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Achors v. FCA US, LLC

United States District Court, S.D. Indiana, Indianapolis Division

December 4, 2017

FCA US, LLC, d/b/a/ Kokomo Transmission Plant, Defendant.



         This 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.[1] 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.”).[2] 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.


         Achors 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.[4] 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.

         In the 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.

         Addressing 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.

         Standard of Review

         A 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.


         I. Achors's first objection--Denial of costs and fees associated with the subpoena for Dean's appearance at the February 13, 2017 deposition

         First, 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”[5] 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.

         As the 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 (1994)).

         Here, 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.

         Further, 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 ...

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