UNITED STATES OF AMERICA v. Real Property Known as 200 Acres of Land Near FM 2686 Rio Grande City, Texas

Filing 78

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION re: 76 Memorandum and Recommendations, granting 59 MOTION for Sanctions. Claimants, Carlos Ricardo Tirado Tamez and Cristina Rodriguez de Tirado's pleadings are STRICKEN in their entirety as a sanction for their willful failure to provide disclosures or answers to requests for production of documents and for their failure to appear at scheduled depositions. Claimants are ORDERED to pay Plaintiff's costs in the amount of $1,015.00 for the depositions they failed to attend. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
UNITED STATES OF AMERICA,
VS.
REAL PROPERTY KNOWN AS 200
ACRES OF LAND NEAR FM 2686 RIO
GRANDE CITY, TEXAS, et al,
Defendants.

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CIVIL ACTION NO. 2:11-CV-00368

ORDER ADOPTING
MEMORANDUM AND RECOMMENDATION
Pending before the Court is “Plaintiff’s Motion for Sanctions Pursuant to Federal
Rule of Civil Procedure 37” (D.E. 59). On September 11, 2013, United States Magistrate
Judge B. Janice Ellington issued a Memorandum and Recommendation (D.E. 76),
recommending that Plaintiff’s Motion for Sanctions be granted against Claimants Carlos
Ricardo Tirado Tamez and Cristina Rodriguez de Tirado. Claimant, Cristina Rodriguez
de Tirado did not file any objections. However, Dr. Carlos Ricardo Tirado Tamez
(Claimant) filed his Objections (D.E. 77) untimely, on September 27, 2013. Despite
being untimely, the Court will address Claimant’s Objections.
Plaintiff seeks sanctions against Claimant for failure to comply with discovery
with respect to: (1) failure to make initial disclosures as ordered by the Magistrate Judge
(D.E. 45); (2) failure to respond to requests for production as ordered by the Magistrate
Judge (D.E. 53); and (3) failure to appear for deposition as ordered by the Magistrate
Judge (D.E. 53). The Magistrate Judge recommended that sanctions be imposed in the
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form of striking Claimant’s pleadings and an order that Claimant pay Plaintiff’s costs in
the amount of $1,015 with respect to expenses for the deposition that Claimant failed to
attend.
Most of Claimant’s objections were raised in his Response (D.E. 67) to the Motion
for Sanctions and, upon review, the Court finds they were adequately and appropriately
addressed in the Memorandum and Recommendation (D.E. 76), summarized as follows:
a. Claimant objects that the order compelling initial disclosures was improper
because forfeiture in rem proceedings are exempted from automatic disclosure
under Fed. R. Civ. P. 26(a)(1)(B). The Magistrate Judge correctly determined
that the disclosures, required by the Magistrate Judge’s Order, were properly
required because the court has the power to supplement or modify the
automatic initial disclosures required by Rule 26. See Fed. R. Civ. P. 16(b)(3),
16(c)(2)(F), 26(a)(1)(C), 26(a)(2), 26(a)(3). The Rule 26 and 16 exemptions
do not circumscribe the court’s prerogative to order discovery. London v.
Williams, 2009 WL 567883 (9th Cir. Mar. 6, 2009), cited by Claimant, is not to
the contrary. It acknowledges that initial disclosures are not automatically
required in exempt cases, but also acknowledges that the court has the power to
order such disclosures.
b. Claimant objects that the sanctions are more severe than is justified. The
Magistrate Judge properly analyzed and concluded that Claimant has failed and
refused to comply with any of the court’s several discovery orders in willful
disobedience, preventing Plaintiff from prosecuting this matter in an ordinary
and timely manner. The sanctions are appropriate under the circumstances.
Fed. R. Civ. P. 37(b)(2)(A).
c. Claimant objects that there is no duty to disclose information or produce
documents that are not in the possession, custody, or control of the responding
party. The law requires parties to either produce and certify what they have
available or certify that they have no responsive documents in a writing signed
and served. Fed. R. Civ. P. 26(a)(4); 26(g). Claimant did neither.
d. Claimant objects, arguing that he was entitled to be deposed in Mexico.
Claimant has been served and made a party to this lawsuit. D.E. 43. He has
made a claim to the property that is the subject of this forfeiture in rem action.
D.E. 13. Consequently, he is subject to deposition upon proper notice, absent a
protective order, which he did not seek or obtain. Fed. R. Civ. P. 26(c),
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30(a)(1). He is further subject to sanctions for failing to comply with the
deposition notice and the Court’s order to submit to deposition. Fed. R. Civ. P.
37.
e. Claimant objects, arguing that he should not have to pay the cost of the
deposition because counsel asked that it be canceled several days prior to the
scheduled date. Claimant did not file a proper objection with the Court seeking
or obtaining a protective order and counsel’s request to cancel does not have
the force of law. See Fed. R. Civ. P. 26(c), 30(a)(1). Plaintiff was within its
rights to insist upon the deposition taking place at the time and place in the
notice, absent a protective order. Payment of the costs of the deposition is
proper under Fed. R. Civ. P. 36(c)(3), 37(a)(5).
f. Claimant objects that the Magistrate Judge should have waited on Claimant to
exhaust his appellate remedies before allowing this case to proceed. No stay
was imposed. D.E. 52, 58. Absent a stay, the parties and this Court were free
to proceed with the orderly disposition of this action. No deference is owed to
the Claimant’s unilateral effort to obtain appellate relief. Neither would this
argument change the outcome, as Claimant has at no time—before, during, or
after his effort to obtain appellate relief—complied with the Court’s orders
regarding discovery.
All of the foregoing objections are OVERRULED.
Claimant has raised three additional objections that appear to arise from the
Magistrate Judge’s Memorandum and Recommendation or were not addressed therein:
First, Claimant objects that death penalty sanctions are not justified because
Claimant has not been properly served and it is not unreasonable to wait for the outcome
of appellate processes. This Court has already made its determination as to whether
Claimant was properly served and made a party to this lawsuit.

