Lopez et al v. State of New Mexico et al
MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera granting in part and denying in part 134 Plaintiffs' Opposed Motion for Sanctions and Memorandum in Support. Plaintiffs request for sanctions in the form of attorneys fees in the amount of $4,481.38 is GRANTED, and Plaintiffs request for other sanctions is DENIED.. (baw)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
PHILLIP O. LOPEZ and
No. 2:15-CV-00889 JCH/SMV
THE STATE OF NEW MEXICO,
THE CITY OF LAS CRUCES, and
OFFICER DAVID RODRIGUEZ and
DETECTIVE MICHAEL RICKARDS, in their
official and individual capacities as employees of
the City of Las Cruces,
MEMORANDUM OPINION AND ORDER
On October 12, 2016, Plaintiffs Phillip O. Lopez and Feliz Gonzales filed a Motion and
Memorandum in Support of Sanctions against City Defendants (ECF No. 134). Having
considered the motion, the briefs, the evidence, the relevant law, and otherwise being fully
advised, the Court will grant Plaintiffs’ request for an award of attorney’s fees, but will deny the
motion in all other respects.
On October 11, 2016, this Court entered a Memorandum Opinion and Order granting
Plaintiffs’ motion to reinstate the claims against Defendant Michael Rickards. See Mem. Op. and
Order 8-9, ECF No. 130. The Court incorporates the facts set forth in that opinion and includes
herein the Analysis section:
The Court will reinstate the claims against Detective Rickards
The text messages indicate that, at the time he and Agent Boylston were
trying to identify the Wal-Mart suspect on or around January 6, 2015, Defendant
Rickards had known of the Taser incident between Plaintiffs and Defendant
Rodriguez, contrary to what his sworn testimony suggested. This newly
discovered evidence supports Plaintiffs’ theory of liability against Detective
Rickards, and it is highly doubtful that they would have dismissed their case
against him if they had the photographs and text messages now in their
possession. Defendants’ dilatory conduct in disclosing this relevant evidence
warrants the “extraordinary” relief requested in order to do justice in this case.
The Court is particularly troubled by the evidence indicating that Mr. Cabello did
not disclose the relevant text messages until mid-way through Defendant
Rodriguez’s deposition, after Defendant Rodriguez acknowledged possessing the
evidence when specifically asked, even though Mr. Cabello had possession of the
text messages and photographs, and knew their relevance, prior to the deposition.
It certainly calls into question whether defense counsel planned to disclose the
evidence had Defendant Rodriguez not informed Plaintiffs’ counsel of the
existence of the evidence during the deposition. The Court will set aside the
voluntary dismissal and reinstate the claims against Defendant Rickards under
Rule 60(b)(2), (3), and (6).
The Court will deny Plaintiffs’ request for attorney’s fees with leave
For the first time in their reply, Plaintiffs specifically request as sanctions
for discovery abuses their attorney’s fees for the time expended in dismissing
Defendant Rickards and writing the motion to reinstate and reply in support
thereof. Because Plaintiffs raised this attorney fees request for the first time in
their reply brief, Defendants have not had an opportunity to respond. The Court
will therefore deny the request for attorney’s fees, but do so without prejudice,
with leave to re-file. If Plaintiffs choose to re-file the motion for attorney’s fees,
they should include evidence to support the amount of any specific fee they
Id. at 7-8.
Plaintiffs subsequently filed a motion for sanctions, seeking fees for counsel time spent
working not only on the dismissal and reinstatement of Defendant Rickards, and the fees for
work on the motion for sanctions, but also fees for time spent on attempting to secure disclosure
of both portions of a relevant Be On The Look Out (hereinafter, "BOLO”). Pls.’ Mot. and Mem.
in Supp. of Sanctions against City Defs. (hereinafter “Pls.’ Mot.”), ECF No. 134. Plaintiffs
submitted a Fee Affidavit of Hope Eckert, itemizing the time spent and requesting $240 per hour.
Pls.’ Ex. A ¶¶2-3, ECF No. 134-1. Plaintiffs also assert Defendants have engaged in a pattern of
withholding facts and documents, pointing to Defendants’ failure to admit the now-undisputed
fact that Officer Rodriguez’s Taser deployed 10 additional cycles until after Plaintiffs indicated
they might file a Rule 11 motion. See Pls.’ Mot. 2-3, ECF No. 134. Plaintiffs detail their repeated
efforts to get the complete BOLO, id. at 3, and contend that Defendants made misrepresentations
during the mediation process, id. at 3-4. Plaintiffs request sanctions of in the form of a default
judgment against the City Defendants, but acknowledging the severity of that request,
alternatively for an award of attorney’s fees and an exclusion of all evidence stemming from the
BOLO. Id. at 5.
In response, Defendants deny that any of the late disclosures were done intentionally and
deny that they acted with dilatory motive. Defs.’ Resp. 1, ECF No. 144. As to the belated
admission of fact, Defendants reply that they had initially denied it in order to preserve their
defense that Officer David Rodriguez did not intend to tase Ms. Gonzales with 10 additional
cycles, but upon further evaluation, decided that admission of the fact would not preclude their
defense. Id. at 2.
