United States District Court, N.D. Indiana, LaFayette Division
OPINION AND ORDER
P. Rodovich United States Magistrate Judge
matter is before the court on the Non-Party's Withdrawal
of Motion to Quash [DE 30] filed by the non-party, Indiana
Department of Workforce Development, on March 19, 2018. Based
on the following reasons, the motion is
March 2, 2018 Indiana Department of Workforce Development
(IDWD) filed a motion requesting that the court quash the
Subpoena to Testify at Deposition in a Civil Action and the
Defendant's Notice of Deposition by Written Questions.
IDWD argued that the subpoena required the disclosure of
confidential and privileged information protected by state
and federal law. IDWD also argued that the subpoena and the
notice of deposition contained procedural defects. The
defendant, Wardlaw Claim Service, LLC, filed a response in
opposition on March 12, 2018. In the response, Wardlaw
requested that IDWD's motion be denied and that Wardlaw
be awarded attorney fees. IDWD did not file a reply.
thereafter, IDWD requested the court to withdraw the motion
to quash. IDWD indicated that it was withdrawing the motion
out of an abundance of good faith and in the interest of
judicial economy. IDWD filed a Notice of Tender of Documents
[DE 31], which notified the court that on March 19, 2018, the
documents requested by the subpoena and the notice of
deposition were tendered to counsel for Wardlaw, John Ross,
via certified mail, with a courtesy copy mailed via email.
in its response has argued that IDWD's withdrawal of its
motion to quash and its belated compliance with the subpoena
does not moot the imposition of the attorney fee sanction
that it has requested. Wardlaw contends that sanctions are
mandatory under Federal Rules of Civil Procedure 26(c)(3),
37(a)(5)(A), 45(g), and appropriate under 28 U.S.C. §
initial matter, the court notes that Wardlaw's response
requests sanctions. Under N.D. Ind. L.R.
7-1(a), motions must be filed separately. Wardlaw
has not filed a motion requesting sanctions. Accordingly, the
request for sanctions is not properly before this court.
However, to dispose of Wardlaw's contention that it is
entitled to sanctions the court briefly will address the
arguments it presented in its response brief.
has indicated that it should be awarded fees based on Federal
Rule of Civil Procedure 37(a)(5)(A). Federal Rule of
Civil Procedure 37(a)(5)(A) states that the court
shall require sanctions based upon the costs of seeking a
motion to compel. See Stookey v. Teller Training
Distribs., Inc., 9 F.3d 631, 637 (7th Cir. 1993) (citing
the prior section number) (“Rule 37(a)(4) clearly
allows for an award of the expenses incurred in obtaining an
order to compel, including attorney's fees.”).
Therefore, if a motion is granted or if the disclosure or
requested discovery is provided after the motion was filed
the court must, after giving an opportunity to be heard,
require the party or deponent whose conduct necessitated the
motion, the party or attorney advising that conduct, or both
to pay the movant's reasonable expenses incurred in
making the motion, including attorney's fees.
Rule 37(a)(5)(A). However, Wardlaw has not
filed a motion to compel or a separate motion requesting
contends that IDWD's defiance of the subpoena warrants
sanctions under Federal Rule of Civil Procedure 45(g). The
court finds that Wardlaw has waived this argument for lack of
development. “Arguments not developed in any meaningful
way are waived.” Cent. States, Se. & Sw. Areas
Pension Fund v. Midwest Motor Express, Inc., 181 F.3d
799, 808 (7th Cir. 1999).
Wardlaw requests sanctions under 28 U.S.C. § 1927.
Section 1927 authorizes sanctions against an attorney who
unreasonably and vexatiously multiplies the proceedings. 28
U.S.C. § 1927. Courts have discretion to impose Section
when an attorney has acted in an objectively unreasonable
manner by engaging in serious and studied disregard for the
orderly process of justice, pursued a claim that is without a
plausible legal or factual basis and lacking in
justification, or pursued a path that a reasonably careful
attorney would have known, after appropriate inquiry, to be
Jolly Group, Ltd. v. Medline Indus., Inc., 435 F.3d
717, 720 (7th Cir. 2006) (internal citations and quotations
omitted). The court is not required to grant sanctions under
Section 1927. Corley v. Rosewood Care Ctr., Inc.
of Peoria, 388 F.3d 990, 1014 (7th Cir. 2004)
(“Section 1927 is permissive, not mandatory. The court
is not obliged to grant sanctions once it has found
unreasonable and vexatious conduct. It may do so in its
discretion.”). The moving party must show
“extremely negligent conduct, like reckless and
indifferent conduct.” Pacific Dunlop
Holdings, Inc. v. Barosh, 22 F.3d 113, 120(7th Cir.
1994). Wardlaw has not presented evidence of bad faith or
reckless and indifferent conduct. Therefore, the court finds
that § 1927 sanctions are not warranted.
on the foregoing reasons, the Non-Party's Withdrawal of
Motion to Quash [DE 30] is GRANTED. The
clerk is DIRECTED to show the