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Ortega v. Gold

Court of Appeals of New Mexico

April 13, 2017

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,
v.
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.

         This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date

         APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY Abigail Aragon, District Judge

          Alan Maestas Law Office, P.C. Kathryn J. Hardy Alan H. Maestas Taos, NM for Appellants.

          Ortiz & Zamora, Attorneys at Law, LLC Tony F. Ortiz Santa Fe, NM for Appellees.

          MEMORANDUM OPINION

          MICHAEL E. VIGIL, JUDGE

         {1} 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.

         BACKGROUND

         {2} 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.

         {3} 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.

         {4} 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.

         {5} 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."

         {6} 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[.]"

         {7} 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."

         {8} 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 ...


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