Wagner v. Gallup, Inc.

Filing 172

ORDER: Plaintiff's motion in limine [Docket No. 96 ] is DENIED as moot. Defendant's motions in limine [Docket Nos. 102 and 108 ] are DENIED as moot. Plaintiff's motion and amended motion to compel [Docket Nos. 132 and 148 ] a re DENIED as stated on the record at the pretrial conference on April 7, 2014. Defendant's motion to quash [Docket No. 153 ] is GRANTED in part as stated on the record at the pretrial conference on April 7, 2014. Attorney Michelle Dye Neumann shall pay to Defendant Gallup Inc. a sanction in the amount of $2,000 toward its fees and costs to quash the subpoenas served on its executives, Jim Clifton and Jane Miller. (Written Opinion) Signed by Judge Joan N. Ericksen on June 20, 2014. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Rodd Wagner,
Plaintiff,
v.

Civil No. 12-1816 (JNE/TNL)
ORDER

Gallup, Inc.,
Defendant.

With his complaint, Plaintiff Rodd Wagner alleged a claim for age discrimination and for
invasion of his privacy through appropriation of his name or likeness against Defendant Gallup,
Inc. In a summary judgment order in December 2013, the Court granted summary judgment to
Gallup on the discrimination claim, but declined to enter summary judgment on the appropriation
claim. The case was then scheduled for trial on the appropriation claim. Based on proceedings
leading up to and at the pretrial conference, the Court informed the parties that the viability of
Wagner’s appropriation claim needed to be revisited and solicited supplemental briefing on
specific issues. The Court subsequently entered summary judgment in Gallup’s favor on the
appropriation claim. See ECF No. 171. Prior to the entry of summary judgment on the
appropriation claim, the parties had filed various motions. See ECF Nos. 96, 102, 108, 132/148,
and 153. The Court ruled on some of the motions or parts of motions at the pretrial hearing.
This order addresses the motions that remain on the case docket.
In light of the dismissal of Wagner’s remaining claim, several motions are now moot. In
particular, the parties filed three motions in limine to exclude certain witnesses and limit certain
evidence. See ECF Nos. 96, 102, 108. These motions will be denied as moot.

Wagner also filed a motion and amended motion seeking to compel attendance at trial, or
in the alternative, for trial depositions before trial of three Gallup executives: (1) Jim Clifton,
Gallup’s chief executive officer; (2) Jane Miller, Gallup’s chief operating officer; and (3) Larry
Edmond, Gallup’s chief marketing officer. See ECF Nos. 132, 148. Gallup filed a motion to
quash the subpoenas for the three witnesses, two of which had been served at the time of the
pretrial conference and one that Wagner’s counsel had indicated would be served. See ECF 153.
At the pretrial conference, the Court denied Wagner’s motion to compel and confirmed that the
subpoenas were invalid. 1 Although the parties briefly addressed the issue, the Court declined to
rule on sanctions at the conference.
Gallup subsequently filed an affidavit from Jim Clifton about the service of the subpoena
on him and renewed its request for its fees and costs associated with bringing the motion to
quash and responding to Wagner’s motion to compel. ECF No. 167-68. Gallup asserts a variety
of alleged violations, see ECF No. 155 at 7-8, but the Court focuses only on the subpoenas
actually served on the Gallup executives. During discovery, Wagner had already deposed Jane
Miller. He had sought to depose Jim Clifton, but Gallup filed a motion for a protective order.
The magistrate judge granted the motion in part at a hearing on the motion. See ECF No. 50.
Gallup states that the magistrate judge granted its request to prohibit Wagner from making
further attempts to depose Jim Clifton. Wagner does not contend otherwise.
The record includes the two subpoenas at issue. The subpoena served on Jane Miller on
March 31, 2014, commanded appearance at the United States District Court for the District of

