United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE
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.
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.
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. (Id.).
about March 9, 2017, Defendants issued subpoenas to Coaches
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.
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).
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.
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 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.
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).
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.
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).
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. ...