           Case: 18-10671   Date Filed: 08/13/2019    Page: 1 of 18


                                                           [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-10671
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 2:12-cv-01079-AKK



PROGRESSIVE EMU INC.,
f.k.a. Johnson UMU Inc.,

                                                 Plaintiff - Counter Defendant,

ANDERSON WEIDNER LLC,

                                                     Interested Party - Appellant,

                                   versus

NUTRITION & FITNESS INC.,

                                     Defendant - Counter Claimant - Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                             (August 13, 2019)
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Before MARTIN, NEWSOM, and JULIE CARNES, Circuit Judges.

PER CURIAM:

         This appeal arises from a breach-of-contract dispute between Plaintiff

Progressive Emu Inc., 1 a producer and supplier of emu oil, and Defendant

Nutrition & Fitness Inc., a seller of commercial products containing emu oil. The

case went to trial, leading to a judgment for Defendant.2 Plaintiff’s counsel,

Anderson Weidner LLC, was sanctioned by the district court based on its improper

issuance of a trial subpoena.

         Specifically, on the eve of trial, Plaintiff served a subpoena on UPM

Pharmaceuticals, Inc. (“UPM”), an entity that had purchased 100% of the stock of

Defendant before the close of discovery. The district court considered the

subpoena an end run around the discovery deadline, deemed the subpoena in

violation of Federal Rule of Civil Procedure 45(d)(3)(A), sanctioned Plaintiff’s

counsel, Anderson Weidner, LLC, and ordered that Anderson Weidner pay

Defendant’s attorney’s fees incurred in responding to the subpoena, which fees

totaled $3,644.50.




1
    Plaintiff was formerly known as “Johnson’s Emu Oil.”
2
  Plaintiff appealed this judgment and we have, this same date, issued a separate opinion
affirming that judgment. See Progressive Emu Inc. v. Nutrition & Fitness Inc., No. 18-12804
(11th Cir. 2019).
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      Anderson Weidner now appeals this sanctions order. After careful review,

we affirm the district court’s sanction award and award additional sanctions to

Defendant under Federal Rule of Appellate Procedure 38 for Anderson Weidner’s

filing of this frivolous appeal.

I.    BACKGROUND
      In 2003, the parties entered into a Sales, Marketing and Operating

Agreement (the Agreement). The Agreement provides that Defendant would

purchase emu oil from Plaintiff and pay Plaintiff a royalty on net revenue from sale

of products containing emu oil.

      After several years, the parties’ contractual relationship broke down and

Plaintiff filed suit. The parties have been litigating this breach-of-contract case

since March 2012. Among other claims, Plaintiff has contended that Defendant

made and sold more emu oil product from the oil it purchased from Plaintiff than it

reported for royalty purposes, and therefore that Defendant owes Plaintiff royalties

for these unreported, off-the-book sales.

      Plaintiff based its claim for off-the-book sales on its approximations of how

much product could potentially have been made from the amount of emu oil it sold

Defendant. The district court had originally granted summary judgment to

Defendant on this claim after concluding that Plaintiff “put forward no evidence of

concealed sales other than its conjectural, best-case-scenario mathematical


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calculation.” On appeal, we reversed, concluding that, when the evidence was

taken in the light most favorable to Plaintiff, one could infer that a gallon of emu

oil would yield more units of product than accounted for by Defendant.

Progressive Emu Inc. v. Nutrition & Fitness, Inc., No. 14-13485, 655 F. App’x

785, 793–94 (11th Cir. 2016).

       On remand, the district court held a status conference on September 13,

2016. Although the conference was not transcribed, everyone appears to agree that

Plaintiff indicated it might need additional documents relevant to its royalty

claims.3 Moreover, Anderson Weidner does not directly challenge Defendant’s

assertion in this present appeal that the district court instructed Plaintiff “to file a

formal motion for additional discovery which set forth good cause for reopening

the discovery process.” In short, although the district court did not provide

Plaintiff its requested relief during the status conference, it invited Plaintiff to

follow-up its request in a more formal fashion in order to pursue the discovery it

allegedly needed.

       Plaintiff, however, never filed a motion to reopen discovery or compel

additional discovery then, or at any other time before the scheduled trial date more




3
   A court reporter was not available for the status conference. We base our assessment of what
transpired on the uncontested representations of the district court, the uncontested representations
of Defendant, and Anderson Weidner’s own admissions and arguments.

