Ross et al v. Balderas et al

Filing 315

ORDER by Magistrate Judge Stephan M. Vidmar GRANTING IN PART 308 Defendants Robert Garcia, William Pacheco, Antonio Gutierrez, and Anna Montoya's Motion for Order to Show Cause Why Plaintiff Andrew Ross Should not be held in Contempt. The depo sition of Plaintiff Ross in aid of execution of judgment is set for February 14, 2018, at 9:00 a.m. The Court RESERVES RULING on County Defendants' request to order Plaintiff Ross to show cause why he should not be held in contempt. (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANDREW ROSS and SUSAN GERARD,
Plaintiffs,
v.

No. 16-cv-1121 PJK/SMV

HECTOR BALDERAS, JR., ROBERT GARCIA,
SARAH MICHAEL SINGLETON,
FRANCIS J. MATHEW, RAYMOND Z. ORTIZ,
DAVID K. THOMPSON, JENNIFER ATTREP,
T. GLENN ELLINGTON, SYLVIA LAMAR,
DONITA OLYMPIA SENA,
DONNA BEVACQUA-YOUNG, PAT CASADOS,
FRANK SEDILLO, WILLIAM PACHECO,
ANTONIO GUTIERREZ, ANNA MONTOYA,
JUDAH BEN MONTANO, JOHN DOES 1–2,
MICHELLE PORTILLO, STEPHEN T. PACHECO,
JANE GAGNE, JOYCE BUSTOS, LYNN PICKARD,
PAMELA REYNOLDS, ROBIN MARTINEZ,
ROBERT RICHARDS, BRENDA WALL,
AUDREY MONTOYA, ALLSTATE INSURANCE, INC.,
A. ARROYO, and E. MONTIJO,
Defendants,
and
PAMELA REYNOLDS and ROBERT RICHARDS,
Counterclaimants,
v.
ANDREW ROSS and SUSAN GERARD,
Counter-defendants.1
1

All the claims and counterclaims have been dismissed. See [Docs. 8, 69, 76, 81, 91, 112, 121, 137, 144, 168, 169,
174, 188, 189]. Plaintiff/Counter-defendant Gerard has passed away, and substitution of her estate was denied.
[Doc. 232] at 2.

ORDER GRANTING IN PART AND RESERVING RULING IN PART
ON COUNTY DEFENDANTS’ MOTION FOR ORDER TO SHOW CAUSE
WHY ANDREW ROSS SHOULD NOT BE HELD IN CONTEMPT
THIS MATTER is before the Court on Defendants Robert Garcia, William Pacheco,
Antonio Gutierrez, and Anna Montoya’s (“County Defendants”) Motion for Order to Show
Cause Why Andrew Ross Should not be held in Contempt [Doc. 308], filed January 11, 2018.
Plaintiff Ross responded on January 12, 2018. [Doc. 310]. County Defendants replied on
January 15, 2018. [Doc. 311]. Having considered the briefing, the relevant portions of the
record, and the relevant law, and being otherwise fully advised in the premises, the Court will
grant the motion in part and reserve ruling in part.
Judgment was entered against Plaintiffs on October 2, 2017, in the amount of $26,020.59.
[Doc. 269]. A deposition in aid of execution of the judgment was set for January 9, 2018.
[Docs. 287, 299]. The notice of deposition required Plaintiff to bring certain documents to the
deposition. [Docs. 287, 299, 300]. Plaintiff appeared, but he did not bring any of the documents.
In fact, he did not cooperate at all. [Doc. 308] at 12. Plaintiff objected to the presence of
Angelique Wall. [Doc. 310] at 2–3; [Doc. 308] at 12. Apparently, Ms. Wall is a paralegal
assisting Defendant Richards, [Doc. 211] at 5–8, [Doc. 308] at 12, and Richards is an attorney
who represents himself pro se and who noticed the deposition, [Docs. 287, 299]. Plaintiff
alleges, however, that Ms. Wall was involved in the disputes that gave rise to this lawsuit in the
first place. [Doc. 309] at 1–2. He urges that her presence was meant to distress him; he likens it
to “bringing a Nazi in full Nazi regalia to a holocaust survivor’s home.” Id. at 2. Plaintiff
refused to be sworn or answer any questions at the deposition unless Ms. Wall left the room or
2

unless she answered Plaintiff’s own questions about her involvement in the underlying disputes.
[Doc. 308] at 12. The deposition concluded after about five minutes. Id.
County Defendants move the Court to order Plaintiff to appear in person to show cause
why he should not be sanctioned and held in contempt for failing to cooperate in the deposition.
County Defendants ask the Court to impose whatever punishment it deems appropriate. Finally,
County Defendants ask the Court to reset the deposition to occur under its supervision.
[Doc. 308].
Plaintiff Ross argues that Ms. Wall was present at the deposition, not to assist
Mr. Richards, but to harass and emotionally distress Plaintiff. [Doc. 310] at 2. The Court has
recently denied Plaintiff’s Third Motion for Protective Order, which sought to preclude any
future deposition. [Doc. 313]. The Court agrees with Defendants that the deposition should be
reset. The undersigned will be present at the courthouse to rule on objections.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that County
Defendants’ Motion for Order to Show Cause Why Andrew Ross Should not be held in
Contempt [Doc. 308] be GRANTED IN PART. The deposition of Plaintiff Ross in aid of
execution of the judgment will take place on Wednesday, February 14, 2018, at 9:00 a.m. in
the Pecos Courtroom of the Pete V. Domenici United States Courthouse at 333 Lomas Boulevard
Northwest in Albuquerque, New Mexico. Counsel for County Defendants, Mr. Dickman, will
retain a court reporter. See [Doc. 311]. This Order shall constitute notice of the deposition.

3

Plaintiff is again admonished that his failure to appear, to bring the requested
documents,2 or to cooperate with the deposition could result in sanctions being imposed
against him, including contempt of court. See Fed. R. Civ. P. 37(d)(1)(A)(i) (court may order
sanctions where a party “fails, after being served with proper notice, to appear for that person’s
deposition”); O’Connor v. Midwest Pipe Fabrications, Inc., 972 F.2d 1204, 1210 (10th Cir.
1992). The penalties for contempt include fines and incarceration.
IT IS FURTHER ORDERED that RULING be RESERVED on County Defendants’
request to order Plaintiff Ross to show cause why he should not be held in contempt.
IT IS SO ORDERED.

_____________________________
STEPHAN M. VIDMAR
United States Magistrate Judge

2

The list of required documents is attached to the Amended Notice of Deposition [Doc. 299], as modified by the
Court’s order [Doc. 300] at 4.

4