United States District Court, D. New Mexico
WRONGFUL DEATH ESTATE OF MIGUEL GONZÁLEZ, by and through Wrongful Death Estate Personal Representative Joanna Rodríguez, JOANNA RODRIGUEZ, on her own behalf and as Mother and Next Friend of ME Gonzalez, a minor child, DJ Gonzalez, a minor child, and AX Gonzalez, a minor child, Plaintiffs,
BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF BERNALILLO, NEW MEXICO, MANUEL GONZALES, III, Sheriff of Bernalillo County, CHARLES COGGINS, a Deputy Sheriff of the Bernalillo County Sheriff's Department, and JOHN DOES 1 through 7, Deputy Sheriffs Deputy Sheriffs of the Bernalillo County Sheriff's Department, Individually and in their Official Capacities, Defendants.
ORDER DENYING MOTION TO COMPEL
Fashing United States Magistrate Judge.
MATTER comes before the Court on plaintiffs Wrongful Death
Estate of Miguel Gonzalez and Joanna Rodriguez's
(collectively “plaintiffs”) Motion to Compel
filed September 11, 2018. Doc. 68. Deputy Charles Coggins
filed his response on September 25, 2018. Doc. 70. Plaintiffs
filed their reply on October 10, 2018. Doc. 75. Having read
the submissions of the parties and being fully advised, the
Court finds the motion is not well taken and will DENY it.
case arises from a deputy-involved shooting that occurred on
July 4, 2017, which resulted in the death of Miguel Gonzales.
This civil action is based on plaintiffs' claim that
Deputy Coggins used excessive force against Mr. Gonzales in
violation of Mr. Gonzales' Fourth Amendment rights. The
parties are currently conducting discovery.
sent their third set of discovery requests to Deputy Coggins,
which consisted of 4 interrogatories and 2 requests for
production. Doc. 68-1. Plaintiffs' motion seeks an order
compelling Deputy Coggins to fully respond to “the
requested discovery requests as listed above, ” and to
pay the attorney's fees and costs associated with
bringing the motion. Doc. 68 at 3. The Court will deny
Plaintiffs' Motion is in Violation of the District of New
Mexico Local Rules and the Federal Rules of Civil
motion is in violation of D.N.M.LR-Civ. 37.1. Local Rule 37.1
requires that a party seeking relief pursuant to Rule 37(a)
“must attach to the motion a copy of (a) the
interrogatory, request for production or inspection, relevant
portion of deposition transcript, or request for admission;
and (b) the response or objection thereto.” Although it
is not specified in the motion, it appears that plaintiffs
are moving to compel responses to Interrogatory Nos. 3 and 4.
Doc. 68. Plaintiffs, however, attach to their motion a
complete set of their discovery requests as well as a
complete set of Deputy Coggins' answers to the
interrogatories. Docs. 68-1, 68-2. The Court does not need or
want, nor do the Local Civil Rules require, that all
discovery requests and responses be filed with the Court.
Only the discovery requests at issue should be attached to
motion also is in violation of D.N.M.LR-Civ. 10.6. Local Rule
10.6 requires that
[t]he portions of an exhibit the party wishes to bring to the
Court's attention must be marked, e.g. by brackets,
shading, or underlining, in the original, the copy for the
Court and the copy for each party. Marking must be apparent
on exhibits that are scanned and filed and/or served
electronically so that, when printed in hard copy, the reader
can clearly see what is marked to read and the text can be
submit 4 exhibits with their motion. Docs. 68-1 through 68-4.
Although plaintiffs reference exhibits A through C in the
body of their motion, none of the exhibits are marked as
such. See Id. Additionally, none of the exhibits are
marked with brackets, shading, or underlining to highlight
the portions of the exhibit the plaintiffs wish to bring to
the Court's attention. This is particularly important
because plaintiffs have provided a complete set of discovery
requests and have not specifically identified which requests
they contend require supplementation by Deputy Coggins.
Further, plaintiffs submit the Bernalillo County
Sheriff's Department Rules and Regulations (Doc. 68-2 at
8-23) but do not direct the Court to any portion of that
exhibit that might be relevant to their motion. The Court
will not wade through pages of exhibits trying to guess which
portions are pertinent to plaintiffs' argument.
motion also is in violation of D.N.M.LR-Civ. 7.3(a). Local
Rule 7.3(a) requires a “motion, response or reply must
cite authority in support of the legal positions
advanced.” Plaintiffs' motion and reply do not cite
any legal authority in support of the legal positions
advanced. Docs. 68 and 75.
motion also is in violation of D.N.M.LR-Civ. 7.1(a) and
Fed.R.Civ.P. 37(a)(1). Local Rule 7.1(a) requires the movant
to “determine whether a motion is opposed, and a motion
that omits recitation of a good-faith request for concurrence
may be summarily denied.” Plaintiffs' motion is
void of any recitation that they determined whether the
motion was opposed. Rule 37(a)(1) requires that “[t]he
motion must include a certification that the movant has in
good faith conferred or attempted to confer with the person
or party failing to make disclosure or discovery in an effort
to obtain it without court action.” The duty to confer
requires more than setting forth conflicting positions in
written correspondence. To confer means more than making a
demand for compliance; it means “to hold a conference;
compare views; consult together.” Hoelzel v. First
Select Corp., 214 F.R.D. 634, 635 (D. Colo. 2003).
only indication that plaintiffs' counsel made any effort
to resolve the discovery dispute was to send a letter
demanding supplementation. Doc. 68-4. Plaintiffs' counsel
has not shown that he met and conferred with Deputy
Coggins' counsel in a good faith effort to resolve these
discovery disputes prior to seeking the assistance of the
Court. Had a proper meet and confer occurred, plaintiffs
could have clarified their interrogatories, and Deputy
Coggins could have explained his responses. For example, in
their motion, plaintiffs argue that Deputy Coggins “has
either received no training regarding the procedures,
protocol and operations for the preservation of evidence to
crime scenes . . . or Bernalillo County Sheriff's Office
has prevented or kept him from ascertaining the individuals
that provided him with said training.” Doc. 68 at 3.
Plaintiffs' interrogatories, however, do not request that
Deputy Coggins identify the training he
received. See Doc. 68-1 at
In his response, Deputy Coggins explains that he does not
have the information requested and cannot access the
information. Doc. 70 at 7. Had the parties met and conferred
as required by the rules, the parties possibly could have
resolved this discovery dispute prior to seeking the
assistance of the Court. Plaintiffs have failed to comply
with both the letter and the spirit of the Local and Federal
failure of plaintiffs' counsel to comply with the Local
and Federal Rules justifies the denial of plaintiffs'
motion. Nevertheless, in spite of plaintiffs' violations
of the rules, ...