United States District Court, D. New Mexico
MARK SANCHEZ, and PATRICK MARQUEZ, on behalf of themselves and a class of similarly situated individuals, Plaintiffs,
DEREK WILLIAMS, et al., Defendants.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION RELATED
TO VILLAGE OF LOS LUNAS AND VILLAGE OF BOSQUE FARMS
DEFENDANTS' MOTION TO DISMISS
Village of Los Lunas and Bosque Farms Defendants (Defendants)
filed a motion to dismiss in which they allege numerous
discovery violations and, as a sanction, seek dismissal of
all claims against them. Doc. 59. I propose finding that
Plaintiffs disregarded a Court order regarding class
certification discovery and that Plaintiffs otherwise failed
to provide class certification discovery. Further, after
considering factors set forth in Tenth Circuit precedent, I
recommend that the Court dismiss Plaintiffs' class
claims. However, after considering the same factors with
regard to Plaintiffs' individual claims, and considering
that the discovery violations at issue pertain to
Plaintiffs' class claims rather than their individual
claims, I recommend that the Court deny Defendants'
motion with regard to Plaintiffs' individual claims.
Mark Sanchez and Patrick Marquez (Plaintiffs), together with
former plaintiffs Oscar Leyva and Dustin Sarrett, commenced
this lawsuit against the Village of Los Lunas and Bosque
Farms Defendants, among others, in 2011. Doc. 1. In early
2012, the Court consolidated this case with Wilson v.
Montano et al., Civ. No. 11-658 KG/SCY and Ortiz v.
Benavidez et al., Civ. No. 11-951 KG/SCY. Doc. 36.
Sanchez alleges that Bosque Farms police officer Steven
Roberts arrested him without a warrant on July 1, 2010. Doc.
5 at 4, 11. Further, he alleges, Officer Roberts booked him
into the Valencia County Detention Center (VCDC) and then
failed to file a criminal complaint against him. Id.
at 11. As a result, Plaintiff Sanchez claims that he
unnecessarily remained in custody at the VCDC for
approximately eight days. Id. With regard to the
VCDC, Plaintiff Sanchez asserts that the booking officer
(referred to as “John Doe”) never arranged to
have him appear before a magistrate judge and did not release
him when it became apparent no charges were filed.
Id. at 6, 11.
Marquez alleges that Los Lunas Officer Delinda Chavez
arrested him without a warrant on or about June 15, 2010.
Doc. 5 at 5, 12. According to Plaintiff Marquez, Officer
Chavez booked him into the VCDC following his arrest but
waited until June 28, 2010 to file a criminal complaint
against him. Id. at 13. When Plaintiff Marquez was
then brought before a magistrate judge on June 29, 2010, the
magistrate judge released him. Id. Further,
Plaintiff Marquez alleges that the VCDC booking officer
(referred to as “John Doe”) neither arranged to
have him brought before a magistrate judge nor released him
during the time he was kept in custody without any charges
having been brought against him. Id.
Marquez and Sanchez are also representatives in a putative
class action brought on behalf of “all people who have
been incarcerated in VCDC without criminal charges being
filed on the day of their arrest or, if the court is not open
on the day of the arrest, on the next business day of the
court.” Doc. 5 at 32. Their co-plaintiffs, Dustin
Sarrett and Oscar Leyva, are no longer part of this case, as
the Court dismissed their claims with prejudice on February
6, 2018, as a sanction for discovery violations and failure
to prosecute their claims. Doc. 50.
stays have been in place throughout much of this litigation.
In December 2016, the Court ruled on a number of motions that
had been pending. See Civ. No. 11-658 KG/SCY, Docs.
158-166. I held a status conference on January 24, 2017 and
lifted the discovery stay in place at the time. Civ. No.
11-658 KG/SCY, Docs. 172-73. Although the cases remained
consolidated, discovery in this case and Wilson
largely diverged, primarily because the plaintiffs in this
case intend to seek class certification. Specifically, I
initially bifurcated discovery in this case to allow all of
the parties to conduct written discovery regarding class
certification issues before commencing merits discovery.
