Howard v. City of Albuquerque et al
Filing
64
MEMORANDUM OPINION AND ORDER granting 32 MOTION to Stay Proceedings Pending Determination of Competency by District Judge James O. Browning. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MAJESTIC HOWARD, individually, and
MAJESTIC HOWARD as Guardian of
MAJESTY HOWARD, MAJESTIC
HOWARD, JR., and KARISMA STRONG,
Plaintiff,
vs.
No. CIV 17-0855 JB\LF
CITY OF ALBUQUERQUE; OFFICER
JONATHAN FRANCO, individually;
OFFICER BEN DAFFRON, individually;
OFFICER JOSHUA CHAFIN, individually, and
SONNY MOLINA, individually,
Defendants.
MEMORANDUM OPINION1
THIS MATTER comes before the Court on the Motion to Stay. The Court held a
hearing on June 5, 2018. The primary issue is whether the Court should stay the case for a
determination of Plaintiff Majestic Howard’s competency after the Honorable Judge Pedro G.
Rael, District Judge for the Counties of Cibola, Sandoval, and Valencia, Thirteenth Judicial
District Court, State of New Mexico, declared Howard, a defendant in a state criminal trial,
incompetent and while Howard awaits results of guardianship proceedings before the Honorable
Carl J. Butkus, District Judge for the County of Bernalillo, Second Judicial District Court, State
of New Mexico. The Court granted the Motion to Stay on August 6, 2018 in its Order, filed
August 6, 2018 (Doc. 61), because questions about Howard’s competency put his counsel in the
1
This Memorandum Opinion follows the Order, filed August 6, 2018 (Doc. 61), disposing
of the Plaintiff’s Motion to Stay Proceedings Pending Determination of Competency and
Memorandum in Support, filed March 12, 2018 (Doc. 32)(“Motion to Stay”). In the Order, the
Court did not indicate that a Memorandum Opinion would follow. The Court intended, however,
to issue, at a later date, a Memorandum Opinion more fully detailing its rationale for the
decision.
case in a difficult position, and the Defendants could obtain the discovery they desire after
Howard resolves competency questions. The Court stays the case in federal court pending a
determination of Howard’s competency and orders the parties to provide the Court case status
reports every forty-five days.
FACTUAL BACKGROUND
The Court takes its facts from the Complaint for Violations of Civil Rights Pursuant to
42 U.S.C. §§ 1983 and 1988 and the New Mexico Tort Claims Act and for Damages, D-202-CV2017-04545 (Second Judicial District Court, County of Bernalillo, State of New Mexico, filed
June 23, 2017), filed in federal court August 21, 2017 (Doc. 1-1)(“Complaint”). The Court
provides these facts for background. It does not adopt them as the truth, and it recognizes that
these facts are largely Howard’s version of events.
A month and a half before the events disputed in this matter, on September 14, 2015,
Howard received a gunshot to the head. See Complaint ¶ 18, at 4; Motion to Stay at 1. To
address the injury, a surgeon removed part of Howard’s skull. See Complaint ¶ 18, at 4; Motion
to Stay at 1. The incident and operation left Howard especially vulnerable to head injuries, and
Howard alleges that the Individual Defendants -- officers Jonathon Franco, Ben Daffron, Joshua
Chaffin, and Sonny Molina -- knew this vulnerability when the encounter leading to this dispute
occurred. See Complaint ¶ 18, at 4; Motion to Stay at 1.
The interaction at issue here resulted when Howard activated a bait vehicle on October
30, 2015.2 See Complaint ¶ 12, at 3. After initially fleeing the Individual Defendants -- officers
2
Law enforcement use bait vehicles to catch thieves stealing cars or items from cars. See
Bait car, Wikipedia, https://en.wikipedia.org/wiki/Bait_car. Law enforcement often monitor, and
-2-
Franco, Daffron, Chaffin, and Molina, Howard sat with his hands raised. See Complaint ¶¶ 1314, at 3. At that point, Defendants Franco and Molina “forcibly pulled” and pinned Howard to
the ground. Complaint ¶ 15. Franco and Daffron proceeded to strike Howard several times,
while Daffron -- as Franco struck Howard, Chaffin, and Molina stood by, verbally abusing
Howard and not intervening. See Complaint ¶ 15, at 3; id. ¶ 17, at 4; id. ¶¶ 20-23, at 4. During
the encounter, Howard lost consciousness. See Complaint ¶ 24, at 4. While the Individual
Defendants asked Howard if he required medical attention, an Individual Defendant opined that
they should not take Howard to the hospital. See Complaint ¶ 24, at 4. According to Howard, he
suffered serious injuries from the excessive force that the Individual Defendants employed. See
Complaint ¶¶ 39-40, at 7. The Individual Defendants did not properly report the incident, and
the Albuquerque, New Mexico Police Department (“APD”) did not take appropriate
investigatory or disciplinary action, or address repeated excessive force incidents within the
APD. See Complaint ¶¶ 26-40, at 5-7. According to Howard, he did not threaten the Individual
Defendants. See Complaint ¶ 16, at 4.
