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

 2   ROBERT ORTEGA and JUDITH
 3   DURAN-ORTEGA, Individually and
 4   as Parents and Next Friend of J.D.-O.,
 5   a Minor, R.O., a Minor, L.O., a Minor,
 6   J.O., a Minor, and Y.O., a Minor,

 7          Plaintiffs-Appellants,

 8 v.                                                                            No. 35,164

 9   GARY GOLD, former Chief of Police
10   of the Las Vegas Police Department, a
11   subsidiary of the City of Las Vegas, Individually,
12   MACK ALLINGHAM, an Officer with the Las Vegas
13   Police Department, a subsidiary of the City of
14   Las Vegas, Individually, MARTIN X. SALAZAR, an
15   Officer with the Las Vegas Police Department,
16   a subsidiary of the City of Las Vegas, Individually,
17   ERIC PADILLA, an Agent of the Region IV Narcotics
18   Task Force, and an agent/employee of the Las Vegas
19   Police Department, a subsidiary of the City of Las
20   Vegas, Individually, CITY OF LAS VEGAS,
21   a Municipal Entity Organized Under the Laws
22   of the State of New Mexico, which operates the Las
23   Vegas Police Department,

24          Defendants-Appellees,

25 and

26 MELISSA “MISSY” MARTINEZ,
 1   a citizen of the State of New Mexico acting in concert
 2   with and under the direction of Defendant Gary Gold,
 3   EUGENE ROMERO, a citizen of the State of New
 4   Mexico acting in concert with and under the direction of
 5   Defendant Gary Gold, LUCILLE ROMERO, a citizen of
 6   the State of New Mexico acting in concert with and under
 7   the direction of Defendant Gary Gold,

 8         Defendants.

 9 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
10 Abigail Aragon, District Judge

11   Alan Maestas Law Office, P.C.
12   Kathryn J. Hardy
13   Alan H. Maestas
14   Taos, NM

15 for Appellants

16 Ortiz & Zamora, Attorneys at Law, LLC
17 Tony F. Ortiz
18 Santa Fe, NM

19 for Appellees

20                             MEMORANDUM OPINION

21 VIGIL, Judge.

22   {1}   Plaintiffs Robert Ortega and Judith Duran-Ortega, in their individual capacities

23 and as parents and next of kin to their five minor children, appeal from the district

24 court’s order denying their motion to set aside the dismissal of their civil rights

25 complaint against Defendants Gary Gold, Mack Allingham, Martin X. Salazar, Eric



                                               2
 1 Padilla, the City of Las Vegas (the City) (collectively, City Defendants), and

 2 Defendants Melissa “Missy” Martinez, Eugene Romero, and Lucille Romero, as a

 3 sanction for discovery violations under Rule 1-037(D) NMRA. We conclude that the

 4 district court abused its discretion in granting the severe sanction of dismissal and

 5 reverse.

 6 BACKGROUND

 7   {2}   Plaintiffs filed their complaint and jury demand on May 29, 2012. When they

 8 failed to serve any of the defendants or otherwise advance the matter for close to two

 9 years, it was dismissed for lack of prosecution on April 9, 2014. Plaintiffs then filed

10 a timely motion for reinstatement, which was granted on May 19, 2014.

11   {3}   Over the next nine months, City Defendants, with the exception of Melissa

12 Martinez, Eugene Romero, and Lucille Romero, unsuccessfully pursued removal of

13 the action to federal district court. City Defendants ultimately withdrew their removal

14 petition, and the matter was remanded to state court on February 17, 2015.

15   {3}   The next action in this case was the filing on June 1, 2015, of the City’s motion

16 to compel discovery and for sanctions “[d]irected to Plaintiff Robert Ortega[.]” In its

17 motion, the City alleged that it served Plaintiff Robert Ortega with written

18 interrogatories and requests for production of documents on March 13, 2015; that it

19 received untimely and inadequate, incomplete, or nonresponsive answers to



                                               3
 1 interrogatories; and that it never received a response to its requests for production of

 2 documents. As such, the City requested, that pursuant to Rule 1-037(D), Plaintiff

 3 Robert Ortega’s claims be dismissed with prejudice and further that he be ordered to

 4 pay the City’s reasonable expenses and attorney fees. When Plaintiff Robert Ortega

 5 failed to file a response to the motion, the City filed a notice of completion of briefing

 6 on June 24, 2015.

