United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
JERRY H. RITTER, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Defendant United States'
Expedited Motion for a Protective Order Prohibiting In-Person
Attendance at Deposition of Pueblo of Zia (Doc.
162), filed December 8, 2017, and Plaintiff Pueblo of
Jemez's Motion to Strike and Memorandum in Support of
Motion to Strike (Doc. 164), filed December 14,
2017. Having reviewed Plaintiff's Response in Opposition
to Defendant's Motion for Protective Order (Doc.
165), the Court will grant a Protective Order precluding
any party from attending the deposition by written questions
of the Pueblo of Zia and deny the Motion to Strike.
Pueblo of Jemez, brought this action against the United
States under the Quiet Title Act and state common law seeking
to quiet its aboriginal title to the land known as the Valles
Caldera National Preserve. See Doc. 91 (Parties'
Joint Status Report) at 2. Plaintiff alleges that after the
United States purchased the Valles Caldera in 2000, it began
taking steps to limit Jemez members from enforcing the
Pueblo's aboriginal title. Doc. 91 at 2.
Defendant-in-intervention New Mexico Gas Company subsequently
intervened to protect its ownership and easement rights
relating to a pipeline that was built starting in the 1950s
which traverses the Valles Caldera, and remains in use today.
See Doc. 85.
asserts that many federally recognized Indian tribes have
used the Valles Caldera for highly confidential religious and
cultural purposes. See Doc. 162 at 2. As such, it
deposed the Pueblo of Santa Clara as to these practices by
written questions on July 27, 2017, to maintain the
pueblo's confidentiality on these matters. Id.
at 3. No attorney was present at this deposition other than
the attorney for the deponent. Apparently, this deposition by
written questions did not proceed as Plaintiff had envisioned
because the deponent's attorney interjected in ways
Plaintiff believes to be improper. As such, when Defendant
gave notice that it intended to use the same discovery
mechanism to depose the Pueblo of Zia, counsel for Plaintiff
notified Defendant's counsel that he planned to attend
the Pueblo of Zia's deposition by written questions.
Id. at 6-7.
now moves this Court for a protective order precluding all
parties and their counsel from attending the deposition by
written questions of the Pueblo of Zia. See generally
Id. Plaintiff vehemently opposes this Motion, asserting
that Defendant's request “asks this Court to deny
the Pueblo of Jemez and its legal counsel the fundamental
right to attend a deposition.” Doc. 165 at 3.
Contemporaneously, Plaintiff moves the Court to strike the
deposition transcript of the Pueblo of Santa Clara which
Defendant attached to its Motion as Exhibit 4. See Doc.
Rule 26(c)(1)(E) the Court may designate the persons who may
be present while a deposition is conducted. Fed. R. Civ. P
26(c)(1)(E). Protective orders may be entered for “good
cause, ” Fed.R.Civ.P. 26(c)(1), and this Court's
decision on whether to enter a protective order is reviewed
for abuse of discretion. See S.E.C. v. Merrill Scott
& Associates, Ltd., 600 F.3d 1262, 1271 (10th Cir.
2010) (“The district court has broad discretion over
the control of discovery, and we will not set aside discovery
rulings absent an abuse of that discretion.”).
“The ‘good cause' standard of Rule 26(c) is
highly flexible, having been designed to accommodate all
relevant interests as they arise.” Rohrbough v.
Harris, 549 F.3d 1313, 1321 (10th Cir. 2008) (quoted
Motion to Strike
“court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter” under Fed.R.Civ.P. 12(f).
“‘Immaterial' matter is that which has no
essential or important relationship to the claim for relief
or the defenses being pleaded, or a statement of unnecessary
particulars in connection with and descriptive of that which
is material.” Daye v. Cmty. Fin. Serv. Centers,
LLC, 233 F.Supp.3d 946, 988 (D.N.M. 2017) (Browning, J.)
(citing 5C Wright & Miller, Federal Practice &
Procedure, § 1382, at 458-60 (3d ed. 2004)). While the
Court has considerable discretion in striking redundant,
immaterial, impertinent, or scandalous matters, Rule 12(f)
motions to strike are not favored, and may be seen as either
a dilatory tactic, or “purely cosmetic or ‘time
wasters, '” and such motions “should be
denied unless the challenged allegations have no possible
relation or logical connection to the subject matter of the
controversy.” Id. at 987, 988 (quoting 5C C.
Wright & A. Miller, Federal Practice & Procedure
§ 1382, at 433-36). Moreover, a party may only seek to
strike material from a “pleading, ” and other
filings such as “motions, briefs, memoranda,
objections, or affidavits may not be attacked by the motion
to strike.” Daye, 233 F.Supp.3d at 988 (citing
Dubrovin v. Ball Corp. Consol. Welfare Ben. Plan for
Emps., 2009 WL 5210498, at *1 (D. Colo. Dec. 23, 2009)
and Ysais v. N.M. Judicial Standard Comm'n, 616
F.Supp.2d 1176, 1184 (D.N.M. 2009)) (internal markings
omitted). The only exception to the rule that only pleadings
may be stricken is “that a Court may choose to strike a
filing that is not allowed by local rule, such as a surreply
filed without leave of court.” Id. (citing
several cases thereafter, however, in which the court denied
a motion to strike filings that were not technically allowed
by local rules) (internal markings omitted).
Defendant's Motion for a Protective Order is
first argues that Defendant's Motion should be summarily
denied under this Court's Local Rules because it failed
to meet and confer as to the relief sought and to so state in
the body of the Motion. Under Local Rule 7.1(a):
“[m]ovant must determine whether a motion is opposed,
and a motion that omits recitation of a good-faith request
for concurrence may be summarily denied.” D.N.M.LR-Civ.
7.1(a). Plaintiff's argument is not well-taken. While
Defendant did not specifically recite adherence to Local Rule
7.1(a), it clearly states that “[t]he Pueblo of Jemez
has stated that, absent entry of a protective order, it plans
to attend the Pueblo of Zia's deposition.” Doc.
162 at 2. As such, Defendant properly ...