Ross et al v. Balderas et al

Filing 334

ORDER by Magistrate Judge Stephan M. Vidmar DENYING 330 Defendant Richards' Motion for Order to Show Cause Why Andrew Ross Should Not Be Held in Contempt of Court (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
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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 DENYING DEFENDANT RICHARDS’
MOTION FOR ORDER TO SHOW CAUSE WHY
ANDREW ROSS SHOULD NOT BE HELD IN CONTEMPT
THIS MATTER is before the Court on Defendant Richards’ Motion for Order to Show
Cause Why Andrew Ross Should Not Be Held in Contempt of Court [Doc. 330], filed on
February 23, 2019. Plaintiff Ross responded on March 7, 2019. [Doc. 331]. Defendant Richards
replied on March 11, 2019. [Doc. 332]. 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
deny the Motion.
Background
Judgment was entered against Plaintiffs more than 17 months ago, 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 did not bring any of
the documents. In fact, he did not cooperate at all. [Doc. 308] at 12.
Defendants Robert Garcia, William Pacheco, Antonio Gutierrez, and Anna Montoya
(“County Defendants”) moved 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.
[Doc. 308]. They asked the Court to impose whatever punishment it deemed appropriate and to
reset the deposition to occur under its supervision. [Doc. 308]. The Court agreed in part and reset
the deposition to occur at the courthouse under its supervision on February 14, 2018. [Doc. 315]

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at 3. However, the Court reserved ruling on the request to order Plaintiff Ross to show cause why
he should not be sanctioned and held in contempt. Id. at 4.
With agreement and cooperation from all involved, the deposition was reset to April 19,
2018. [Doc. 321]. On April 19, 2018, all interested counsel and Plaintiff Ross appeared at the
courthouse as ordered for the deposition. [Doc. 325]. However, before the deposition could take
place, the parties reached a settlement agreement. See id. at 2. Pursuant to the settlement
agreement, Plaintiff Ross agreed to pay $2,707.81 to Defendant Richards in monthly installments
of $113. Id. Based on the parties’ settlement agreement, the Court denied as moot the request 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 January deposition. [Doc. 326].
Now, 11 months later, Richards complains that Plaintiff has failed to make the settlement
payments as agreed. [Doc. 330]. Richards alleges that Plaintiff has made only two payments,
totaling $225.86. Id. at 2. Richards asks 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 comply with the
settlement agreement. Id. at 1. Richards further requests that the Court order Plaintiff to appear
at a deposition under the Court’s supervision. Id. at 2–3. Plaintiff responds that he is indigent and
cannot make his settlement payments. [Doc. 331]. He further argues that contempt is not an
appropriate sanction for failure to make settlement payments. Id. Richards, however, is convinced
that Plaintiff is hiding his assets. [Doc. 332] at 1. He asks to Court to “stop this travesty of justice
and sanction Ross[.]” Id. at 3. Other than Richards’ general reference to the “inherent power to

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control matters before the Court,” [Doc. 332] at 3, neither party cites any legal authority in support
of his positions.
Analysis
Defendant Richards’ arguments fail to persuade the Court that any sanction is warranted at
this time. He provides no authority for holding Plaintiff in contempt or otherwise sanctioning him
for failing to make his settlement payments, and the Court is unaware of any such authority.
Similarly, the Court is not persuaded that contempt or any other sanction is warranted
arising from the April 19, 2018 hearing. See [Doc. 330] at 2. The Clerk’s Minutes reflect that at
the April 19, 2018 hearing, “Mr. Ross . . . turned over all documents requested in the notice of
deposition.” [Doc. 325] at 2. Now, nearly a year later, however, Richards claims that some of the
requested documents were not provided. [Doc. 330] at 2. He elaborates no further. He gives no
indication which documents are missing or how their absence affects his position. See id. These
facts, as presented by Richards, fail to show that contempt or any other sanction is warranted.
Additionally, the Court declines to entertain sanctions for alleged conduct in other lawsuits. See
[Doc. 332] at 1–3.
Finally, Richards asks the Court to preside over “a future deposition,” [Doc. 330] at 2–3,
but he does not indicate what the purpose of the deposition would be. When the Court agreed to
preside over the deposition in April of 2018, the case was in a different posture. At that time, a
deposition in aid of execution had already been noticed, and Plaintiff had failed to cooperate. See
[Doc. 315]. Today, no deposition has been noticed. Nor has Richards indicated what purpose a
deposition would serve. (The Court might infer that the purpose of the deposition would be to aid
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in the execution of the judgment, but such would only be an inference.) Defendant Richards fails
to show that the Court should order a deposition.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Defendant
Richards’ Motion for Order to Show Cause Why Andrew Ross Should Not Be Held in Contempt
of Court [Doc. 330] be DENIED.
IT IS SO ORDERED.

_____________________________
STEPHAN M. VIDMAR
United States Magistrate Judge

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