Id. Subsequently, over the course of multiple
follow-up status conferences with the parties, I modified the
discovery process to allow for a phased pre-certification
discovery approach. Civ. No. 11-658 KG/SCY, Doc. 178. First,
I allowed a period of “Phase 1” discovery,
designed to provide Plaintiffs an opportunity to obtain the
information they would need to support their motion for class
certification. “Phase 2” discovery was designed
to provide Defendants an opportunity to obtain the
information they would need to respond to Plaintiffs'
motion for class certification. Unfortunately, due to the
volume of discovery involved and various disputes regarding
the production of this discovery, the Phase 1 discovery
process took longer than the parties initially anticipated.
Civ. No. 11-658 KG/SCY, Docs. 188, 196, 207, 208, 211, 215.
24, 2017, I set settlement conferences which, at the request
of the parties, I later vacated and reset to the end of
November 2017. Civ. No. 11-658 KG/SCY, Docs. 219, 221,
226-228. At a status conference on September 12, 2017, the
parties requested that the commencement of Phase 2 discovery
be delayed until after the November settlement conferences.
Civ. No. 11-658 KG/SCY, Doc. 225. I then ordered the parties
to file a joint status report (JSR) regarding proposed
parameters and deadlines for Phase 2 discovery. Id.
The parties filed this JSR on October 2, 2017. Civ. No.
11-658 KG/SCY, Doc. 231. Even though the Court had not yet
entered a Phase 2 discovery order, Defendants represent that
they propounded discovery on October 19, 2017. Civ. No.
11-658 KG/SCY, Doc. 259-1, 259-2. On October 26, 2017, I
entered an order setting a deadline for Phase 2 discovery to
be completed by January 26, 2018. Civ. No. 11-658 KG/SCY,
Doc. 236. I also set a deadline of February 16, 2018 for
Plaintiffs to file their motion for class certification.
December 14, 2017, Defendants filed a motion to compel,
arguing that Plaintiffs had been completely unresponsive to
their attempts to obtain discovery. Civ. No. 11-658 KG/SCY,
Doc. 259. The Court denied this motion because Defendants
propounded their discovery requests prior to the commencement
of Phase 2 discovery and because the scope of discovery
requested exceeded the amount the Court allowed. Civ. No.
11-658 KG/SCY, Doc. 280. The Court then directed Defendants
to serve written discovery that complied with its order
regarding Phase 2 discovery no later than January 31, 2018,
and allowed Plaintiffs two weeks thereafter to respond to the
discovery. Id. Importantly, the Court advised
Plaintiffs “that the failure to comply with discovery
obligations or Court orders may result in the imposition of
sanctions, up to and including dismissal of their
claims.” Id. at 2. The Court further
reiterated in bold lettering that the “February 16,
2018 deadline for Plaintiffs to file a motion for class
certification remains unchanged.” Id. at 2.
Defendants represent, and Plaintiffs do not dispute, that
Defendants complied with this order by serving their written
discovery on January 24, 2018. Doc. 59 at 3. Thus,
Plaintiffs' response to this discovery was due no later
than February 8, 2018. Having received no response,
Defendants filed the instant motion on February 14, 2018.
Doc. 59. Plaintiffs, however, did not file a timely response.
March 8, 2018, I scheduled a hearing on Defendants'
motion to dismiss to take place on April 5, 2018. Doc. 65. On
March 19, 2018, the Office of Disciplinary Counsel for the
Disciplinary Board of the New Mexico Supreme Court notified
this Court of a pending Petition for Administrative
Suspension of Plaintiffs' counsel. Doc. 68. On March 29,
2018, Plaintiffs filed a motion to extend the deadline to
respond to, among other things, Defendants' motion to
dismiss. Doc. 69. In this motion, Plaintiffs' counsel
represented that he “was unable to respond in a timely
manner . . . because he experienced significant medical
difficulties and a condition that rendered it impossible for
him to respond by the deadline.” Doc. 69 at 2. I denied
this motion with leave to renew it at the April 5, 2018
hearing. Doc. 70.
portion of the April 5, 2018 hearing, I sealed the courtroom
so that I could hear details from Plaintiffs' counsel
about his medical condition. Plaintiffs' counsel
represented that his medical condition had existed for the
past six to eight months and that his condition declined
rapidly during the previous three to four months. Doc. 85 at
4-5, 9-10. He stated that from late December, 2017 into
January, 2018, his medical condition severely affected his
ability to represent his clients. Doc. 85 at 4-5, 9-10.
