1Our October 14, 2005 order more fully sets out the nature of the dispute.

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KAE TANAKA, :

:

Plaintiff, : Case No. 4: CV-05-1954

:

v. :

:

SARA MCCOY, : (Judge McClure)

:

Defendant. :

O R D E R

June 14, 2006

BACKGROUND:

On September 27, 2005, plaintiff Kae Tanaka filed a three-count complaint

against defendant Sara McCoy. This dispute is about the ownership rights to three

websites: http://www.bluefind.com (“bluefind.com”), http://www.sevenseek.com

(“sevenseek.com”), http://www.v7n.com (“v7n.com”), and the revenue those

websites generate.1 Contemporaneously with the filing of her complaint, plaintiff

filed a motion for a temporary restraining order (“TRO”) and a preliminary

injunction. On September 29, 2005, the court issued a TRO after holding an ex

parte hearing, and scheduled a hearing on plaintiff’s request for a preliminary

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injunction for October 11, 2005. At that hearing we orally dissolved the TRO. On

October 14, 2005, following our second hearing, we denied plaintiff’s motion for a

preliminary injunction and formally dissolved the TRO.

On April 11, 2006, plaintiff filed a motion to compel discovery responses

from defendant pursuant to Federal Rule of Civil Procedure 37(a). A brief in

support was filed on April 26, 2006. The motion and brief in support included a

request by defendant for an award of reasonable expenses, including attorneys’

fees, incurred in making the motion to compel. The motion also indicated

defendant’s numerous attempts to resolve the discovery issue before resorting to

filing a motion to compel. Defendant did not respond.

On May 23, 2006, we granted plaintiff’s motion to compel. We also ordered

that plaintiff was entitled to sanctions for defendant’s failure to comply with

plaintiff’s discovery requests. Our order provided plaintiff with ten (10) days to

submit evidence of reasonable expenses incurred in the preparation of the motion

to compel, and the method for calculating those expenses. The order also stated

that defendant would then have ten (10) days from receipt of the defendant’s

statement to file a response.

On June 1, 2006, plaintiff filed her statement of reasonable expenses and

supporting exhibits. (Rec. Doc. No. 41.) That statement indicated that plaintiff

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incurred $813.80 in reasonable expenses in filing the motion to compel.

On June 12, 2006, defendant filed her response. Defendant’s response

indicated that defendant did not respond to plaintiff’s motion to compel and

plaintiff cannot afford to pay sanctions because: 1) the parties have been in

settlement negotiations for several months; 2) John Scott, who defendant asserts is

the real party in interest, obtained an order in the King County Court of Seattle,

Washington and obtained control of the disputed websites; 3) defendant has

expended considerable sums of money in litigating the Washington state case; and

4) defendant does not have the financial means to pay the sanctions. The court

finds none of these excuses persuasive.

Plaintiff’s proposed order directing payment of the sanctions seeks

payments directly from defendant for her failure to respond. (Rec. Doc. No. 41-4.)

The Federal Rules address who may be sanctioned for the costs and expenses of a

party filing a motion to compel that is granted. In relevant part Federal Rule of

Civil Procedure 37 states:

If the motion is granted or if the disclosure or requested

discovery is provided after the motion was filed, the court

shall, after affording an opportunity to be heard, require

the party or deponent whose conduct necessitated the

motion or the party or attorney advising such conduct or

both of them to pay to the moving party the reasonable

expenses incurred in making the motion, including

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attorney’s fees. . . .

Fed. R. Civ. P. 37(a)(4)(a) (emphasis added). The text of the rule provides for

joint and several liability of the attorney and the party necessitating the motion. 

New Pac. Overseas Group (U.S.A.) Inc. v. Excal Int’l Dev. Corp., 252 F.3d 667,

670 (2d Cir. 2001) (per curiam) (noting availability of finding Rule 37 sanctions

against an attorney and making those sanctions joint and severally liable with his

client): see Martin v. Brown, 63 F.3d 1252, 1265 (3d Cir. 1995) (reversing district

court that held attorney jointly and severally liable with client because district court

failed to specifically articulate how attorney’s conduct linked to the various theories

for imposing sanctions).

The filings indicate that defendant has failed to respond to plaintiff’s

repeated requests for discovery, which began in late December 2005. As of today

it appears that discovery has still not been provided. The justifications offered by

defendant are without merit. Our order today will not hold only the defendant

liable, however, because it appears to the court that defendant’s attorney is also

responsible for her failure to respond to discovery. Defense counsel asserts that

the parties have been in settlement negotiations as one of the grounds for

defendant’s failure to respond to plaintiff’s discovery requests. However,

plaintiff’s filings indicate that over several months defense counsel has failed to

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respond to plaintiff’s counsel’s inquiries. 

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Plaintiff is entitled to $813.80 for defendant’s failure to make timely

disclosures as is evidenced by plaintiff’s statement. (Rec. Doc. No. 41.)

2. Defendant Sara McCoy and her counsel Joseph Orso are jointly liable for

the reasonable costs and expenses in the sum of $813.80 incurred by plaintiff’s

counsel in filing the motion to compel pursuant to Federal Rule of Civil Procedure

37(a)(4)(A) and are directed to make payment within twenty (20) days.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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