United States District Court, D. New Mexico
ORDER IMPOSING SANCTIONS
William P. Lynch United States Magistrate Judge.
order that resolved four discovery motions filed by the
parties, I identified several misstatements of fact made by
Plaintiffs' counsel, Eric Sedillo Jeffries. (Doc. 251 at
2-4.) I issued an order to show cause to Mr. Jeffries because
of my concern that he had violated Federal Rule of Civil
Procedure 11 and the New Mexico Rules of Professional Conduct
by making false representations in two of the motions. (Doc.
252.) Mr. Jeffries filed a response to the order to show
cause, and I held a hearing on April 13, 2017. This Order
will explain the basis for the sanctions imposed upon Mr.
behalf of Plaintiffs, Mr. Jeffries filed a motion he titled
“Motion to Complete the Deposition of Julian
Leyba.” (Doc. 206.) Mr. Leyba is a fact witness in this
case, and Mr. Jeffries took Mr. Leyba's deposition on
January 26, 2017. According to the motion, Mr. Jeffries
“suspended” the deposition when it became obvious
that exhibits that Mr. Jeffries brought to the deposition
were not readable and were inaccurate as to two locations.
(Id. at 1-2.) Because the deposition had been
suspended, Mr. Jeffries sought a court order to
“properly complete . . . the partial deposition”
of Mr. Leyba. (Id. at 1.) Mr. Jeffries states later
in the motion that he “promptly terminated” Mr.
Leyba's deposition when the two mistakes were recognized
and he “insisted upon the most accurate of
testimony.” (Id. at 5.)
response to the motion, Liberty Mutual disputed that Mr.
Jeffries had suspended or terminated the deposition. (Doc.
219 at 8-9.) Liberty Mutual accused Mr. Jeffries of blatantly
misstating facts and submitting a sham affidavit from Mr.
Leyba in an attempt to show good cause to take a second
deposition from Mr. Leyba. (Id.) Liberty Mutual
specifically identified as “Misstatement of Fact No.
1” Mr. Jeffries' claim that he had suspended the
deposition, and as “Misstatement of Fact No. 4”
Mr. Jeffries' claim that he promptly terminated the
reply, Mr. Jeffries asserted that nothing he stated in the
motion “was proven false or inaccurate.” (Doc.
240 at 3.) While Mr. Jeffries spent several pages of the
reply contesting the other assertions made by Liberty Mutual,
he never addressed Liberty Mutual's claim that Mr.
Leyba's deposition was completed on January 27, 2017, and
that the deposition was not suspended or terminated. (See
id. at 3-4.)
noted in my order resolving the discovery motions, Mr.
Jeffries never suspended or terminated Mr. Leyba's
deposition. (Doc. 251 at 3-4.) Instead, after Mr. Jeffries
and counsel for Liberty Mutual completed two rounds of
questioning Mr. Leyba, Mr. Jeffries suggested to Mr. Leyba
that he read and sign the deposition so Mr. Jeffries could
resolve an issue about “a different address.”
(Doc. 206 Ex. 2 at 8 (J. Leyba Dep. 62:5-8).)
Rule of Civil Procedure 11(b)(3) requires an attorney to
certify that the factual contentions in a motion “have
evidentiary support.” Further, the New Mexico Rules of
Professional Conduct prohibit a lawyer from asserting a fact
in a proceeding when there is no basis in fact for doing so,
and from making a false statement of fact to a court or
failing to correct a false statement previously made to a
court. NMRA Rule 16-301; NMRA Rule 16-303. Mr. Jeffries made
false statements in the motion when he stated that he had
suspended or terminated the deposition and that he needed to
complete the partial deposition of Mr. Leyba. Liberty Mutual
specifically challenged these facts in its response to the
motion, and Mr. Jeffries had an opportunity in the reply to
correct these false statements. He not only did not do so, he
compounded the deception by maintaining that nothing he said
in the motion was false or inaccurate. When I asked Mr.
Jeffries at the hearing why he did not admit the
misstatements in his reply, he candidly stated that he did
not think it was that important to do so.
these are not the only misrepresentations made by Mr.
Jeffries: he also made false statements in a motion to extend
the deadline for Plaintiffs' insurance expert to
supplement his opinion on the bad faith actions of Liberty
Mutual. (Doc. 168.) First, Mr. Jeffries asserted that Liberty
Mutual's refusal to identify the litigation adjuster who
handled Plaintiffs' claim after its denial on March 22,
2013, is contrary to the scheduling order that I entered on
July 22, 2016. (Id. at 3-4.) A cursory review of the
order contradicts Mr. Jeffries' claim. The scheduling
order allows Plaintiffs to depose Steve Harkness, his
supervisor, Rachel Berg's supervisor, and to take at
least one Rule 30(b)(6) deposition. (Doc. 78 at 1.) The
scheduling order does not discuss the identity of a
litigation adjuster, much less require Liberty Mutual to
identify him/her and provide for that individual to be
Mr. Jeffries also asserts that the deadline should be
extended because “on January 3, 2017, Liberty raised an
entirely new defense of ‘wear and tear' that cannot
be found in its policy.” (Doc. 168 at 4.) As Liberty
Mutual pointed out in its response, its expert David Disko
discussed “wear and tear” in his first inspection
report, which was provided to Mr. Jeffries on July 6, 2016.