On August 14, 2017, Judge Rael found Howard incompetent for trial in a New Mexico
criminal case, Cause Number D-1333-CR-201600160. See State of New Mexico v. Majestic
Howard, D-1333-CR-201600160, Nolle Prosequi at 1 (Thirteenth Judicial District, County of
Cibola, New Mexico, filed March 14, 2017), filed in federal court March 12, 2018 (Doc. 32-1).
The Honorable Charles Brown, District Judge for the County of Bernalillo, Second Judicial
District Court, State of New Mexico, also found Howard incompetent for criminal court in
October, 2017.
See Plaintiff’s Reply to Defendant Franco’s Response in Opposition to
sometimes control, the bait vehicle with technological devices, and this facilitates tracking and/or
stopping the thief. See Bait car, Wikipedia, https://en.wikipedia.org/wiki/Bait_car.
-3-
Plaintiffs’ Motion to Stay Proceedings Pending Determination of Competency and Memorandum
in Support at 2, filed April 6, 2018 (Doc. 42)(“Motion to Stay Reply”).3 Currently, Judge Butkus
has a guardianship and conservatorship proceeding for Howard pending before him. See Motion
to Stay at 2. Howard had a hearing in the proceeding on February 23, 2018. See Motion to Stay
at 2.
PROCEDURAL BACKGROUND
Howard filed suit on June 23, 2017, alleging: (i) that the Individual Defendants’
excessive force violates 42 U.S.C. § 1983, see Complaint ¶¶ 41-49, at 7-8; (ii) that the City of
Albuquerque’s policies, practices and customs condoning such conduct violates 42 U.S.C.
§ 1983, see Complaint ¶¶ 50-56, at 8-9; and (iii) that the Individual Defendants’ actions create
liability for a loss of consortium, see Complaint ¶¶ 57-60, at 9-10. On August 21, 2017, the
Defendants removed the case to federal court under federal-question jurisdiction. See Notice of
Removal ¶¶ 1-10, at 1-3, filed August 21, 2017 (Doc. 1).
1.
The Motion to Stay.
On March 12, 2018, Howard filed the Motion to Stay, requesting a stay in the proceeding
pending a determination of his competency under N.M. Stat. Ann. § 45-4-310. See Motion to
Stay at 1. Howard cites the gunshot wound, and injuries from Daffron and Franco, as causing his
incompetency. See Motion to Stay at 3. Howard explains that, around August 14, 2017, Judge
Rael found him incompetent for criminal trial, and he awaits a decision in guardianship
The New Mexico Courts Case Lookup demarks as “CLS:Nolle Prosequi” the cases listed
by Howard as dismissed for his incompetency -- D-202-CR 2015-3148, 2016-0765, 2016-1259,
2016-1585 -- on October 23, 2017. See State of New Mexico, Majestic Ervin Howard, New
Mexico Courts Case Lookup, https://caselookup.nmcourts.gov/caselookup/app.
3
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proceedings before Judge Butkus. See Motion to Stay at 2. Howard’s counsel in this matter
represent him in the guardianship proceedings and have concluded that he lacks competency to
prosecute this case. See Motion to Stay at 2. Howard cites Bruce v. Giconi, No. 14-CV-03232RM-NYM, 2015 WL 8959480, at *2 (D. Colo. Dec. 16, 2015)(Wang, M.J.); Galindo v.
American Paramedical, Services, No. 04-01108-CV-W-FJG, 2008 WL 2620885, at *1-3 (W.D.
Mo. June 30, 2008)(Gaitan, C.J), and Mil’chamot v. New York City Housing Authority, No. 15
CIV 108 (PAE), 2016 WL 659108, at *4 (S.D.N.Y. Feb. 16, 2016)(Engelmayer, J.) to illustrate
that courts have granted motions to stay when issues of competency arise. See Motion to Stay at
3.
3.
The Motion to Stay Response.
Franco responded to the Motion to Stay in Defendant Franco’s Response in Opposition to
Plaintiff’s Motion to Stay Proceedings Pending Determination of Competency, filed March 23,
2018 (Doc. 35)(“Motion to Stay Response”). Franco doubts Howard’s incompetency. See
Motion to Stay Response at 1-2.
