Scott v. Menard Inc

Filing 33

OPINION AND ORDER: Court GRANTS 14 Motion for Sanctions. Counsel for the plaintiff is ORDERED to pay the reasonable attorney fees and costs the defendant incurred in preparing a response to the motion to remand and the motion for sanctions. Menard's counsel is DIRECTED to file a fee affidavit within 14 days of entry of this Order. Signed by Magistrate Judge Andrew P Rodovich on 6/28/2011. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
SANDRA SCOTT,
Plaintiff
v.
MENARD, INC.,
Defendant

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Case No. 2:10 cv 442

OPINION AND ORDER
This matter is before the court on the Motion for Sanctions
[DE 14] filed by the defendant, Menard, Inc., on January 20,
2011.

For the following reasons, the motion is GRANTED.
Background
The plaintiff, Sandra Scott, filed her complaint against the

defendant on January 19, 2010, in the Superior Court of Lake
County.

The defendant, Menard, Inc., states that it did not

receive service of the complaint, and therefore did not timely
respond.

Scott represents that the complaint was sent by certi-

fied mail.

However, the certified mail green card was signed by

the plaintiff’s counsel’s secretary, Marisa Turner.

Scott’s

attorney represented to the Lake County Superior Court that
service had been effectuated on the defendant.
Upon learning of the pending lawsuit, Menard’s counsel
removed the matter to this court on November 4, 2010.

The

following day, Menard filed a motion to dismiss, asserting a lack

of personal jurisdiction, lack of service, insufficiency of
service of process, and failure to prosecute. Scott filed a
motion to remand on November 15, 2010, arguing that Menard did
not file its petition of removal within 30 days of service.
Menard promptly responded and submitted evidence that it never
was served with process.

Scott’s reply brief would have been due

on November 29, 2010, but Scott did not file a reply brief to
refute Menard’s evidence.

Menard contacted Scott’s counsel,

explaining that the motion to remand was frivolous because it
never received service, and asked Scott to withdraw the motion to
remand.

Scott did not respond.

The court denied Scott’s motion

to remand, noting the absence of response and strength of
Menard’s evidence showing that it did not receive service.
Menard now requests the court to sanction Scott, arguing
that the motion to remand was frivolous.
respond to the motion for sanctions.

Scott did not timely

On February 23, the court

directed Scott to file a response, which she ultimately filed on
March 2, 2011.

Scott admits that the summons and complaint were

not properly served on Menard, indicating that the failure was
the result of an error with the postal service.

However, Scott’s

response is devoid of an explanation to support her motion to
remand, does not point to any evidentiary support for her motion
to remand, and does not explain why she did not withdraw her

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motion upon learning that Menard did not receive service of
process.
Discussion
"Rule 11 . . . plainly authorizes a district court to
sanction a lawyer who without reasonable inquiry tenders a
submission that includes legal contentions not warranted 'by
existing law or by a nonfrivolous argument for the extension,
modification, or reversal of existing law or the establishment of
new law.'" Berwick Grain Co., Inc. v. Illinois Dept. Of Agricul-

ture, 217 F.3d 502, 503 (7th Cir. 2000) (quoting Federal Rule of
Civil Procedure 11(b)(2), (c)).

The court defines a frivolous

motion warranting sanctions as one that is "baseless or made
without a reasonable and competent inquiry."

Berwick, 217 F.3d

at 503; Independent Lift Truck Builders Union v. NACCO Materials

Handling Group, Inc., 202 F.3d 965, 969 (7th Cir. 2000).
includes motions clearly lacking in evidentiary support.
11(b)(3).

This
Rule

Frivolous or legally unreasonable arguments may be

sanctioned by a number of methods, including "nonmonetary directives; an order to pay a penalty into court; or, if imposed on
motion and warranted for effective deterrence, an order directing
payment to the movant of part or all of the reasonable attorney’s
fees and other expenses directly resulting from the violation."
Rule 11(c)(4).

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Counsel for the plaintiff failed to satisfy his duties under
Rule 11 on multiple accounts.

First, he did not file a reply

brief in support of his motion to remand, explaining why his
motion had merit. If counsel believed his motion had merit, he
has yet to provide an explanation for failing to reply, nor has
he explained his evidentiary basis to refute the defendant’s
evidence showing that it did not receive service.

The plaintiff

has offered nothing tending to show that she did not know, or did
not have reason to know, that the summons and complaint were
served upon plaintiff’s own secretary, rather than defendant.
For this reason, the court must believe that Scott’s motion to
remand was filed without evidentiary support.
Although Scott admits that the complaint and summons were
not served upon Menard, explaining that it was the fault of the
postal service, this does not explain why Scott did not withdraw
his motion upon learning of this error.

Menard provided Scott

with the opportunity to withdraw the motion to remand prior to
filing sanctions.

Menard explained its position and evidentiary

support, yet Scott did not comply and did not offer any explanation for failing to do so.

Scott’s delegation of fault to the

postal service does not explain his own errors of filing or
failing to withdraw a motion lacking in evidentiary support.
Absent an explanation tending to show that the motion to remand

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was not frivolous, the court GRANTS Menard’s motion for sanctions.

Counsel for the plaintiff is ORDERED to pay the reason-

able attorney fees and costs the defendant incurred in preparing
a response to the motion to remand and the motion for sanctions.
Menard’s counsel is DIRECTED to file a fee affidavit within 14
days of entry of this Order.
ENTERED this 28th day of June, 2011

s/ ANDREW P. RODOVICH
United States Magistrate Judge

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