 7   {4}   Without holding a hearing, the district court granted the motion on July 6, 2015.

 8 The order stated that “Plaintiff to this action [had] not responded to any inquiries

 9 related to this matter and that this matter [had] already [been] dismissed once

10 previously for lack of prosecution” by a prior judge. It concluded that “the case [was]

11 . . . dismissed with prejudice as to all City Defendants.”

12   {5}   Plaintiffs filed a motion to set aside the order of dismissal on the same day. The

13 motion stated that Plaintiffs’ counsel had been under the mistaken belief that the

14 City’s motion did not ask for dismissal but rather sought to compel the production of

15 discovery responses by July 10, 2015. Plaintiffs’ counsel stated that she was “working

16 diligently and [would] meet that deadline” and further asked that any sanctions be

17 levied against her rather than her clients. City Defendants filed a response, in which

18 they argued that the district court had the authority “to dismiss the case with prejudice

19 as a remedy for failure to respond to the [m]otion to [c]ompel, particularly considering



                                               4
 1 the case’s previous dismissal without prejudice for failure to prosecute[.]” City

 2 Defendants further pointed out that they made clear to Plaintiffs that dismissal would

 3 be requested prior to filing the motion to compel in a letter dated May 18, 2015, and

 4 that they had never agreed to any discovery extensions, until July 10, 2015 or

 5 otherwise. Lastly, City Defendants asserted that setting aside the dismissal would be

 6 “substantially prejudicial” to them as “the claims [had become] stale, witnesses [had

 7 become] harder to obtain, [and] discovery [was] more difficult[.]”

 8   {6}   The district court held a hearing on Plaintiffs’ motion to set aside the order of

 9 dismissal on September 22, 2015. During the hearing, Plaintiffs’ counsel asserted that

10 she had in her possession the responses to the City’s requests for production of

11 documents, and that the delay in their production was caused by the fact that her office

12 transitioned to a new server, in the process of which calendaring data was lost.

13 Plaintiffs’ counsel further argued that the latter did not constitute intentional deception

14 or bad faith necessary to warrant a dismissal of the action and that City Defendants’

15 assertions of prejudice were unsubstantiated. In response, City Defendants’ counsel

16 acknowledged that this case did not involve bad faith on Plaintiffs’ part, but

17 nevertheless argued that dismissal was proper “for failure to prosecute.” City

18 Defendants’ counsel further asserted that witnesses had either disappeared or their




                                                5
 1 memories had faded, but offered no specifics beyond stating that evidence “may have

 2 [been] lost.”

 3   {7}   After taking the matter under advisement, the district court entered an order

 4 denying Plaintiffs’ motion to set aside the dismissal on September 28, 2015. In the

 5 order, the district court held that Plaintiffs failed to respond to discovery requests,

 6 failed to respond to the May 18, 2015 letter from the City’s counsel, and failed to

 7 respond to the City’s motion to compel. The district court concluded that “[t]he only

 8 significant action taken by the Plaintiffs in this matter was the [motion to set aside the

 9 order on the motion to compel,]” and that “Plaintiffs failed to demonstrate excusable

10 neglect” for their failure to provide discovery as requested. This appeal followed.

11 DISCUSSION

12 1.      Standard of Review

13   {8}   The applicable standard of review on appeal depends on the nature of Plaintiffs’

14 motion to set aside the district court’s order granting the City’s motion to compel

15 discovery and for sanctions, including dismissal with prejudice. If Plaintiffs’ motion

16 is construed as a motion for relief from a final judgment pursuant to Rule 1-060(B)(6)

17 NMRA, then the only issue before us is whether the district court erred in holding that

18 Plaintiffs failed to show excusable neglect. See Rule 1-060(B)(1) (stating that “the

19 court may relieve a party . . . from a final judgment . . . for the following reasons: . .



                                               6
 1 . mistake, inadvertence, surprise, or excusable neglect”); see also Marquez v.

