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Pueblo of Jemez v. United States

United States District Court, D. New Mexico

December 19, 2017

PUEBLO OF JEMEZ, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant, and NEW MEXICO GAS COMPANY, Defendant-in-Intervention,

          MEMORANDUM OPINION AND ORDER

          HON. JERRY H. RITTER, UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. BACKGROUND

         Plaintiff, 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.

         Defendant 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.

         Defendant 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. 164.

         II. LEGAL STANDARDS

         A) Protective Orders

         Under 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 authority omitted).

         B) Motion to Strike

         The “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).

         III. ANALYSIS

         A) Defendant's Motion for a Protective Order is granted.

         Plaintiff 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 ...


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