United States District Court, D. New Mexico
ORDER GRANTING IN PART AND RESERVING RULING IN PART
ON COUNTY DEFENDANTS' MOTION FOR ORDER TO SHOW CAUSE WHY
ANDREW ROSS SHOULD NOT BE HELD IN CONTEMPT
STEPHAN M. VIDMAR, United States Magistrate Judge
MATTER is before the Court on Defendants Robert Garcia,
William Pacheco, Antonio Gutierrez, and Anna Montoya's
(“County Defendants”) Motion for Order to Show
Cause Why Andrew Ross Should not be held in Contempt [Doc.
308], filed January 11, 2018. Plaintiff Ross responded on
January 12, 2018. [Doc. 310]. County Defendants replied on
January 15, 2018. [Doc. 311]. Having considered the briefing,
the relevant portions of the record, and the relevant law,
and being otherwise fully advised in the premises, the Court
will grant the motion in part and reserve ruling in part.
was entered against Plaintiffs on October 2, 2017, in the
amount of $26, 020.59. [Doc. 269]. A deposition in aid of
execution of the judgment was set for January 9, 2018. [Docs.
287, 299]. The notice of deposition required Plaintiff to
bring certain documents to the deposition. [Docs. 287, 299,
300]. Plaintiff appeared, but he did not bring any of the
documents. In fact, he did not cooperate at all. [Doc. 308]
at 12. Plaintiff objected to the presence of Angelique Wall.
[Doc. 310] at 2-3; [Doc. 308] at 12. Apparently, Ms. Wall is
a paralegal assisting Defendant Richards, [Doc. 211] at 5-8,
[Doc. 308] at 12, and Richards is an attorney who represents
himself pro se and who noticed the deposition, [Docs. 287,
299]. Plaintiff alleges, however, that Ms. Wall was involved
in the disputes that gave rise to this lawsuit in the first
place. [Doc. 309] at 1-2. He urges that her presence was
meant to distress him; he likens it to “bringing a Nazi
in full Nazi regalia to a holocaust survivor's
home.” Id. at 2. Plaintiff refused to be sworn
or answer any questions at the deposition unless Ms. Wall
left the room or unless she answered Plaintiff's own
questions about her involvement in the underlying disputes.
[Doc. 308] at 12. The deposition concluded after about five
Defendants move the Court to order Plaintiff to appear in
person to show cause why he should not be sanctioned and held
in contempt for failing to cooperate in the deposition.
County Defendants ask the Court to impose whatever punishment
it deems appropriate. Finally, County Defendants ask the
Court to reset the deposition to occur under its supervision.
Ross argues that Ms. Wall was present at the deposition, not
to assist Mr. Richards, but to harass and emotionally
distress Plaintiff. [Doc. 310] at 2. The Court has recently
denied Plaintiff's Third Motion for Protective Order,
which sought to preclude any future deposition. [Doc. 313].
The Court agrees with Defendants that the deposition should
be reset. The undersigned will be present at the courthouse
to rule on objections.
IS THEREFORE ORDERED, ADJUDGED, AND DECREED that
County Defendants' Motion for Order to Show Cause Why
Andrew Ross Should not be held in Contempt [Doc. 308] be
GRANTED IN PART. The deposition of Plaintiff
Ross in aid of execution of the judgment will take place on
Wednesday, February 14, 2018, at 9:00 a.m.
in the Pecos Courtroom of the Pete V. Domenici United States
Courthouse at 333 Lomas Boulevard Northwest in Albuquerque,
New Mexico. Counsel for County Defendants, Mr. Dickman, will
retain a court reporter. See [Doc. 311]. This Order
shall constitute notice of the deposition.
is again admonished that his failure to appear, to bring the
requested documents,  or to cooperate with the deposition
could result in sanctions being imposed against him,
including contempt of court. See Fed. R.
Civ. P. 37(d)(1)(A)(i) (court may order sanctions where a
party “fails, after being served with proper notice, to
appear for that person's deposition”);
O'Connor v. Midwest Pipe Fabrications, Inc., 972
F.2d 1204, 1210 (10th Cir. 1992) The penalties for
contempt include fines and incarceration.
IS FURTHER ORDERED that RULING be
RESERVED on County Defendants' request to order
Plaintiff Ross to show cause why he should not be held in
IS SO ORDERED.
 All the claims and counterclaims have
been dismissed. See [Docs. 8, 69, 76, 81, 91, 112,
121, 137, 144, 168, 169, 174, 188, 189].
Plaintiff/Counter-defendant Gerard has passed away, and
substitution of her estate was denied. [Doc. 232] at
 The list of required documents is
attached to the Amended Notice of Deposition [Doc. 299], as
modified by the Court's ...