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Armendariz v. Santa Fe County Board of Commissioners

United States District Court, D. New Mexico

November 9, 2018

GABRIEL ARMENDARIZ ERIC DION COLEMAN, JACOB GOMEZ, TONY LOVATO, MATTHEW J. LUCERO, EDWARD R. MANZANARES, JOE MARTINEZ, CHRISTOPHER MAVIS, PHILLIP TALACHY, FELIPE J. TRUJILLO, JOSEPH VIGIL, and JAMES M. WHEELER, on their own behalf and on behalf of a class of similarly situated persons, Plaintiff,
v.
SANTA FE COUNTY BOARD OF COMMISSIONERS, MARK GALLEGOS, in his individual and official capacity, and INDUSTRIAL COMMERCIAL COATINGS, LLC.

          MEMORANDUM OPINION AND ORDER DENYING WITHOUT PREJUDICE COUNTY DEFENDANTS' MOTIONS TO DISMISS PLAINTIFFS' CLAIMS FOR FAILURE TO PARTICIPATE IN DISCOVERY

         THIS MATTER comes before the Court upon the following motions:

         • Motion to Dismiss Claims of Plaintiff Wheeler or, Alternatively, for an Order to Show Cause why Claims Should Not be Dismissed and/or Other Sanctions Imposed, filed on July 6, 2018 (Doc. 112) by Defendants Santa Fe County Board of Commissioners and Mark Gallegos ("Defendants" or "County Defendants");

         • Defendants' Motion to Dismiss Claims of Felipe Trujillo or, Alternatively, for an Order to Show Cause Why Claims Should Not Be Dismissed and/or Other Sanctions Be Imposed, filed July 13, 2018. (Doc. 117); and

         • Defendants' Expedited Motion to Dismiss Claims of Matthew Lucero or, Alternatively, for Order to Show Cause Why Claims Should Not Be Dismissed and/or Other Sanctions Be Imposed, filed July 23, 2018 (Doc. 127).

         Having reviewed the parties' briefs and applicable law, the Court finds that sanctions are not warranted at this time for any of these Plaintiffs, although subsequent failures to participate in the discovery process could result in sanctions, including dismissal of claims.

         BACKGROUND

         This case is a putative class action arising from Defendants' renovation of the shower facilities at the Santa Fe Adult Correctional Facility ("detention facility") in 2014 when Plaintiffs and the class members were inmates at the ACF. Plaintiffs allege that they were exposed to dust, debris, and hazardous chemicals, which caused them injury.

         Seven of the original twelve plaintiffs in this lawsuit remain incarcerated, but according to Defendants, of the five plaintiffs who are no longer incarcerated, each has failed in one respect or another to participate in significant discovery matters in this litigation. All three motions filed by Defendants differ slightly in the factual scenario but are similar in that they all request sanctions against these Plaintiffs for failing to cooperate with the discovery process. This similarity allows the Court to address all three together.

         I. Relevant Law

         Federal courts do not take lightly a litigant's responsibility to participate in discovery, and showing up for one's scheduled deposition is no exception. Failing to appear Federal Rule of Civil Procedure 37(d) allows the district court to, among other sanctions, dismiss an action if a party "fails to appear" for his or her deposition. Defendants are entitled to request such sanctions without filing a motion to compel. See Aziz v. Wright, 34 F.3d 587, 589 (8th Cir. 1994) (defendants were not required to file motion to compel under Rule 37(d) before district court dismissed case of plaintiff who refused to be deposed) citing Halas v. Consumer Servs. Inc., 16 F.3d 161, 164 (7th Cir.1994). Consequences for failure to appear for a deposition is also addressed in this Court's local rules:

Non-Appearance at Deposition. Failure of a deponent to appear at the time and place designated may be regarded as a willful failure to appear pursuant to FED. R. CIV. P. 37(d) or contemptible conduct pursuant to FED. R. CIV. P. 45(e),
• unless a motion for protective order and a notice of non-appearance are served at least seven (7) days before the scheduled deposition; or
• if the Court finds the motion for protective order is frivolous or for dilatory purposes.

D.N.M. LR-Civ. 30-2. Finally, dismissal of a complaint with prejudice as a sanction for failure to comply with discovery obligations may be appropriate under Fed.R.Civ.P. 41(b) which states that: "[i]f a plaintiff fails to prosecute or comply with these rules ... a defendant may move to dismiss the action or any claim against it."

         Courts in the Tenth Circuit considering dismissal under these rules apply the factors in Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992) (affirming ...


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