Village of Hatch v. Faught

Opinion

This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 VILLAGE OF HATCH AREA BUSINESSES 3 OR RESIDENTS: MARIA R. BILBOA, LUZ 4 ELENA BILBOA, LAWRENCE R. BUCKELEW, 5 ESEQUIEL C. CASTRO, ALICIA L. CASTRO, 6 GREGORY GABALDON, VERONICA GABALDON, 7 DOMINGO GOMEZ, ALFREDO GRANADOS, 8 RALPH KASSIAN, MARGIE C. MIRABEL, MARGIE 9 MORA, JOSE LUIS OLVERA, GREGORIO OLVERA, 10 PAULETTE PALTZA, ROBERT M. PADILLA, 11 CARLA P. YAW, and ELVIS YAW,

12 Plaintiffs-Appellants, 13 v. NO. 30,265

14 RHONDA G. FAUGHT, SECRETARY 15 OF NEW MEXICO DEPARTMENT OF 16 TRANSPORTATION, an Agency of the 17 STATE OF NEW MEXICO,

18 Defendants-Appellees.

19 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 20 James T. Martin, District Judge

21 Rita Nuñez Neumann 22 Las Cruces, NM

23 for Appellants 24 Miller Stratvert, P.A.

1 Joshua L. Smith 2 Lawrence R. White 3 Las Cruces, NM

4 for Appellees 5 MEMORANDUM OPINION

6 VANZI, Judge. 7 Maria R. Bilboa, Luz Elena Bilboa, Lawrence R. Buckelew, Esequiel C. Castro, 8 Alicia L. Castro, Gregory Gabaldon, Veronica Gabaldon, Domingo Gomez, Alfredo 9 Granados, Ralph Kassian, Margie Mirabel, Margie Mora, Jose Luis Olvera, Gregorio 10 Olvera, Paulette Paltza, Robert M. Padilla, Carla P. Yaw, and Elvis Yaw (Plaintiffs) 11 appeal the district court’s order dismissing their lawsuit against the New Mexico 12 Department of Transportation (NMDOT) with prejudice. The district court dismissed 13 Plaintiffs’ lawsuit as a sanction for discovery violations. We affirm the dismissal of 14 Plaintiffs’ complaint; however, we reverse the district court’s award of attorney fees 15 and costs and remand for further proceedings consistent with this Opinion. 16 BACKGROUND 17 Because the parties are familiar with the facts and proceedings and because this 18 is a memorandum opinion, we do not provide a detailed discussion of this case’s 19 background. We include background information as necessary in connection with 20 each issue raised. Before we begin, however, we note that neither party has done a 21 satisfactory job of citing to the record in this case, leaving this Court with the tedious

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1 task of having to sift through the entire record in order to effectively review the 2 parties’ arguments and the basis of the district court’s ruling. 3 Plaintiffs filed their complaint against NMDOT, Burlington Northern Santa Fe 4 Railroad (BNSF), and Doña Ana County on October 10, 2007. Plaintiffs subsequently 5 added Southwestern Railroad Company (SRC) (collectively, Defendants) as a 6 defendant. Plaintiffs alleged that, as a result of a powerful rainstorm on August 15, 7 2006, their homes and businesses were severely damaged. Plaintiffs’ theory of the 8 case was that the bridge over the Placitas Arroyo was clogged with debris and railroad 9 ties at the time of the storm and that Defendants’ failure to clear the debris caused the 10 flooding and damage to their property. With regard to NMDOT specifically, Plaintiffs 11 alleged that they had made numerous requests to NMDOT prior to the rainfall to clear 12 the bridge of debris and that it repeatedly failed to do so. 13 Plaintiffs’ complaint also asserted that the “[m]athematical probability indicates 14 the storm was close to a ten[-]year storm and not a hundred[-]year storm as stated by 15 . . . Defendant [Flood Commission Director].” Each Plaintiff then listed the amount 16 of monetary damage to his or her personal, real, and business property. For example, 17 Maria and Luz Bilboa alleged personal damages in the amount of $25,000, whereas 18 Lawrence and Judy Buckelew claimed damage to their personal property and 19 residence in the amount of $80,000. NMDOT and other Defendants filed answers to 20 the complaint, and the parties thereafter began the discovery phase of the lawsuit.

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1 The parties participated in a status conference on May 28, 2008, after which the 2 district court entered a first amended scheduling order requiring, among other things, 3 that Plaintiffs serve their experts’ reports on defense counsel by July 28, 2008, and 4 that all written discovery and depositions of fact witnesses be completed by March 2, 5 2009. It appears Plaintiffs moved to amend the first amended scheduling order to 6 extend the deadline for the submission of the expert report; however, it is unclear from 7 the record whether that motion was granted. 8 On June 2, 2008, BNSF filed its first motion to compel answers to BNSF’s first 9 set of discovery. The motion was granted. Thus began the filing of a series of 10 motions to dismiss for discovery violations, which takes up the bulk of the fifteen- 11 volume record proper on appeal. BNSF filed a motion to dismiss Plaintiffs’ second 12 amended complaint for willful discovery abuses on December 19, 2008. That motion 13 was joined by SRC. Two months later, on February 25, 2009, NMDOT filed its 14 motion for discovery sanctions. NMDOT filed a supplemental motion shortly 15 thereafter. Both BNSF and SRC filed notices of joinder in NMDOT’s motion for 16 discovery sanctions. The district court held a two-day hearing on the various motions 17 for sanctions, and the parties filed proposed findings of fact and conclusions of law. 18 Although the transcripts that the parties provided on appeal are incomplete and there 19 is no order in the record indicating the court’s rulings from the bench, if any, it 20 appears the district court took the matter under advisement to decide appropriate

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1 sanctions. Nevertheless, prior to the entry of an order, Plaintiffs agreed to dismiss all 2 claims against BNSF and SRC with prejudice and, as a result, those Defendants did 3 not seek to have sanctions entered against Plaintiffs “for their willful abuses of 4 discovery.” 5 Well before its dismissal from the case, BNSF had also filed a motion for Rule 6 1-011 NMRA sanctions against Plaintiffs’ counsel, Rita Nuñez Neumann, asserting 7 that Ms. Neumann had falsely contended that BNSF’s counsel had improperly 8 contacted her clients directly. Although BNSF advised Ms. Neumann of her error, she 9 refused to correct it. The district court granted BNSF’s motion, sanctioned Ms. 10 Neumann and her co-counsel, and ordered them to pay fees and costs in the amount 11 of $4,197.95. 12 On February 9, 2010, NMDOT filed its second motion for discovery sanctions 13 due to Plaintiffs’ continued refusal to respond to discovery. Plaintiffs responded on 14 February 18, 2010, contending that amended responses had been served on that date. 15 Several weeks later, the district court entered a detailed twenty-one-page order on 16 NMDOT’s motion for discovery sanctions and dismissed Plaintiffs’ lawsuit with 17 prejudice. Plaintiffs filed a motion for reconsideration that the district court denied 18 as moot based on Plaintiffs’ filing of this appeal. 19 DISCUSSION

