United States District Court, D. New Mexico
January 3, 2017
PHILLIP O. LOPEZ and FELIZ GONZALES, Plaintiffs
THE STATE OF NEW MEXICO, THE CITY OF LAS CRUCES, and OFFICER DAVID RODRIGUEZ and DETECTIVE MICHAEL RICKARDS, in their official and individual capacities as employees of the City of Las Cruces, Defendants.
MEMORANDUM OPINION AND ORDER
October 12, 2016, Plaintiffs Phillip O. Lopez and Feliz
Gonzales filed a Motion and Memorandum in Support of
Sanctions against City Defendants (ECF No. 134). Having
considered the motion, the briefs, the evidence, the relevant
law, and otherwise being fully advised, the Court will grant
Plaintiffs' request for an award of attorney's fees,
but will deny the motion in all other respects.
October 11, 2016, this Court entered a Memorandum Opinion and
Order granting Plaintiffs' motion to reinstate the claims
against Defendant Michael Rickards. See Mem. Op. and
Order 8-9, ECF No. 130. The Court incorporates the facts set
forth in that opinion and includes herein the Analysis
1. The Court will reinstate the claims against Detective
The text messages indicate that, at the time he and Agent
Boylston were trying to identify the Wal-Mart suspect on or
around January 6, 2015, Defendant Rickards had known of the
Taser incident between Plaintiffs and Defendant Rodriguez,
contrary to what his sworn testimony suggested. This newly
discovered evidence supports Plaintiffs' theory of
liability against Detective Rickards, and it is highly
doubtful that they would have dismissed their case against
him if they had the photographs and text messages now in
their possession. Defendants' dilatory conduct in
disclosing this relevant evidence warrants the
“extraordinary” relief requested in order to do
justice in this case. The Court is particularly troubled by
the evidence indicating that Mr. Cabello did not disclose the
relevant text messages until mid-way through Defendant
Rodriguez's deposition, after Defendant Rodriguez
acknowledged possessing the evidence when specifically asked,
even though Mr. Cabello had possession of the text messages
and photographs, and knew their relevance, prior to the
deposition. It certainly calls into question whether defense
counsel planned to disclose the evidence had Defendant
Rodriguez not informed Plaintiffs' counsel of the
existence of the evidence during the deposition. The Court
will set aside the voluntary dismissal and reinstate the
claims against Defendant Rickards under Rule 60(b)(2), (3),
2. The Court will deny Plaintiffs' request for
attorney's fees with leave to re-file
For the first time in their reply, Plaintiffs specifically
request as sanctions for discovery abuses their
attorney's fees for the time expended in dismissing
Defendant Rickards and writing the motion to reinstate and
reply in support thereof. Because Plaintiffs raised this
attorney fees request for the first time in their reply
brief, Defendants have not had an opportunity to respond. The
Court will therefore deny the request for attorney's
fees, but do so without prejudice, with leave to re-file. If
Plaintiffs choose to re-file the motion for attorney's
fees, they should include evidence to support the amount of
any specific fee they request.
Id. at 7-8.
subsequently filed a motion for sanctions, seeking fees for
counsel time spent working not only on the dismissal and
reinstatement of Defendant Rickards, and the fees for work on
the motion for sanctions, but also fees for time spent on
attempting to secure disclosure of both portions of a
relevant Be On The Look Out (hereinafter, "BOLO”).
Pls.' Mot. and Mem. in Supp. of Sanctions against City
Defs. (hereinafter “Pls.' Mot.”), ECF No.
134. Plaintiffs submitted a Fee Affidavit of Hope Eckert,
itemizing the time spent and requesting $240 per hour.
Pls.' Ex. A ¶¶2-3, ECF No. 134-1. Plaintiffs
also assert Defendants have engaged in a pattern of
withholding facts and documents, pointing to Defendants'
failure to admit the now-undisputed fact that Officer
Rodriguez's Taser deployed 10 additional cycles until
after Plaintiffs indicated they might file a Rule 11 motion.
See Pls.' Mot. 2-3, ECF No. 134. Plaintiffs
detail their repeated efforts to get the complete BOLO,
id. at 3, and contend that Defendants made
misrepresentations during the mediation process, id.
at 3-4. Plaintiffs request sanctions of in the form of a
default judgment against the City Defendants, but
acknowledging the severity of that request, alternatively for
an award of attorney's fees and an exclusion of all
evidence stemming from the BOLO. Id. at 5.
response, Defendants deny that any of the late disclosures
were done intentionally and deny that they acted with
dilatory motive. Defs.' Resp. 1, ECF No. 144. As to the
belated admission of fact, Defendants reply that they had
initially denied it in order to preserve their defense that
Officer David Rodriguez did not intend to tase Ms. Gonzales
with 10 additional cycles, but upon further evaluation,
decided that admission of the fact would not preclude their
defense. Id. at 2.