1

The motion to quash also covered deposition notices that had been sent for other
witnesses belatedly identified by Gallup. Wagner did not move to compel depositions for those
witnesses, but rather filed a motion in limine seeking to exclude their testimony. See ECF No.
96. The present discussion does not relate to those notices or witnesses and is limited to the two
subpoenas actually served.
2

Nebraska and “[v]ia video conference with” the United States District Court for the District of
Minnesota. ECF No. 156-1. The date and time specified on the subpoena was Monday, April 7,
2014, to Friday, April 11, 2014, from 9 a.m. to 5:00 p.m. CST. Id. On April 2, 2014, a subpoena
was served on Jim Clifton as he approached the doors of a venue at which he was giving the
keynote speech at an event attended by approximately 600 people. 2 ECF No. 168. The
subpoena commanded appearance at the United States District Court for the District of Columbia
and “[v]ia video conference with” the United States District Court for the District of Minnesota
for the same five days and times stated in the subpoena served on Jane Miller. ECF No. 168-1.
Both subpoenas were issued by counsel of record for Wagner, Michelle Dye Neumann, and list
the United States District Court for the District of Minnesota as the issuing court.
Gallup does not identify the provision under which it seeks the requested sanction.
Federal Rule of Civil Procedure 45(d)(1) provides for sanctions by “[t]he court for the district
where compliance is required” when “[a] party or attorney responsible for issuing and serving a
subpoena” fails to “take reasonable steps to avoid imposing undue burden or expense on a person
subject to the subpoena.” The subpoenas at issue commanded attendance at a location in another
district. Despite the reference to a video conference with this Court, the plain language of Rule
45(d)(1) prevents this Court from directly invoking it. But Gallup’s motion unquestionably
implicates the protections of the Rule. More specifically, when “a subpoena should not have
been issued, literally everything done in response to it constitutes an undue burden or expense
within the meaning” of the Rule. Spin Master Ltd. v. Bureau Veritas Consumer Prods. Serv.,

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According to Mr. Clifton’s affidavit, he “was scheduled to give the keynote speech at the
annual Tulsa Chamber Luncheon event for the Tulsa Regional Chamber” and it “was a formal
event that took place at the Hyatt hotel in downtown Tulsa” with “approximately 600
individuals” in attendance. ECF No. 168. As he “approached the doors to the event, a process
server approached” him and served the subpoena on him. Id.
3

Civ. No. 11-1000A, 2013 U.S. Dist. LEXIS 125470, at *16-17 (W.D.N.Y. Aug. 29, 2013)
(internal quotation marks omitted).
Moreover, “[a] court’s inherent power includes the discretionary ‘ability to fashion an
appropriate sanction for conduct which abuses the judicial process.’” Stevenson v. Union Pac.
R.R., 354 F.3d 739, 745 (8th Cir. 2004) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 44-45
(1991)). And under 28 U.S.C. § 1927, an attorney “who so multiplies the proceedings in any
case unreasonably and vexatiously may be required by the court to satisfy personally the excess
costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” Sanctions are
permitted under the statute “when an attorney’s conduct, viewed objectively, manifests either
intentional or reckless disregard of the attorney’s duties to the court” and after notice and an
opportunity for the attorney to be heard have been provided. Jones v. UPS, 460 F.3d 1004, 1011
(8th Cir. 2006).
Gallup contends that sanctions are warranted for the improper subpoenas served on its
executives. An attorney issuing a subpoena pursuant to Rule 45 invokes the authority of the
issuing court. As the evolution of the Rule and the requirement for a subpoena to “state the court
from which it issued” show, an attorney issues a subpoena on behalf of a court. See Fed. R. Civ.
P. 45(a)(1)(i); Fed. R. Civ. P. 45 advisory committee’s note on 1991 amendments (describing the
history of subpoena issuance procedures). Until the most recent amendments in 2013, the Rule
explicitly called out the role played by an attorney as one of an “officer of the court,” issuing and
signing a subpoena “on behalf of a court.” See Smith v. Am. Investors Network, Civ. No. 051686, 2006 U.S. Dist. LEXIS 85825, at *2-3 (D. Minn. Nov. 27, 2006) (quoting prior version of
the rule). Moreover, the failure to comply with a subpoena made under Rule 45 may be deemed
a contempt of court in the absence of an “adequate excuse.” See Fed. R. Civ. P. 45(g); In re

