United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
FASHING, UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on plaintiff Equal Employment
Opportunity Commission's (“EEOC”) Motion for
Civil Contempt of Court Against Defendant Roark-Whitten 2, LP
d/b/a Whitten Inn (“RW 2”) and Defendant Jai
Hanuman, LLC (“Jai”), filed on October 6, 2017.
Doc. 181. None of the defendants filed a response to the
motion. The Honorable M. Christina Armijo, Chief United
States District Judge, referred the motion to me “to
conduct hearings, if warranted, including evidentiary
hearings, and to perform any legal analysis required to
recommend to the Court an ultimate disposition.” Doc.
182. Having reviewed the motion and the relevant law, and
noting that no response has been filed, I find that the
motion is well taken and recommend that the Court GRANT the
motion and enter default judgment against defendants RW 2 and
Background Facts and Procedural Posture
case arises from allegations of racial discrimination and
retaliation by RW 2, in violation of Title VII of the Civil
Rights Act of 1964 and Title I of the Civil Rights Act of
1991. The EEOC alleges that RW 2 created a
hostile work environment and discriminated against a class of
minority workers. See generally Doc. 179. The
EEOC's claims are based on RW 2's former owner Larry
Whitten's behavior at the Whitten Inn in Taos, New
Mexico. As the EEOC described in its motion to compel, it
alleges that Mr. Whitten
routinely used vulgar language and directed racial slurs at
the hotel's Hispanic employees, demoted an employee
because of his Hispanic accent, Anglicized the names of
Hispanic employees, forb[ade] the use of Spanish in his
presence and/or on hotel premises, imposed more onerous work
standards on Hispanic employees than Anglo employees,
directed employees not to rent rooms to Hispanic customers,
terminated and forced the resignation of Hispanic employees,
and retaliated against employees who brought the
discriminatory employment practices to Mr. Whitten's
Doc. 134 at 2-3. In May of 2014, Whitten sold RW 2 to
defendant Jai. Doc. 134-3 at 2. In its Second Amended
Complaint, the EEOC added defendant Jai as a successor
employer. See Doc. 87. Jai subsequently sold the
hotel to SGI, LLC (“SGI”). Doc. 134 at 4. SGI was
added as a successor employer in the EEOC's Third Amended
Complaint. Doc. 179.
August 15, 2017, Charles Archuleta, attorney for defendants
RW 2 and Jai, filed a motion to withdraw as counsel. Doc.
160. At the hearing on the motion to withdraw, Mr. Archuleta
explained that he had not been in contact with RW 2 since
July of 2017 and had not communicated with Mr. Whitten since
June of 2017. Doc. 176. Mr. Archuleta also made clear that
Jai did not oppose his motion to withdraw. Doc. 174 at 2.
Accordingly, the Court granted the motion. See Docs.
176, 177. Pursuant to the Court's local rules, “[a]
corporation, partnership or business entity other than a
natural person must be represented by an attorney authorized
to practice before this Court.” D.N.M.LR-Civ. 83.7. In
granting the motion to withdraw, the Court ordered defendants
RW 2 and Jai to obtain new counsel no later than October 2,
2017. Doc. 177 at 2. The Court further ordered that certain
discovery be completed by October 27, 2017, and that the
depositions of the principals of RW 2 and Jai be scheduled
and taken no later than November 13, 2017. Id.
Court took several steps to ensure that RW 2 and Jai were
informed of their obligations pursuant to its order. First,
the Court ordered Mr. Archuleta to inform his former clients
of the Court's orders. Id. Second, the Court
directed the Clerk of the Court to mail a copy of its order
to RW 2 and Jai at the addresses provided by Mr. Archuleta.
Id. Finally, the Court emailed a copy of its order
to RW 2 and to Jai at email addresses also provided by Mr.
Archuleta. See Doc. 160 at 2; Exh. 1 (attached).
letter dated October 11, 2017, Larry Whitten, President of RW
2, notified the Court that he was aware of the Court's
September 11, 2017 order but could not retain a new attorney
because of lack of funds. Doc. 183. On October 27, 2017,
David Patel, the principal of Jai, called the Court to inform
it that Jai also had been unable to retain a lawyer. During
the call, a law clerk confirmed that the physical and email
addresses to which the order had been sent were correct. At
Mr. Patel's request, the law clerk emailed the order
again, along with additional materials, to the same email
address where she sent the order originally. See
Exhs. 1, 2 (attached).
these notifications, no attorney entered an appearance on
behalf of RW 2 or Jai by October 2, 2017. Even now, no
attorney has entered an appearance on behalf of these
corporations. On October 6, 2017, the EEOC filed the instant
motion asking the Court to issue an order to show cause why
RW 2 and Jai should not be held in civil contempt and, upon a
finding of civil contempt, enter default judgment against
these two defendants.
that an order to show cause or a contempt order would not be
productive and is not necessary. All the factors that the
Court should consider in deciding whether to enter a default
judgment weigh in favor of doing so. I therefore recommend
that the Court enter default judgment against RW 2 and Jai.
Defendants' failure to respond.
the Court's local rules, “[t]he failure of a party
to file and serve a response in opposition to a motion within
the time prescribed for doing so constitutes consent to grant
the motion.” D.N.M.LR-Civ. 7.1(b). While the Court
could grant the EEOC's motion merely because RW 2 and Jai
failed to file a response, justice requires that the Court