regard to the BOLO issue, Defendants assert that their
mistakes occurred because counsel was between surgeries and
the BOLO is two related documents, found in two different
locations, one of which they sent to counsel, but which was
not the one most pertinent to the case. See Id. at
2-3. Defense counsel Robert Cabello contends he did not
receive the second portion of the BOLO until May 16, 2016,
but the day before, he went to the hospital for a significant
medical problem. See Id. at 3. While out of work
before his scheduled medical procedures, Mr. Cabello
attempted to arrange for his office to disclose the second
portion of the BOLO, but his office did not send the correct
document. Id. Mr. Cabello produced the complete BOLO
during Officer Rodriguez's deposition. Mem. Op. and Order
5-6, ECF No. 130. Since May 15, 2016, Mr. Cabello has had ten
surgeries, as well as other medical appointments and tests.
Defs.' Resp. 4, ECF No. 144. Mr. Cabello asserts that the
discovery problems were not done with dilatory intent or to
purposefully obstruct discovery. Id. As for his
handling of the text messages related to Defendant Rickards,
he acknowledges that he should have contacted opposing
counsel as soon as the discovery problem became apparent
instead of waiting until the middle of the deposition.
foregoing reasons, Defendants stipulate to the following:
Certainly, opposing counsel have incurred costs and efforts
associated with the discovery problems, and to this end the
City would stipulate to reasonable attorney fees in regard to
such costs and efforts.
WHEREFORE Defendants respectfully request that the Court
enter an order denying Plaintiffs' Motion for Sanctions
to exclude the BOLO.
relevant here, Federal Rule of Civil Procedure 37(c) states
that if a party fails to provide information as required by
Rule 26(a) or (e), and the failure was not substantially
justified or harmless, the party is not allowed to use that
information at a hearing or trial, and in addition to or
instead of this sanction, the court may order payment of
reasonable expenses, including attorney's fees, caused by
the failure, or may impose other appropriate sanctions.
See Fed. R. Civ. P. 37(c)(1). Other appropriate
sanctions may include rendering a default judgment against
the disobedient party. Fed.R.Civ.P. 37(b)(2)(A)(vi). A court
has broad discretion in determining whether a Rule 26(a)
violation is justified or harmless, and should consider the
following factors: (1) the prejudice or surprise to the party
against whom the testimony is offered; (2) the ability of the
party to cure the prejudice; (3) the extent to which
introducing the testimony would disrupt trial; and (4) the
offending party's bad faith or willfulness.
Woodworker's Supply, Inc. v. Principal Mut. Life.
Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999).
Court finds that the harsh sanction of default judgment is
not warranted under the circumstances here when other lesser
measures, such as attorney's fees, can adequately cure
the prejudice to Plaintiffs. The Court also finds that
excluding the BOLO evidence is not warranted. Defendants have
offered justifications concerning why the BOLO evidence was
not disclosed until the time of Officer Rodriguez's
deposition, and Mr. Cabello's unfortunate medical issues
appear to have played a not insignificant role in the delay.
The Court finds that Defendants did not act in bad faith in
belatedly disclosing the second portion of the BOLO.
Moreover, the late disclosure will not disrupt trial in any
way and any prejudice by the belated disclosure is minimal.
Court, however, will enter attorney's fees for Plaintiffs
and against Defendants, as stipulated. The Court finds that
the late disclosures of the text messages and photographs
regarding Defendant Rickards and the BOLO evidence caused
Plaintiffs to suffer unnecessary, additional attorney's
fees that would have been avoided had Defendants timely
produced the evidence. Mr. Cabello, as he recognizes, should
have disclosed the text messages as soon as he knew of them,
and he had time to do so prior to the deposition of Officer
Rodriguez, so that Plaintiffs could have had the benefit of
them to prepare for that deposition. This Court has already
cured much of the prejudice due to the late disclosure of the
text messages and photographs by reinstating Defendant
Rickards in the case. Because the lesser sanction of fees is
sufficient to cure any prejudice regarding the belated
disclosure of the text messages and BOLO evidence, the Court
will only grant the sanction of attorney's fees and deny
all other requested sanctions.
reviewing the Fee Affidavit, the Court finds that the
requested hours are reasonable for the work and the hourly
rate is reasonable in this market area for an attorney of
Hope Eckert's experience. Nor have Defendants objected to
the amount requested. The Court will therefore award
attorney's fees in the amount of $4, 481.38.
as for allegations of misrepresentations made during the
mediation, that issue is separately pending, and the Court
will not consider it here. See Pls.' Sealed Mot.
and Mem. in Supp. of Sanctions against City Def., ECF No.
THEREFORE ORDERED that Plaintiffs' Motion and Memorandum
in Support of Sanctions against City Defendants (ECF No. 134)
is GRANTED IN PART AND DENIED IN PART as follows:
1. Plaintiffs' request for sanctions in the form of
attorney's fees in the amount of $4, 481.38 is GRANTED,
2. Plaintiffs' request for other sanctions is DENIED.