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 DEFENDANTS' MOTIONS TO DISMISS
Court must decide if the time has come to dismiss the final
defendants from this lawsuit due to Plaintiffs' failure
to prosecute their case. Because the Court has repeatedly
warned Plaintiffs that it will dismiss this case unless they
make an effort to prosecute the case, because Plaintiffs have
failed to heed such warnings, and because no indication
exists that Plaintiffs will attempt to prosecute the case in
the future, I recommend that the Court enter an Order
dismissing this case for failure to prosecute.
Williams and Chavez (“County Defendants”)
squarely placed this issue before the Court in their Motion
to Dismiss filed July 30, 2018. Doc. 92. The remaining
Defendants (“Bosque Farms and Los Lunas
Defendants”) request dismissal through a Motion for
Reconsideration filed July 17, 2018. Doc. 91. I recommend
that the Court deny this motion for reconsideration because
the Court did not misapprehend a party's position, the
facts, or the controlling law. Nonetheless, for the same
reasons I recommend dismissal of the County Defendants for
failure to prosecute, I recommend sua sponte dismissal of the
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, and against
the County Defendants, 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, 11-12.
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 28, 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
even though he was being kept in custody without charges
having been brought against him. Id. at 14.
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 this case involved class
certification discovery while Wilson did not. To
allow the parties to focus on class certification discovery,
I delayed 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, the Bosque Farms and Los
Lunas Defendants propounded discovery on October 19, 2017.
Civ. No. 11-658 KG/SCY, Doc. 259-1, 259-2. On October 24,
2017, I vacated the settlement conference in this case and I
then 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
December 14, 2017, the Bosque Farms and Los Lunas 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 the Bosque Farms and Los Lunas 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 the Bosque
Farms and Los Lunas 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. 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.
The Bosque Farms and Los Lunas Defendants represent, and
Plaintiffs do not dispute, that they 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, the Bosque Farms and Los Lunas Defendants filed a
motion to dismiss Plaintiffs' claims on February 14,
2018. Doc. 59. Plaintiffs, however, did not timely respond.
March 8, 2018, I scheduled a hearing on all 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, the Bosque Farms and Los
Lunas 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, through the help of
investigators, he was able to locate his clients and so 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 significantly impaired his ability to respond
to discovery and meet Court imposed deadlines.
the open portion of the April 5, 2018 hearing, I pointed out
that, while Plaintiffs had moved to extend the time to
respond to the Bosque Farms and Los Lunas 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 late written
responses to the Bosque Farms and Los Lunas Defendants'
motion to dismiss (Doc. 59) and the County Defendants'
motions for summary judgment (Docs. ...