United States District Court, W.D. Oklahoma
R. ALEXANDER ACOSTA, Secretary of Labor, United States Department of Labor, Plaintiff,
MARGARET MARANTO, et al., Defendants.
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE
the Court is Plaintiff's Motion for Sanctions [Doc. No.
53], filed pursuant to Fed.R.Civ.P. 26(g) and 28 U.S.C.
§ 1927 as to Defendants' attorney, Bill Wilkinson,
and pursuant to Fed.R.Civ.P. 37(c)(2) as to Defendants Meers
Store & Restaurant, Inc. and Margaret Maranto. Plaintiff
United States Department of Labor asks the Court to impose
monetary sanctions on Defendants and their counsel for
alleged discovery abuses, asserting that Mr. Wilkinson
provided responses to Plaintiff's discovery requests
without making a reasonable inquiry of his clients and gave
inaccurate information, and that Defendants denied requests
for admission that later proved to be true. Mr. Wilkinson and
Defendants have responded in opposition to the Motion,
contending they did nothing wrong. Upon consideration, the
Court finds that Plaintiff's Motion should be granted in
part, as set forth herein.
Regarding Defendants' Counsel
seeks sanctions against Mr. Wilkinson for failing to consult
Defendants concerning their responses to Plaintiff's
discovery requests and, instead, supplying inaccurate
information and refusing to admit facts that were actually
true, according to the deposition testimony of Defendant
Margaret Maranto and Joe Maranto, a co-owner and manager of
the corporate defendant. Plaintiff asserts that sanctions are
warranted under Rule 26(g)(3) for an alleged violation of
Rule 26(g)(1)(B), which provides that an attorney's
signature on a discovery response constitutes a certification
“that to the best of [his] knowledge, information, and
belief, formed after reasonable inquiry, ” the response
is consistent with the rules and warranted by existing law,
is “not interposed for any improper purpose, ”
and is “neither unreasonable nor unduly
burdensome.” See Fed. R. Civ. P.
26(g)(1)(B). Rule 26(g)(3) mandates an appropriate
sanction “[i]f a certification violates this rule
without substantial justification.” Plaintiff asserts
that Mr. Wilkinson's conduct also warrants a monetary
penalty under § 1927, which provides that an attorney
“who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to
satisfy personally the excess costs, expenses, and
attorneys' fees reasonably incurred because of such
conduct.” See 28 U.S.C. § 1927.
Wilkinson responds, first, that the Motion should be denied
because Plaintiff did not discuss the problem with him before
filing the Motion, as allegedly required by Rule 26(g)(2) and
LCvR37.1. The Court finds these rules are inapplicable to
Plaintiff's Motion. Rule 26(g)(2) addresses a failure to
sign a discovery request or response, and LCvR37.1 requires
informal conferences to settle discovery disputes. Plaintiff
is not complaining in the Motion about a missing signature or
seeking to resolve a discovery dispute.
the substance of the Motion, Mr. Wilkinson's position is
that Plaintiff has not sufficiently alleged nor proven that
he failed to make a reasonable inquiry into the factual basis
of Defendants' discovery responses. Although Plaintiff
enumerates specific interrogatories that were answered
incorrectly and, according to Joe and Margaret Maranto, were
never discussed with Defendants, Mr. Wilkinson contends
Plaintiff merely provides examples of “inconsistent
testimony.” See Defs.' Resp. Br. [Doc. No.
64] at 4. Defendants contend “the inconsistencies are
merely because of confusion, stress and inexperience.”
Id. at 5. Finally, regarding § 1927 sanctions,
Mr. Wilkinson asserts that Plaintiff has failed to prove he
“is guilty of vexatiously delaying the case.”
Tenth Circuit has adopted the approach of other federal
courts considering sanctions under Rule 26(g)(3) and
“applied case law applicable to Fed.R.Civ.P. 11.”
See In re Byrd, Inc. (Portales Nat'l Bank v.
Smith), 927 F.2d 1135, 1137 (10th Cir. 1991).
Accordingly, the court of appeals has said:
When considering sanctions under Rule 11, and therefore Rule
26(g), the court must judge the attorney's conduct under
an objective standard of reasonableness. Subjective bad faith
is not required to trigger the imposition of sanctions.
Rather, the central issue is whether the person who signed
the pleading conducted a reasonable inquiry into the facts
and law supporting the pleading.
Id. (citations and internal quotation omitted).
to Mr. Wilkinson's argument, Plaintiff has convincingly
established that his conduct in certification of
Defendants' Responses and Answers to Plaintiff's
First Set of Interrogatories, Request for Admissions and
Request for Production of Documents [Doc. No. 53-1] was
objectively unreasonable. Mr. Wilkinson clearly failed to
conduct a reasonable inquiry into the facts supporting these
discovery responses; his clients testified unequivocally in
their depositions that the information supplied was incorrect
in multiple respects because they were not consulted at all.
See M. Maranto Dep. 9:15-10:3; 108:6-16;
128:16-129:7; J. Maranto Dep. 120:18-121:8; 126:24-127:3;
133:2-17. Defendant Margaret Maranto explained her signature
on the verification of Defendants' answers as follows:
“I just was told to sign it and that's what I did.
I never got it. I never read it.” See M.
Maranto Dep. 107:1-21. In short, the Court easily finds that
Mr. Wilkinson's signature on Defendants' discovery
responses constitutes a false certification that to the best
of his knowledge and belief formed after a reasonable inquiry
the responses were consistent with the rules, warranted by
law, and reasonable. Because Mr. Wilkinson offers no
justification for his failure to consult his clients
concerning their discovery responses and interrogatory
answers, the Court “must impose an appropriate
sanction” on him pursuant to Rule 26(g)(3).
1927 authorizes an assessment of excess costs, fees, and
expenses against an attorney personally for conduct that,
viewed objectively, manifests an intentional or reckless
disregard for the attorney's responsibilities to the
Court. See Braley v. Campbell, 832 F.2d 1504, 1512
(10th Cir. 1987) (en banc); accord Resolution Trust Corp.
v. Dabney, 73 F.3d 262, 265 (10th Cir. 1995). The
statute sets “an extreme standard, ” and “a
court should make such an award only in instances evidencing
a serious and standard disregard for the orderly process of
justice.” See AeroTech, Inc. v. Estes, 110
F.3d 1523, 1528 (10th Cir. 1997) (internal quotations
omitted). In this case, Plaintiff makes only a conclusory
argument that Mr. Wilkinson's failure to make a
reasonable inquiry of his clients and preparation of
“false, confusing, and nonsensical responses to
Plaintiff's discovery requests” satisfies this
standard. The Court is not persuaded that Plaintiff has met
its burden to show that § 1927 is applicable under the
these reasons, the Court finds that a monetary sanction
should be imposed against Mr. Wilkinson only under Rule
26(g)(3). The Court further finds that an appropriate
sanction is the one expressly authorized by Rule 26(g)(3): an
order to pay Plaintiff's reasonable expenses caused by
seeks sanctions against Defendants for failing to admit facts
that, according to Mrs. Maranto's deposition testimony,
were actually true. Plaintiff asserts that Rule 37(c)(2)
mandates an assessment of reasonable expenses (including
attorney fees) incurred in proving the truth of the matters
in Plaintiff's requests for admission because none of the
four exceptions provided by Rule 37(c)(2)(A)-(D) is met.
Plaintiff contends Defendants falsely ...