United States District Court, D. New Mexico
JOSEPH R. MAESTAS, Plaintiff,
TONY F. ORTIZ, Defendant.
MEMORANDUM OPINION AND ORDER
sued the Town of Taos (“Town” or
“Taos”). Tony Ortiz (“Defendant”), a
private attorney, defended the Town in Plaintiff's
lawsuit. This current lawsuit arises from that proceeding.
Plaintiff claims that while representing the Town, Defendant
and his legal staff engaged in various extrajudicial acts,
including ex parte communications with the state
judge and conspiring with her to file an untimely motion,
blocking Plaintiff's access to the court, and other acts
to manipulate the outcome of his lawsuit against the Town.
pending are the following motions: (i) Defendant's Motion
to Dismiss Plaintiff's First Amended Complaint [Doc. 4];
(ii) Plaintiff's Renewed Motion for Leave to File Amended
Complaint [Doc. 14]; and Defendant's Motion for Sanctions
under Fed.R.Civ.P. 11 [Doc. 17]. The Court, having considered
the motions, pleadings, briefs, and applicable law, concludes
that the motion for leave to file a second amended complaint
is denied; the motion to dismiss is granted; and the motion
for sanctions is denied.
Plaintiff's First Amended Complaint
worked for the Town of Taos. The Complaint does not say what
Plaintiff's job was or why he was fired, but Plaintiff
eventually sued the Town for the firing. Defendant is a
private attorney. He represented the Town against
Plaintiff's lawsuit. Judge Backus presided over
Plaintiff's lawsuit. The jury found that the Town liable,
but entered a zero dollar verdict for Plaintiff. After the
state court litigation, Plaintiff brought this lawsuit under
42 U.S.C. § 1983 (2013), alleging that Defendant, his
staff, and Judge Backus conspired to deprive him of his
access to the court in violation of the First Amendment.
Filed Motion in Liminie
Backus set a May 16, 2016 deadline to file motions in limine
in Plaintiff's state court case. [Doc. 1-1, ¶ 4] On
that day, Defendant tried to file a motion in liminie, but
the court's electronic filing system rejected it because
of technical defects with Defendant's signature.
Id. ¶ 5. Within the following days,
Defendant's legal staff contacted Judge Backus' TCAA,
asking to “back date” the motion to May 16 so
that it would appear timely filed. Id. ¶ 6.
Judge Backus approved the request. Id. ¶ 7.
Defendant's paralegal then worked with the Clerk of
Court, Bernabe Struck, to file the motion. Id.
¶ 8. However, the court's filing system did not
allow Mr. Struck to alter electronically the filing date, so
Mr. Struck manually filed the motion so that it bore the
court's stamp to show a May 16, 2016 filing date.
Id. ¶ 8. On May 24, 2016 Defendant's
paralegal e-mailed Mr. Struck to memorialize the back dating
agreement, and attached the e-mail to the motion.
Id. ¶ 9. In the e-mail, the paralegal stated
that Judge Backus' “chambers” approved the
back dating, “hinting without stating that Judge Backus
had approved back dating the pleading, ” according to
Plaintiff. Id. ¶ 10.
was never served with the back filed motion in liminie.
Id. ¶ 13. He therefore moved to strike it, and
also moved for sanctions against Defendant and the Town.
Id. ¶ 14. Because Plaintiff knew that Judge
Backus authorized the back dating arrangement, Plaintiff
eventually withdrew his motion to strike, sensing that Judge
Backus would not rule in his favor. Id. ¶ 25.
This resulted in a chilling effect whereby Plaintiff was not
able to present his motion before an impartial judge. Id.
claims Defendant accomplished its back filed motion by
engaging in ex parte communications with Judge Backus, even
if those communications happened between intermediaries
(Judge Backus' TCAA and Defendant's paralegal).
Id. ¶ 19. Those forbidden communications
resulted in Defendant filing an untimely motion, hidden from
Plaintiff and the public. Id. ¶ 20. In
addition, Defendant obscured Judge Backus' role,
suggesting that her “chambers” or “Judge
Backus' clerk” permitted the back filing.
Id. ¶¶ 10, 16. In actuality, Judge Backus
herself-rather than her staff-approved the back dating
arrangement, implicating the judge's directly.
Id. ¶ 17. At a later hearing, Judge Backus even
acknowledged her personal involvement. Id. ¶ 7.
