not substantially justified and the record suggests no reason why an award of fees and expenses would be unjust. Defendants argue that they would have signed the interrogatories, but that they were working through the internet and internet transmission does not permit physical signatures. Defendants have not suggested that this problem occurred for reasons beyond their control or resulted from excusable neglect. Further, nearly five months after plaintiffs served their discovery requests and more than three months after Judge Waxse s deadline, defendants still have not provided interrogatory answers with authentic signatures. The Court therefore orders defendants to provide interrogatory answers which they have personally subscribed and sworn, on or before May 16, 2003. Defendants are expressly warned that failure to comply with this and 8 Plaintiffs rightly complain that defendants have otherwise failed to comply with applicable rules and schedules in this case. The Court has dealt with these issues as they have arisen, however, and the Court is not persuaded that they should be further addressed in this context. -6-
other court orders and deadlines will result in further sanctions, up to and including entry of default judgment. Defendants are also ordered to pay plaintiffs reasonable expenses, including attorney s fees, which they incurred in bringing this motion. On or before May 16, 2003, plaintiffs shall file an itemized affidavit in support of their request for fees and expenses. If the parties reach agreement regarding the fee request, they shall file an appropriate stipulation on or before May 23, 2003, along with a certificate that the agreed fees have been paid. If they are unable to agree, on or before May 28, 2003, plaintiffs shall file a statement of consultation and supporting memorandum. See D. Kan. Rule 54.2. Defendants may respond on or before June 2, 2003 and plaintiffs may reply on or before June 6, 2003. II. Exhibit 12 In their notice of deposition duces tecum, plaintiffs specifically requested that Lutes bring to his deposition each and every diary, calender, journal, note, or other document related to this case. At his deposition, Lutes produced several documents which had not previously been provided. Lutes identified one document, marked Exhibit 12 by the court reporter, as a diary or chronology of events related to this case. Defense counsel withdrew the document without giving plaintiffs counsel an opportunity to see, review or copy it. Plaintiffs argue that defendants violated the Court s order of January 10, 2003 by not producing this document by January 27, 2003, and ask the Court to compel production of Exhibit 12 because it is not privileged or work product. Defendants claim that they did not produce the document by January 27 because Lutes did not prepare until March 13, the day before his deposition, and that defense counsel refused to disclose it at the deposition because he had not reviewed it. Defendants did serve Exhibit 12-7-
with their brief in opposition to plaintiffs motion for default judgment. See Exhibit 2 in Defendant s [sic] Reply To Plaintiff s [sic] Motion For Default Judgment (Doc. #85) filed April 16, 2003. Because defendants have now produced Exhibit 12, the issue of compulsion is moot. Plaintiffs nonetheless argue that defense counsel s wrongful refusal to produce Exhibit 12 prejudices them and that his late production does not relieve the prejudice. Specifically, plaintiffs argue that they are prejudiced because discovery has closed, the dispositive motion deadline was May 2, 2003, and plaintiffs cannot re-depose Lutes and Virtual Wow without requesting a change in deadlines and a continuance of the trial. Plaintiffs claim that without re-deposing Lutes and Virtual Wow, they have no way to examine defendants concerning Exhibit 12. Defendants could not have disclosed Exhibit 12 by January 27, 2003 because it apparently did not exist until March 13, 2003. Nonetheless, plaintiffs deposition notice required Lutes to produce Exhibit 12 at his deposition. Defendants have no proper justification for withholding Exhibit 12 at the deposition. The Court therefore grants plaintiffs leave to re-depose Lutes and Virtual WOW regarding Exhibit 12, on five days notice and at defendants expense. IT IS THEREFORE ORDERED that Plaintiffs Motion for Default Judgment And For Other Sanctions (Doc. #76) filed March 27, 2003 be and hereby is SUSTAINED in part. On or before May 16, 2003, defendants shall submit answers to plaintiffs interrogatories which they have personally subscribed and sworn. IT IS FURTHER ORDERED that on or before May 16, 2003, plaintiffs shall file an affidavit in support of their request for fees which itemizes all fees and expenses incurred in bringing this motion. If the parties reach agreement regarding the fee request, they shall file an appropriate stipulation on or -8-
before May 23, 2003, along with a certificate that the agreed fees have been paid. If they are unable to agree, on or before May 28, 2003, plaintiffs shall file a statement of consultation and supporting memorandum. Defendants may respond on or before June 2, 2003 and plaintiffs may reply on or before June 6, 2003. IT IS FURTHER ORDERED that plaintiffs may re-depose Joey Lutes and Virtual WOW regarding Exhibit 12 on five days notice and at defendants expense. IT IS FURTHER ORDERED that the Clerk send copies of this order to the Disciplinary Administrator, Stanton A. Hazlett, 701 Jackson Street, First Floor, Topeka, Kansas 66603-3729 and Matt Blunt, Secretary of State, Commissions, 600 West Main, Room 367, Jefferson City, Missouri 65102. Dated this 9th day of May, 2003 at Kansas City, Kansas. s/ Kathryn H. Vratil Kathryn H. Vratil United States District Judge -9-