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than a year later. 4 Plaintiff’s counsel later accepted responsibility for that failure:

“This was my fault for not following up on the conversation that we had during

that [status conference].”

       Though having failed to pursue the matter during the preceding year,

Plaintiff raised its need for additional royalty-related documents from Defendant in

the pretrial conference held on August 29, 2017. Again Plaintiff was expected to

formally file something addressing its concerns. Again, Plaintiff failed to file

anything.

       In fact, instead of filing a discovery motion during the two months following

the pretrial conference, Plaintiff waited until Friday afternoon, October 27, 2017—

the last business day before trial—to serve a trial subpoena on Defendant’s parent

company, UPM. The trial subpoena, signed by Anderson Weidner attorney

Deanna Weidner, commanded UPM to appear at trial the following business day at

9:00 am and to bring a long list of documents, identified in ten categories and

eleven subcategories, that spanned a decade beginning in January 1, 2006. Among

other things, Plaintiff demanded “any and all documents” that “refer to, relate to,



4
  In its opening brief on appeal, Anderson Weidner admits that it informed the court during the
status conference that it planned to file a renewed motion to compel. Anderson Weidner
maintains that its plan was to wait until the court ruled on pending motions for summary
judgment. We fail to understand why Plaintiff would delay such a filing if it felt its summary
judgment positions were meritorious, and as Plaintiff was aware that it lacked documents that
would be needed at trial. Regardless, the district court’ summary judgment order came on
August 9, 2017. Plaintiff’s renewed motion to compel never arrived.
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or evidence” the following: emu oil product sales, discounts, refunds, rebates,

royalties or potential royalties; minutes from board, committee, division,

department, section, office, or other meetings; emu oil orders, receipt, cost, price,

and delivery from any source; Defendant’s inventory of oil during all relevant

times; shipment of oil by Defendant to any person, firm, or other entity for any

purpose; the number of units of emu oil products produced, producible and/or sold

using Plaintiff’s oil or oil from any other source; the amount of oil used for

promotional products; defective products, product returns and “unsaleable”

products; the chain of custody of all emu oil used to make any and all products

regardless of source; Defendant’s inventory tracking system and inventory reports;

General Ledgers related to inventory of oil and emu oil products; and customer

sales reports. Plaintiff also demanded that UPM bring all documents Plaintiff

previously requested of Defendant that were not previously produced constituting

the business records necessary to calculate royalties due Plaintiff.

      On Sunday, October 29, 2017, Defendant moved to quash the subpoena on

each of the four grounds identified in Federal Rule of Civil Procedure 45(d)(3)(A).

Defendant maintained that the subpoena: (1) failed to allow a reasonable time to

comply; (2) improperly required a UPM representative to appear and produce

documents in excess of the 100-mile limitation of Fed. R. Civ. P. 45(c)(1)(A);

(3) improperly required production of privileged material that Defendant did not


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have time to review and withhold; and (4) subjected UPM to undue burden given

the substantial number of documents demanded. The motion also requested that

the district court sanction Plaintiff for serving an “impossibly burdensome

subpoena” and award Defendant its reasonable fees in moving to quash the

subpoena.

       At a hearing on October 30, 2017, the scheduled first day of trial, 5 the

district court granted Defendant’s motion to quash because it was “inappropriate

on multiple levels.” The district court explained: “[W]ith respect to the motion to

quash, again, the period for discovery in this case is over. No party has a right to

seek an end around the court’s deadlines by subpoenaing documents from a third

party especially here on the eve of trial.” In addition to not being timely, the

district court found the subpoena inappropriate because it required performance by

someone outside the 100-mile zone. The district court also questioned why

Plaintiff’s actions on the eve of trial should not be deemed a “quintessential

example of the directive that a lawyer should not serve a subpoena that would

impose undue burden or expense on the person subject to the subpoena,” especially

when it provided a non-litigant only two or three days to comply.




5
  Following a death in Plaintiff’s counsel’s family just before trial, the district court granted an
emergency motion to continue the trial. Trial began on January 8, 2018.
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      Plaintiff argued that there was no undue expense or burden because

Defendant and UPM “are the same person.” With respect to the document

subpoena, Plaintiff maintained that it merely demanded easily printed Quickbooks

financial reports: “This is not a reopening discovery. It is pushing a button on a

computer to print out a report. It is one report.”

