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Maestas v. Ortiz

United States District Court, D. New Mexico

March 28, 2018

TONY F. ORTIZ, Defendant.


         Plaintiff 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.

         Now 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.


         a. Plaintiff's First Amended Complaint

         Plaintiff 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.

         Back Filed Motion in Liminie

         Judge 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.

         Plaintiff 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.

         Plaintiff 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.

         Judge 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.

         Plaintiff 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.

         Ex Parte Communications Regarding Hearings

         Plaintiff 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.

         March 16, 2016 Order

         Early 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.” Id.

         b. Facts in Plaintiff's Proposed Second Amended Complaint

         Following 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]

         Plaintiff 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 ...

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