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1 Plaintiffs raise four issues on appeal. They contend that the district court (1) 2 erred when it dismissed their complaint for discovery violations under Rule 1-037 3 NMRA, (2) erred in determining that an abuse of process occurred with the filing of 4 the complaint, (3) erred when it issued Rule 1-011 sanctions against Plaintiffs and 5 their counsel, and (4) violated Plaintiffs’ constitutional guarantees of due process. We 6 address each of Plaintiffs’ arguments below. 7 Dismissal for Discovery Violations Under Rule 1-037 8 We review a district court’s grant of Rule 1-037 sanctions for abuse of 9 discretion. Marchman v. NCNB Tex. Nat’l Bank, 120 N.M. 74, 90, 898 P.2d 709, 725 10 (1995); see also Sandoval v. Martinez, 109 N.M. 5, 12, 780 P.2d 1152, 1159 (Ct. App. 11 1989) (“We will not reverse a dismissal under Rule 1-037 unless, after reviewing the 12 full record and the reasons the district court gave for its order, we are left with a 13 definite and firm conviction that the court below committed a clear error of judgment 14 in the conclusion it reached upon a weighing of the relevant factors.” (internal 15 quotation marks and citation omitted)). In Sandoval, 109 N.M. at 8-9, 780 P.2d at 16 1155-56, this Court determined that Rule 1-037 applies to false answers to 17 interrogatories as well as to the failure to answer interrogatories. We have said that 18 “[t]he same logic leads us to conclude that the failure to properly supplement answers 19 to interrogatories, or the refusal to answer questions on matters ruled discoverable 20 during a deposition, also falls within the ambit of Rule 1-037.” Allred ex rel. Allred

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1 v. Bd. of Regents of the Univ. of N.M., 1997-NMCA-070, ¶ 19, 123 N.M. 545, 943 2 P.2d 579. 3 We recognize that the sanction of dismissal “may only be imposed when the 4 failure to comply is due to the willfulness, bad faith[,] or fault of the disobedient 5 party.” United Nuclear Corp. v. Gen. Atomic Co., 96 N.M. 155, 202, 629 P.2d 231, 6 278 (1980). Such a showing requires either:

7 (1) a clear showing of willfulness, bad faith, or other fault in the record; 8 or (2) when the record is unclear, more explicit findings by the trial court 9 (indicating that that court indeed found willfulness, bad faith, or other 10 fault) that are then supported by substantial evidence in the record.

11 Allred, 1997-NMCA-070, ¶ 28. In this context, “willfulness” includes “any conscious 12 or intentional failure to comply . . . as distinguished from accidental or involuntary 13 non-compliance[.]” United Nuclear, 96 N.M. at 202, 629 P.2d at 278 (internal 14 quotation marks and citations omitted). A finding of willful conduct may be 15 supported by evidence of numerous discovery violations or a consistent failure to 16 supplement answers to interrogatories. See, e.g., Reed v. Furr’s Supermarkets, Inc., 17 2000-NMCA-091, ¶¶ 22, 30, 129 N.M. 639, 11 P.3d 603; Allred, 1997-NMCA-070, 18 ¶ 30. We begin with a review of the district court’s order on discovery sanctions and 19 then address Plaintiffs’ argument that the court erred in dismissing their complaint 20 under Rule 1-037.

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1 In this case, the district court entered a twenty-one-page order on NMDOT’s 2 motion for discovery sanctions. After setting forth the factual history of the case, the 3 court detailed the “procedural difficulty with discovery.” The district court explained 4 that soon after Defendants’ answers were filed, Defendants began experiencing 5 difficulties obtaining discovery from Plaintiffs and their attorneys. In particular, 6 NMDOT had sent out sixty-one sets of interrogatories to the original Plaintiffs in the 7 case and then sent two more requests for production. On two separate occasions, 8 NMDOT requested that Plaintiffs correct their inadequate responses to discovery. 9 With regard to NMDOT’s discovery requests, the district court found that (1) all 10 Plaintiffs provided false information concerning their expert; (2) on numerous 11 occasions, Plaintiffs stated that they were supplementing their responses to 12 interrogatories but did not do so; (3) Plaintiffs “consistently failed and refused to 13 indicate the tangible or documentary evidence they would offer as exhibits against 14 NMDOT”; (4) “[t]his abusive practice was a consistent pattern for [P]laintiffs and 15 their attorneys”; and (5) there was a pattern and practice of Plaintiffs and their counsel 16 to refuse to comply with requests for production of documents. The district court then 17 specifically identified deficiencies in discovery responses as to individual Plaintiffs. 18 Further, the court found that Ms. Neumann made “willfully false and misleading” 19 statements concerning why she had failed to provide an expert witness report from 20 their expert, Mr. Williams.

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1 In addition to the deficient and inadequate responses to NMDOT’s discovery 2 requests, the order on discovery sanctions detailed false answers to interrogatories, 3 requests for production, and requests for admission propounded by BNSF, as well as 4 false deposition testimony regarding the existence of railroad ties beside the rail lines 5 and in the arroyos prior to the storm. The district court further documented Plaintiffs’ 6 false statements that the “Hydrological Study Procedure” was an “expert report 7 showing that the storm was a ten-year storm, and the probability is that there would 8 not have been a severe flood but for the trashed railroad ties.” It noted that Mr. 9 Williams “renounced the allegations” that the storm was a ten-year storm, that Mr. 10 Williams was not provided a copy of the complaint to review and that as late as June 11 2008, he was not prepared to say that the August 2006 storm was a ten-year storm 12 and, in fact, had analyzed the storm as a hundred-year storm. 13 The district court’s conclusions of law were similarly detailed. After setting 14 forth the relevant case law, the court reiterated the numerous instances of discovery 15 abuse and false statements by both Plaintiffs and Ms. Neumann and found them to be 16 willful and deliberate. In considering the appropriate sanctions, the court noted that 17 the range could be as minor as a fine or as severe as dismissal and acknowledged that 18 sanctions must be proportional to the abuse. Ultimately, the district court concluded 19 that Plaintiffs’ conduct “can only be described as deceitful, willful and done in bad 20 faith, with a complete and callous disregard for their discovery obligations.” Further,

