Ortega v. New Mexico Legal Aid, Inc. et al

Filing 214

ORDER GRANTING PARTIAL DISCOVERY STAY AND ALLOWING TRIAL DEPOSITION by Magistrate Judge Kirtan Khalsa. Plaintiff's Emergency Motion to Continue Stay of Proceedings (Doc. 207) is granted in part and denied in part. NMLA's Motion to Allow NMLA to Take Trial Deposition of Ed Marks (Doc. 210) is granted. Plaintiff's Motion for Time to File Reply (Doc. 213) is denied. Case management deadlines are extended as described in the Order. (kmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MINA ORTEGA,
Plaintiff,
vs.

Civ. No. 18-111 MV/KK

NEW MEXICO LEGAL AID, INC. et al.,
Defendants.
ORDER GRANTING PARTIAL DISCOVERY STAY
AND ALLOWING TRIAL DEPOSITION
THIS MATTER is before the Court on: (1) Plaintiff’s Emergency Motion to Continue
Stay of Proceedings (Doc. 207) (“Motion to Continue Stay”), filed March 16, 2020; (2) Defendant
New Mexico Legal Aid, Inc.’s (“NMLA”) Motion to Allow NMLA to Take Trial Deposition of
Ed Marks (Doc. 210) (“Motion to Take Deposition”), filed March 20, 2020; and, (3) Plaintiff’s
Motion for Time to File Reply (Doc. 213) (“Motion for Time”), filed March 24, 2020. The Court,
having reviewed the pleadings, the record, and the relevant law, and being otherwise fully advised,
FINDS that: (1) Plaintiff’s Motion to Continue Stay should be GRANTED IN PART and DENIED
IN PART; (2) NMLA’s Motion to Take Deposition should be GRANTED; (3) Plaintiff’s Motion
for Time should be DENIED; and, (4) case management deadlines in this matter should be
extended as set forth herein.
On December 11, 2019, the Court stayed certain discovery and case management deadlines
in this case due to a serious emergency in Plaintiff’s family. (Doc. 198.) On February 6, 2020,
the Court extended the stay through March 16, 2020, but ordered that “if Plaintiff seeks to continue
the stay beyond March 16, 2020 based on her mental or physical health, she must support her
motion with documentation from one or more of her treatment providers.” (Doc. 206 at 6-7.) In

the Motion to Continue Stay now before the Court, Plaintiff asks the Court to extend the stay for
another two to three months and then “hold a status conference to determine Plaintiff’s ability to
work,” because her ongoing mental health issues render her unable to work on her case “even two
hours most of the time” at present.1 (Doc. 207 at 2-3.)
In support of her request, Plaintiff submits a letter from psychologist James Gillies, Ph.D.,
who evaluated Plaintiff on March 5 and 9, 2020. (Id. at 4-5.) In this letter, Dr. Gillies recommends
that Plaintiff “should limit her work to up to, and no more than, two hours per day,” and, when she
can do so without being “overtaxed,” increase her workload “in small increments.” (Id. at 4.)
According to Dr. Gillies, “[a]n optimal treatment course” for Plaintiff’s mental health disorders
“would last 30 weeks,” though she could require more extended treatment or, conversely, could
enjoy a full recovery sooner. (Id. at 5.)
In its response, NMLA expresses sympathy for Plaintiff’s circumstances but asks the Court
to refuse to stay discovery any longer. (Doc. 212 at 1.) NMLA first argues that the Court should
deny Plaintiff’s motion due to the length of time the parties have been in litigation and Plaintiff’s
lack of diligence in prosecuting this action. (Id. at 1-3, 7.) NMLA observes that the employment
decisions Plaintiff challenges took place over six years ago, and that the parties have been in
litigation in state and federal court for almost as long. (Id.) NMLA correctly notes that Plaintiff
failed to timely notice depositions before discovery closed, and that the Court has already granted
Plaintiff many extensions of time to complete various tasks. (Id.) NMLA also attaches to its
response a certiorari petition that Plaintiff was able to file on March 16, 2020 in an unrelated state
court case she is defending pro se, notwithstanding her mental health disorders. (Doc. 212-1.)

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Plaintiff is a licensed attorney who is proceeding pro se in this case.