Confronted with these facts, Mr. Jeffries now admits that
“wear and tear” was raised as an issue by Liberty
Mutual on July 16, 2016. (Doc. 254-1 at 6.)
than simply admit that he made false statements, Mr.
Jeffries' response was a curious amalgam of misdirection,
partial contrition, obfuscation and defiance. His response
begins, rather inexplicably, by addressing whether he should
have withdrawn his request to depose the litigation adjuster
after receiving the order on discovery motions that I issued
on March 9, 2017. While I appreciate Mr. Jeffries'
recognition that he could have done so, that was not an issue
I identified in my order resolving the discovery motions or
the order to show cause. Mr. Jeffries next apologized for
using the terms “complete, ” “suspend,
” and “terminate” in describing the conduct
of the deposition, claiming they were inadvertent errors. He
claimed that he inadvertently used the wrong date when
discussing the “wear and tear” defense. He again
claimed inadvertent error in arguing that the scheduling
order allowed the deposition of the litigation adjuster. He
also attempted to justify his claim that Liberty Mutual was
violating the scheduling order by failing to identify the
litigation adjuster by arguing that his motion to extend
deadlines was filed before he reviewed my discovery order
dated March 9, 2017 - a strange argument since all he needed
to do was review the scheduling order entered on July 22,
2016, well before he filed his motion to extend.
Jeffries concluded his written response by claiming that
“[i]n my opinion the mistakes resulted from my
imprecise writing.” (Doc. 254-1 at 6.) This conclusion
was flatly contradicted when Mr. Jeffries stated in court
that he did not admit in his reply to the motion to complete
Mr. Leyba's deposition that he did not suspend or
terminate the deposition because he did not think it was that
to the view of Mr. Jeffries, being honest about the facts of
a case is important. Courts have a responsibility to protect
the public by ensuring that attorneys licensed to practice
law in New Mexico comply with applicable standards of
professional conduct. In re Chaves, 299 P.3d 403,
408 (N.M. 2013). “Attorneys are officers of the court,
and our system of justice only works if courts can rely on
attorneys to fulfill their duty of candor to the
tribunal.” Id. Attorneys have an
“obligation to exhibit the personal honesty and
integrity expected of lawyers and to refrain from dishonesty
and other conduct prejudicial to the administration of
justice.” Id. If Mr. Jeffries had made only
one misstatement of fact, and promptly rectified it when
called to his attention, a claim of inadvertent error would
be more plausible. Multiple misrepresentations, all in his
clients' favor, that are never acknowledged or corrected,
completely undercut Mr. Jeffries' claims of inadvertent
courts have discretion to sanction a party or an attorney who
abuses the judicial process, perpetrates a fraud on the
court, or fails to comply with local or federal procedural
rules, and such authority is both statutory and inherent.
Chambers v. NASCO, Inc., 501 U.S. 32, 50-51 (1991);
Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir.
2002). There are three potentially appropriate avenues for
awarding Liberty Mutual its attorneys' fees incurred in
responding to the motion to take a second deposition from Mr.
Leyba: Federal Rule of Civil Procedure 37(a)(5); 28 U.S.C.
§ 1927; and inherent authority, see Roadway Express,
Inc. v. Piper, 447 U.S. 752, 764-67 (1980) (discussing
the court's inherent authority to impose sanctions
“in response to abusive litigation practices”).
An award of attorney's fees does not appear appropriate
pursuant to Federal Rule of Civil Procedure 11(c)(2) because
the matter arose sua sponte and not on motion of Liberty
Mutual. Rule 11 does not allow a sua sponte award of attorney
fees. Wright v. CompGeeks.com, 429 F. App'x 693,
698 (10th Cir. 2011) (unpublished).
37(a)(5)(B) provides that the court may, after giving an
opportunity to be heard, require the attorney who filed an
unsuccessful motion to pay opposing counsel's
“reasonable expenses incurred in opposing the motion,
including attorney's fees, ” but clarifies that
such payment must not be ordered “if the motion was
substantially justified or other circumstances make an award
of expenses unjust.” Section 1927 of Title 28 to the
United States Code provides that an attorney “who so
multiplies the proceedings in any case unreasonably and
vexatiously” may, as sanction, be required “to
satisfy personally the excess costs, expenses, and
attorneys' fees reasonably incurred because of such
conduct.” Finally, courts have inherent power to
“fashion an appropriate sanction for conduct which
abuses the judicial process.” Chambers, 501
U.S. at ...