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Fernandez v. The Western Group, L.C.

United States District Court, D. New Mexico

January 11, 2018




         THIS MATTER comes before the Court upon Defendants' Motion to Dismiss or in the Alternative for Sanctions (“Motion to Dismiss”) (Doc. 55), filed April 7, 2017, and Motion to Strike Plaintiff's Sur-Reply to Defendants' Motion to Dismiss (“Motion to Strike”) (Doc. 69), filed June 6, 2017. On December 13, 2017, in accordance with 28 U.S.C. § 636(b)(1)(B), these motions were referred to United States Magistrate Judge Kevin R. Sweazea to conduct any necessary hearings and recommend an ultimate disposition. See Order of Reference, ECF No. 80. Having reviewed the record and the parties' briefing, the undersigned recommends that the Court DENY Defendants' Motion to Dismiss and DISMISS Defendants' Motion to Strike as moot.

         Introduction and Background

         This case has its inception in Plaintiff's Original Complaint (Doc. 1), filed December 24, 2015, wherein Plaintiff alleges, in sum, that on September 9, 2015, he sustained “severe and painful injuries to his body and mind, and shock and injury to his nervous system and person, ” while in the course and scope of his employment with Defendant(s). (Doc. 1, p.4). During the course of discovery, Plaintiff disclosed, via deposition testimony, that he owned and coached youth football teams (hereinafter the “Westside Mustangs”). (Doc. 55-2, p. 2). Plaintiff further testified that he was not coaching in 2015, that “other coaches…coached the team” in 2016, and that he has served as “more [of a] director” since 2014. (Id.).

         While not entirely clear from the record, it appears that on January 24, 2017, Defendants served Plaintiff with a Second [Set of] Interrogatories and Requests for Production, see Certificate of Service, ECF No. 38, which included a request for “[a]ny and all video and/or audio recordings of any practice or game for any age group of the Westside Mustangs for the 2014-2015 and 2015-2016 football seasons.” (Doc. 55-5, p. 3). Initially, Plaintiff objected to the request but later added that he did not have any of the requested footage. (Doc. 58-6, p. 2). Plaintiff also informed Defendants that assistant coaches Mitchell Pete (“Coach Pete”) and Todd Moultrie (“Coach Moultrie”) may have shared video footage and that any such footage in existence would be in a Google Drive set up and maintained by Mr. Moultrie.[1] (Id.).

         On or about March 9, 2017, Defendants issued subpoenas to Coaches Pete[2] and Moultrie, commanding the parties to produce any and all video and/or audio recordings relating to the Westside Mustangs' (ages ten to eleven) 2014-2015 and 2015-2016 seasons. (Doc. 58-10). In response, Coach Pete produced a flash drive which, Defendants assert, contains every game from the 2016 season. (Doc. 55, p. 6). Defendants further claim that the video depicts Plaintiff coaching the team from the sidelines without any obvious pain or discomfort. (Id.).

         Defendants now ask the Court to dismiss Plaintiff's complaint, alleging that Plaintiff provided false deposition testimony and interrogatory responses. In regard to the former, Defendants argue that Plaintiff falsely testified that he did not coach the Westside Mustangs in 2016. As to the latter, Defendants claim that Plaintiff falsely denied the existence of video footage from the Westside Mustangs' 2015 and 2016 seasons, and further assert that they are “convinced” that Plaintiff is withholding video footage from the 2015 season. (Doc. 58, pp. 11-12).

         In support of their motion, Defendants cite to one federal case, Archibeque v. Atchison, Topeka & Santa Fe Ry. Co., 70 F.3d 1172, 1174 (10th Cir. 1995), for the proposition that dismissal is an appropriate sanction for a petitioner who “willfully provides false and misleading answers during the discovery process.” (Doc. 55, p. 8). Archibeque, in turn, refers to cases such as Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639 (1976) and Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994), which rely upon the sanction authority found in Fed.R.Civ.P. 37. See Archibeque, 70 F.3d 1172, 1174.

         Understandably, then, Plaintiff construes Defendants' motion as a request for sanctions under Fed.R.Civ.P. 37. Yet, in their Reply in Support of Motion to Dismiss (“Reply”) (Doc. 61), Defendants seem to deny that their motion derives its authority from the Federal Rules of Civil Procedure[3] and, instead, argue that the Court has “inherent equitable powers” to impose sanctions for “abusive litigation practices during discovery.” (Doc. 61, pp. 3-4). Regardless of whether Defendants intended to base their request for sanctions on the Court's inherent power or its rule based authority, the Court finds that Defendants' factual arguments fail to invoke either.


         The Court has the discretion to dismiss an action for discovery violations “predicated upon willfulness, bad faith, or [some] fault of petitioner rather than inability to comply.” Archibeque, 70 F.3d 1172, 1174 (internal quotation omitted). See also Garcia v. Berkshire Life Ins. Co. Of Am., 569 F.3d 1174, 1179 (10th Cir. 2009) (“A district court has inherent equitable powers to impose the sanction of dismissal with prejudice because of abusive litigation practices during discovery.”); Fed.R.Civ.P. 37(b)(2)(A)(v) (allowing a district court to dismiss an action if a party fails to obey an order to provide or permit discovery).

         When determining whether the sanction of dismissal is appropriate, a district court should consider the following five factors: “(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for non-compliance; and (5) the efficacy of lesser sanctions.” Archibeque, 70 F.3d 1172, 1174 (quoting Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992)). “Only when the aggravating factors outweigh the judicial system's strong predisposition to resolve cases on their merits is dismissal an appropriate sanction.” Ehrenhaus, 965 F.2d 916, 921 (quoting Meade v. Grubbs, 841 F.2d 1512, 1521 n.7 (10th Cir. 1988)). Ordinarily, these factors should be evaluated on the record. See Archibeque, 70 F.3d 1172, 1174. However, such an evaluation presupposes the existence of a discovery violation by the party to be sanctioned. In the case at bar, Defendants have not shown that any violation arguably exists to trigger the process of evaluating whether the alleged violation is sanctionable.

         Per Fed.R.Civ.P. 37(a), if a party fails to make disclosures or otherwise cooperate in the discovery process, the aggrieved party may move the court for an order compelling disclosure or discovery. If the court grants the motion and the offending party fails to obey the resulting order, sanctions, including dismissal, are available under Fed.R.Civ.P. 37(b).

         Defendants, however, never availed themselves of the remedies set forth in Fed.R.Civ.P. 37. In defense of their decision to bypass the Rule, Defendants state, somewhat confusingly, that because Plaintiff (allegedly) misrepresented facts under oath and disavowed the existence of Westside Mustangs' video footage, “there is nothing to compel from Plaintiff.” (Doc. 55, p. 2, n.1). On the contrary, if Plaintiff misrepresented himself or misrepresented the existence of evidence in a deposition or in responses to interrogatories, Defendants would be able to compel discovery responses under Fed.R.Civ.P. ...

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