United States District Court, D. New Mexico
ORDER DENYING PLAINTIFF ROSS'S REQUEST TO VACATE
AND RESET HIS DEPOSITION
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff Ross's Notice to
the Court [Doc. 319], filed January 23, 2018. No. party has
responded to the Notice, but no response is needed. Having
considered the Notice, the relevant portions of the record,
and the relevant law, and being otherwise fully advised in
the premises, the Court will construe the Notice as a motion
to vacate/reset the deposition of Plaintiff and deny it
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 duly noticed 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 did not bring
any of the documents. In fact, he did not cooperate at all.
[Doc. 308] at 12. The deposition concluded after about five
minutes. Id. At the request of Defendants Robert
Garcia, William Pacheco, Antonio Gutierrez, and Anna Montoya,
on January 17, 2018, the Court reset the deposition to occur
under its supervision at the Pete V. Domenici United
States Courthouse in Albuquerque, New Mexico on February
14, 2018. [Doc. 315].
January 17, 2018, pro se Defendant Robert Richards (who is
also an attorney), moved to vacate and reset the deposition
because he planned to be out of the country on February 14,
2018. [Doc. 316]. Chambers staff contacted Defendant Richards
as a courtesy to notify him of the undersigned's
long-standing policy for scheduling conflicts. Staff advised
Defendant Richards that if all parties could agree on an
alternative date and time for the deposition, and if the
Court's schedule permitted, the deposition would be
rescheduled. If, however, not all parties could agree on an
alternative date, the deposition would proceed as scheduled
on February 14, 2018. Defendant Richards then informed
chambers staff on January 18, 2018, that the parties could
not agree on an alternative date. Thus, the Court denied
Richards' motion. [Doc. 317].
January 18, 2018, Plaintiff Ross called chambers and advised
that he, too, had a scheduling conflict for February 14,
2018. (He planned to visit his daughter out of state.) Staff
advised Plaintiff Ross of the Court's scheduling-conflict
policy. On January 23, 2018, Plaintiff Ross filed his Notice.
[Doc. 319]. In it, he represents that he has travel plans
during the week of February 14, 2018, and asks the Court to
reset the deposition for February 20, 2018, or any time
after. Id. The Notice provides no indication that
Plaintiff Ross attempted to work out an alternative date with
the other parties. See id.
been communicated to the parties already, if all are able to
agree on an alternative date for the deposition, the Court
will attempt to accommodate them, subject to the Court's
own schedule. Because resetting the deposition will
ultimately be contingent on the Court's schedule, it is
recommended that the parties attempt to agree on multiple
THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff
Ross's Notice to the Court [Doc. 319] be CONSTRUED as a
motion to vacate and reset his deposition and DENIED.
and until all parties agree on an alternative date for the
deposition which does not conflict with the Court's
schedule, 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.
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 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 2.
 The Court agreed to hold the
deposition in Albuquerque as a courtesy to the parties. If
the parties all agree to conduct the deposition in Las
Cruces, the ...