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1 it found that Ms. Neumann “cast false allegations in an effort to deflect responsibility” 2 in the case, she constructed falsehoods, and she assisted her clients in falsifying 3 affidavits in support of her theory of the case. The district court decided it had no 4 option but to sanction Plaintiffs and their counsel with “the ultimate sanction, 5 dismissal with prejudice.” It is against this backdrop that we now consider Plaintiffs’ 6 argument that the district court erred in granting NMDOT’s motion for discovery 7 abuse. 8 Plaintiffs’ argument is not the model of clarity. They contend that the district 9 court abused its discretion when it dismissed the complaint for discovery violations 10 under Rule 1-037 because it misapprehended the law. However, Plaintiffs do not state 11 which law the district court allegedly misapprehended. Their argument appears to be 12 that the district court violated Plaintiffs’ right to due process because the court did not 13 issue an order to compel discovery prior to dismissing the complaint. Plaintiffs do not 14 cite to any case stating that a court order compelling discovery is a prerequisite to the 15 imposition of sanctions. Where a party cites no authority to support an argument, we 16 may assume no such authority exists. In re Adoption of Doe, 100 N.M. 764, 765, 676 17 P.2d 1329, 1330 (1984). 18 More importantly, we have New Mexico law to the contrary. As a preliminary 19 matter, we observe that the district court did not base the dismissal of Plaintiffs’ 20 complaint on the violation of any court order. Therefore, we treat its order as a

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1 dismissal under Rule 1-037(D) for various violations of the rules of discovery. In 2 Thornfield v. First State Bank of Rio Rancho, 103 N.M. 229, 232, 704 P.2d 1105, 3 1108 (Ct. App. 1983), we said that “[n]othing on the face of Rule [1-0]37 requires 4 notice before imposition of sanctions. The fact that the sanctions are spelled out in the 5 rule provides ample notice.” More recently, in Sandoval, 109 N.M. at 7, 780 P.2d at 6 1154, this Court made clear that Rule 1-037(D) authorizes the sanction of dismissal 7 even when there has been no court order. Sandoval further provides that, while it 8 would ordinarily be the best procedure to have a hearing before ordering the severe 9 sanction of dismissal, due process does not require that such a hearing take place. 109 10 N.M. at 12-13, 780 P.2d 1159-60. We therefore reject Plaintiffs’ contention that the 11 district court’s failure to issue an order to compel prior to dismissal of their complaint 12 is a misapprehension of the law requiring reversal. 13 To the extent that Plaintiffs argue dismissal was in error because they 14 “produced the evidence necessary to evaluate and resolve the dispute” in compliance 15 with Rule 1-037, we are not persuaded. Plaintiffs state that the dismissal order 16 improperly relies on the February 25, 2009 NMDOT motion and that the facts “fail 17 to take into account a full year of supplementation of discovery.” However, Plaintiffs 18 fail to cite to any place in the record when or where this “full year of supplementation 19 of discovery” took place. As a general rule, this Court “will not search the record to 20 find evidence to support an appellant’s claims.” In re Estate of Heeter, 113 N.M. 691,

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1 694, 831 P.2d 990, 993 (Ct. App. 1992). We nevertheless did so here and found 2 nothing to support Plaintiffs’ contentions. We explain. 3 NMDOT filed its first motion for discovery sanctions on February 25, 2009. 4 The motion set forth in detail the incomplete discovery responses of Plaintiffs and the 5 inadequate responses to NMDOT’s second and third request for production. The 6 motion attached as exhibits over 150 pages of examples of the incomplete and 7 meaningless responses provided by Plaintiffs as well as NMDOT’s efforts to resolve 8 the issue prior to filing the motion. For example, NMDOT sent a letter to Plaintiffs’ 9 counsel dated October 23, 2008, seeking to have Plaintiffs comply with the discovery 10 request. On December 5, 2008, NMDOT sent a third letter to Ms. Neumann 11 concerning problems with the discovery responses. The record does not show that 12 Plaintiffs met their discovery obligations or that they filed the appropriate motions to 13 be relieved from doing so prior to the filing of NMDOT’s motion. 14 Furthermore, Plaintiffs’ response to NMDOT’s motion for discovery sanctions 15 did not directly respond to NMDOT’s arguments at all except to admit that then- 16 plaintiffs, Mr. Kloske and Ms. Hayner, did not initially supply discovery responses. 17 And the response does not contend that Plaintiffs had—or intended to—supplement 18 their discovery responses. Instead, Plaintiffs made several unsupported and 19 misleading assertions presumably to deflect from the inadequacy of their discovery 20 responses. For example, Plaintiffs asserted that many of them “could not read, write[,]

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1 or speak English,” that many of them “have been suffering from untreated post 2 traumatic stress,” and that many of the Plaintiffs were married couples who for 3 “possibly social reasons” believed they could jointly answer interrogatories. The only 4 support for this last assertion came from an affidavit signed by Ms. Neumann’s 5 husband. Further, Plaintiffs turned the discovery process on its head by blaming 6 NMDOT for its failure to supply discovery to Plaintiffs, yet Plaintiffs did not provide 7 a single example of having supplemented their discovery responses apart from the 8 delayed responses filed by Mr. Kloske and Ms. Hayner. 9 On April 8, 2009, NMDOT filed a supplemental motion in support of Rule 10 1-037 sanctions, and Plaintiffs’ response was again unresponsive. Plaintiffs then filed 11 a brief titled, “Offer of Proof to Motion by NMDOT to Dismiss for Abuse of 12 Discovery.” To the extent Plaintiffs contend that their tenders of proof with expected 13 testimony satisfied their discovery obligations, we disagree. First, only twenty 14 Plaintiffs completed the expected informal offer of testimony “in order to rehabilitate 15 themselves,” and many others “could not be reached because of the time element.” 16 In the course of preparing their informal offers of expected testimony, Plaintiffs were 17 allegedly “told that they could be required to explain this testimony again on the stand 18 in the courtroom[,] and if there were discrepancies they would have to be prepared to 19 explain the reason.”

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1 “The discovery rules were adopted in the first place to eliminate surprise and 2 allow for full preparation of a case.” Redman v. Bd. of Regents of N.M. Sch. For 3 Visually Handicapped, 102 N.M. 234, 238, 693 P.2d 1266, 1270 (Ct. App. 1984). 4 Here, the first amended scheduling order required that the depositions of all fact 5 witnesses be completed by March 2, 2009. As a result, many, if not all, Plaintiffs had 6 already been deposed, and Plaintiffs’ newly proffered and apparently inconsistent 7 testimony effectively hampered and delayed the progress of this case. Moreover, the 8 few offers of testimony provided are neither proper supplements to NMDOT’s 9 discovery requests nor do they adequately respond to the interrogatories and requests 10 for production propounded. We give one example. In its motion for discovery 11 sanctions, NMDOT stated that Plaintiff Greg Gabaldon did not provide complete 12 responses to Interrogatories 2, 3, 4, 6, 9, and 10, and the entire request for production. 13 The interrogatories asked for the list of witnesses to be called at trial, a list of who 14 might have knowledge of the lawsuit, a description of the exhibits to be used at trial, 15 an itemized list of the damages suffered, whether or not anyone had investigated the 16 complaint, and information concerning expert witnesses who might be called at trial. 17 Contrary to Plaintiffs’ assertion, Mr. Gabaldon’s expected informal offer of testimony 18 does not provide supplemental answers to any of the deficient interrogatories nor does 19 he attach any documents responsive to the requests for production raised in NMDOT’s 20 motion. For example, he again fails to provide an itemized list of the allegedly