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NMLA next argues that the Court should deny Plaintiff’s motion because further delay will
cause it unfair prejudice due to the progressive, degenerative illness of its key witness, Ed Marks.
(Doc. 212 at 3-7.) NMLA points out that Mr. Marks’ medical condition has recently begun to
impair his ability to function and that his impairments will only become more severe over time.
(Id.; see Doc. 212-3 at 2-3.) Relatedly, NMLA has filed a motion for leave to take Mr. Marks’
trial deposition, arguing that it needs to preserve his testimony before his medical condition
deteriorates to the point where he can no longer testify. (Doc. 210.) Relying on Federal Rule of
Civil Procedure 32, NMLA requests that it be allowed to take Mr. Marks’ trial deposition within
thirty (30) days in two separate morning sessions. (Id. at 2-3); see Fed. R. Civ. P. 32(a)(4)(C) (“A
party may use for any purpose the deposition of a witness, whether or not a party, if the court finds
. . . that the witness cannot attend or testify because of age, illness, infirmity, or imprisonment.”).
Finally, NMLA argues that the Court should deny Plaintiff’s request for a continued stay
because she could have sought counsel to represent her in this matter on a contingency fee basis
but has instead chosen to proceed pro se. (Doc. 212 at 4-5, 8.)
Defendant Siempre Unidos En Progreso (“Union”) makes no independent argument in
opposition to Plaintiff’s Motion to Continue Stay but opposes the motion for the reasons set forth
in NMLA’s response. (Doc. 211.)
“It is well settled that the district court has the power to stay proceedings pending before it
and to control its docket for the purpose of economy of time and effort for itself, for counsel, and
for litigants.” New Mexico Oncology & Hematology Consultants, Ltd. v. Presbyterian Healthcare
Servs., No. CV 12-526 MV/GBW, 2013 WL 12304061, at *1 (D.N.M. July 11, 2013) (quoting Pet
Milk Co. v. Ritter, 323 F.2d 586, 588 (10th Cir. 1963)). “Whether to issue a stay of discovery
depends greatly on the facts and progress of each case. In rendering a decision to stay proceedings,

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a court must exercise judgment and weigh competing interests.” Mestas v. CHW Grp. Inc., No.
CV 19-792 MV/CG, 2019 WL 5549913, at *1 (D.N.M. Oct. 28, 2019) (citations, quotation marks,
and brackets omitted). In weighing competing interests, courts have considered a number of
factors, including: (1) the non-moving party’s interests in proceeding expeditiously with the
litigation and the potential prejudice a delay would cause; (2) the hardship to the moving party if
a stay is not granted; (3) the Court’s convenience; (4) the interests of persons not parties to the
litigation; and (5) the public interest. Id.; United States v. High Plains Livestock, LLC, No. CV
15-680 MCA/WPL, 2016 WL 10591976, at *1 (D.N.M. Feb. 16, 2016); Triple D Supply, LLC v.
Pilot Corp., No. CV 13-655 GBW/WPL, 2013 WL 9981487, at *2 (D.N.M. Nov. 18, 2013); New
Mexico Oncology & Hematology Consultants, Ltd., 2013 WL 12304061 at *1. “Ultimately, the
decision to issue a stay of discovery is within the broad discretion of the district court.” Mestas,
2019 WL 5549913 at *1.
After careful consideration of each of the factors listed above, the Court in its discretion
concludes that Plaintiff should be granted an additional discovery stay of two months, after which
no more discovery stays will be allowed. Plaintiff has not always diligently prosecuted this action
and some of her past actions have unreasonably protracted the litigation. However, she could not
have foreseen the events that caused the mental health disorders she is currently experiencing, and
she has demonstrated that she will suffer hardship if discovery resumes at this time. Because this
is the last discovery stay the Court will grant, Plaintiff is advised to make whatever arrangements
she requires to be able to proceed when the stay expires. This may include seeking counsel to
represent her on a contingency fee basis.
Further, to mitigate the irreversible harm Defendants are otherwise likely to suffer as a
result of the continued stay, the Court will grant NMLA’s Motion to Take Deposition and permit

