# Mooney v. Regalado

> District Court, N.D. Oklahoma · March 3, 2023

URL: https://www.frixlaw.com/law-library/cases/10387150

## Case

- **Court:** District Court, N.D. Oklahoma
- **Decided:** March 3, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

EARL MOONEY, MATTHEW LAWSON, )
and TERRAN MARROW, )
)
Plaintiffs, )
)
v. ) Case No. 19-cv-00462-TCK-SH
)
VIC REGALADO, in his official capacity )
as SHERIFF OF TULSA COUNTY, et al., )
)
Defendants. )
OPINION AND ORDER
Before the Court is the motion of Defendant Vic Regalado, in his official capacity
as Sheriff of Tulsa County (“Regalado”), seeking sanctions against Plaintiff Matthew
Lawson (“Lawson”). Regalado asks the Court to dismiss Lawson’s claims against him and
to order Lawson to pay his expenses. The Court finds it is premature to order a dismissal
sanction, but it will award Regalado’s expenses.
Background
Plaintiffs brought this suit in 2018, asserting various claims against Regalado, the
Board of County Commissioners of Tulsa County (“the County”), and Rickardo Orlando
Williams (“Williams”) relating to Williams’ alleged sexual misconduct against them.
(ECF No. 2-2.) Currently, Regalado is the only defendant in active litigation.1
On January 12, 2023, Regalado noticed the deposition of Lawson, which was to
occur on January 17th. (ECF No. 91-2.) While counsel for Plaintiffs and Regalado
appeared for the scheduled deposition, Lawson did not. (ECF No. 91-1.) Plaintiffs’
counsel stated he spoke to Lawson and understood that Lawson had planned to attend

1 The Court dismissed the County on September 16, 2020. (ECF No. 20.) Defendant
Williams is currently in default. (ECF No. 43)
the deposition. (Id. at 3:24-4:2.) However, as of that morning, Lawson’s phone number
no longer worked, and counsel did not know where he was. (Id. at 4:2-6.)
As a result of Lawson’s failure to attend, Regalado files this motion under Rules 37
and 41, asking that Plaintiff’s claims against him be dismissed and that his reasonable
attorney fees and costs be reimbursed. (ECF No. 91.) Counsel for Lawson sought, and
received, additional time to respond to Regalado’s motion (ECF Nos. 96, 98) but has filed
no such response.2
Analysis

I. Rule 37 Sanctions and Rule 41 Dismissal
Pursuant to Rule 37, a court may order sanctions if a party “fails, after being served
with proper notice, to appear for that person’s deposition.” Fed. R. Civ. P. 37(d)(1)(A)(i).3
Such sanctions may include “dismissing the action or proceeding in whole or in part” and
must include requiring the party who failed to attend, or their attorney, to “pay the
reasonable expenses, including attorney’s fees, caused by the failure, unless the failure
was substantially justified or other circumstances make an award of expenses unjust.”
Fed. R. Civ. P. 37(b)(2)(A)(v), (d)(3).
Similarly, Rule 41 provides that if “the plaintiff fails to prosecute or to comply with
these rules or a court order, a defendant may move to dismiss the action or any claim
against it.” Fed. R. Civ. P. 41(b).

2 Pursuant to LCvR 7-1(e), the Court has the discretion to deem Regalado’s motion
confessed. The Court will treat Regalado’s factual statements as true, but it will
independently analyze whether the relief requested is appropriate under applicable law.
3 The rule further requires the movant to have, “in good faith[,] conferred or attempted to
confer with the party failing to act in an effort to obtain the answer or response without
court action.” Fed. R. Civ. P. 37(d)(1)(B). The Court finds the on-record discussion
between Regalado and Lawson’s counsel as a sufficient certification of such a good-faith
conference. (See ECF No. 91-1.)
II. Dismissal – the Ehrenhaus Factors
As the Tenth Circuit has noted, “dismissal represents an extreme sanction
appropriate only in cases of willful misconduct.” Ehrenhaus v. Reynolds, 965 F.2d 916,
920 (10th Cir. 1992). This sanction is used by courts only as a weapon of last resort. Id.
(“In many cases, a lesser sanction will deter the errant party from further misconduct.”);
see also Davis v. Miller, 571 F.3d 1058, 1061 (10th Cir. 2009) (applying Rule 41). Because
a district court’s discretion to choose a sanction is limited to one that is both just and
related to the particular claim at issue, id., “[b]efore dismissing a case . . . under Rule 41
or 37[,] a district court should evaluate specific factors . . . .” Ellis-Hall Consultants, LLC