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1 $175,000 worth of damages suffered, and, to the proffered statement, “I produced the 2 following receipts and evidence concerning damages,” his incomprehensible response 3 was: “about my house for the production request.” There is no excuse for this failure 4 to comply with the requirement to supplement answers to interrogatories and to 5 comply with NMDOT’s reasonable discovery requests. 6 On February 9, 2010, NMDOT filed its second motion for discovery sanctions. 7 The motion noted that in March 2009, all Defendants had moved for discovery 8 sanctions and that the district court “made numerous findings, among which were that 9 Plaintiffs’ responses to NMDOT’s interrogatories were not only incomplete but 10 intentionally inaccurate.” NMDOT argued that since the district court’s 2009 ruling, 11 Plaintiffs had continued to fail or refuse to submit appropriate discovery responses. 12 Again it attached numerous exhibits demonstrating the deficient discovery responses 13 by the remaining Plaintiffs. Plaintiffs responded to NMDOT’s motion on February 14 18, 2010, and for the first time since originally being served on June 23, 2008, they 15 filed amended responses to NMDOT’s first set of interrogatories and requests for 16 production. Before NMDOT had the opportunity to reply to Plaintiffs’ response, the 17 district court entered its order dismissing Plaintiffs’ complaint. 18 Contrary to Plaintiffs’ argument, we conclude that they simply did not timely 19 produce “the evidence necessary to evaluate and resolve the dispute.” To the extent 20 amended responses were filed, that was not done until almost two years after first

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1 being served with the requests and only after several motions for sanctions were filed 2 and argued. “The design of the discovery process is to avoid surprise in trial 3 preparation and promote the opposing party’s ability to obtain the evidence necessary 4 to evaluate and resolve the dispute.” Reed, 2000-NMCA-091, ¶ 13 (alteration, 5 internal quotation marks, and citation omitted). In this case, Plaintiffs’ discovery 6 abuse was not a situation of isolated instances of vague and unresponsive answers to 7 a discovery request. Rather, Plaintiffs repeatedly refused to provide full and complete 8 information to NMDOT. When this occurs, the failure to comply with discovery 9 obligations is a willful refusal under Rule 1-037(D). 10 We take this opportunity to note that the district court’s consideration of 11 Plaintiffs’ false affidavits in response to BNSF’s requests for admission further 12 established Plaintiffs’ on-going and willful misrepresentations. Although BNSF was 13 no longer a party to the case when the district court issued its order of dismissal, the 14 admissions at issue addressed the underlying claims and were therefore relevant and 15 helpful to all Defendants, including NMDOT. In sum, the record indicates that the 16 district court took into account the potential prejudice to NMDOT from all the 17 discovery violations that were at play in this multiparty litigation. The sheer volume 18 of misrepresentations and repeated disregard for the rules of discovery persuaded the 19 district court that dismissal was appropriate. The record supports this conclusion.

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1 Finally, we briefly address Plaintiffs’ argument that NMDOT had unclean 2 hands and that, therefore, equitable estoppel should apply to deny the motion to 3 dismiss for discovery sanctions. Plaintiffs provide no support and no argument for the 4 assertion that NMDOT’s alleged failure to respond to Plaintiffs’ discovery requests 5 somehow excuses Plaintiffs from meeting their own discovery obligations under the 6 rules of civil procedure. “Issues raised in appellate briefs that are unsupported by 7 cited authority will not be reviewed . . . on appeal.” Wilburn v. Stewart, 110 N.M. 8 268, 272, 794 P.2d 1197, 1201 (1990). In any event, a “failure to act . . . may not be 9 excused on the grounds that the discovery sought is objectionable unless the party 10 failing to act has applied for a protective order.” Allred, 1997-NMCA-070, ¶ 18 11 (internal quotation marks and citation omitted). There is no evidence that occurred 12 here, and we therefore do not consider this argument further. 13 We conclude that (1) the district court was not required to enter an order to 14 compel discovery before dismissing Plaintiffs’ complaint; (2) Plaintiffs have not 15 shown that they timely and fully supplemented their discovery as required by the rules 16 of civil procedure; and (3) Plaintiffs have provided no evidentiary or legal support for 17 their assertion that NMDOT had unclean hands and, therefore, equitable estoppel 18 should apply to deny the motion for sanctions. Moreover, our full-record review 19 amply supports the district court’s exercise of its discretion in dismissing the

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1 complaint as a sanction for the repeated efforts of Plaintiffs to thwart discovery in this 2 case. 3 Abuse of Process and Rule 1-011 Sanctions 4 Because Plaintiffs’ Points II and IV in their brief in chief both involve the issue 5 of Rule 1-011 sanctions, we discuss them together here. Plaintiffs argue that the 6 district court erred in determining an abuse of process occurred with the filing of the 7 complaint and that it erred in issuing Rule 1-011 sanctions against them. We begin 8 with the Rule 1-011 sanction issue. 9 Again, though not entirely clear, Plaintiffs appear to be making two arguments 10 in support of their assertion that Rule 1-011sanctions should not have been imposed. 11 First, they contend that the district court’s imposition of Rule 1-011 sanctions must 12 be reversed because the court erroneously found that Ms. Neumann did not have a 13 good faith basis to allege in the complaint that the flood was a ten-year storm, that 14 BNSF replaced the ties, that old ties were left by the side of the rail line, and that Mr. 15 Williams was Plaintiffs’ expert. Second, they challenge the district court’s statement 16 that Ms. Neumann had no basis for alleging the existence of a possible conspiracy 17 between Mr. Williams and Mr. Chavez. Notwithstanding Plaintiffs’ argument, we 18 note that nowhere in the district court’s twenty-one-page order on discovery sanctions 19 does it state that it was imposing Rule 1-011 sanctions against Plaintiffs or Ms. 20 Neumann. And Plaintiffs do not cite to any portion of the order indicating where the