Order, D.E. 43.

Claimant’s effort to invoke appellate processes to date has failed to result in a reversal of
the Court’s decisions. Fifth Circuit Order, D.E. 58. This Court is empowered to proceed
with the case in an orderly manner so as to dispose of all parties and all claims and render

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a final judgment that Claimant will then have another opportunity to appeal. Claimant’s
first objection is OVERRULED.
Second, Claimant suggests that the Magistrate Judge’s factual arguments
regarding the burden to the Plaintiff in attending a deposition in Mexico are not based on
evidence and should be disregarded.

The Magistrate Judge’s consideration of that

argument is immaterial to the disposition of the motion for sanctions. Claimant did not
seek a protective order, so the relative burdens of the parties was not put in issue. Thus,
even if the challenged factual arguments were disregarded, the decision would not
change. The decision is based on Claimant’s willful disobedience of the Court’s orders.
Claimant’s second objection is OVERRULED.
Third, Claimant objects that he should not be faulted for failing to seek a
protective order because the Magistrate Judge states that such a procedure would have
been futile. The point, however, is that Claimant has not utilized the legal procedures
available to him and expects to unilaterally control the progress of this case. The fact that
he would not be entitled to the relief sought does not justify noncompliance with federal
procedure or with the Magistrate Judge’s orders in this case. Claimant’s third objection
is OVERRULED.
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as
Claimant’s Objections, and all other relevant documents in the record, and having made a
de novo disposition of the portions of the Magistrate Judge’s Memorandum and
Recommendation
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to

which

objections

were

specifically

directed,

the

Court

OVERRULES Claimant’s Objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge. Accordingly, Plaintiff’s Motion for Sanctions (D.E.
59) is GRANTED. Claimants, Carlos Ricardo Tirado Tamez and Cristina Rodriguez de
Tirado’s pleadings are STRICKEN in their entirety as a sanction for their willful failure
to provide disclosures or answers to requests for production of documents and for their
failure to appear at scheduled depositions. Claimants are ORDERED to pay Plaintiff’s
costs in the amount of $1,015.00 for the depositions they failed to attend.
ORDERED this 5th day of November, 2013.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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