Franco reasons that Howard’s counsel deemed Howard
competent when filing suit and then withheld from addressing Howard’s competency in a timely
manner in the federal case given that the criminal trial and guardianship proceeding raise the
competency issue. See Motion to Stay Response at 1-2. Franco also contends that Howard
requests an extension on Franco’s Motion to Unseal Criminal Records with no explanation. See
Motion to Stay Response at 3. Franco differentiates the cases that Howard cites from the facts in
the present matter: (i) in Bruce v. Giconi, a pro se plaintiff brought suit, so counsel did not
initiate a suit, see Motion to Stay Response, at 4-5 (citing 2015 WL 8959480, at *1); (ii) in
Galindo v. American Paramedical, Services, counsel questioned the plaintiff’s competency when
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a criminal trial began later than the civil proceeding, see Motion to Stay Response at 5 (citing
2008 WL 2620885, at *1); and (iii) in Mil’chamot v. New York City Housing Authority, a pro se
plaintiff raised his own incompetence after filing suit, see Motion to Stay Response at 6 (citing
2016 WL 659108, at *4). Franco complains about further delaying the case and requests, at
least, discovery on Howard’s competency. See Motion to Stay Response at 7-8.
4.
The Motion to Stay Reply.
In reply to Franco’s Motion to Stay Response, Howard files the Motion to Stay Reply.
Howard explains that his counsel commenced the guardianship proceedings shortly following
Judge Rael’s incompetency finding. See Motion to Stay Reply at 1-2. Further, Howard argues
that Franco’s complaints support staying the proceeding; Howard’s incompetency prevents him
from participating in the case, including from answering discovery. See Motion to Stay Reply at
2.
2.
The Motion to Compel and the Motion to Unseal Criminal Records.
On March 10, 2018, Franco filed the Defendants’ First Motion to Compel Initial
Disclosures, Discovery Responses, Costs and Fees, filed March 10, 2018 (Doc. 29)(“Motion to
Compel”), asking the Court to compel from Howard complete initial disclosures -- namely,
healthcare providers, HIPPA compliant releases,4 and damages calculations -- and responses to
interrogatories and requests for production. Motion to Compel at 1-2. Franco contends that
4
HIPAA, the Health Insurance Portability and Accountability Act of 1996, Pub. L. 104191, 110 Stat.1936 (1996)(codified as amended at 18 U.S.C. §§ 24, 669, 1035, 1347, 1518, 3486;
26 U.S.C. §§ 220, 4980C-80E, 6039F, 6050Q, 7702B, 9801-06; 29 U.S.C. §§ 1181-87, 42
U.S.C. §§ 300gg, 300gg-11 to -13, 300gg-21 to -23, 300gg-41 to -47, 300gg-91, 300gg-92,
1320a-7c to -7e, 1320d, 1320d-1 to -8, 1395b-5, 1395ddd) limits the use or disclosure of
“protected health information” to third parties. See Uses and Disclosures of Protected Health
Information: General Rules, 45 C.F.R. § 164.502 (2018).
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Howard has responded to no discovery requests. See Motion to Compel at 5. On March 12,
2018, Franco filed the Motion to Unseal Criminal Records Concerning Plaintiff Majestic
Howard’s Competency Proceedings, filed March 12, 2018 (Doc. 30)(“Motion to Unseal Criminal
Records”). Franco asks to unseal documents about Howard’s competency from nine criminal
cases, because: (i) Howard has not responded to Franco’s discovery requests; (ii) Howard
retained competency to file the present case; (iii) Howard has alleged incompetency in several
cases proceeding this one; (iv) Franco cannot evaluate the Motion to Stay without the requested
documents; and (v) Howard puts his competency at issue. See Motion to Unseal Criminal
Records at 2.
5.
The Hearing.
The Court held a hearing on the Motion to Stay on June 5, 2018. The Court indicated
that it planned to grant the Motion to Stay, because: (i) Howard’s counsel would not likely
manufacture an incompetency, which “create a lot of problems” for plaintiffs, Transcript of
Hearing at 5:19-21 (taken June 5, 2018)(Court)(“Tr.”),5 and (ii) rule 17(c) of the Federal Rules of
Civil Procedure requires courts to ensure plaintiff’s competency, see Tr. at 6:4-6 (Court).6 The
The Court’s citations to the transcript of the hearing refer to the court reporter’s original,
unedited version. Any final transcript may contain slightly different page and/or line numbers.
5
6
Rule 17(c) provides:
(c) Minor or Incompetent Person.
(1) With a Representative. The following representatives may sue or
defend on behalf of a minor or an incompetent person:
(A) a general guardian;
(B) a committee;
-7-
City of Albuquerque, Daffron, Chalin, and Molina contended that the Defendants cannot
evaluate the reason for the stay or Howard’s incompetency. See Tr. at 6:19-22 (Nixon); id. at
8:18-19 (Roman); id. at 8:25-9:1 (Roman).
The City argued that Howard has alleged
incompetency in proceedings since 2010, and Howard ignored the Defendants’ discovery
requests until he notified them of the incompetency issue. See Tr. at 6:23-7:12 (Nixon). The
Court asked “what concern” the delay in discovery raises, because “[i]t’s hard for [Howard’s
counsel] to get the discovery into [the Defendants’] hands” if Howard is incompetent. Tr. at
7:13-18 (Court).
