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Martinez v. City of Avondale

United States District Court, Ninth Circuit

October 17, 2013

Gregory Martinez, Sr., etc.; et al, Plaintiffs,
v.
City of Avondale, etc; et al., Defendants.

ORDER AND ORDER TO SHOW CAUSE

LAWRENCE O. ANDERSON, Magistrate Judge.

This action arises on Defendants' Motion for Contempt, filed concurrently on October 7, 2013, with the parties' Second Motion to Continue Discovery Deadline, informing the Court that Sharon Jenny Nunez-Sepulveda, a non-party witness, failed to appear for her deposition scheduled for September 25, 2013, after she was personally served with a subpoena on August 7, 2013. (Docs. 129-131, 135-136) Defendants request the Court hold Ms. Nunez-Sepulveda in contempt, order her compliance with the subpoena, and award sanctions against her to include payment of Defendants' attorneys' fees and costs incurred in seeking the Court's assistance on the matter. Plaintiffs' Response to Defendants' Motion for Contempt confirms that the factual allegations set forth in Defendants' Motion are correct. (Doc. 137)

Because the non-party witness Nunez-Sepulveda is entitled to notice and an opportunity to be heard before being held in contempt, the Court construes Defendants' Motion for Contempt as also requesting an order to show cause hearing why contempt sanctions should not be issued due to Ms. Nunez-Sepulveda's apparent intentional failure to appear at her deposition. See Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 495 (9th Cir. 1983); Rodriguez v. County of Stanislaus, 2010 WL 3733843, at *5-6 (E.D. Cal. Sept. 16, 2010) (proper procedure is issuing the order to show cause); S.E.C. v. Hyatt, 621 F.3d 687, 694 (7th Cir. 2010) ("Due process requires that a [non-party witness who failed to comply with a validly-served subpoena] facing contempt sanctions be given adequate notice and fair opportunity to be heard in civil contempt proceedings.").

While it is not necessary to modify the current case management plan due to the uncertainty of the witness' future compliance, the Court will partially grant Defendants' requested relief at this time, order a show-cause hearing for Ms. Nunez-Sepulveda to show cause why she should not be held in indirect, civil contempt and sanctioned, and will authorize the parties to depose Ms. Nunez-Sepulveda after the discovery deadline upon either her full cooperation or arrest and detention.

I. Background

A. Overview

This is a Section 1983 fatal police shooting case, arising out of a 9-1-1 call by the decedent's mother, asking for police assistance with her 20-year old son, Gregory Martinez, Jr., deceased. On October 28, 2011, Officer Sapp was dispatched to the Martinez family home by the Avondale Police Department. The parties agree that Martinez was carrying two kitchen knives when he and Officer Sapp encountered each other outside the Martinez home, but disagree over what occurred immediately before the shooting. The Second Amended Complaint alleges, or purports to allege, causes of action that Officer Sapp used excessive and unreasonable deadly force in violation of the Fourth Amendment to the United States Constitution via 42 U.S.C. § 1983; violated Plaintiffs' substantive and procedural due process rights under the Fourteenth Amendment; and is liable to Plaintiffs on State-law claims for wrongful death pursuant to A.R.S. § 12-612, intentional infliction of emotional distress and negligent infliction of emotional distress. (Doc. 76)

Plaintiffs also contend that, after Officer Kevin Sapp shot and killed the decedent just outside of the Martinez' home, seven Avondale police officers unreasonably detained the decedent's family members "for hours." (Doc. 63 at 1) According to the Second Amended Complaint, Defendants "[p]revented the family members from speaking with or consoling other family members, from speaking with any other person, from entering their own house, and even using the restroom without permission and escort. In short, the family members could do nothing... The Plaintiffs were effectively under arrest." (Doc. 76, ¶ 38 at 8) Since this case's removal, numerous Avondale officers have been added as defendants.

In addition to claiming qualified immunity, Defendants deny liability and contend, inter alia, that Officer Sapp justifiably acted in self-defense by using deadly force due to the objective and reasonable belief that the use of deadly force was necessary to defend himself from what he reasonably believed to be the imminent use of deadly physical force by the decedent as authorized by federal and Arizona law. Defendants also deny liability for their acts at the Martinez residence after the shooting.

B. Non-party Witness

Defense counsel's affidavit confirms his good faith belief that "Ms. Nunez-Sepulveda may have been an eyewitness to the police shooting of the assailant which is the underlying basis for the lawsuit."(Doc. 136[1] at 2) Plaintiffs' counsel concurs that Ms. Nunez-Sepulveda "was an eye witness to the shooting of Gregory Martinez, Jr." (Doc. 137 at 1) The exhibits attached to defense counsel's affidavit corroborate his representations that Ms. Nunez-Sepulveda was validly subpoenaed to testify at her deposition, was properly served on August 7, 2013, seven weeks before the deposition date, and she failed to appear as directed by the subpoena. (Doc. 136, Exhibits ("Exhs.") 1-4) Exhibit 1 is a copy of the subpoena served on Ms. Nunez-Sepulveda, verifying the date, time, and place of Ms. Nunez-Sepulveda's deposition. ( Id. at 5-7) The last page of the subpoena form sets forth, among other things, the consequences of failing to comply with a federal subpoena. ( Id., Exh. 1 at 7) Exhibit 1 also contains a copy of process server Ruben Herrera's Certificate of Service, signed under penalty of perjury, confirming Mr. Herrera personally served Ms. Nunez-Sepulveda with the deposition subpoena and Notice of Videotaped Deposition on August 7, 2013, at 8124 W. Whitton Ave., Phoenix, AZ 85033, and tendered to her the $47.77 witness fee via check no. 003451 as required by Rule 45(b)(1), Fed.R.Civ.P. ( Id., at 8-9) The process server's service fee was $90.78. ( Id., at 9) Exhibit 2 is a copy of the Notice of Videotaped Deposition that was also served on Ms. Nunez-Sepulveda by the process server. ( Id., Exh. 2 at 11-13) Exhibit 3 is a copy of the front and back of the cancelled check no. 003451, made payable to Sharon Jenny Nunez-Sepulveda, confirming by her signature on the back that the check was endorsed and cashed by Ms. Nunez-Sepulveda. ( Id., Exh. 3 at 11-13) Exhibit 4 is a copy of the first five pages of the court reporter's transcript, indicating who was present at the time the September 25, 2013 deposition was supposed to begin and contains the court reporter's certification that "[t]he foregoing pages are a full, true, and accurate transcript of all proceedings, to the best of my skill and ability." ( Id., Exh. 4 at 17-22) The deposition transcript confirms that all counsel and a videographer waited for Ms. Nunez-Sepulveda to appear for her deposition until approximately 9:44 a.m. when the deposition was adjourned. ( Id., at 21-22)

The Court finds the subpoena served on Ms. Nunez-Sepulveda was valid in form, was properly served, and she had actual notice of her September 25, 2013 deposition. See Rule 4, Fed.R.Civ.P.; Moon v. SCP Pool Corp., 232 F.R.D. 633, 636 (C.D. Cal. 2005) ("A nonparty's failure to timely make objections to a Rule 45 subpoena... generally requires the court to find that any objections have been waived."). The Court will now address the consequences of Ms. Nunez-Sepulveda's non-compliance with a valid and properly-served federal subpoena.

II. Sanctions for Non-Compliance With ...


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