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1 district court made such a ruling. Our review of the record shows that the only motion 2 for Rule 1-011 sanctions in this case was filed by BNSF against Plaintiffs. That 3 motion, involving Ms. Neumann’s allegation that BNSF had improperly contacted 4 certain Plaintiffs, was granted on May 5, 2009, and is not at issue here. 5 Likewise, contrary to the argument in Point IV, we find nothing in the district 6 court’s order on discovery sanctions that it was imposing Rule 1-011 sanctions against 7 Plaintiffs on the basis that an abuse of process occurred with the filing of the 8 complaint. Because Plaintiffs’ arguments in Points II and IV of their brief in chief are 9 premised solely on whether the district court abused its discretion in awarding Rule 10 1-011 sanctions and because we conclude that the district court did not impose Rule 11 1-011 sanctions against Plaintiffs or Ms. Neumann, we do not consider these 12 arguments. 13 Constitutional Guarantees 14 Lastly, we turn to Plaintiffs’ argument that the district court violated Plaintiffs’ 15 rights to equal protection and due process under the United States and New Mexico 16 Constitutions. The constitutionality of the district court’s rulings present this Court 17 with a question of law that we review de novo. See Archuleta v. Santa Fe Police 18 Dep’t ex rel. City of Santa Fe, 2005-NMSC-006, ¶ 19, 137 N.M. 161, 108 P.3d 1019. 19 In this case, Plaintiffs contend that the district court exhibited a pattern of favoritism 20 towards NMDOT and other Defendants that rose to a level of “fundamental unfairness

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1 within the system.” According to Plaintiffs, this “pattern of favoritism” was 2 established by the following conduct: (1) the district court violated Rule 1-054.1 3 NMRA when it took NMDOT’s motion to dismiss for discovery violations under 4 advisement and did not enter an order within the permissible time frame; (2) the 5 district court violated Rule 1-007.1(H) NMRA by ruling on NMDOT’s second motion 6 for sanctions before NMDOT filed its reply brief or certificate of completion of 7 briefing; (3) NMDOT violated Rule 1-037(A) by failing to give notice or file a motion 8 to compel discovery before filing the motion for sanctions, and the district court 9 violated Section B of that rule by failing to issue an order compelling discovery; (4) 10 the district court refused to issue Rule 1-011 sanctions against a BNSF attorney for 11 filing a response brief with “an indecipherable signature of someone not an attorney 12 of record”; and (5) the district court failed to sanction a BNSF attorney for attempting 13 to file a deposition without a court order or permission to do so, and without 14 Plaintiffs’ knowledge. 15 We fail to see how the above rises to the level of violating Plaintiffs’ 16 constitutional rights. Each of the alleged violations cited by Plaintiffs involve a ruling 17 by the district court that would be subject to review under an abuse of discretion 18 standard. “An abuse of discretion occurs when a ruling is clearly contrary to the 19 logical conclusions demanded by the facts and circumstances of the case.” Sims v. 20 Sims, 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 P.2d 153. Plaintiffs have not shown

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1 how the district court abused its discretion in issuing—or, in some instances, not 2 issuing—these rulings much less that they rise to the level of a constitutional 3 violation. Moreover, Plaintiffs cite to no authority for the proposition that, under the 4 facts presented, this Court could determine that their constitutional rights were 5 violated. See In re Adoption of Doe, 100 N.M. at 765, 676 P.2d at 1330 (stating that 6 issues unsupported by cited authority will not be reviewed on appeal). The district 7 court did not violate Plaintiffs’ constitutional rights. 8 Attorney Fees and Costs 9 Although we affirm the district court’s dismissal of Plaintiffs’ complaint, we 10 reverse its order that Ms. Neumann and all remaining Plaintiffs are jointly and 11 severally liable for the attorney fees and costs incurred by NMDOT in defending this 12 matter. The district court listed the deficient and inadequate discovery responses of 13 several Plaintiffs, including some who were no longer in the case, and some who were 14 represented by other counsel, yet the order contemplates that the remaining Plaintiffs 15 and Ms. Neumann bear the costs and fees for all of NMDOT’s defense in this matter. 16 We are unable to find support for the district court’s ruling in this regard and, with the 17 guidelines set forth below, remand for a determination of the reasonable expenses and 18 fees caused by Ms. Neumann’s and the remaining Plaintiffs’ repeated disregard for 19 the rules of discovery.

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1 We have already concluded that the district court’s order on discovery sanctions 2 was based on Plaintiffs’ violation of Rule 1-037(D). That provision allows a district 3 court to dismiss an action for violating discovery rules and further states that “[i]n lieu 4 of any order or in addition thereto, the court shall require the party failing to act or the 5 attorney advising that party or both to pay the reasonable expenses, including 6 attorney’s fees, caused by the failure [to provide discovery responses].” Rule 1- 7 037(D). A plain reading of Rule 1-037(D) makes clear that the rule only allows a 8 district court to order a party that violated the discovery rules to reimburse the 9 prevailing party for all expenses incurred in obtaining the sanction and not for 10 expenses amassed during the entire course of the litigation. See Sandoval, 109 N.M. 11 at 9, 780 P.2d at 1156 (giving an example of the types of expenses that may be 12 incurred when an interrogatory answer falsely denied the existence of discoverable 13 information). In other words, an award of attorney fees and costs under Rule 1-037 14 is designed only to compensate a party for the expenses incurred in opposing another 15 party’s bad faith conduct. We therefore reverse the district court’s order awarding 16 NMDOT all costs and fees for having defended the matter and for awarding such costs 17 and fees against Ms. Neumann and all remaining Plaintiffs, jointly and severally. We 18 remand for consideration of an appropriate award of expenses incurred by NMDOT 19 in seeking sanctions against Ms. Neumann and each of the remaining Plaintiffs for 20 their failure to provide discovery in this case.

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1 CONCLUSION 2 For the reasons set forth above, the dismissal of Plaintiffs’ claims against 3 NMDOT was a proper exercise of the district court’s discretion. We reverse and 4 remand on the issue of attorney fees and costs. 5 IT IS SO ORDERED.

6 __________________________________ 7 LINDA M. VANZI, Judge

8 I CONCUR:

9 _________________________________ 10 CYNTHIA A. FRY, Judge

11 MICHAEL E. VIGIL, Judge (dissenting).

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1 VIGIL, Judge (dissenting). 2 The district court dismissed the complaint of certain Plaintiffs without setting 3 forth what discovery violations, if any, they committed; the district court dismissed 4 certain Plaintiffs’ claims against NMDOT based on their asserted discovery violations 5 relating to BNSF after their claims against BNSF were dismissed; the district court 6 relied on stale information one year old, much of which was no longer relevant when 7 the complaint was dismissed; and the district court ignored or failed to consider 8 material facts presented to it by Plaintiffs in opposition to NMDOT’s motions to 9 dismiss. For these reasons, I conclude that the district court abused its discretion in 10 dismissing Plaintiffs’ complaint with prejudice for willful and deliberate discovery 11 violations. Since the majority disagrees, I dissent. 12 The sanction of dismissal “may only be imposed when the failure to comply is 13 due to the willfulness, bad faith or fault of the disobedient party.” United Nuclear, 96 14 N.M. at 202, 629 P.2d at 278 (emphasis added). In this context, “willfulness” includes 15 “any conscious or intentional failure to comply[,] as distinguished from accidental or 16 involuntary non-compliance.” Id. Such a showing requires either:

17 (1) a clear showing of willfulness, bad faith, or other fault in the record; 18 or (2) when the record is unclear, more explicit findings by the trial court 19 (indicating that that court indeed found willfulness, bad faith, or other 20 fault) that are then supported by substantial evidence in the record.