v. Hofmann, No. 20-4040, 2022 WL 3972093, at *4 (10th Cir. Sept. 1, 2022)
(unpublished).4
These factors include: (1) the degree of actual prejudice to the defendant; (2) the
amount of interference with the judicial process; (3) culpability of the litigant; (4) whether
the court warned the litigant in advance that dismissal would be a likely sanction for
noncompliance; and (5) the efficacy of lesser sanctions. Ehrenhaus, 965 F.2d at 921; see
also Mobley v. McCormick, 40 F.3d 337, 341 (10th Cir. 1994) (“Rule 41(b) involuntary
dismissals should be determined by refence to the Ehrenhaus criteria.”). These factors
are not applied as a rigid test, but instead “represent criteria for the district court to
consider prior to imposing dismissal as a sanction.” Ehrenhaus, 965 F.2d at 921. The
factors are not exhaustive or necessarily given equal weight. Procter & Gamble Co. v.

Haugen, 427 F.3d 727, 738 (10th Cir. 2005). “Only when the aggravating factors outweigh
the judicial system’s strong predisposition to resolve cases on their merits is dismissal an

4 Unpublished decisions are not precedential, but they may be cited for their persuasive
value. 10th Cir. R. 32.1(A).
appropriate sanction.” Ehrenhaus, 965 F.2d at 921 (quoting Meade v. Grubbs, 841 F.2d
1512, 1520 n.7 (10th Cir. 1988) (abrogated on other grounds)). An isolated instance of
noncompliance is not, by itself, “sufficient to warrant dismissal absent other justifying
circumstances.” Id.
III. The Ehrenhaus Factors Weigh Against Dismissal
Applying the Ehrenhaus factors, the Court finds dismissal of Lawson’s claims
against Regalado to be premature.
A. Prejudice to Regalado.
First, regarding the degree of actual prejudice to Regalado, the Court finds that
while he was prejudiced, the harm did not rise to a level sufficient to favor dismissal.

Doubtless, “increased costs and delays are valid reasons to find actual prejudice.” See
Ellis-Hall Consultants, 2022 WL 3972093, at *4; see also Ehrenhaus, 965 F.2d at 921
(prejudice may include “delay and mounting attorney’s fees”). Here, as Regalado alleges,
he incurred attorney fees in preparing for and attending Lawson’s deposition. Discovery
was also slightly delayed, as Regalado was unable to obtain the deposition of a key party
on the date noticed.
But such prejudice is mitigated by the fact that discovery has not yet closed.
Regalado argues this deposition was “his only opportunity to prepare a defense” against
Lawson’s claims (ECF No. 91 at 3), yet the parties have since agreed to and obtained an
order extending the schedule in this case (ECF Nos. 94-95). Assuming the amended
scheduling order contains the dates requested, the discovery cutoff will move to April 10,

2023. Regalado still has time to depose Lawson.
Moreover, unlike other instances where a court has dismissed a party’s claims, the
costs and delays in this case have not mounted over an extended period of time due to
Plaintiff’s non-compliance. Cf. Ellis-Hall Consultants, 2022 WL 3972093 at *1-3
(plaintiff and her counsel were so uncooperative and obstructive over multiple
depositions and discovery requests that the court had to intervene, describing the case as
“uncommonly difficult, torture”); Kirby v. O’Dens, No. 14-CV-388-GKF-PJC, 2015 WL
5918083, at *20 (N.D. Okla. Oct. 9, 2015) (plaintiffs “intentionally denied” defendants
basic discovery for so long that the discovery deadline passed). Here, Plaintiff’s failure to
attend his deposition appears to be a single instance of noncompliance. The first factor
does not weigh heavily in favor of dismissal.
B. Interference with the Judicial Process.

Similarly, while Lawson’s decision not to attend his deposition may have interfered
with the judicial process by prolonging discovery—and expending court resources by
requiring it consider this motion—this is not a case where Lawson has continuously
flouted the Court’s orders or otherwise acted in a dilatory manner. The second factor in
the Ehrenhaus analysis would weigh more heavily in favor of dismissal were there
“numerous extraneous filings, motions, and hearings” due to Lawson’s prolonged dilatory
conduct. Ellis-Hall Consultants, 2022 WL 3972093, at *5; see also Ecclesiastes 9:10-11-
12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1146 (10th Cir. 2007) (plaintiff engaged in
extensive dilatory conduct regarding the designation/deposition of a Rule 30(b)(6)
representative, requiring court intervention and depriving defendants the opportunity to
depose a key witness); Lopez v. Bernalillo Cnty. Sheriff’s Dep’t, No. CV-02-277 JP/DJS,