      The district court rejected that argument, noting the demand for “10

numbered requests of documents with request number 6 having multiple subparts.”

The court deemed sanctions in the form of reasonable attorney’s fees warranted

under Federal Rule of Civil Procedure 45(d)(1) and taxed those fees against

Plaintiff’s counsel, Anderson Weidner. At the court’s request, Defendant

submitted a fee application on November 6, 2017, requesting a sanction award of

$3,644.50 for fees incurred in responding to Plaintiff’s improper subpoena.

Plaintiff did not file a response to the fee submission.

      On December 28, 2017, Plaintiff filed a motion for reconsideration of the

court’s sanction ruling made 59 days earlier. Plaintiff raised many of the same

arguments it now asserts on appeal. Plaintiff also asserted for the first time that the

fees requested in Defendant’s fee submission, made 52 days earlier, were

excessive.

      On the first day of trial, the district court denied Plaintiff’s motion for

reconsideration of the sanctions from the bench because “it’s procedurally


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improper under Rule 59, and then it fails to meet the stringent standard under Rule

60.” The court also cited its original justifications for imposing sanctions as a

basis for denying Plaintiff’s motion for reconsideration. Following trial, the

district court entered an order finding that “the [fee] amount requested is a

reasonable and appropriate fee for the time spent preparing and filing the

Defendant’s motion to quash” and ordering Anderson Weidner to pay the full

amount of $3,644.50.

      Anderson Weidner now appeals, arguing it issued the subpoena in good

faith, that sanctions were imposed without adequate notice and an opportunity to

be heard, and that the sanction amount was excessive. Defendant argues that the

appeal is frivolous, and it has moved for sanctions under Federal Rule of Appellate

Procedure 38.

II.   STANDARD OF REVIEW
      The parties agree that an abuse of discretion standard applies when

determining the propriety of sanctions imposed under Rule 45. We have

previously applied an abuse of discretion standard when evaluating discovery

sanctions under Rule 37. Serra Chevrolet, Inc. v. Gen. Motors Corp., 446 F.3d

1137, 1146–47 (11th Cir. 2006). And other circuits have applied an abuse of

discretion standard when addressing sanctions under Rule 45(d)(1). See Legal

Voice v. Stormans Inc., 738 F.3d 1178, 1185 (9th Cir. 2013); In re: Modern


                                          9
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Plastics Corp., 890 F.3d 244, 250 (6th Cir. 2018). Accordingly, we apply here an

abuse of discretion standard in assessing the propriety of the sanction imposed

under Rule 45(d)(1). We review de novo the argument that the sanctions imposed

by the district court violated due process. Serra Chevrolet, 446 F.3d at 1147.

III.   DISCUSSION
       Anderson Weidner makes three principal arguments on appeal: (1) the

district court abused its discretion in imposing sanctions under Rule 45(d)(1) for

the trial subpoena issued by Plaintiff; (2) the district court deprived Anderson

Weidner of due process; and (3) the $3,644.50 sanction was excessive. We

address each in turn.

       A.    The District Court Did Not Abuse Its Discretion in Sanctioning
             Anderson Weidner
             1.     The District Court Did Not Abuse Its Discretion in Deeming
                    Plaintiff’s Trial Subpoena Improper

       After a careful review of the record and the arguments on appeal, we

conclude that it was not an abuse of discretion for the district court to quash the

subpoena and award attorney’s fees as a sanction. Plaintiff had adequate

opportunity to discover the demanded documents through the normal discovery

process. Plaintiff also had adequate opportunity during the remand period to file a

motion seeking the documents it allegedly needed, but failed to accept the district

court’s invitation to do just that. Having failed to do either, and on the eve of trial,

Plaintiff used a subpoena in an effort to improperly reopen discovery. Ghandi v.
                                           10
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Police Dep’t of City of Detroit, 747 F.2d 338, 354 (6th Cir. 1984) (no abuse of

discretion to deny pre-trial subpoena where plaintiffs were given ample

opportunity to complete discovery before trial).