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1 Allred, 1997-NMCA-070, ¶ 28. 2 On appeal, we review a district court order imposing sanctions for discovery 3 violations for abuse of discretion. Id. ¶ 17. When the sanction of dismissal for 4 discovery violations is imposed, our scrutiny is heightened, albeit still under an abuse 5 of discretion standard. Lewis ex rel. Lewis v. Samson, 2001-NMSC-035, ¶ 13, 131 6 N.M. 317, 35 P.3d 972. Of course, this presumes that discretion was in fact exercised, 7 and the failure to exercise discretion is, in itself, reversible error. Sandoval v. 8 Chrysler Corp., 1998-NMCA-085, ¶ 12, 125 N.M. 292, 960 P.2d 834. In addition, 9 “the trial court abuses discretion when it applies an incorrect standard, incorrect 10 substantive law, or its discretionary decision is premised on a misapprehension of the 11 law.” Aragon v. Brown, 2003-NMCA-126, ¶ 9, 134 N.M. 459, 78 P.3d 913. In order 12 to determine whether these standards were met, I turn to the facts. This recitation 13 necessarily includes many facts set forth by the majority, while adding others. 14 Eighty-five Plaintiffs originally brought suit. Forty-seven Plaintiffs were 15 eventually dismissed from the suit, and, in April 2009, Mr. Keith Burn of the the 16 Pickett Law Firm was replaced as counsel for approximately twenty-two Plaintiffs.

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1 This left the remaining eighteen Plaintiffs who are the appellants in the case now 2 before us. 3 BNSF filed a motion to dismiss on December 19, 2008, alleging willful 4 discovery abuses by Plaintiffs. SRC joined in the motion. Following a hearing, the 5 parties filed requested findings of fact and conclusions of law. Before the district 6 court ruled on BNSF’s motion, BNSF notified the court on June 19, 2009, that all 7 Plaintiffs (except Mr. Kloske, and we have no issues concerning him) agreed to 8 dismiss their claims against BNSF and SRC with prejudice. Accordingly, BNSF and 9 SRC advised the court that they did not seek sanctions “against those Plaintiffs for 10 their willful abuses of discovery.” On June 23, 2009, three stipulated orders 11 dismissing all of Plaintiffs’ claims against BNSF and SRC with prejudice were filed. 12 One was by two Plaintiffs, who were now representing themselves pro se. The 13 twenty-two Plaintiffs represented by Mr. Burn dismissed their claims against BNSF 14 and SRC in the second order, and the remaining Plaintiffs, represented by Ms. 15 Neumann, dismissed their claims against BNSF and SRC in the third order. Each 16 order further directed, “Each Party shall bear its own costs and attorneys’ fees.” 17 NMDOT filed its own motion for discovery sanctions on February 25, 2009. 18 NMDOT attached answers to interrogatories given by fifteen Plaintiffs, contending

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1 they were incomplete and that the answers to interrogatories of the remaining (twelve) 2 Plaintiffs were incomplete as well. However, the answers of the remaining (twelve) 3 Plaintiffs were not attached, “given the amount of materials being submitted on this 4 first discovery sanction motion.” The fifteen Plaintiffs identified and the asserted 5 deficiencies (RP Vol 8, 2080-81) are the same exact ones set forth in the order on 6 discovery sanction that is before us on appeal. Moreover, NMDOT contended, 7 Plaintiffs had not properly responded to its second and third requests for production 8 of documents. Plaintiffs responded to the motion on March 10, 2009, and NMDOT 9 filed its reply on March 19, 2009. Additional pleadings directed to NMDOT’s motion 10 followed. 11 Among the additional pleadings filed on April 13, 2009, was an “offer of proof” 12 of twenty Plaintiffs of the thirty-four who remained in the case at that time. These 13 consisted of statements under oath addressing many of the asserted alleged 14 deficiencies NMDOT asserted were incomplete or missing. Moreover, Plaintiffs 15 alleged, NMDOT was itself abusing the discovery process. NMDOT filed a response 16 asserting that contrary to Plaintiffs’ assertions, NMDOT itself did not abuse 17 discovery. On April 14, 2009, NMDOT filed its requested findings of fact and 18 conclusions of law, and Plaintiffs’ requested findings of fact and conclusions of law

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1 were filed on April 24, 2009. While NMDOT’s motion was pending, two additional 2 significant orders were filed. 3 First, on June 23, 2009, contemporaneous with the three stipulated orders 4 dismissing all of Plaintiffs’ claims against BNSF and SRC, several Plaintiffs, BNSF, 5 and NMDOT stipulated to a fourth order, in which those Plaintiffs agreed to a 6 dismissal of all their claims arising out of the August 15, 2006 flood with prejudice 7 “for failure to respond to discovery.” This order likewise directed, “Each Party shall 8 bear its own costs and attorneys’ fees.” 9 Secondly, those Plaintiffs represented by Mr. Burn and NMDOT entered into 10 a stipulated order filed on December 17, 2009, in which those Plaintiffs agreed to 11 dismiss all their claims against NMDOT with prejudice. This order further provided 12 that each party would bear its own costs and attorneys’ fees, and NMDOT “waives 13 all claims for sanctions against these specific Plaintiffs.” With the entry of this order, 14 only the eighteen Plaintiffs bringing the appeal before us, represented by Ms. 15 Neumann, remained in the case. Moreover, the only claims they had left were those 16 they had brought against NMDOT. 17 On February 9, 2010, NMDOT filed a second motion for discovery sanctions. 18 Attached to this motion were the discovery responses of Plaintiffs that were not

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1 previously provided to the district court when it filed its first motion on February 25, 2 2009. Therein, NMDOT also noted that following hearings on sanctions, “The court 3 took the matter under advisement to decide appropriate sanctions, and indicated that 4 individual sanctions would be levied against individual Plaintiffs, rather than a lump 5 sum penalty against all Plaintiffs.” 6 Plaintiffs responded to NMDOT’s second motion for discovery sanctions on 7 February 18, 2010. Therein, Plaintiffs stated that documents their expert required to 8 properly respond to NMDOT’s discovery (specifically Interrogatory No. 10) were not 9 received from NMDOT until the first week of January 2010, whereupon they were 10 promptly forwarded to the expert. Plaintiffs stated that their expert had completed his 11 report on February 11, 2010, and on February 18, 2010, they served a complete set of 12 amended answers to NMDOT’s first set of interrogatories and requests for production. 13 Copies of the amended discovery responses were attached to the response. In 14 addition, Plaintiffs related that they had hired an individual employed by an insurance 15 agency to assist them in computing answers relating to their damages. 16 On March 3, 2010, the district court filed the order on discovery sanctions that 17 is before us on appeal. Plaintiffs promptly filed a motion for reconsideration on 18 March 5, 2010. Therein Plaintiffs pointed out that NMDOT’s motion dealt strictly