The City of Albuquerque contended that filing suit is inconsistent with
asserting incompetency. See Tr. at 7:23-8:9 (Nixon).
Franco contended that he doubted Howard’s incompetence based on the timeline leading
to the hearing. See Tr. at 12:19-14:7 (Martinez). Franco also opposed delaying the trial and
complained that he could not obtain discovery. See Tr. at 17:15-24 (Martinez); id. at 15:7-16:6
(Martinez). Franco explained:
So the problem in this case, Your Honor, is that the competency issue was raised
well after the [D]efendants provided discovery requests to the [P]laintiff. And so
this proceeding has been delayed. [There] has been no evidence at all before this
Court that the [P]laintiff is incompetent. And the [D]efendants have been
(C) a conservator; or
(D) a like fiduciary.
(2) Without a Representative. A minor or an incompetent person who
does not have a duly appointed representative may sue by a next friend or
by a guardian ad litem. The court must appoint a guardian ad litem -- or
issue another appropriate order -- to protect a minor or incompetent person
who is unrepresented in an action.
Fed. R. Civ. P. 17(c).
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deprived of the evidence submitted under seal and in a separate proceeding. So
we can’t even evaluate the appropriateness of the submission.
Tr. at 17:15-24 (Martinez). Franco cited Regency Health Services v. Superior Court, 76 Cal.
Rptr. 2d 95 (Cal. Ct. App. 1998) for the proposition that plaintiffs cannot use incompetency to
avoid discovery:
Here, plaintiff seeks to avoid these common discovery duties by not answering at
all. Although particularized protective orders can be appropriate in special
circumstances, plaintiff’s claim of a generalized exemption from discovery on the
basis of incompetency is unprecedented and unsupportable. We hold therefore
that a ward has no general right to evade discovery, and that a guardian ad litem
has the authority to subject to the court’s ultimate supervision to verify proper
responses to interrogatories on behalf of the board.
Tr. at 16:25-17:14 (Martinez)(citing Regency Health Servs. v. Superior Court, 76 Cal.
Rptr. 2d at 100).
Howard’s counsel contended that they believed in good faith that Howard was competent
when he filed suit. See Tr. at 26:9-13 (Gorence). They described their last meeting with
Howard: “[H]e did not recognize [counsels’ names], did not understand what was happening
with regard to the representation in any of these cases.” Tr. at 9:23-10:1 (Gorence). Howard’s
counsel explained that they initiated the guardianship proceeding on November 20, 2017. See
Tr. at 10:7-10 (Gorence). Judge Butkus appointed a Guardian ad Litem on February 23, 2018,
and a court visitor7 on May 14, 2018, but Judge Butkus had yet to decide whether to appoint a
permanent guardian. See Tr. at 10:11-11:2 (Gorence). In response to the Court’s prompting,
7
The court visitor investigates the allegedly incompetent person and reports the findings
to the court. See Patricia M. Galindo, Administrative Office of the Courts, Adult Guardianship
and Conservatorship: Overview of New Mexico Law and Court Process,
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ve
d=2ahUKEwiTu_jOku3dAhVsFzQIHexOCVIQFjABegQICBAC&url=https%3A%2F%2Fcms.n
mcourts.gov%2Fuploads%2Ffiles%2FNMAG%2520Study%2520Commission_28Apr17_disclai
mer.pdf&usg=AOvVaw2AI_GWEZsNH-1RKtqvlpLE.
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Howard confirmed that he did not expect that the Court would make a competency decision -rather, a guardian ad litem would prosecute the case. See Tr. at 11:10-21 (Gorence). Addressing
the Defendants’ concerns about the documents under seal in state criminal proceedings, Howard
argued that the guardianship proceeding involved confidential mental health concerns, and
Howard could share the information after the proceeding, when the parties could re-litigate the
issue before the Court. See Tr. at 26:19-27:17 (Gorence).
Franco objected to relying on the state court’s incompetency findings. See Tr. at 14:1215:6 (Martinez). According to Franco, courts find defendants in New Mexico criminal cases
competent if the defendants “can understand the nature and significance of the criminal
proceedings against [them] . . . , ha[ve] a factual understanding of the criminal charges,
and . . . [are] able to assist [their] attorney[s] in [their] defense[s].”
Tr. at 14:12-16
(Martinez)(citing N.M. Stat. Ann. § 14-5-104). Franco contended that rule 17(c) “contemplate[s]
that the plaintiff is unrepresented,” Tr. at 14:18-19 (Martinez), and, in New Mexico civil cases,
courts presume parties’ “competence,” Tr. at 14:23-15:6 (Martinez)(citing N.M. Stat. Ann.