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NMLA to take Mr. Marks’ trial deposition during the pendency of the discovery stay and out of
time.2 Under Federal Rule of Civil Procedure 6, “[w]hen an act may or must be done within a
specified time, the court may, for good cause, extend the time . . . on motion made after the time
has expired if the party failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B).
“[E]xcusable neglect under Rule 6(b) is a somewhat elastic concept and is not limited strictly to
omissions caused by circumstances beyond the control of the movant.” Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392 (1993) (quotation marks omitted). “[T]he
determination is at bottom an equitable one, taking account of all relevant circumstances
surrounding the party’s omission.” Id. at 395.
If the Court finds that there is excusable neglect for a party’s failure to timely move to
modify a scheduling order, it must then determine whether good cause exists to support the
requested modification. See Fed. R. Civ. P. 16(b)(4); D.N.M.LR-Civ. 16.1. To demonstrate good
cause under Federal Rule of Civil Procedure 16, the moving party must “show that it has been
diligent in attempting to meet the deadlines.” Strope v. Collins, 315 F. App’x 57, 61 (10th Cir.
2009) (citation omitted).3 In deciding whether to modify a scheduling order to reopen discovery,
courts are to consider “several relevant factors,” including:

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The Court will analyze NMLA’s request for leave to take Mr. Marks’ trial deposition as a request for leave to take
the deposition out of time under Federal Rules of Civil Procedure 6(b)(1) and 16(b)(4). Courts have disagreed
regarding whether trial depositions, like other depositions, must ordinarily be taken within the time allowed for
discovery. Compare, e.g., New Mexico ex rel. Balderas v. Real Estate Law Ctr., P.C., No. CIV 17-0251 JB\LF, 2019
WL 6703837, at *11 (D.N.M. Dec. 9, 2019) (“[T]he Federal Rules of Civil Procedure do not distinguish between
‘trial’ depositions and deposition for other purposes. Courts should avoid formally creating a subcategory of
depositions that the Federal Rules of Civil Procedure . . . have not created or recognized.”) (citation omitted), with
Estenfelder v. Gates Corp., 199 F.R.D. 351, 356 (D. Colo. 2001) (“Because these are trial, or preservation, depositions,
I am not persuaded that the restrictions of the scheduling order, including the expiration of the discovery deadline,
should apply to them.”). Here, however, the Court need not resolve this disagreement because, as discussed below,
even if NMLA would ordinarily have been required to take Mr. Marks’ trial deposition within the time allowed for
discovery, it has shown excusable neglect and good cause to take the deposition out of time.
3

Unpublished decisions are not binding precedent in the Tenth Circuit but may be cited for their persuasive value.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005).

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1) whether trial is imminent, 2) whether the request is opposed, 3) whether the nonmoving party would be prejudiced, 4) whether the moving party was diligent in
obtaining discovery within the guidelines established by the court, 5) the
foreseeability of the need for additional discovery in light of the time allowed for
discovery by the district court, and 6) the likelihood that the discovery will lead to
relevant evidence.
Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987).
Here, NMLA has clearly shown excusable neglect and good cause for its failure to depose
Mr. Marks before discovery closed or to timely seek an extension of time in which to do so. Mr.
Marks’ medical condition has only recently deteriorated to the point where it impairs his ability to
function. (Doc. 212-3 at 2-3.) NMLA could not have reasonably foreseen that Plaintiff’s family
emergency and resulting mental health issues would so substantially delay the forward progress
and ultimate resolution of this case that Mr. Marks’ trial testimony would need to be preserved.
Thus, NMLA needs to depose Mr. Marks out of time due to circumstances beyond its control; and,
“the foreseeability of the need for additional discovery in light of the time allowed for discovery
by the district court” weighs in favor of the Court granting NMLA leave to take his trial deposition
out of time. Smith, 834 F.2d at 169.
With respect to the remaining Smith factors: (1) trial has not yet been scheduled; (2)
NMLA was reasonably diligent in conducting discovery within the time allotted; (3) Plaintiff will
not be unduly prejudiced by having to prepare for and attend a single deposition within the next
thirty (30) days, when her psychologist has indicated that she can work for up to two hours per
day; and, (4) the deposition is highly likely to lead to relevant evidence. Id. Thus, even assuming
Plaintiff’s opposition, all of the other Smith factors weigh in favor of the Court granting NMLA
leave to take Mr. Marks’ trial deposition out of time.
Finally, the Court finds that the current record includes fully adequate information and
argument to allow the Court to rule on Plaintiff’s Motion to Continue Stay and NMLA’s Motion
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to Take Deposition. Moreover, given the time-sensitive nature of the issues presented, waiting for
additional briefing on these motions would be ill-advised. As such, the Court will deny Plaintiff’s
Motion for Time, in which she seeks leave to file a reply in support of the Motion to Continue Stay
by March 25, 2020. (See Doc. 213.)
IT IS THEREFORE ORDERED that: (1) Plaintiff’s Motion to Continue Stay (Doc. 207)
is GRANTED IN PART and DENIED IN PART; (2) NMLA’s Motion to Take Deposition (Doc.
210) is GRANTED; and, (3) Plaintiff’s Motion for Time (Doc. 213) is DENIED. Discovery and
case management deadlines in this matter are STAYED up to and including Tuesday, May 26,
2020, except that NMLA may take Mr. Marks’ trial deposition within thirty (30) days of entry of
this Order. NMLA’s counsel shall confer with Plaintiff and the Union’s counsel and attempt to
agree on mutually convenient dates for the deposition. However, if the parties are unable to agree,
NMLA may select the dates for the deposition provided it gives Plaintiff and the Union at least
two weeks’ notice. NMLA should schedule the deposition for two morning sessions of no more
than four hours per session and may elect to take the deposition by videoconference. Plaintiff will
not be permitted to notice a separate deposition of Mr. Marks and should be prepared to ask any
questions she has for this witness at the trial deposition.
IT IS FURTHER ORDERED that case management deadlines in this matter are RESET
as follows:
a.

