STATE OF
FIRST JUDICIAL DISTRICT COURT
NEW MEXICANS FOR FREE ENTERPRISE,
THE
MARK KIFFIN, MARK C. MILLER, MAURICE
ZECK,
PEPPERS
FOOD & BEVERAGE CO., INC.,
PRANZO, ZUMA CORPORATION,
ROBBIE DAY, JOSEPH HOBACK, and
PINON GRILL AT THE HILTON OF
Plaintiffs,
v. No.
D-101-CV-2003-00468
THE CITY OF
Defendant.
MOTION FOR SANCTIONS FOR FAILURE TO
COMPLY WITH
COURT’S
DISCOVERY ORDER
The City of Santa Fe by and through undersigned
counsel moves this court for an order imposing sanctions against Plaintiffs for
failure to comply with this Court’s order compelling discovery.
On
After Plaintiffs completely failed to respond to the
City’s discovery requests served more than five months ago, this Court entered
an order requiring Plaintiffs to provide discovery within five days, not
counting the weekend, by
In addition,
because the Plaintiffs have ignored the rules of court governing discovery and
have now ignored this Court’s own order, the City proposes a monetary sanction
to compel compliance with that Order.
The City proposes that this Court impose a fifty dollar per day sanction
against each Plaintiff from
Given that the two
organizational plaintiffs, the Santa Fe Chamber of Commerce and New Mexicans
for Free Enterprise, claim to represent a broad spectrum of the business
community and that this is a case of enormous public interest, sanctions for
intentional violation of the Court's order on discovery are very important to
insure that this Court’s final ruling on the issues is based upon a full and
fair procedure.
Attached hereto is a representative copy of the
interrogatories sent to the individual Plaintiffs, the interrogatories sent to
the organizational Plaintiffs and the Requests for Production that have been
served.
I. Factual Background – Plaintiffs Have Ignored
All Attempts to Obtain Discovery Including an Order of This Court
Pursuant to an Order of this court, Plaintiffs were
compelled to answer outstanding discovery by
The City served its first round of written discovery
on each of the named Plaintiffs on
After discussions with Plaintiffs’ counsel, the City
of
II. The Harm --
Plaintiffs Actions Have Prevented the City From Dealing With Issues of
Importance
This case involves the issue of whether the City of
Plaintiffs have had the time to prepare and submit
unsupported conclusory affidavits in opposition to
the City’s Motion for Summary Judgment but have been unwilling to take the time
to answer interrogatories or requests for production for over five months.
Plaintiffs’ counsel has represented that there is a
proposed motion for preliminary injunction that has been prepared and that
counsel is waiting to file. The City
will not be able to fully respond to such a motion because the Plaintiffs
refuse to provide even the most basic information that the City needs to oppose
that motion.
Through interrogatories, the City has asked each of
the Plaintiffs how they will be irreparably harmed by the City’s
ordinance. Irreparable harm is central
to any claim for preliminary injunction.
The City has propounded interrogatories asking Plaintiffs for details of
those alleged harms and requested documents that demonstrate those harms.
III. The Law - Given the Nature of the Failure to
Comply With this Court’s Order, the Court Should Preclude Plaintiffs from
Asserting that They Have Been Irreparably Harmed - Additionally this Court
Should Impose Monetary Sanctions to Ensure Its Orders Are Not Simply
Ignored
If a party ignores a discovery order the court has
the power to take appropriate action up to and including dismissal of the
case. Rule 1-037B(2)
NMRA . The City does not seek
dismissal. There are lesser penalties
that are appropriate given Plaintiffs’ total disregard of the authority of this
Court:
(a) an order
that the matters regarding which the order was made or any other designated
facts shall be taken to be established for the purposes of the action in
accordance with the claim of the party obtaining the order;
(b) an order refusing to allow the disobedient party
to support or oppose designated claims or defenses, or prohibiting that party
from introducing designated matters in evidence…
This court has discretion to employ a sanction for any
non-compliance, regardless of the willfulness or bad faith of the party. United
Nuclear Corporation v. General Atomic Company, 96 N.M. 155, 629 P.2d 231
(1980). The level of severity of the
sanctions depends on the degree of the non-compliance and the adverse effect or
prejudice felt by the other party. This
court is afforded great deference in selecting the appropriate sanction. Gonzales
v. Surgidev Corp., 120 N.M. 151, 158, 899 P.2d 594 (1995); Marchman v. NCNB
When as here there has been a willful failure to
comply with a court’s discovery order the appropriate remedy is to preclude the
Plaintiffs from asserting those arguments that are related to the discovery
that has not been produced. This Court
is not required to exhaust less punitive sanctions before entering such an
order. See Lewis v. Samson, 2001 NMSC 35, 131
N.M. 317, 323, 35 P.3d 972 (2001), citing,
Gonzales v.