§ 45-5-301(i)(“[T]here is a legal presumption of capacity”)). Franco admitted that he could not
find the standard for competence under rule 17. See Tr. at 20:6-13 (Martinez).
The Court confirmed that Franco wants to obtain discovery and to view the documents
under seal in the state criminal proceedings. See Tr. at 21:6-22:14 (Court, Martinez). In
response to the Court’s question about what he wanted to do “with the case itself,” Tr. at 22:17
(Court), Franco requested that, after Judge Butkus’ decision, the parties argue Howard’s
competence before the Court, see Tr. at 22:18-23:1 (Martinez). The Court asked what difference
the appointment of a guardian ad litem makes in this case; the Court would not inquire into
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competency if a guardian ad litem had brought the suit. See Tr. at 23:2-12 (Court). Franco
reasoned that, if Judge Butkus appoints a guardian ad litem, Howard would no longer be the
party in interest. See Tr. at 24:1-9 (Martinez). According to Franco, the guardian ad litem
would have to intervene, and the Court would have to reach findings on Howard’s competence.
See Tr. at 24:10-19 (Martinez).
The Court concluded that it would stay the case, because competency issues “put[] the
defense lawyer in the criminal case and plaintiff’s lawyer in this case in a difficult position of
figuring out what they can really do and can’t do without a client.” See Tr. at 28:5-8 (Court).
The Court stated that Franco could obtain the desired discovery following the guardianship
proceeding. See Tr. at 28:15-21 (Court). Finally, the Court requested a status report every fortyfive days. See Tr. at 28:22-29:2 (Court).
LAW REGARDING STAYS
A court has broad discretion in managing its docket, which includes decisions regarding
issuing stays for all or part of a proceeding.
See Clinton v. Jones, 520 U.S. 681, 706
(1997)(“The District Court has broad discretion to stay proceedings as an incident to its power to
control its own docket.” (citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936))).
[T]he power to stay proceedings is incidental to the power inherent in every court
to control the disposition of the causes on its docket with economy of time and
effort for itself, for counsel, and for litigants. How this can best be done calls for
the exercise of judgment, which must weigh competing interests and maintain an
even balance.
Landis v. N. Am. Co., 299 U.S. at 254-55. Recognizing that district courts must exercise
moderation in issuing stays, the Supreme Court has noted that there are no strict rules for the
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district court to apply, because “[s]uch a formula . . . is too mechanical and narrow.” Landis v.
N. Am. Co., 299 U.S. at 255.
The party seeking a stay generally faces a difficult burden. See Clinton v. Jones, 520
U.S. at 708 (“The proponent of a stay bears the burden of establishing its need.”); S2 Automation
LLC v. Micron Tech., Inc., No. CIV 11-0884 JB/WDS, 2012 WL 3150412, at *2 (D.N.M. July
23, 2012)(Browning, J.)(citing Commodity Futures Trading Comm’n v. Chilcott Portfolio
Mgmt., Inc., 713 F.2d 1477, 1484 (10th Cir. 1983)). “In particular, where a movant seeks relief
that would delay court proceedings by other litigants he must make a strong showing of necessity
because the relief would severely affect the rights of others.” Commodity Futures Trading
Comm’n v. Chilcott Portfolio Mgmt., Inc., 713 F.2d at 1484. “The underlying principle clearly
is that ‘the right to proceed in court should not be denied except under the most extreme
circumstances.’” Commodity Futures Trading Comm’n v. Chilcott Portfolio Mgmt., Inc., 713
F.2d at 1484 (alterations omitted)(quoting Klein v. Adams & Peck, 436 F.2d 337, 339 (2d Cir.
1971)).
The United States Court of Appeals for the Tenth Circuit has acknowledged a district
court’s discretion in issuing discovery stays. In Cole v. Ruidoso Municipal Schools, 43 F.3d
1373 (10th Cir. 1994), the defendants argued “that they had an absolute right to a stay of
discovery” after they filed a motion for qualified immunity and appealed to the Tenth Circuit,
because the district court imposed conditions on the stay. 43 F.3d at 1386. The Tenth Circuit
rebuffed the strict rules that the defendants suggested:
As a general rule, discovery rulings are within the broad discretion of the trial
court. The trial court’s decision on discovery matters will not be disturbed unless
the appellate court has a definite and firm conviction that the lower court made a
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clear error of judgment or exceeded the bounds of permissible choice in the
circumstances.
Cole v. Ruidoso Mun. Sch., 43 F.3d at 1386 (citations omitted)(internal quotation marks
omitted).
Whether to issue a discovery stay depends greatly on the facts and progress in each case.
The Court has noted that “[d]efendants in civil cases face an uphill battle in putting the brakes on
discovery.”