 2 Larrabee, 2016-NMCA-087, ¶ 9, 382 P.3d 968 (holding that an appeal from the

 3 district court’s denial of a Rule 1-060 motion to set aside a default judgment entered

 4 as a discovery sanction precluded review of the merits of the discovery sanction

 5 itself). If, on the other hand, the motion is construed as a motion to reconsider a final

 6 judgment pursuant to Rule 1-059(E) NMRA, then we may reach the merits of the

 7 district court’s dismissal with prejudice as a sanction for discovery violations. See In

 8 re Estate of Keeney, 1995-NMCA-102, ¶ 11, 14, 121 N.M. 58, 908 P.2d 751 (holding

 9 that an appeal from the denial of a motion to reconsider pursuant to Rule 1-059(E)

10 permits de novo review of the merits of the underlying final judgment).

11   {9}   Plaintiffs’ motion did not specify the rule or statutory authority upon which it

12 was based, and neither party addresses this issue on appeal. Rather, both parties’

13 arguments on appeal presume that we may reach the merits of the discovery sanction

14 below. Because Plaintiffs’ motion was filed on the same day as the order granting the

15 sanction of dismissal, we conclude that the parties’ presumption is correct and

16 construe the motion as one for reconsideration pursuant to Rule 1-059(E). See id. (“A

17 motion to alter, amend, or reconsider a final judgment shall be filed not later than

18 thirty (30) days after entry of the judgment.”); see also Albuquerque Redi-Mix, Inc.

19 v. Scottsdale Ins. Co., 2007-NMSC-051, ¶ 10, 142 N.M. 527, 168 P.3d 99 (holding



                                               7
 1 that “a motion challenging a judgment, filed within ten days of the judgment, should

 2 be considered a Rule 1-059(E) motion”); Keeney, 1995-NMCA-102, ¶ 11 (treating a

 3 motion to reconsider filed within ten days of an order granting summary judgment as

 4 a motion under Rule 1-059(E)).

 5   {10}   Under Rule 1-037(D)(2) and (3), the district court may impose sanctions upon

 6 a party for failure to answer interrogatories or to respond to requests for production

 7 of documents without first issuing an order compelling the production of such

 8 discovery. “The type of sanctions available to the district court are authorized by Rule

 9 1-037(B)(2). Dismissal is among the sanctions available.” Reed v. Furr’s

10 Supermarkets, Inc., 2000-NMCA-091, ¶ 7, 129 N.M. 639, 11 P.3d 603.

11   {11}   The applicable standard of review is abuse of discretion. See id. ¶ 10.

12 Nevertheless, given the severity of the sanction of dismissal, “[a]n appellate court’s

13 review should be particularly scrupulous lest the district court too lightly resort to this

14 extreme sanction.” Sandoval v. Martinez, 1989-NMCA-042, ¶ 13, 109 N.M. 5, 780

15 P.2d 1152 (internal quotation marks and citation omitted); see also Lewis v. Samson,

16 2001-NMSC-035, ¶ 13, 131 N.M. 317, 35 P.3d 972 (stating that New Mexico courts

17 scrutinize the severe sanction of dismissal under Rule 1-037 “more closely”).

18 2.       Analysis




                                                8
 1   {12}   Our Supreme Court has held that, even where a party violates a court

 2 order—conduct which, in addition to a discovery violation, constitutes contempt of

 3 court—“such discovery sanctions[, i.e., dismissal with prejudice or default judgment,]

 4 are to be imposed only in extreme cases and only upon a clear showing of willfulness

 5 or bad faith. That principle is well-established in this jurisdiction; it is universally

 6 recognized in American jurisprudence; and it is fundamental to the constitutional right

 7 of due process.” United Nuclear Corp. v. Gen. Atomic Co., 1980-NMSC-094, ¶ 396,

 8 96 N.M. 155, 629 P.2d 231; Rule 1-037(B)(2)(d) (providing that, in addition to any

 9 other discovery sanctions, a district court may treat the failure to comply with an order

10 providing for the production of discovery as contempt of court). Logically, this Court

11 has held that “[d]ismissal under Rule 1-037(D) is appropriate only when a party’s

12 misconduct meets the minimum requirements set by our supreme court in United

13 Nuclear for defaults under Rule 1-037(B)[,] . . . [i.e.,] only in extreme cases and only

14 upon a clear showing of willfulness or bad faith.” Sandoval, 1989-NMCA-042, ¶ 13

15 (internal quotation marks and citation omitted). “A finding of willfulness may be

16 based upon either a willful, intentional, and bad faith attempt to conceal evidence or

17 gross indifference to discovery obligations.” Medina v. Found. Reserve Ins. Co.,

