Corona v. City of Clovis et al

Filing 35

MEMORANDUM OPINION AND ORDER by District Judge M. Christina Armijo DENYING 13 MOTION for Preliminary Injunction . (kg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JORGE RAY CORONA,
Plaintiff,
v.

No. 17-CV-805 MCA/CG

CITY OF CLOVIS, CLOVIS POLICE
DEPARTMENT, OFFICER BRENT
AGUILAR, AND OFFICER TRAVIS
LOOMIS, IN THEIR PERSONAL AND
OFFICIAL CAPACITIES,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion for Preliminary
Injunction to Prevent Defendant Aguilar from Leaving the United States. [Doc. 13] The
Court, having considered the submissions, the relevant law, and otherwise being fully
advised in the premises, hereby DENIES the Motion.
BACKGROUND
In August of 2017, Plaintiff Jorge Ray Corona filed a First Amended Complaint in
the Ninth Judicial District Court of the State of New Mexico. Plaintiff brings several
counts pursuant to the New Mexico Tort Claims Act and 42 U.S.C. § 1983 arising from
an alleged wrongful arrest and assault on Plaintiff by Defendant Officer Brent Aguilar
and the alleged participation by Defendant Officer Travis Loomis.
Defendants removed the case to this Court. [Doc. 1, p.1]

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[Doc. 1-1]

On October 2, 2017, Plaintiff filed the present Motion for Preliminary Injunction
to Prevent Defendant Aguilar from Leaving the United States. [Doc. 13] Therein,
Plaintiff asserted that he learned that Defendant Aguilar had plans to immediately leave
the United States for employment. [Doc. 13, ¶ 1] Plaintiff thus asked the Court to “issue
a Preliminary Injunction to prevent Defendant Brent Aguilar from leaving the United
States to avoid participation in the trial of this matter.” [Doc. 13, ¶ 4]
The Court held a status conference regarding the Motion for Preliminary
Injunction on October 3, 2017, after which the Court ordered Defendants to file an
expedited response to the Motion. [Doc. 15] Defendants did so, and therein represented
that Defendant Aguilar was seeking employment that might take him outside of the
United States at some point. [Doc. 20, ¶ 5] Defendant stated that Officer Aguilar would
“be available as necessary for the applicable discovery period and any trial in this
matter.” [Doc. 20, ¶ 5] Further, Defendants stated that, should Defendant Aguilar
become unavailable for trial, “undersigned counsel will ensure that his testimony is
preserved through a trial deposition,” or, alternatively, pointed to the potential
accommodation of allowing Defendant Aguilar to testify live via video conference.
[Doc. 20, ¶ 5] Defendants indicated they “will keep the Court and Plaintiff apprised of
any change in the above referenced circumstances.” [Doc. 20, ¶ 6] Plaintiff replied,
asserting that Defendant Aguilar’s in-person presence at trial was necessary and
Defendants’ proposed measures were insufficient to ensure Defendant Aguilar’s presence
at trial.

Thus, Plaintiff continued to request that this Court “issue a Preliminary

Injunction preventing Defendant Officer Aguilar from leaving the country until the trial
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of this cause is concluded.” [Doc. 23, ¶ 6] Plaintiff further requested this Court to
confiscate Defendant Aguilar’s passport. [Doc. 23, p. 2]
ANALYSIS
While Plaintiff seeks a “preliminary injunction,” and while he certainly seeks
injunctive relief, the Court observes that he is not seeking a preliminary injunction
concerning the merits of this matter, as governed by Federal Rule of Civil Procedure 65
and as discussed in cases such as Schrier v. University of Colorado, 427 F.3d 1253, 1258
(10th Cir. 2005) (discussing the “extraordinary remedy” of a preliminary injunction, the
purpose of which is “merely to preserve the relative positions of the parties until a trial on
the merits can be held” (internal quotation marks and citation omitted)). Thus, the Court
does not employ the analysis discussed in Schrier and like cases.
The Federal Rules of Civil Procedure govern discovery matters, including the
failure of a party to attend a deposition. See Fed. R. Civ. P. 30(b)(1); Fed. R. Civ. P. 37.
Rule 37(b)(2)(A) allows for various sanctions when a party fails to appear for his or her
deposition,1 up to and including “rendering a default judgment against the disobedient
party.” See also Wilson v. Montano, Civ. No. 11-658 KG/SCY, 2018 WL 502497, at *7
(D.N.M. Jan. 19, 2018) (report and recommendation adopted, February 6, 2018) (stating
that “Rule 37(d) governs a party’s failure to attend a deposition”). The attendance of a
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In addition, Rule 30 provides that the “court may impose an appropriate sanction . . . on
a person who impedes, delays, or frustrates the fair examination of the deponent.” Fed.
R. Civ. P. 30(d)(2). It also allows for the use of subpoena to compel the attendance of the
deponent. Fed. R. Civ. P. 30(a)(1). In turn, Federal Rule of Civil Procedure 45,
governing subpoenas, allows the court to “hold in contempt a person who, having been
served, fails without adequate excuse to obey the subpoena or an order related to it.” Fed.
R. Civ. P. 45(g).
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party at his or her deposition is a discovery matter adequately addressed by the Federal
Rules of Civil Procedure, making a preliminary injunction or other preemptive injunctive
relief unnecessary. Furthermore, if the Court were to issue an order compelling the
attendance of Defendant Aguilar at either his deposition or at trial (based on an adequate
showing of the necessity for such order), and should Defendant Aguilar violate such
order, the Court has broad powers to sanction such violation. See Young v. U.S. ex rel.
Vuitton et Fils S.A., 481 U.S. 787, 793 (1987) (“[I]t is long settled that courts possess
inherent authority to initiate [criminal] contempt proceedings for disobedience to their
orders”). Specifically relating to confiscating passports, this Court finds persuasive the
following recitation of the law:
[A]n order to surrender a passport is “very rare” in civil cases outside the
matrimonial context. Merrill Lynch Bus. Fin. Servs., Inc. v. Kupperman,
No. 06–4802, 2007 WL 2300737, at *1 (D .N.J. Aug. 7, 2007). Such an
order is appropriate where defendant “has ‘demonstrated a propensity to
leave the country when the heat is turned up.”’ Id. at *2 (quoting Herbstein
v. Bruetman, 241 F.3d. 586, 588 (7th Cir.2001)).
Mellott v. MSN Commc’ns, Inc., No. 09-CV-02418-PAB-MJW, 2010 WL 5110136, at
*27 (D. Colo. Dec. 8, 2010).
Here, Plaintiff has not demonstrated that Defendant Aguilar has left or is likely to
leave the country to avoid participation in this litigation.

The paltry factual basis

proffered by Plaintiff is far from sufficient to warrant the harsh measures sought by
Plaintiff.

Plaintiff’s request amounts to a request that this Court enjoin Defendant

Aguilar from traveling outside of the United States for employment purposes simply
because he is a defendant in a federal civil lawsuit. This request is not only unsupported
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by law, it is austere under the circumstances of this case. Restricting a party’s right to
travel as a preemptive measure to ensure participation in legal proceedings is neither
necessary nor justified.
Accordingly, Plaintiff’s Motion for Preliminary Injunction to Prevent Defendant
Aguilar from Leaving the United States is DENIED.
CONCLUSION
WHEREFORE, for the foregoing reasons, the Court hereby DENIES Plaintiff’s
Motion for Preliminary Injunction to Prevent Defendant Aguilar from Leaving the United
States. [Doc. 13]
SO ORDERED this 5th day of April, 2018 in Albuquerque, New Mexico.

___________________________
M. CHRISTINA ARMIJO
United States District Judge

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