TOM SCHANZLE-HASKINS, Magistrate Judge.
This matter comes before the Court on Plaintiff's Motion for Settlement Conference (d/e 44) (Settlement Motion), and Plaintiff's Motion for Sanctions (d/e 45) (Sanctions Motion). The parties consented to having the matter heard before this Court.
Plaintiff Teresa M. Beck brought this action against Honda for making alleged illegal telephone calls to her cellular telephone in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA).
Beck filed bankruptcy during the pendency of this case. On May 22, 2013, Beck's counsel filed a motion to withdraw as counsel (d/e 23). The Court allowed the withdrawal on the next day.
On September 4, 2013, this Court directed Beck and counsel for Honda "to meet and confer and tender proposed supplemental deadlines to move this litigation forward."
On September 11, 2013, Beck sent an email to counsel for Honda. The body of the email stated:
On September 23, 2013, Honda filed Defendant's Report Regarding Rule 26(f) Conference with Plaintiff (d/e 31) (Discovery Plan). The Discovery Plan contained no certificate of service. Counsel for Honda later stated that he presumed the Discovery Plan was served on Beck by the CM/ECF system.
Counsel for Honda violated two Local Rules by not serving Beck and by not including a certificate of service. The Local Rules require a certificate of service on all filings and do not allow pro se parties to receive filings by the electronic CM/ECF system without first securing leave of court.
On the same day, September 23, 2013, Beck filed a Motion to Extend (d/e 32). Beck asked for a sixty-day extension of time due to family illness. Beck stated that she would consent to being deposed and wanted to depose two Honda representatives under Rule 30(b)(6).
On September 24, 2013, Magistrate Judge Cudmore entered the following Text Order:
The CM/ECF Notice of Electronic Filing states that this Text Order was mailed to Beck. Beck did not respond.
On October 15, 2013, Magistrate Judge Cudmore entered the following Text Order setting the discovery schedule:
The Clerk of Court mailed this Text Order to Beck.
On May 29, 2014, Honda filed Defendant's Proposed Pretrial Order (d/e 42) (Proposed Pretrial Order). The Proposed Pretrial Order also did not include a certificate of service. The District Court held a hearing in this matter on May 29, 2014 (Hearing). Beck received a copy of the Proposed Pretrial Order during the Hearing.
On June 9, 2014, Beck filed the Settlement Motion and the Sanctions Motion. Beck seeks sanctions because Honda failed to serve her with the Discovery Plan and Proposed Pretrial Order.
Beck asks for sanctions under Federal Rules of Civil Procedure 5(a), 11, 26(a), 26(g), and 37; 28 U.S.C. § 1927; 720 ILCS 5/32-2(a) and 5/33-3(a)(b)(c); and the Court's inherent power. The Court addresses each basis for sanctions in order.
Rule 5(a) requires parties to serve filings on opposing parties. Fed. R. Civ. P. 5(a). Honda violated Rule 5(a) by not serving the Discovery Plan on Beck.
Beck argues that Honda caused an unreasonable delay by proposing time for additional discovery. Beck argues that additional discovery was unnecessary. The argument is unpersuasive. Beck stated in her September 11, 2013, email that she wanted to take at least one additional deposition. She also acknowledged in her Motion to Extend (d/e 32) that both sides wanted to take depositions. She, therefore, knew that additional discovery would be necessary. She further asked for a sixty-day extension of time. She was not prejudiced by the revised discovery schedule. The Court finds no showing of prejudice by Honda's failure to serve the Discovery Plan. The request for sanctions under Rule 5(a) is denied.
Beck asks for sanctions under Rule 11. Rule 11 states that an attorney who signs a filing represents to the Court that: (1) the filing is not being presented for an improper purpose such as to harass or cause unnecessary delay; (2) the claims, defenses and legal contentions are warranted by existing law or nonfrivolous arguments for changes in the law; (3) the factual contentions have evidentiary support or likely will have support after further investigation; and (4) the denials of factual contentions are warranted on the evidence or based on belief or lack of information. Fed. R. Civ. P. 11(b). A party seeking Rule 11 sanctions must do so by separate motion and must serve the motion on the opposing party 21 days before filing it in court. Fed. R. Civ. P. 11(c).
Beck improperly served the Sanctions Motion under Rule 11. She served and filed the Sanctions Motion on June 9, 2014, rather than waiting the prescribed 21 days before filing. Therefore, the request for sanctions under Rule 11 is not properly before the Court.
In addition, Beck fails to demonstrate that counsel for Honda violated Rule 11(b) in filing the Discovery Plan. Beck argues that Honda caused unreasonable delay by proposing additional discovery. As discussed above, the record does not support this contention. The case had stalled when Beck's counsel withdrew. The Court directed the parties to propose a new discovery schedule to get the case moving. Honda responded by proposing a revised discovery schedule that completed fact discovery in approximately 75 days and all discovery in 5 months. Beck responded by asking for a sixty-day extension of time. Beck also stated that she wanted to take two Rule 30(b)(6) depositions. Under these circumstances, Honda's proposed schedule would not cause any unreasonable delay. Beck presents no basis for sanctions under Rule 11.
Beck argues that Honda violated rule 26(a)(4) by not serving the Discovery Plan.
Beck argues that Honda also violated Rule 26(a) because she requested names of Honda representatives in her September 11, 2013, email and Honda did not provide any names. The lack of a response to Beck's email is not a violation of Rule 26(a). Rule 26(a) requires a party to make certain disclosures at the initial phase of the case and in connection with expert witnesses. Fed. R. Civ. P. 26(a). Rule 26(a) does not require a party to respond to email requests. Beck's email, furthermore, was not a formal discovery request made under any other discovery rule.
Section 1927 provides:
28 U.S.C. § 1927. This Court has discretion to sanction an attorney for violating §1927:
Honda's counsel acted in an objectively unreasonable manner when he did not comply with Local Rules 5.3(C) and 5.5(B)(1) by not serving the Discovery Plan and not filing a certificate of service. Honda's counsel, however, did not demonstrate a serious and studied disregard for the orderly process of justice. He misunderstood the rules regarding electronic filing with pro se litigants. As explained above, the error caused no prejudice or delay in the proceeding. The Court, in the exercise of its discretion, determines that no sanction is appropriate under § 1927.
Beck argues that sanctions are appropriate under 720 ILCS 5/32-2 and 720 ILCS 5/32-2. These are state criminal statutes. Such criminal statutes do not authorize this Court to impose sanctions in civil matters. Moreover, Beck presents no evidence of a violation of either.
Section 5/32-2 provides, in part:
720 ILCS 5/32-2(a). Beck argues that Honda's counsel committed perjury at the Hearing. This is clearly wrong. Honda's counsel was not under oath. Furthermore, Beck only has demonstrated that Honda's counsel made a mistake about electronic filing. She failed to demonstrate that counsel made a false statement on a material issue knowing the statement to be false. There was no perjury.
Section 5/33-3 provides, in part:
720 ILCS 5/33-3(b). Section 5/33-3 applies to public officials exercising public authority.
Beck argues that this Court should sanction Honda under its inherent authority to sanction parties that litigate in bad faith or attempt to perpetrate a fraud on the Court.
THEREFORE Plaintiff's Motion for Settlement Conference (d/e 44) is ALLOWED, and Plaintiff's Motion for Sanctions (d/e 45) is DENIED. The parties are ordered to appear before the undersigned on September 10, 2014 at 1:30 p.m. for the purpose of participating in a settlement conference. The Plaintiff is directed to appear in person. The Defendant is directed to appear by its counsel and also by a representative with the authority to settle this matter on behalf of Defendant.