By Tuesday, April 7, 2020, Defendants must: (a) identify dates on which their

Rule 30(b)(6) witnesses (and defense counsel for both parties) are available for Rule 30(b)(6)
depositions between Monday, June 1, 2020 and Monday, June 29, 2020; (b) identify dates on
which Evangeline Mercado, Donis Borks,4 and Alicia Clark (and defense counsel for both parties)

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If Mr. Borks is not medically available to be deposed between June 1 and June 29, 2020, the Union’s counsel should
also determine when he anticipates being medically cleared to be deposed and provide this information to Plaintiff.

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are available for individual witness depositions between Monday, June 1, 2020 and Monday, June
29, 2020; and, (c) provide the information described in paragraphs (a) and (b) to Plaintiff.
Defendants must identify at least two full days available for depositions between Monday, June 1,
2020 and Monday, June 29, 2020; and, witnesses and defense counsel must hold those dates open
through Monday, June 1, 2020, or until Plaintiff notices the depositions, whichever is sooner;
b.

By operation of this Order, the partial discovery stay will lift on Wednesday, May

27, 2020, and no further discovery stays will be granted;
c.

Plaintiff may submit a signed statement listing changes to the transcript of the last

day of her deposition in accordance with Federal Rule of Civil Procedure 30(e) no later than
Friday, May 29, 2020;
d.

By Monday, June 1, 2020, Plaintiff must notice the two depositions she chooses

to take for dates on which the witnesses she selects are available;
e.

Plaintiff must supplement her discovery responses as required by the Court’s Order

on NMLA’s Motion to Compel (Doc. 171) by Wednesday, June 10, 2020;
f.

As further described in the Court’s Order on Discovery Motions (Doc. 173),

Plaintiff may send a letter to NMLA’s counsel describing documents relating to her wages or
benefits that are responsive to her Requests for Production Nos. 2 and/or 14 that she believes were
missing from NMLA’s November 8, 2019 document production, and how she believes NMLA
may reasonably and efficiently search for them, no later than Wednesday, June 10, 2020;
g.

As further described in the Court’s Order on Discovery Motions (Doc. 173),

Plaintiff may send a letter to NMLA’s counsel describing specific e-mails responsive to her
Request for Production No. 8 that she believes were missing from NMLA’s November 8, 2019

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document production by author, recipient(s), subject matter, and time frame, and proposing
specific search terms NMLA should use to find them, no later than Wednesday, June 10, 2020;
h.

Discovery motions regarding Defendants’ most recent discovery responses are due

by Wednesday, June 10, 2020. No other discovery motions may be filed;
i.

Plaintiff must complete the two depositions she chooses to take by Monday, June

29, 2020; and,
j.

Dispositive motions must be filed by Monday, July 20, 2020.

IT IS SO ORDERED.

_______________________________________
KIRTAN KHALSA
UNITED STATES MAGISTRATE JUDGE

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