Fabara v. GoFit, LLC, No. CIV 14-1146 JB/KK, 2015 WL 3544296, at *11
(D.N.M. May 13, 2015)(Browning, J.). Defendants particularly struggle “where there are a
relatively small number of factual issues, the plaintiff’s discovery requests are not particularly
burdensome, and the defendant has not shown how it will suffer prejudice from them . . . .”
Fabara v. GoFit, LLC, 2015 WL 3544296, at *11.
In S2 Automation LLC v. Micron
Technology, the Court granted in part and denied in part a motion to stay discovery, to extend
pretrial deadlines, to vacate the trial setting, and to issue a protective order. See 2012 WL
3150412, at *1. The Court denied the motion to the extent it requested a discovery stay, because,
“[u]ltimately, a stay [was] unnecessary.” 2012 WL 3150412, at *3. The parties had made
“significant progress on the disputed matters,” and the Court had “issued rulings on many of the
motions that Micron Technology contended needed to be resolved before the case proceeded.”
2012 WL 3150412, at *3. Instead of granting the discovery stay, the Court extended deadlines
that it had previously set in the case based on the case’s increasing complexity. See 2012 WL
3150412, at *3. In Walker v. THI of New Mexico at Hobbs Center, No. CIV 09-0060 JB/KBM,
2011 WL 2728326 (D.N.M. June 28, 2011)(Browning, J.), the Court evaluated whether to stay
deposition discovery until thirty days after it ruled on the motions to dismiss two of the
defendants, which would determine whether those defendants would remain in the suit and
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participate in discovery. See 2011 WL 2728326, at *1. The plaintiffs argued that the Court had
already extended discovery deadlines and that issuing a stay would require rescheduling
deadlines. See 2011 WL 2728326, at *1. The Court denied the motion to stay, because it did
“not see a benefit to staying discovery.” 2011 WL 2728326, at *2. The Court noted that counsel
for the two defendants who were subject to the motions to dismiss had already indicated that they
would not participate in deposition discovery. See 2011 WL 2728326, at *2. The Court stated:
“There is thus no benefit to staying deposition discovery, and staying deposition discovery would
further delay the case.” 2011 WL 2728326, at *2. See Benavidez v. Sandia Nat’l Labs, No. CIV
15-0922 JB/LF, 2016 WL 6404798 (D.N.M. Sept. 27, 2016)(Browning, J.)(denying stay when
“[t]here [was] no reason to put the Defendants to the trouble and expense of having to wait and
file another motion -- largely regarding the same issues that are already before the Court in the
pending Motion to Dismiss --while the Plaintiffs get all of their ducks in a row.”).
LAW REGARDING RULE 26
Rule 26(a) of the Federal Rules of Civil Procedure requires parties to make initial
disclosures to the other parties, relaying:
(i) the name and, if known, the address and telephone number of each individual
likely to have discoverable information -- along with the subjects of that
information -- that the disclosing party may use to support its claims or defenses,
unless the use would be solely for impeachment;
(ii) a copy -- or a description by category and location -- of all documents,
electronically stored information, and tangible things that the disclosing party has
in its possession, custody, or control and may use to support its claims or
defenses, unless the use would be solely for impeachment;
(iii) a computation of each category of damages claimed by the disclosing party -who must also make available for inspection and copying as under Rule 34 the
documents or other evidentiary material, unless privileged or protected from
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disclosure, on which each computation is based, including materials bearing on
the nature and extent of injuries suffered; and
(iv) for inspection and copying as under Rule 34, any insurance agreement under
which an insurance business may be liable to satisfy all or part of a possible
judgment in the action or to indemnify or reimburse for payments made to satisfy
the judgment.
Fed. R. Civ. P. 26(a)(1). Rule 26(e) requires a party who has made a disclosure under rule
26(a) -- or who has responded to an interrogatory, request for production, or request for
admission -- to supplement or correct its disclosure or response in a timely manner if it learns
that the disclosure or response is incomplete or incorrect. See Fed. R. Civ. P. 26(e).
LAW REGARDING MOTIONS TO COMPEL
Rule 37 provides enforcement mechanisms. According to rule 37, if a party does not
respond to an interrogatory or to a request for production, the party requesting the discovery may
move the Court to compel the opposing party to respond. See Fed. R. Civ. P. 37(a)(2)(B). “[A]n
evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose,
answer, or respond.” Fed. R. Civ. P. 37(a)(4). See Lewis v. Goldberry, No. CIV 11–0283
JB/ACT, 2012 WL 681800, at *4 (D.N.M. Feb. 27, 2012)(Browning, J.). Rule 37(a) provides:
On notice to other parties and all affected persons, a party may move for an order
compelling disclosure or discovery. The 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.
