United States District Court, S.D. Indiana, Indianapolis Division
ORDER ADOPTING AND AFFIRMING THE MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATION TO GRANT IN PART AND
DENY IN PART PLAINTIFF'S RENEWED MOTION FOR
EVANS BARKER, JUDGE
case is before the court on a renewed motion for sanctions
and a contempt finding filed by Plaintiff Kimberly Achors
(“Achors”) against non-party to this action,
Yvonne Dean (“Dean”), for her failure to appear
for several depositions for which she was subpoenaed and for
her non-compliance with orders issued by this Court in
connection with this litigation. Dkt. No. 61. Achors's
motions were referred to Magistrate Judge Matthew Brookman
for issuance of a recommended decision. On October 19, 2017,
Magistrate Judge Brookman issued a Report and Recommendation
(“R&R”) that Achors's motions be granted
in part and denied in part, including the following specific
recommendations: 1) Dean be held in contempt; and 2) Achors
be awarded costs totaling $299.20 to be paid by Dean. Dkt.
No. 78. We now address Achors's November 3, 2017
objections to the Magistrate Judge's R&R
(“Pl.'s Obj.”). Dkt. No. 79. Defendant FCA US,
LLC (d/b/a Kokomo Transmission Plant) (“FCA”) has
not responded. For the reasons detailed in this entry, we
ADOPT the Magistrate Judge's recommendation to
GRANT IN PART and DENY IN PART Achors's
Motion for Sanctions Against Dean.
initially brought this action against her former employer,
Defendant FCA, alleging that it committed violations of the
Americans with Disabilities Act. Dean is one of
Defendant's hourly union employees whom Achors sought to
depose. Dkt. No. 42 at 1.While the litigation was pending,
Achors filed motions requesting that Dean be found in
contempt and be held liable for fees and costs due to
non-appearance at depositions to be held on December 2, 2016,
January 27, 2017, February 13, 2017, and March 13, 2017, for
which she had been subpoenaed, and for failure to comply with
this Court's February 24, 2017, order that she appear for
the March 2017 deposition, and its April 3, 2017 order that
Dean appear for a show cause hearing. Dkt. Nos. 42, 43, 46, 56.
This Court denied Achors's motions without prejudice, and
Achors renewed them on April 27, 2017. Dkt. No. 61. On
October 3, 2017, she filed an additional motion requesting a
ruling on the pending motions. Dkt. No. 75.
R&R issued on October 19, 2017, the Magistrate Judge
recommended that the court deny Achors's requests for
fees and costs associated with Dean's non-compliance with
subpoenas for depositions scheduled for December 2, 2016,
January 27, 2017, and February 13, 2017. R&R at 5-6.
Specifically, he found that there was no clear and convincing
evidence that the subpoenas and witness checks complied with
the requirements of Federal Rule of Civil Procedure 45, the
controlling procedure. R&R at 6. Similarly, given these
underlying deficiencies, the Magistrate Judge deemed
inappropriate an award of attorney's fees for work
performed in conjunction with issuing the subpoenas.
Id. Further, the Magistrate Judge found that Dean
should be held in contempt for violating the February 24,
2017 order to appear for the March 2017 deposition, and the
April 3, 2017 show cause order, because both were shown to
have satisfied the requirements. Id. at 7-9.
Achors's related sanctions request, the Magistrate Judge
recommended that Achors be awarded $299.20 in reasonable
costs. Id. at 7-9. He denied her request for
attorney's fees incurred in seeking to compel Dean's
appearance for depositions because Dean did not have a vital
role in the outcome of this litigation. Id. at 9-10.
Finally, because the issues raised in Achors's most
recent (October 3, 2017) motion had been addressed in
disposing of Achors's previously-filed sanctions and
contempt motions, the Magistrate Judge recommended that the
October 3, 2017 motion (Dkt. No. 75) be denied as moot.
Achors's objection to the findings and recommendations in
the R&R followed.
district court reviews de novo any portion of a
magistrate judge's report and recommendation to which
written objections have been made. See Fed. Rule
Civ. P. 72(b). “The district judge may accept,
reject, or modify the recommended decision, receive further
evidence, or recommit the matter to the magistrate judge with
instructions.” Id. When no objection is made
to a portion of the report, the district judge subjects that
portion of the report to a clear error review. Id.