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Kingdom of Morocco v. Kingdom of Morocco, Misc. Case M8-85, 2009 U.S. Dist. LEXIS 42540,
at *5-6 n.4 (S.D.N.Y. Apr. 16, 2009) (“Valid attorney-issued subpoenas under Rule 45(a)(3)
operate as enforceable mandates of the court on whose behalf they are served.”). Thus, an
attorney issuing a subpoena may not take her role lightly and is duty-bound to ensure the
propriety of a subpoena that she signs and serves.
The circumstances involving the two subpoenas at issue reflect a serious dereliction of
that duty because no authority exists for the type of subpoenas issued. At the pretrial conference,
the Court questioned Wagner’s counsel on the authority for such subpoenas—ones that
commanded appearance for five days at courts in other jurisdictions for an unauthorized “video
conference” with this Court—and none was identified. Federal Rule of Civil Procedure 43(a)
requires testimony at trial to be in open court, unless another rule or statute provides otherwise.
Counsel had no authority to issue a subpoena commanding appearance in another jurisdiction for
a video conference with this Court. Rule 43(a) does provide that “[f]or good cause in compelling
circumstances and with appropriate safeguards, the court may permit testimony in open court by
contemporaneous transmission from a different location.” Fed. R. Civ. P. 43(a) (emphasis
added). No such permission had been given by, or even sought from, the Court. See Fed. R.
Civ. P. 45 advisory committee’s note on 2013 amendments (observing that “[w]hen an order
under Rule 43(a) authorizes testimony from a remote location, the witness can be commanded to
testify from any place described in Rule 45(c)(1)”).
To the extent that the subpoenas were issued for the purpose of taking a deposition, they
were also wholly improper. Jane Miller had already been deposed in the case and so any further
deposition would require leave of the Court. See Fed. R. Civ. P. 30(a). Gallup had obtained a
protective order in response to Wagner’s attempt to depose Jim Clifton during discovery. The

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directive to appear for five days is not supported by the rules. Further, the circumstances around
the service of the subpoena on Jim Clifton raise concerns.
Therefore, sanctions under 28 U.S.C. § 1927 and the Court’s inherent authority are
warranted. Counsel had notice of the request for fees and costs as well as an opportunity to be
heard at the pretrial conference and through written submissions before and after it. An
appropriate sanction is Gallup’s fees and costs of dealing with the subpoenas served on Jane
Miller and Jim Clifton, including the motion to quash. But the motion filed by Gallup covers
additional matters. See ECF No. 155. In the interest of avoiding prolonged proceedings and
potential motion practice to determine the amount of fees and costs attributable to Gallup’s
efforts at quashing the subpoenas, the Court sets $2,000 as a reasonable sanction.
CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1.

Plaintiff’s motion in limine [Docket No. 96] is DENIED as moot.

2.

Defendant’s motions in limine [Docket Nos. 102 and 108] are DENIED as moot.

3.

Plaintiff’s motion and amended motion to compel [Docket Nos. 132 and 148] are
DENIED as stated on the record at the pretrial conference on April 7, 2014.

4.

Defendant’s motion to quash [Docket No. 153] is GRANTED in part as stated on
the record at the pretrial conference on April 7, 2014.

5.

Attorney Michelle Dye Neumann shall pay to Defendant Gallup Inc. a sanction in
the amount of $2,000 toward its fees and costs to quash the subpoenas served on
its executives, Jim Clifton and Jane Miller.

LET JUDGMENT BE ENTERED ACCORDINGLY.

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Dated: June 20, 2014
s/Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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