ROBERT ORTEGA and JUDITH DURAN-ORTEGA, Individually and as Parents and Next Friend of J.D.-O., a Minor, R.O., a Minor, L.O., a Minor, J.O., a Minor, and Y.O., a Minor, Plaintiffs-Appellants,
GARY GOLD, former Chief of Police of the Las Vegas Police Department, a subsidiary of the City of Las Vegas, Individually, MACK ALLINGHAM, an Officer with the Las Vegas Police Department, a subsidiary of the City of Las Vegas, Individually, MARTIN X. SALAZAR, an Officer with the Las Vegas Police Department, a subsidiary of the City of Las Vegas, Individually, ERIC PADILLA, an Agent of the Region IV Narcotics Task Force, and an agent/employee of the Las Vegas Police Department, a subsidiary of the City of Las Vegas, Individually, CITY OF LAS VEGAS, a Municipal Entity Organized Under the Laws of the State of New Mexico, which operates the Las Vegas Police Department, Defendants-Appellees, and MELISSA "MISSY" MARTINEZ, a citizen of the State of New Mexico acting in concert with and under the direction of Defendant Gary Gold, EUGENE ROMERO, a citizen of the State of New Mexico acting in concert with and under the direction of Defendant Gary Gold, LUCILLE ROMERO, a citizen of the State of New Mexico acting in concert with and under the direction of Defendant Gary Gold, Defendants.
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FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY Abigail Aragon,
Maestas Law Office, P.C. Kathryn J. Hardy Alan H. Maestas
Taos, NM for Appellants.
& Zamora, Attorneys at Law, LLC Tony F. Ortiz Santa Fe,
NM for Appellees.
MICHAEL E. VIGIL, JUDGE
Plaintiffs Robert Ortega and Judith Duran-Ortega, in their
individual capacities and as parents and next of kin to their
five minor children, appeal from the district court's
order denying their motion to set aside the dismissal of
their civil rights complaint against Defendants Gary Gold,
Mack Allingham, Martin X. Salazar, Eric Padilla, the City of
Las Vegas (the City) (collectively, City Defendants), and
Defendants Melissa "Missy" Martinez, Eugene Romero,
and Lucille Romero, as a sanction for discovery violations
under Rule 1-037(D) NMRA. We conclude that the district court
abused its discretion in granting the severe sanction of
dismissal and reverse.
Plaintiffs filed their complaint and jury demand on May 29,
2012. When they failed to serve any of the defendants or
otherwise advance the matter for close to two years, it was
dismissed for lack of prosecution on April 9, 2014.
Plaintiffs then filed a timely motion for reinstatement,
which was granted on May 19, 2014.
Over the next nine months, City Defendants, with the
exception of Melissa Martinez, Eugene Romero, and Lucille
Romero, unsuccessfully pursued removal of the action to
federal district court. City Defendants ultimately withdrew
their removal petition, and the matter was remanded to state
court on February 17, 2015.
The next action in this case was the filing on June 1, 2015,
of the City's motion to compel discovery and for
sanctions "[d]irected to Plaintiff Robert
Ortega[.]" In its motion, the City alleged that it
served Plaintiff Robert Ortega with written interrogatories
and requests for production of documents on March 13, 2015;
that it received untimely and inadequate, incomplete, or
nonresponsive answers to interrogatories; and that it never
received a response to its requests for production of
documents. As such, the City requested, that pursuant to Rule
1-037(D), Plaintiff Robert Ortega's claims be dismissed
with prejudice and further that he be ordered to pay the
City's reasonable expenses and attorney fees. When
Plaintiff Robert Ortega failed to file a response to the
motion, the City filed a notice of completion of briefing on
June 24, 2015.
Without holding a hearing, the district court granted the
motion on July 6, 2015. The order stated that "Plaintiff
to this action [had] not responded to any inquiries related
to this matter and that this matter [had] already [been]
dismissed once previously for lack of prosecution" by a
prior judge. It concluded that "the case [was] . . .
dismissed with prejudice as to all City Defendants."
Plaintiffs filed a motion to set aside the order of dismissal
on the same day. The motion stated that Plaintiffs'
counsel had been under the mistaken belief that the
City's motion did not ask for dismissal but rather sought
to compel the production of discovery responses by July 10,
2015. Plaintiffs' counsel stated that she was
"working diligently and [would] meet that deadline"
and further asked that any sanctions be levied against her
rather than her clients. City Defendants filed a response, in
which they argued that the district court had the authority
"to dismiss the case with prejudice as a remedy for
failure to respond to the [m]otion to [c]ompel, particularly
considering the case's previous dismissal without
prejudice for failure to prosecute[.]" City Defendants
further pointed out that they made clear to Plaintiffs that
dismissal would be requested prior to filing the motion to
compel in a letter dated May 18, 2015, and that they had
never agreed to any discovery extensions, until July 10, 2015
or otherwise. Lastly, City Defendants asserted that setting
aside the dismissal would be "substantially
prejudicial" to them as "the claims [had become]
stale, witnesses [had become] harder to obtain, [and]
discovery [was] more difficult[.]"
The district court held a hearing on Plaintiffs' motion
to set aside the order of dismissal on September 22, 2015.
During the hearing, Plaintiffs' counsel asserted that she
had in her possession the responses to the City's
requests for production of documents, and that the delay in
their production was caused by the fact that her office
transitioned to a new server, in the process of which
calendaring data was lost. Plaintiffs' counsel further
argued that the latter did not constitute intentional
deception or bad faith necessary to warrant a dismissal of
the action and that City Defendants' assertions of
prejudice were unsubstantiated. In response, City
Defendants' counsel acknowledged that this case did not
involve bad faith on Plaintiffs' part, but nevertheless
argued that dismissal was proper "for failure to
prosecute." City Defendants' counsel further
asserted that witnesses had either disappeared or their
memories had faded, but offered no specifics beyond stating
that evidence "may have [been] lost."
After taking the matter under advisement, the district court
entered an order denying Plaintiffs' motion to set aside
the dismissal on September 28, 2015. In the order, the
district court held that Plaintiffs failed to respond to
discovery requests, failed to respond to the May 18, 2015
letter from the City's counsel, and failed to respond to
the City's motion to compel. The district court concluded
that "[t]he only significant action taken by the
Plaintiffs in this matter was the [motion to set aside the
order on the motion to compel, ]" and ...