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Fed. R. Civ. P. 37(a). If a party refuses to produce documents through proper discovery, a
defendant should move to compel production pursuant to rule 37. See Lane v. Page, 727
F. Supp. 2d 1214, 1236 n.15 (D.N.M. 2010)(Browning, J.).8
Rule 37 prescribes sanctions for parties who fail to comply with discovery until after a
motion to compel is filed against them. With some exceptions, when a party is compelled to
provide discovery, or provides the discovery only after a motion to compel has been filed against
it, rule 37(a)(5) requires the court to order the responding party to pay the movant’s reasonable
expenses incurred in filing the motion. Rule 37(a)(5) provides:
(5) Payment of Expenses; Protective Orders.
(A) If the Motion Is Granted (or Disclosure or Discovery Is
Provided After Filing). If the motion is granted -- or if the
disclosure or requested discovery is provided after the motion was
filed -- the court must, after giving an opportunity to be heard,
require the party or deponent whose conduct necessitated the
motion, the party or attorney advising that conduct, or both to pay
the movant’s reasonable expenses incurred in making the motion,
including attorney’s fees. But the court must not order this
payment if:
(i) the movant filed the motion before attempting in
good faith to obtain the disclosure or discovery
without court action;
(ii) the opposing party’s nondisclosure, response, or
objection was substantially justified; or
(iii) other circumstances make an award of expenses
unjust.
(B) If the Motion Is Denied. If the motion is denied, the court may
issue any protective order authorized under Rule 26(c) and must,
after giving an opportunity to be heard, require the movant, the
See also D.N.M.L.R. Civ. 7.1(a)(“Movant must determine whether a motion is opposed,
and a motion that omits recitation of a good-faith request for concurrence may be summarily
denied.” (emphasis added)).
8
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attorney filing the motion, or both to pay the party or deponent
who opposed the motion its reasonable expenses incurred in
opposing the motion, including attorney’s fees. But the court must
not order this payment if the motion was substantially justified or
other circumstances make an award of expenses unjust.
(C) If the Motion Is Granted in Part and Denied in Part. If the
motion is granted in part and denied in part, the court may issue
any protective order authorized under Rule 26(c) and may, after
giving an opportunity to be heard, apportion the reasonable
expenses for the motion.
Fed. R. Civ. P. 37(a)(5). Where parties have taken legitimate positions, and the Court grants in
part and denies in part a motion to compel discovery responses, courts generally conclude that
justice requires that each party be responsible for their own fees and costs. See Pulsecard, Inc. v.
Discover Card Servs., 168 F.R.D. 295, 310-11 (D. Kan. 1996)(Rushfelt, M.J.); Greater Rockford
Energy & Tech. Corp. v. Shell Oil Co., 138 F.R.D. 530, 539 (C.D. Ill. 1991)(Mills, J.).
ANALYSIS
Howard requests a stay pending the incompetency proceeding before Judge Butkus. The
Defendants object to Howard’s claims of incompetency and seek responses to previous discovery
requests and sealed documents related to Howard’s mental state. The Court grants the stay and
requests status reports every forty-five days, because the Court finds Howard’s request for a stay
compelling and foresees little prejudice to the Defendants.
Rule 17(c) of the Federal Rules of Civil Procedure addresses courts’ duties regarding
incompetent persons. It provides:
(c) Minor or Incompetent Person.
(1) With a Representative. The following representatives may sue or
defend on behalf of a minor or an incompetent person:
(A) a general guardian;
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(B) a committee;
(C) a conservator; or
(D) a like fiduciary.
(2) Without a Representative. A minor or an incompetent person who
does not have a duly appointed representative may sue by a next friend or
by a guardian ad litem. The court must appoint a guardian ad litem -- or
issue another appropriate order -- to protect a minor or incompetent person
who is unrepresented in an action.
Fed. R. Civ. P. 17(c). “[T]he language of the Rule makes the obligation mandatory. . . .”
Dangim v. FNU LNU, USA Law Enf’t, No. CV 16-0812 JB/SCY, 2017 WL 3149359, at *2
(D.N.M. June 2, 2017)(Browning, J.)(internal quotation marks omitted)(quoting Powell v.
Symons, 680 F.3d 301, 303 (3d Cir. 2012)). Thus, the Court has a duty to ensure that Howard is
competent. While the Motion to Stay does not ask the Court to reach a determination about
Howard’s competency, rule 17(c) puts pressure on the Court to consider seriously the concerns
Howard raised.
Because Howard requests to stay his own efforts to obtain relief, the Court finds the
motion compelling. Howard obtains little if adjudicated incompetent. He will, in fact, likely
suffer from a determination of incompetency. Such a decision may deprive Howard of his own
testimony -- his likely only or at least most favorable testimony -- before a fact-finder severely
limiting his ability to present his case. Howard’s case, after all, depends on his story about the
events in October, 2015.