This Court should look at the totality of the
circumstances to determine the appropriate sanction. United Nuclear Corp. at 203.
This Court should balance the nature of the offense, potential prejudice
to the parties, relevance of evidence, effectiveness of the sanction, and “the
imperative that the integrity of the court’s orders and the judicial process
must be protected.” Enriquez v. Cochran, 1998 NMCA 157, 126 N.M. 196, 211, 967 P.2d
1136 (Ct. App. 1998) (striking several of defendant’s affirmative defenses for
willfully failing to respond to multiple discovery requests and court orders,
without requiring a showing of wrongful intent).
Plaintiffs
should not be allowed to ignore the authority of this Court, ignore the right
of the citizens of
Plaintiffs should not be allowed to
proceed with a preliminary injunction motion based on a purported irreparable
harm as to which they have refused to produce discovery. To allow them to proceed will harm the rights
of those workers that the City is seeking to protect and will encourage
Plaintiffs to continue to ignore this Court.
Additionally, the City strongly
urges this Court to impose a monetary sanction against each of the Plaintiffs
for each day that they have ignored this Court’s order and for each day they
continue to do so. Such a penalty will
serve to protect the authority of this Court and will help to ensure that the
Plaintiffs do not simply continue to prevent the City from litigating this
matter.
IV. Specific Relief --
This Court Should Order that Plaintiffs are Precluded from Asserting
that They Have Been Irreparably Harmed
A copy of representative discovery requests as sent to all Plaintiffs are attached hereto.
Limiting relief to this sanction alone, however, will
provide no incentive for Plaintiffs to refrain from continuing to ignore the
discovery order. Given the history of
Plaintiffs’ actions there needs to be some mechanism in place that will force
Plaintiffs to comply with the discovery rules and with this Court’s
orders. Where a party simply ignores a
court, the appropriate remedy is through the Court’s contempt power. The City respectfully requests that the Court
sanction each of the Plaintiffs fifty dollars a day for each day they have
failed to comply with the Order and fifty dollars per day for each day they
continue to ignore that order. This
court has the authority to sanction Plaintiffs for the blatant disregard of its
order. State v. Rivera,
1998 NMSC 24, 125 N.M.
532, 964
P.2d 93 (1998).
WHEREFORE the City prays for an order of this Court
that Plaintiffs be precluded from arguing that they have been irreparably
harmed. In addition the City requests that this Court sanction each of
the Plaintiffs in the amount of fifty dollars for each day such Plaintiff has
ignored this Court’s order on discovery and for each day such Plaintiff
continues to do so until such Plaintiff has fully and completely complied with
the Court's order on discovery.
Opposing counsel was called on October 7 and October
8 and messages were left in an effort to discuss this proposed motion and
requesting concurrence or opposition. On
October 10 the call was returned and Plaintiffs’ counsel requested another
extension on providing discovery. The
City has given Plaintiffs lengthy extensions in the past, but Plaintiffs simply
ignored the deadlines to which they agreed and after five and half months have
provided no responses. They ignored this
Court’s order and did not even ask for an extension until advised that this
motion would be filed. Given the history
of non-compliance with the rules of discovery and the total refusal to obey a
court order, an extension could not be granted.
Plaintiffs counsel will oppose this motion.
Respectfully Submitted:
THE
CITY OF
_______________________________
Bruce Thompson
City Attorney
(505) 955-6511
CERTIFICATE OF SERVICE
I
certify that a true and correct copy of this Motion to Compel Discovery was
mailed this 10th
day of October, 2003 by regular first class mail, postage prepaid
to:
GREGORY L. BIEHLER
ZACHARY S. RIGDON
Attorneys for Plaintiffs
__________________
Bruce Thompson