Plaintiffs' counsel indicated that, while he did need to
hire investigators to help locate Plaintiffs, he was able to
locate them and their failure to appear at the hearing as
well as their recent unresponsiveness was the fault of
counsel, not the fault of Plaintiffs themselves. Id.
at 6. Based on the representations of Plaintiffs'
counsel, I am convinced that Plaintiffs' counsel did
suffer from a medical condition that reached a peak in late
December 2017 and which significantly impaired his ability to
respond to discovery and meet Court imposed deadlines. I
recommend that the Court make such a finding.
the open portion of the April 5, 2018 hearing, I pointed out
that, while Plaintiffs had moved to extend the time to
respond to Defendants' motion to dismiss, Plaintiffs had
not filed a motion to extend the February 16, 2018 class
certification deadline. Doc. 75 at 9. Plaintiffs' counsel
responded that he would be filing a motion for a new
scheduling order but that he first needed to verify with his
clients that they continued to be willing to pursue the class
claims as class representatives. Id. at 10, 13.
Plaintiffs' counsel stated that he could ascertain his
clients' willingness to remain as class representatives
within seven to fourteen days. Id. at 13.
conclusion of the hearing, I granted Plaintiffs'
counsel's request for an opportunity to file a written
response to Defendants' motion to dismiss (Doc. 59) as
well as to the motions for summary judgment (Docs. 61, 62)
filed by the Valencia County Defendants. Plaintiffs filed
responses to these motions on April 19, 2018. Docs. 76-78. To
date, however, Plaintiffs have not filed a motion to extend
the February 16, 2018 deadline to move for class
Federal Rules of Civil Procedure authorize a district court
to impose sanctions, including dismissal of a case with
prejudice, for a party's failure to comply with court
orders and discovery requirements set by local and federal
rules. Here, Defendants rely on Rules 37 and 41 to support
their argument that the Court should dismiss Plaintiffs'
claims with prejudice. Doc. 59 at 3-4.
first to Rule 41(b), this rule authorizes the involuntary
dismissal of an action “[i]f the plaintiff fails to
prosecute or to comply with the [Federal Rules of Civil
Procedure] or a court order.” Fed.R.Civ.P. 41(b);
see also AdvantEdge Bus. Grp. v. Thomas E. Mestmaker
& Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir.
2009) (“A district court undoubtedly has discretion to
sanction a party for failing to prosecute or defend a case,
or for failing to comply with local or federal procedural
rules.”) (internal citation omitted). As the Tenth
Circuit has emphasized, “the need to prosecute
one's claim (or face dismissal) is a fundamental precept
of modern litigation . . ..” See Rogers v. Andrus
Transp. Services, 502 F.3d 1147, 1152 (10th Cir. 2007).
“Although the language of Rule 41(b) requires that the
defendant file a motion to dismiss, the Rule has long been
interpreted to permit courts to dismiss actions sua sponte
for a plaintiff's failure to prosecute or comply with the
rules of civil procedure or court[s'] orders.”
Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir.
2003). When a defendant seeks to dismiss a case with
prejudice, as here, the Court should consider the five
factors set forth in Ehrenhaus v. Reynolds, 965 F.2d
916, 921 (10th Cir. 1992). These factors are: (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.” Id. This is a highly
fact-intensive inquiry that should generally be conducted on
the record although the Tenth Circuit has affirmed dismissals
even where the district court did not consider all of the
factors. See Lee v. Max Intern., LLC, 638 F.3d 1318,
1323 (10th Cir. 2011). “Only when the aggravating
factors outweigh the judicial system's strong
predisposition to resolve cases on their merits is dismissal
an appropriate sanction.” Procter & Gamble Co.
v. Haugen, 427 F.3d 727, 738 (10th Cir. 2005) (internal
citation omitted). Ultimately, “the chosen sanction
must be both just and related to the particular claim which
was at issue in the order to provide discovery.”
Ehrenhaus, 965 F.2d at 920 (internal quotation marks
has several provisions concerning a party's failure to
comply with his/her discovery obligations. Of particular
relevance here, Rule 37(d) governs a party's failure to
serve answers to interrogatories, and provides that the Court
may, on motion, order sanctions if a party “after being
properly served with interrogatories under Rule 33 . . .
fails to serve its answers, objections, or written
response.” See Fed. R. Civ. P.
37(d)(1)(A)(i)-(ii). Rule 37(d)(3) specifies that the Court
may impose the following sanctions for these particular
(i) directing that the matters embraced in the order or other
designated facts be taken as established for purposes of the