When performing such a review, “the court need only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.”
Id.;see Schur v. L.A. Weight Loss Ctrs., Inc., 577
F.3d 752, 759-761 (7th Cir. 2009). We address below the
issues regarding which objections have been interposed,
finding “no clear error” with regard to the
Magistrate Judge's findings in all other respects.
Achors's first objection--Denial of costs and fees
associated with the subpoena for Dean's appearance at the
February 13, 2017 deposition
Achors objects to the Magistrate Judge's recommendation
that the Court deny her request for fees and costs associated
with the subpoena served on Dean for the February 13, 2017
deposition. Achors notes that the service processor's
February 11, 2017, affidavit indicated that after she
unsuccessfully attempted service of the subpoena and witness
check on four occasions, she chose to “nail and
mail” them. Pl.'s Obj. at 3 (citing Dkt. No.
42-5). Achors also attaches as an exhibit to her objection a
February 27, 2017 email exchange between the service
processor and Achors's counsel indicating that the
witness check was also left with the February 11, 2017
posting to Dean's door. Pl.'s Obj. Ex. 1. All of
this, Achors says, is evidence of proper service. According
to her, the additional fees requested due to Dean's
non-appearance for the February 13, 2017 deposition ($800),
along with costs totaling $149.20, are thus warranted.
Pl.'s Obj. at 3. We disagree.
Magistrate Judge articulated (R&R at 4), service of a
subpoena is governed by Federal Rule of Civil Procedure 45,
which states in relevant part that such service
“requires delivering a copy to the named person and . .
. tendering the fees for 1 day's attendance and the
mileage allowed by law.” Fed.R.Civ.P. 45(b)(1). The
Magistrate Judge noted that service by certified mail through
the U.S. Postal Service will suffice. R&R. at 5 (citing
Ott v. City of Milwaukee, 682 F.3d 552, 557 (7th
Cir. 2012)). Further, he underscored that when a method other
than personal service or certified mail are used, courts must
determine whether such method is a “sensible
option” that satisfies the requirement of
“delivering a copy to the named person.”
Id. (citing F.R. Civ. P. 45(b)(1)). To conduct this
analysis, noted the Magistrate Judge, courts look to other
provisions within the Federal Rules of Civil Procedure that
involve service, all the while hewing to the more restrictive
requirements of Rule 45. Id. (citing F.R. Civ.. P.
45(b)(1); Doe v. Hersemann, 155 F.R.D. 630, 630
contrary to Achors's argument, the evidence she cites
does not clearly show that the subpoena for the February 13,
2017 deposition and witness check were properly served which
would justify an award of fees and additional costs. Without
citing any authority, Achors simply assumes that the
“nail and mail” procedure used by the process
server complied with Federal Rule of Civil Procedure
45(b)(1). See Pl.'s Obj. at 3. As the Magistrate
Judge acknowledged, use of certified mail is an acceptable
alternative method of service (R&R at 50, but there is no
evidence adduced here showing that Achors's process
server used certified mail.
the opinion of one district court within the Seventh Circuit
undermines her argument that the “nail and mail”
method was sufficient. In Doe, a Wisconsin district
court also addressed service of a subpoena noting that
“abode service, where a document is left at the served
individual's dwelling, would not assure delivery to the
person.” Doe, 155 F.R.D. at 630. Considering
the description of personal service in the summons and
complaint context outlined in Federal Rules of Civil
Procedure 4(e)(1), the Doe Court also noted that
“Rule 45(b)(1) is more narrow than Rule 4(e) as to how
notification by service can take place, ” and held that
“abode service” would not ensure proper service
upon an individual. Doe, 155 F.R.D. at 631. Achors
admits that her process server used a method similar to abode
service-posting the subpoena and check to the door (while
also mailing a copy). Pl.'s Obj. at 2-3; Pl.'s Ex. 1.
Similarly, the nail and mail method would not satisfy even
Federal Rule of Civil Procedure 4, which requires that a
document be left “with someone of suitable age ...