With regard to the BOLO issue, Defendants assert that their mistakes occurred because
counsel was between surgeries and the BOLO is two related documents, found in two different
locations, one of which they sent to counsel, but which was not the one most pertinent to the
case. See id. at 2-3. Defense counsel Robert Cabello contends he did not receive the second
portion of the BOLO until May 16, 2016, but the day before, he went to the hospital for a
significant medical problem. See id. at 3. While out of work before his scheduled medical
procedures, Mr. Cabello attempted to arrange for his office to disclose the second portion of the
BOLO, but his office did not send the correct document. Id. Mr. Cabello produced the complete
BOLO during Officer Rodriguez’s deposition. Mem. Op. and Order 5-6, ECF No. 130. Since
May 15, 2016, Mr. Cabello has had ten surgeries, as well as other medical appointments and
tests. Defs.’ Resp. 4, ECF No. 144. Mr. Cabello asserts that the discovery problems were not
done with dilatory intent or to purposefully obstruct discovery. Id. As for his handling of the text
messages related to Defendant Rickards, he acknowledges that he should have contacted
opposing counsel as soon as the discovery problem became apparent instead of waiting until the
middle of the deposition. See id.
For the foregoing reasons, Defendants stipulate to the following:
Certainly, opposing counsel have incurred costs and efforts associated with the
discovery problems, and to this end the City would stipulate to reasonable
attorney fees in regard to such costs and efforts.
WHEREFORE Defendants respectfully request that the Court enter an
order denying Plaintiffs’ Motion for Sanctions to exclude the BOLO.
As relevant here, Federal Rule of Civil Procedure 37(c) states that if a party fails to
provide information as required by Rule 26(a) or (e), and the failure was not substantially
justified or harmless, the party is not allowed to use that information at a hearing or trial, and in
addition to or instead of this sanction, the court may order payment of reasonable expenses,
including attorney’s fees, caused by the failure, or may impose other appropriate sanctions. See
Fed. R. Civ. P. 37(c)(1). Other appropriate sanctions may include rendering a default judgment
against the disobedient party. Fed. R. Civ. P. 37(b)(2)(A)(vi). A court has broad discretion in
determining whether a Rule 26(a) violation is justified or harmless, and should consider the
following factors: (1) the prejudice or surprise to the party against whom the testimony is
offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing the
testimony would disrupt trial; and (4) the offending party’s bad faith or willfulness.
Woodworker’s Supply, Inc. v. Principal Mut. Life. Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999).
The Court finds that the harsh sanction of default judgment is not warranted under the
circumstances here when other lesser measures, such as attorney’s fees, can adequately cure the
prejudice to Plaintiffs. The Court also finds that excluding the BOLO evidence is not warranted.
Defendants have offered justifications concerning why the BOLO evidence was not disclosed
until the time of Officer Rodriguez’s deposition, and Mr. Cabello’s unfortunate medical issues
appear to have played a not insignificant role in the delay. The Court finds that Defendants did
not act in bad faith in belatedly disclosing the second portion of the BOLO. Moreover, the late
disclosure will not disrupt trial in any way and any prejudice by the belated disclosure is
The Court, however, will enter attorney’s fees for Plaintiffs and against Defendants, as
stipulated. The Court finds that the late disclosures of the text messages and photographs
regarding Defendant Rickards and the BOLO evidence caused Plaintiffs to suffer unnecessary,
additional attorney’s fees that would have been avoided had Defendants timely produced the
evidence. Mr. Cabello, as he recognizes, should have disclosed the text messages as soon as he
knew of them, and he had time to do so prior to the deposition of Officer Rodriguez, so that
Plaintiffs could have had the benefit of them to prepare for that deposition. This Court has
already cured much of the prejudice due to the late disclosure of the text messages and
photographs by reinstating Defendant Rickards in the case. Because the lesser sanction of fees is
sufficient to cure any prejudice regarding the belated disclosure of the text messages and BOLO
evidence, the Court will only grant the sanction of attorney’s fees and deny all other requested
After reviewing the Fee Affidavit, the Court finds that the requested hours are reasonable
for the work and the hourly rate is reasonable in this market area for an attorney of Hope
Eckert’s experience. Nor have Defendants objected to the amount requested. The Court will
therefore award attorney’s fees in the amount of $4,481.38.
Finally, as for allegations of misrepresentations made during the mediation, that issue is
separately pending, and the Court will not consider it here. See Pls.’ Sealed Mot. and Mem. in
Supp. of Sanctions against City Def., ECF No. 162.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion and Memorandum in Support
of Sanctions against City Defendants (ECF No. 134) is GRANTED IN PART AND DENIED
IN PART as follows:
1. Plaintiffs’ request for sanctions in the form of attorney’s fees in the amount of
$4,481.38 is GRANTED, and
Plaintiffs’ request for other sanctions is DENIED.
UNITED STATES DISTRICT JUDGE
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