The Defendants complain about delays in discovery and an inability to obtain desired
information. The Court, however, concludes that the delays are reasonable given the doubts
about Howard’s competency. Howard’s counsel cannot provide sound discovery responses
when the client may not comprehend that he is involved in litigation. Howard’s counsel should
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consider Howard’s decisions in litigating the case.9 Howard’s potential incompetency raises, at a
minimum, practical challenges to progressing the litigation at this time. At the hearing, the
Defendants cited Regency Health Services v. Superior Court to argue that incompetency is not
an excuse for ignoring discovery requests, but the excerpt quoted reveals that, in that case, a
guardian filed suit.10 Thus, the facts are distinguishable from the situation here, where the
Defendants ask Howard’s counsel to proceed despite concerns about the client’s competency.
The Court also concludes that staying the case will not impair the Defendants’ ability to
address their concerns about discovery or their doubts about Howard’s incompetency. Howard
can satisfy the Defendants’ discovery requests after the case resumes. Howard offers to provide
the Defendants the sealed documents pursuant to “an appropriate confidentiality order”
following the proceedings before Judge Butkus. Tr. at 26:20-21 (Gorence.) Thus, the stay will
9
The Rules of Professional Conduct reflect the active, informed role clients ideally should
play in the lawyer-client relationship. See, e.g., New Mexico Rules of Prof’l Conduct rule 16102(A) (State Bar of New Mexico 2005)(“Client’s Decisions. A lawyer shall abide by a client's
decisions concerning the objectives of representation, subject to Paragraphs C, D and E, and
shall consult with the client as to the means by which they are to be pursued. . . .”); New Mexico
Rules of Prof’l Conduct rule 16-104(B) (“Client’s Informed Decision-Making. A lawyer shall
explain a matter to the extent reasonably necessary to permit the client to make informed
decisions regarding the representation.”).
10
The Defendants quoted:
Here, plaintiff seeks to avoid these common discovery duties by not answering at
all. Although particularized protective orders can be appropriate in special
circumstances, plaintiff’s claim of a generalized exemption from discovery on the
basis of incompetency is unprecedented and unsupportable. We hold therefore
that a ward has no general right to evade discovery, and that a guardian ad litem
has the authority to subject to the court’s ultimate supervision to verify proper
responses to interrogatories on behalf of the board.
Tr. at 16:25-17:14 (Martinez)(citing Regency Health Servs. v. Superior Court, 76 Cal. Rptr. 2d at
100.
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not deprive the Defendants of this information. Likewise, Howard concedes that the Defendants
could litigate competency before the Court “if [they] want[] a second bite at the apple” if the
Court and the Defendants do not “want to . . . give full faith and credit to a state judge.” Tr. at
26:23-27:2 (Gorence). Accordingly, the stay will not prejudice the Defendants much, if at all.11
The Court, thus, concludes that a stay is warranted. Accordingly, in its Order, the Court
ordered that: (i) Plaintiff’s Motion to Stay Proceedings Pending Determination of Competency
and Memorandum in Support, filed March 12, 2018 (Doc. 32), was granted; (iii) the case was
stayed pending a determination of Howard’s competency; and (iii) the parties should give the
Court status reports every forty-five days of the case’s progress.
________________________________
UNITED STATES DISTRICT JUDGE
11
The cases that Howard cites in the Motion to Stay -- Bruce v. Giconi, Galindo v.
American Paramedical, Services, and Mil’chamot v. New York City Housing Authority -demonstrate that courts in other forums have granted motions to stay pending competency
determinations. See Motion to Stay at 3. The Defendants identify factual differences between
those cases and this case: (i) in Bruce v. Giconi, a pro se plaintiff filed suit, see Motion to Stay
Response, at 4-5 (citing 2015 WL 8959480, at *1); (ii) in Galindo v. American Paramedical,
Services, the criminal trial bringing the plaintiff’s competency into question began after the civil
case, see Motion to Stay Response at 5 (citing 2008 WL 2620885, at *1); and (iii) in Mil’chamot
v. New York City Housing Authority, a pro se plaintiff brought suit and later questioned his own
competence, see Motion to Stay Response at 6 (citing 2016 WL 659108, at *4). While
distinctions exist between this case and those Howard cited, Howard’s alleged incompetency
raises the same problem that the courts in the other cases encountered -- a party may not be
capable of proceeding with the litigation.
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Counsel:
Robert Gorence
Louren Oliveros
Amye Gayle Green
Gorence & Oliveros, P.C.
Albuquerque, New Mexico
Attorneys for the Plaintiff
Jessica Lynn Nixon
Assistant City Attorney
Office of the City Attorney
Albuquerque, New Mexico
Attorney for Defendant City of Albuquerque
Jonlyn M Martinez
Law Firm of Jonlyn M. Martinez
Albuquerque, New Mexico
Attorney for Defendant Jonathan Franco
David Anthony Roman
Robles Rael & Anaya PC
Albuquerque, New Mexico
Attorney for Defendants Ben Daffron, Joshua Chafin, and Sonny Molina
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