2003 WL 27385141, at *1-3 (D.N.M. June 19, 2003) (plaintiff “obstructed the judicial
process” by thwarting all efforts at “basic discovery”); Kirby, 2015 WL 5918083, at *10-
20 (plaintiff engaged in “willful obstruction of discovery” through “inane, disruptive, and
sophomoric behavior,” requiring the court consider 24 discovery motions, conduct “two
lengthy discovery hearings,” and preside over plaintiff’s depositions at the courthouse).
This is the first time the Court has had to step in and arbitrate a discovery dispute
involving Lawson.5 Outside of his failure to attend the deposition at issue, Lawson has
not acted in a manner that has interfered with the judicial process. Because discovery has
not yet closed, there is still time for Lawson to remedy this error and prevent further
interference. As such, this factor also does not weigh toward dismissing his claims.
C. Lawson’s Culpability.
On the issue of Lawson’s culpability, the Court agrees with the movant. Regalado’s

counsel properly issued a deposition notice to Lawson’s attorneys, who appeared at the
scheduled deposition and who apparently communicated with Lawson to ensure he
planned on attending. (ECF Nos. 91-1, 91-2.) Because Lawson has failed to respond to
this motion or offer any explanation as to why his failure to appear was not willful—or
why it was substantially justified—the Court agrees that Lawson is culpable for his
conduct. This factor weighs in favor of granting the requested sanction.
D. Whether Lawson was Warned in Advance of Dismissal.
Regarding the fourth factor—whether the court warned Lawson in advance that
dismissal of his claims would be a likely sanction—the undersigned finds this factor
weighs against dismissal. Regalado admits that “Plaintiff Lawson has not been directly
warned in advance by the Court” that dismissal would be a probable sanction for discovery
noncompliance. (ECF No. 91 at 4.) Still, he argues that because Lawson was represented

5 The Court has previously addressed Plaintiffs’ motion to compel Regalado to respond to
discovery responses that were overdue by several months. (ECF No. 50.) The parties
were eventually able to resolve that issue amicably. (See ECF No. 67.)
by counsel “who no doubt performed their duty to fully explain . . . in advance that
appearing for his noticed deposition was not optional,” sufficient notice existed. (Id.)
The focus of this factor, however, is not on what a party’s counsel may or may not
have told them, but on the notice provided by the court. See Ehrenhaus, 965 F.2d at 921
(courts should consider “whether the court warned the party in advance that dismissal of
the action would be a likely sanction for noncompliance”). Even in instances where no
explicit warning was given, whether a party had “constructive notice” is “objectively based
upon the totality of the circumstances (most importantly, the trial court’s actions or

words) . . . .” Ecclesiastes 9:10-11-12, 497 F.3d at 1150 (emphasis added). Because this
Court has not provided Lawson with either explicit or implicit notice that such a harsh
sanction was likely, this factor also weighs against dismissal.
E. Efficacy of a Lesser Sanction.
Lastly, as to the efficacy of a lesser sanction, Regalado has not requested any lesser
sanction in his motion. Instead, he argues that because Plaintiff ignored “the notice, . . .
his own attorneys, and . . . his responsibilities as a party,” no lighter sanction could compel
his compliance.6 (ECF no. 91 at 4.) The Court is not convinced. Considering this is the
first time the undersigned has been required to step in and compel compliance, there is
no evidence that Lawson will not be swayed by sanctions less severe than dismissal.
Courts have a strong predisposition to resolving cases on their merits, and
dismissal as a sanction should be a last resort. The Court finds that the Ehrenhaus factors,

on the whole, do not favor dismissal of Lawson’s claims against Regalado for his failure

6 The Court gives no weight to Lawson’s actions in a prior criminal case. (ECF No. 91 at 4
& n.2.)
to attend the noticed deposition. The undersigned will not recommend dismissal of
Lawson’s claims.
IV. Award of Fees & Other Sanctions
While dismissal is not proper, the Court finds that an award of reasonable expenses
(including attorney fees) is required by Rule 37(d)(3). As Lawson’s unilateral conduct
appears to have necessitated the motion, expenses should be awarded against Lawson
only. Regalado may file a motion detailing the reasonable expenses caused by Lawson’s
failure to appear, and Lawson will have an opportunity to respond to that motion.
The Court further finds that it is appropriate to order Lawson to appear for a
deposition.
IT IS THEREFORE ORDERED that Defendant Regalado’s Rule 37 Motion for
Sanctions Against Plaintiff Lawson for Failure to Attend His Noticed Deposition (ECF No.
91) is GRANTED IN PART and DENIED IN PART. Regalado may file a motion for
reasonable expenses (including fees) by March 17, 2023.
IT IS FURTHER ORDERED that Lawson appear at a new deposition, to be set by
agreement of the parties on or before March 17, 2023.
Lawson is warned that failure to comply with this Court’s orders may result in
additional sanctions, which can include the dismissal of his claims against Regalado.
ORDERED this 3rd day of March, 2023.

| | | >
. HUNTSMAN, MAGISTRATE JUDGE
UNITED STATES DISTRICT COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10387150. Public record. Not legal advice.