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1 with answers to interrogatories and requests for production from the NMDOT, but that 2 the order granting sanctions was based on responses made by Plaintiffs to discovery 3 propounded by BNSF, and BNSF was dismissed from the case. Moreover, Plaintiffs 4 noted that they expected NMDOT’s motion to be decided on the most recent amended 5 discovery responses provided to NMDOT. In this regard, Plaintiffs repeated:

6 The delay incurred by the Plaintiffs dealt with Interrogatory 10, the 7 answer of which was dependent on discovery from the NMDOT. Dr. 8 Samani [Plaintiffs’ expert] could not complete his final report for the 9 Plaintiffs until the NMDOT produced the requested discovery. It took 10 fourteen months for the NMDOT to give up the documents.

11 Plaintiffs attached Dr. Samani’s affidavit to the response, which set forth his 12 calculations and conclusion that the bridge over the Placitas Arroyo “was probably 13 blocked by sediment or a combination of sediment and trash such that the capacity of 14 the structure was reduced to 40% of the peak 100 year flood capacity.” Further, he 15 said, “It is my professional opinion after reviewing all the NMDOT documents that 16 the breach of the channel embankment was caused by the reduced channel capacity, 17 and not by an extreme storm.” After NMDOT responded on March 17, 2010, 18 Plaintiffs replied on March 19, 2010. 19 While briefing was being completed on the motion to reconsider, Plaintiffs filed 20 a notice of appeal on March 10, 2010, appealing from the March 3, 2010 order of

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1 dismissal. On April 13, 2010, the district court denied Plaintiffs’ motion to reconsider 2 on the basis that because Plaintiffs had filed the notice of appeal, “the motion should 3 be denied as moot.” 4 As a preliminary matter, I observe that this is not a proper basis for denying the 5 motion to reconsider. When a party files a motion asking the district court to alter or 6 amend its decision, the motion effectively renders the decision non-final for purposes 7 of appeal. See Dickens v. Laurel Healthcare, LLC, 2009-NMCA-122, ¶ 4, 147 N.M. 8 303, 222 P.3d 675 (observing that the filing of “a motion asking the district court to 9 alter or change the same order . . . on appeal . . . render[s] the order not final for 10 purposes of appeal”); Rule 12-201(D) NMRA (“If a party timely files a motion 11 pursuant to . . . Rule 1-059 NMRA, the full time prescribed in this rule for the filing 12 of the notice of appeal shall commence to run and be computed from the entry of an 13 order expressly disposing of the motion.”). The district court was therefore called 14 upon to address the motion to reconsider on the merits instead of denying it as moot. 15 On this basis alone, we should reverse and remand to the district court to consider the 16 merits of Plaintiffs’ motion for reconsideration. See Wilde v. Westland Dev. Co., 17 2010-NMCA-085, ¶ 35, 148 N.M. 627, 241 P.3d 628 (stating that we review a district 18 court ruling on a motion to reconsider for an abuse of discretion); Aragon, 2003-

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1 NMCA-126, ¶ 9 (stating that the district court abuses discretion when its discretionary 2 decision is premised on a misapprehension of the law). Since the majority apparently 3 disagrees, however, I now turn to the merits. 4 DISCUSSION 5 Eighteen Plaintiffs remained in the case when the district court order on 6 discovery sanctions was imposed. They were: (1) Maria R. Bilboa, (2) Luz Elena 7 Bilboa, (3) Lawrence R. Buckelew, (4) Esequiel C. Castro, (5) Alicia L. Castro, (6) 8 Gregory Gabaldon, (7) Veronica Gabaldon, (8) Domingo Gomez, (9) Alfredo 9 Granados, (10) Ralph Kassian, (11) Margie Mirabel, (12) Margie Mora, (13) Jose Luis 10 Olvera, (14) Gregorio Olvera, (15) Paulette Paltza, (16) Robert M. Padilla, (17) Carla 11 P. Yaw, and (18) Elvis Yaw. 12 Five of the Plaintiffs are not even mentioned in the order on discovery sanctions 13 as having provided deficient discovery responses to NMDOT. They are: (1) 14 Lawrence R. Buckelew, (2) Alicia L. Castro, (3) Veronica Gabaldon, (4) Alfredo 15 Granados, and (5) Gregorio Olvera. Thus, the requisite findings necessary for 16 dismissal because of discovery abuse are completely absent as to these Plaintiffs, and 17 the order on discovery sanctions must be dismissed as to them. Moreover, it is 18 axiomatic that the sanction of dismissal for discovery abuse cannot be imposed upon

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1 a party because a separate party has abused its discovery obligations. See Reed, 2000- 2 NMCA-091, ¶¶ 9-10. 3 In addition, the district court failed to consider highly relevant information 4 pertinent to whether Plaintiffs failed to comply with their discovery obligations due 5 to their willfulness, bad faith, or fault. NMDOT’s first motion for sanctions was filed 6 on February 25, 2009, against the twenty-seven Plaintiffs who had claims against 7 NMDOT at the time. While NMDOT contended that all Plaintiffs’ answers to 8 interrogatories were deficient, it only attached the answers given by fifteen Plaintiffs. 9 As part of their response to the motion, twenty Plaintiffs submitted an “offer of proof” 10 on April 13, 2009, consisting of their statements under oath which addressed 11 deficiencies claimed by NMDOT in their answers to interrogatories. Nine of the 12 fifteen Plaintiffs in this appeal (Maria R. Bilboa, Luz Elena Bilboa, Esequiel C. 13 Castro, Gregory Gabaldon, Veronica Gabaldon, Alfredo Granados, Ralph Kassian, 14 Margie Mirabal, and Paulette Paltza) were among those submitting a sworn “offer of 15 proof,” and the sworn statements of three of them (Maria Bilboa, Luz Elena Bilboa, 16 and Alfredo Granados) were in Spanish, apparently because they do not Speak 17 English.