       Compounding the problem, the subpoena clearly failed to comply with Rule

45. The subpoena, which demanded compliance in less than one business day,

failed to allow a reasonable time to respond. 6 The subpoena also improperly

required compliance from an entity beyond the 100-mile geographical limit of Rule

45(c). Finally, the subpoena was grossly overbroad and unduly burdensome,

requiring the production of “any and all documents” that “refer to, relate to, or

evidence” 10 categories of documents over a ten-year period.7

       Anderson Weidner’s contention that it issued a legitimate trial subpoena is

unpersuasive. Its arguments do not account for the enormous breadth of the

demanded documents, 8 Plaintiff’s failure to subpoena the demanded documents


6
  We are not persuaded by Anderson Weidner’s argument that the subpoena should not have
been quashed for timeliness because “a previous demand had been served” that mitigated the
lateness of the subpoena. While some of the demanded documents overlapped with previous
discovery requested of Defendant, Plaintiff had not previously served UPM with a subpoena or
otherwise sought discovery from UPM. Moreover, Plaintiff’s failure to file a renewed motion to
compel or a motion to reopen discovery signaled Plaintiff’s satisfaction with the discovery it
received.
7
  Given the breadth of the demanded documents, the subpoena also likely called for production
of privileged documents, though the record is not clear what privileged documents might be
implicated.
8
  Notably, the subpoena is not limited to obtaining original documents for trial or even to
obtaining documents generated after discovery closed, such as records relevant to determining
potential royalties owed through the December 2015 termination date in the Agreement. To the
contrary, the subpoena seeks “any and all documents” and defines the Relevant Time Period as
                                              11
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from UPM during the normal discovery period, 9 or the last-minute issuance of the

subpoena.

       We also reject Anderson Weidner’s assertion that, because it required

Plaintiff to be prepared to make an offer of proof on the royalties it claims it is due

for the full term of the Agreement, including those after April 27, 2012, the district

court’s October 16, 2017 ruling on the parties’ motions for reconsideration made

necessary the royalty-related discovery and justified Plaintiff’s trial subpoena.

That order did not introduce a new issue. The issue of royalties for the full term of

the Agreement was the subject of discovery, and an issue in the case, up until the

court’s summary judgment ruling on August 9, 2017. Even if the October 16, 2017

order reinforced the significance of documents concerning the appropriate royalty

payments between April 2012 and December 2015, the trial subpoena seeks

documents from a third party and demands documents going all the way back to

January 1, 2006.10 Moreover, the proper vehicle for seeking the allegedly missing


beginning January 1, 2006. Even if Plaintiff had a legitimate need to issue a trial subpoena for
some documents covered by its subpoena, that does not negate the overly broad and unduly
burdensome nature of the subpoena. Rule 45 requires a party or attorney issuing a subpoena to
“take reasonable steps to avoid imposing undue burden or expense on a person subject to the
subpoena.” Fed. R. Civ. P. 45(d)(1).
9
   Even if some of the documents listed on the subpoena were the subject of prior discovery
requests and not previously produced by Defendant, the proper vehicle to obtain such documents
is a motion to compel production.
10
   Anderson Weidner maintains that Defendant’s failure to move the court for a show cause
order or consult with them to narrow Plaintiff’s subpoena before filing its motion to quash “alone
precludes the district court’s grant of attorneys’ fees.” But Federal Rule of Civil Procedure 45
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documents was a motion, such as the renewed motion to compel Anderson

Weidner admits it twice informed the court it planned to file, but never did.

       In short, we see no justification in the record for the overly broad third-party

trial subpoena Anderson Weidner issued on the eve of trial seeking documents it

failed to diligently pursue during discovery or during the 13-month period

following remand. Because the subpoena violated Rule 45 and circumvented the

discovery process, we conclude that the district court did not abuse its discretion in

quashing Plaintiff’s trial subpoena.

       We further conclude that Anderson Weidner’s actions were sufficiently

egregious to warrant the attorney’s fee sanction imposed by the district court. The

breadth and timing of Plaintiff’s subpoena reflects Deanna Weidner’s complete

disregard for her duty, as the issuer of the subpoena, to avoid subjecting UPM to

undue burden and expense.11 Fed. R. Civ. P. 45(d)(1). The district court properly