18 1994-NMSC-016, ¶ 6, 117 N.M. 163, 870 P.2d 125; see also Reed, 2000-NMCA-091,

19 ¶ 10 (“[T]he district court is justified in imposing the sanction [of dismissal] and does



                                               9
 1 not abuse its discretion [only] when a party demonstrates flagrant bad faith and callous

 2 disregard for its discovery responsibilities.” (alteration, internal quotation marks, and

 3 citation omitted)). “Specific findings are prerequisites for imposition of discovery

 4 sanctions.” Lopez v. Wal-Mart Stores, Inc., 1989-NMCA-013, ¶ 7, 108 N.M. 259, 771

 5 P.2d 192. Further, while the district court need not exhaust lesser sanctions prior to

 6 imposing the sanction of dismissal, it must first determine that “none of the lesser”

 7 sanctions available to it, would truly be appropriate[.]” United Nuclear, 1980-NMSC-

 8 094, ¶ 387 (internal quotation marks and citation omitted).

 9   {13}   Our review of the record on appeal reveals that Plaintiff Robert Ortega provided

10 answers to interrogatories on April 27, 2015, which complied with the City’s stated

11 deadline in its April 24, 2015 email to Plaintiffs’ counsel. Cf. Lopez, 1989-NMCA-

12 013, ¶¶ 10-11 (holding that the severe sanction of dismissal was not justified where

13 the required discovery was supplied late but in advance thereto). Our review of the

14 record confirms, however, that Plaintiff Robert Ortega did not respond to the City’s

15 requests for production of documents prior to the entry of the order of dismissal.

16 Nevertheless, the district court’s statement that “Plaintiffs failed to demonstrate

17 excusable neglect” demonstrates that the court judged this failure by an incorrect

18 standard and thereby abused its discretion. See Mintz v. Zoernig, 2008-NMCA-162,

19 ¶ 17, 145 N.M. 362, 198 P.3d 861 (“The trial court abuses discretion when it applies



                                               10
 1 an incorrect standard, incorrect substantive law, or its discretionary decision is

 2 premised on a misapprehension of the law.” (internal quotation marks and citation

 3 omitted)). To the extent that the dismissal was premised on Plaintiff Robert Ortega’s

 4 failure to respond to the motion to compel, we have likewise held that such dismissal

 5 “requires an assessment of the violating party’s conduct weighed against the

 6 underlying principles that cases should be tried on their merits and that dismissal is

 7 so severe a sanction that it must be reserved for the extreme case and used only where

 8 a lesser sanction would not serve the ends of justice.” Lujan v. City of Albuquerque,

 9 2003-NMCA-104, ¶ 11, 134 N.M. 207, 75 P.3d 423; see id. ¶ 1, 3 (reversing the

10 district court’s dismissal with prejudice “entered under the rationale that, under Rule

11 1-007.1(D) NMRA . . . , [the p]laintiffs’ failure to respond to [the d]efendants’

12 motions for summary judgment constituted consent to grant the motions”). Lastly,

13 while City Defendants asserted that they were prejudiced by the delay caused by

14 Plaintiff Robert Ortega’s discovery violation, our review of the record on appeal

15 reveals that they presented no actual evidence of such prejudice. In re Ernesto M., Jr.,

16 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is

17 not a showing of prejudice.”).

18   {14}   There is a strong preference in our state for causes to be tried on their merits.

19 See Lujan, 2003-NMCA-104, ¶ 11. In light of this preference, the lack of any specific



                                               11
 1 findings of the requisite culpability, the apparent application of the incorrect

 2 “excusable neglect” standard, and the lack of any evidence that the district court

 3 considered the appropriateness of lesser sanctions, we reverse. Given our holding, we

 4 need not address at this time whether dismissal as to all Plaintiffs was proper.

 5 CONCLUSION

 6   {15}   For the foregoing reasons, we reverse the district court’s denial of Plaintiffs’

 7 motion to set aside the dismissal and remand for further consideration of the City’s

 8 motion to compel and for sanctions in light of the legal principles set forth in this

 9 opinion.

10   {16}   IT IS SO ORDERED.



11                                        __________________________________
12                                        MICHAEL E. VIGIL, Judge


13 WE CONCUR:



14 __________________________
15 JONATHAN B. SUTIN, Judge


16 __________________________
17 JULIE J. VARGAS, Judge




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