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1 One year after it filed its first motion for discovery sanctions, NMDOT filed a 2 second motion for discovery sanctions on February 9, 2010. This motion attached the 3 discovery responses of additional Plaintiffs, which were not attached when it filed the 4 original motion on February 25, 2009. In their response to the second motion, all 5 eighteen Plaintiffs in this appeal attached their amended answers to NMDOT’s first 6 set of interrogatories and responses to requests for production, which had been served 7 on NMDOT on February 18, 2010. In addition, Plaintiffs stated in their response that 8 they were unable to provide a complete answer to Interrogatory No. 10 until their 9 expert received information from NMDOT, and it was not provided until the first 10 week of January 2010. The expert completed his report on February 11, 2010, and 11 Plaintiffs served NMDOT with their amended answers to interrogatories and 12 responses to requests for production on February 18, 2010. 13 Without conducting a hearing related to NMDOT’s second motion for 14 discovery sanctions, the district court filed the order on discovery sanctions on March 15 3, 2010. The order refers to the same fifteen Plaintiffs and the identical deficiencies 16 asserted by NMDOT in its original motion filed on February 25, 2009, and fails to 17 even mention what NMDOT claimed were deficient discovery responses of the 18 remaining Plaintiffs attached to NMDOT’s second motion filed on February 9, 2010.

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1 Moreover, the order totally fails to consider the sworn offers of proof or the amended 2 answers to interrogatories and responses to requests for production Plaintiffs filed in 3 response to NMDOT’s first and second motions. The district court nevertheless 4 concluded that “Plaintiffs’ responses to discovery are so deficient and so numerous 5 in number that it cannot be called a mere oversight or an unsuccessful good faith 6 attempt at answering discovery.” I fail to see how the district court could arrive at 7 such a conclusion or otherwise make a determination that Plaintiffs failed to comply 8 with their discovery obligations due to willfulness, bad faith, or other fault sufficient 9 to warrant the severe sanction of dismissal without considering Plaintiffs’ sworn 10 offers of proof or amended discovery responses. 11 In addition, I am impressed by the fact that the bulk of the order on discovery 12 sanctions makes findings relating to deficient discovery responses to discovery 13 propounded by BNSF—not NMDOT. In fact, the order on discovery sanctions filed 14 on March 3, 2010, mirrors in many respects BNSF’s motion to dismiss filed on 15 December 9, 2008. Noticeably absent from the order is any analysis of how Plaintiffs’ 16 answers to discovery propounded by BNSF had any impact on the claims made by 17 Plaintiffs against NMDOT, or whether NMDOT suffered any prejudice or expense as 18 a result of Plaintiffs’ responses to BNSF’s discovery requests.

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1 Further, the order on discovery sanctions fails to mention that Plaintiffs— 2 including the eighteen Plaintiffs in this appeal—had already dismissed all their claims 3 against BNSF and SRC in several stipulated orders. The three stipulated orders filed 4 on June 23, 2009, between certain Plaintiffs and BNSF and SRC specifically state that 5 because the Plaintiffs identified in those orders are dismissing their claims against 6 BNSF and SRC, they do not seek sanctions against those Plaintiffs for willful abuses 7 of discovery. In the fourth order, which was also filed on June 23, 2009, several 8 additional Plaintiffs, BNSF, SRC, and NMDOT stipulated that all of those Plaintiffs’ 9 claims against both BNSF and NMDOT are dismissed with prejudice, “for failure to 10 respond to discovery.” All of these orders also specify that each party will bear its 11 own costs and attorneys’ fees. 12 Because the March 3, 2010 order on discovery sanctions fails to mention or 13 acknowledge these stipulated orders, it fails to analyze whether, or to what extent, 14 they affected the remaining issues raised by NMDOT’s own motions for discovery 15 sanctions filed on February 25, 2009, and a year later on February 9, 2010. For 16 example, I note that the following Plaintiffs were specifically alleged to have provided 17 deficient discovery responses to NMDOT in its first motion to dismiss filed on 18 February 25, 2009, but they also subsequently dismissed all their claims against

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1 BNSF: (1) Maria R. Bilboa, (2) Luz Elena Bilboa, (3) Alicia L. Castro, (4) Gregory 2 Gabaldon, (5) Domingo Gomez, (6) Ralph Kassian, (7) Margie Mirabal, (8) Margie 3 Mora, and (9) Gregorio Olvera. The order on discovery sanctions dismisses Plaintiffs’ 4 claims against NMDOT because of these Plaintiffs’ responses to BNSF discovery 5 requests without any analysis of why it is appropriate to do so. Equally perplexing, 6 the order on discovery sanctions sets forth asserted deficient discovery responses of

7 twenty-four individuals who were no longer in the case when the order was entered.

1 8 However, the district court order makes no analysis, determination, or finding that

9 the purported discovery deficiencies of these twenty-four individuals rendered it 10 proper or appropriate to dismiss the claims of the Plaintiffs before us with prejudice. 11 Finally, the March 3, 2010 order on discovery sanctions fails to mention, 12 acknowledge, or analyze the effect of the fifth stipulated order filed on December 17, 13 2009. In this stipulated order, another group of Plaintiffs dismissed all their claims 14 against NMDOT with prejudice, and NMDOT “waives all claims for sanctions against

1

14 They are: (1) Alex Kloski; (2) Gilbert Martinez; (3) Lee Martinez; (4) Maria 15 Martinez; (5) Shelley Hayner; (6) Marilyn Herrera; (7) Gary Bragg; (8) Reba Bragg, 16 d/b/a Hatch Auto Electric, Inc.; (9) Karen E. Ingalls; (10) Lee Martinez; (11) George 17 Moyers; (12) Rigoberto Perez; (13) Cynthia Shewmake; (14) Antoinette Turner; (15) 18 Elias Silva; (16) Paula Silva; (17) Elizabeth Soto; (18) Angel Soto; (19) Edna Torres; 19 (20) Manuel Torres; (21) Patsy Trujillo; (22) Enrique Trujillo; (23) Greg Mitchell, and 20 (24) Barbara Mitchell, d/b/a United Drug Superstore).

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1 these specific Plaintiffs[.]” Again, conspicuously absent from the order on discovery 2 sanctions is any analysis of what effect, if any, the December 17, 2009 stipulated order 3 had on the issues raised by NMDOT’s motions of February 25, 2009, and February 4 9, 2010. 5 The foregoing reasons compel reversal of the district court order on discovery 6 sanctions as it relates to the eighteen Plaintiffs before us in this appeal. In fact, the 7 majority seems to agree at least in one respect. In reversing the award of attorney fees 8 and costs, the majority states: “The district court listed the deficient and inadequate 9 discovery responses of several Plaintiffs, including some who were no longer in the 10 case, and some who were represented by other counsel, yet the order contemplates that 11 the remaining Plaintiffs and Ms. Neumann bear the costs and fees for all of NMDOT’s 12 defense in this matter. We are unable to find support for the district court’s ruling in 13 this regard[.]” 14 I would reverse the order on discovery sanctions dismissing Plaintiffs’ 15 complaint against NMDOT with prejudice. Since the majority disagrees, I dissent.

16 ______________________________ 17 MICHAEL E. VIGIL, Judge