imposes no such obligation. Instead, it requires those serving a subpoena to take reasonable
steps to avoid imposing undue burden and expense on the recipient of the subpoena and
authorizes sanctions on a party or attorney who fails to comply. Fed. R. Civ. P. 45(d)(1). Rule
45 leaves no room for a party or attorney to issue an untimely, facially overbroad and unduly
burdensome subpoena and expect to work out the details later, especially when the subpoena
requires compliance in less than one business day, as was the case here. The cases cited by
Anderson Weidner are inapplicable. They involve discovery under Federal Rule of Civil
Procedure 37, which expressly requires an attempt to confer in good faith before filing a motion
to compel, or a failure to comply with local rules that impose a duty to confer.
11
   We reject Anderson Weidner’s misleading assertion that the subpoena was not unduly
burdensome because Plaintiff merely requested Defendant’s “business records of sales, discounts
and rebates that [Defendant] maintained in electronic form in the ordinary course of its business
and that [Defendant] can produce with a few pushes of a button.” The subpoena: (1) requires
production from UPM and its affiliates, not just Defendant; (2) extends to printed and
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enforced this duty by requiring Weidner to reimburse Defendant for the attorney’s

fees it was unnecessarily forced to incur.

              2.     Defendant Had Standing to Enforce the Court’s Scheduling
                     Orders through a Motion to Quash

       Anderson Weidner also argues that Defendant did not have standing to move

to quash the subpoena because Defendant had no obligation to produce any

information subject to the subpoena and thus had no basis to claim undue burden.

We disagree.

       The subpoena threatened Defendant’s interests in at least two ways. First,

because Plaintiff defined UPM in its subpoena as including any affiliates with

possession, custody, or control of the demanded documents and because UPM

owned 100% of Defendant, the subpoena sought Defendant’s records.12 Indeed,

Anderson Weidner maintains that, for purposes of the subpoena, Defendant and

UPM “are the same person” and that a subpoena on UPM was justified because

UPM had control over documents in Defendant’s physical possession. Second,

Defendant had a legitimate interest in enforcing the court’s scheduling order and

avoiding prejudice that would result from Plaintiff’s circumvention of the


typewritten “Documents” and oral and written “Communications,” not just records in electronic
form; and demands production of anything that refers or relates to the demanded categories of
documents, not just the records themselves.
12
   Proving the point, Anderson Weidner argues that the subpoena was timely and not unduly
burdensome because “the records subpoenaed were previously requested [from Defendant] and
supplementation has consistently been requested.”

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discovery deadline. United States v. Raineri, 670 F.2d 702, 712 (7th Cir. 1982)

(“A party has standing to move to quash a subpoena addressed to another if the

subpoena infringes upon the movant’s legitimate interests.”). Accordingly, we find

that Defendant had standing to quash Plaintiff’s subpoena under Rule 45. 13 See, id.

(finding prosecution had standing to contest subpoena because of its interest in

preventing undue lengthening of the trial).

       B.     The District Court Did Not Deprive Anderson Weidner of Due
              Process

       We have previously affirmed sanctions against Deanna Weidner over her

non-meritorious due process argument, and we do so again here. See Yaffa v.

Weidner, 717 F. App’x 878, 886 (11th Cir. 2017) (affirming $5000 fine for failure

to comply with court orders and deadlines). As in Yaffa, Anderson Weidner argues



13
   The trial subpoena issued by Anderson Weidner not only violates Rule 45, it reflects a bad
faith attempt to subvert court-imposed discovery deadlines. The court repeatedly declined
Plaintiff’s oral requests for additional discovery and invited Plaintiff to file a motion
demonstrating good cause to reopen discovery. Plaintiff never did. Moreover, the depth,
breadth, and timing of Plaintiff’s subpoena belies the notion that it is merely a trial subpoena.
Indeed, much of Plaintiff’s briefing below and on appeal reads like a motion to compel,
reflecting the true nature of the subpoena as a vehicle for untimely discovery. Anderson
Weidner even acknowledges that “[t]o be sure, [Plaintiff] could have obtained documents from
UPM during discovery” because UPM purchased Defendant before the close of discovery. As
such, the court would also have been justified to find that Plaintiff acted in bad faith to
circumvent the discovery deadline and use its inherent power to impose sanctions and award fees
for counsel’s litigation abuses. Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d
1218, 1225 (11th Cir. 2017) (“The purpose of the inherent power is both to vindicate judicial
authority without resorting to contempt of court sanctions and to make the non-violating party
whole.”); Peer v. Lewis, 606 F.3d 1306, 1314 (11th Cir. 2010) (“[T]the inherent power of a court
can be invoked even if procedural rules exist which sanction the same conduct, for these rules
are not substitutes for the inherent power.”) (quotation marks omitted).