Backus eventually granted the Town's back filed motion in
liminie. Id. ¶¶ 31, 32. According to
Plaintiff, Defendant's proposed order to the court
grating the motion was full of self-serving inaccuracies that
did not reflect the court's oral ruling. Id.
¶ 32. When Plaintiff pointed out these inaccuracies,
Judge Backus amended the order, re-writing it herself. Id.
prevailed in his state court action. Id. ¶ 33.
After the verdict, Plaintiff filed a notice of tort claim
against the Town under N.M. Stat. Ann 41-4-16, indicating
that he would sue Defendant personally for his litigation
conduct while representing the Town. Id. ¶ 34.
In response, Defendant filed with Judge Backus a
“Motion for Clarification of Court Record.”
Id. ¶ 37. This tactic, according to Plaintiff,
was “to manipulate [the state court] proceedings and
… punish and sanction Plaintiff for filing a Tort
Claim Notice.” Id. ¶ 40.
Parte Communications Regarding Hearings
also claims that court hearings were continued as a result of
improper ex parte communication and without proper court
filing. Id. ¶ 27. For example, the court set a
hearing for September 1, 2016. Id. For unknown
reasons, it was moved to August 30, 2016. Id. Then,
“upon information and belief, Defendant's staff
communicated with Judge Backus' office and had her office
move the hearing back to September 1, 2016.”
Id. This was all accomplished without moving the
court. Id. When Plaintiff confronted Defendant about
these questionable calendar changes, Defendant replied in an
e-mail that “the court does not have to file a motion
every time there is a scheduling change … you were
copied on this communication and the [c]ourt is not in any
way outside of its authority to consider scheduling matters
without a motion.” Id. ¶ 28. Defendant
ended the e-mail by daring Plaintiff to seek sanctions
against Defendant. Id. ¶ 29.
16, 2016 Order
in the case, on March 16, 2016, Gabrielle Stewart, an
associate attorney at Defendant's law firm, submitted to
the court a proposed order (“March 2016 Order”)
extending the Town's time to file a brief, in which Ms.
Stewart falsely noted Plaintiff's concurrence.
Id. ¶ 26. According to Plaintiff,
“Defendant had fabricated his approval of the form of
the Order and inasmuch as placing an electronic signature on
a court document amounts to forgery, Defendant forged
Plaintiff's counsel's signature on the Order.”
Facts in Plaintiff's Proposed Second Amended
Defendant's Motion to Dismiss in this Court, Plaintiff
requested the Court's leave to amend his complaint to add
more defendants and to amplify some of the allegations
contained in the First Amended Complaint. Plaintiff requests
to add four new parties as defendants: (1) Nadine
Mondragon-Stenberg, Defendant's paralegal who allegedly
engaged in ex parte communications with Judge Backus'
TCAA; (2) Gabriella Stewart, the attorney at Defendant's
law firm who allegedly filed the March 2016 Order without
Plaintiff's counsel's agreement; (3) Tony Ortiz,
Attorney at Law, LLC, the law firm that employed Defendant;
and (4) Ortiz and Zamora, Attorneys at Law, LLC, another law
firm that employed Defendant. [Doc. 15-1, ¶¶ 2-7]
also wants to supplement some of his factual contentions. In
his reply brief in support of his motion to amend, Plaintiff
attached an e-mail correspondence between two workers at the
Eight Judicial District Court. [Doc. 27, ¶ 5]. The
e-mail sheds more light on why Judge Backus permitted
Defendant to back file his motion. As Barbara Arnold, the
e-mail's author explained,
Nadine [Defendant's paralegal] called our Court Manager
(CM) and asked for a back date on a document. CM told Nadine
we don't back date, and only the one who could authorize
a back date is the judge. Nadine contacted Judge Backus's
TCAA and asked for back date. TCAA informed Judge: 3
pleadings were submitted at the same time. Two were accepted
and one rejected because it was not signed, and the attorney
had informed us that all pending motions (including the one
that was rejected) had been discussed at the hearing
they'd already had. Judge granted the approval, so the CM
“back dated” meaning he used the manual stamp on
the hard copy of the motion and used the date that the
document was originally submitted.
When the CM, Judge Backus, her TCAA and I met to discuss what
happened, Judge reviewed the e-filing rule and clarified for
everyone that back dating should only be allowed in very
exceptional circumstances and ...