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that it was not given adequate notice and an opportunity to be heard. Yet, Rule 45

puts attorneys on notice that district court’s “must enforce” the duty to take

reasonable steps to avoid undue burden and expense and “impose an appropriate

sanction” when that duty is violated. Fed. R. Civ. P. 45(d)(1). Moreover,

Defendant’s motion to quash put Anderson Weidner on notice that it was seeking

sanctions, and Anderson Weidner had a full and fair opportunity to respond to that

motion during the October 30, 2017 hearing. Anderson Weidner cites no authority

supporting the notion that the notice and opportunity to be heard it was given were

insufficient. Accordingly, we reject its due process argument.14

       C.      The District Court Did Not Abuse Its Discretion in Imposing a
               Sanction of $3,644.50

       Anderson Weidner challenges the fee award as excessive, asserting that the

hourly rates for the attorneys who responded to Plaintiff’s improper subpoena, and

the hours spent, are unreasonably high. We find these arguments unpersuasive.

       Anderson Weidner failed to submit a timely objection to Defendant’s fee

submission, and the arguments made in its motion for reconsideration, filed 52

days after that submission, lack the specificity necessary to imply an abuse of



14
   We also find that the district court did not abuse its discretion in denying Anderson Weidner’s
motion for reconsideration, which raised the same arguments we now reject on appeal, and
which was filed 59 days after the court sanctioned Anderson Weidner and 52 days after
Defendant’s fee submission, which Plaintiff did not oppose. Cliff v. Payco Gen. Am. Credits,
Inc., 363 F.3d 1113, 1121 (11th Cir. 2004) (denial of motion for reconsideration is reviewed for
abuse of discretion).
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discretion by the district court in awarding $3,644.50 as a sanction for Plaintiff’s

improper subpoena. For instance, Anderson Weidner vaguely argues that the rates

charged are higher than the rates for its attorneys, but then leaves us in the dark as

to what those rates are. It also asserts that the hours listed in the fee submission

include hours for activities other than responding to the improper subpoena.

However, Defendant’s fee submission makes clear that the reported hours were

incurred in responding to the subpoena and that other hours were excluded.

Further, Defendant excluded local counsel fees to avoid duplicative charges and

reduce the fee award. Finally, we have independently reviewed the fee submission

and see no evidence that the reported hours and charged fees are unreasonable

given the circumstances. Accordingly, we affirm the fee award.

      D.     Motion for Sanctions

      Defendant has requested that we also impose sanctions against Anderson

Weidner under Federal Rule of Appellate Procedure 38 for pursuing a frivolous

appeal. Rule 38 provides that, “[i]f a court of appeals determines that an appeal is

frivolous, it may, after a separately filed motion or notice from the court and

reasonable opportunity to respond, award just damages and single or double costs

to the appellee.”

      For the reasons explained above, we consider Anderson Weidner’s

arguments on appeal frivolous, constituting nothing but weak, post-hoc


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rationalizations for a facially overbroad “trial subpoena” it issued in a transparent

attempt to rectify its failure to diligently pursue and obtain necessary documents

during discovery proceedings or via a motion during the lengthy post-remand

period before trial. Because Anderson Weidner’s challenge to the district court’s

sanction is entirely without merit,15 we award to Defendant costs and reasonable

attorney’s fees incurred because of this appeal. We remand this action to the

district court with instructions to determine the amount of attorney’s fees

reasonably incurred by Defendant and to assess that amount against Anderson

Weidner.

IV.    CONCLUSION
       For the reasons explained above, we AFFIRM the decision of the district

court sanctioning Anderson Weidner, we AWARD SANCTIONS to Defendant

under Federal Rule of Appellate Procedure 38, and we REMAND with

instructions to determine a reasonable fee for the defense of this appeal.




15
   We note that this is not the first time we have considered the imposition of sanctions on
Anderson Weidner based on its conduct in litigating a matter on appeal. See Cadlerock III, LLC
v. Harry Brown & Co., LLC, 754 F. App’x 780, 783 (11th Cir. 2018). “[A]lthough there is
arguable support for a finding of bad faith,” we ultimately declined to impose sanctions in
Cadlerock, finding it “more likely that Anderson Weidner’s wholly deficient briefing resulted
from sloppiness, negligence, and poor judgment.” Case No. 17-13328 January 10, 2019, Order.
Nevertheless, we noted that “[w]e expect Deanna Weidner, David Anderson, and the law firm
Anderson Weidner to take their responsibilities more seriously in the future.” We acknowledge,
however, that this warning came after the briefs in this case had been filed.
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