Fernandez v. Tequilas Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:23-cv-01382-GPG-SBP
JOSE PABLO FERNANDEZ,
Plaintiff,
v.
TEQUILAS INC., et al.,
Defendants.
ORDER OVERRULING OBJECTIONS
AND ADOPTING SPECIAL MASTER’S ORDER
Susan Prose, United States Magistrate Judge
This matter is before this court regarding the Order of Special Master Michael E. Hegarty
filed on December 5, 2025. ECF No. 251 (the “Order” or “Special Master’s Order”). The Order
concerns the motion docketed at ECF No. 235 (“Motion”) for a protective order and to quash
service of a subpoena served on Nimsy Garcia, counsel for Defendants Rosita’s Mexican
Restaurant, Inc., 3G Engagement LLC, and Restaurantly LLC (“Defendants”). Defendants have
objected to the Order at ECF No. 265 (“Objections”). For the reasons that follow, the court
OVERRULES Defendants’ Objections to the Special Master’s Order and ADOPTS the Order
in all respects.
I. 	Background
This court has summarized the claims and procedural history in prior rulings and assumes
the reader’s familiarity with those rulings.
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II. 	Analysis
A. 	The Special Master’s Factual Findings Are Final.
In acting on a Special Master’s order, report, or recommendations, the court “may adopt
or affirm, modify, wholly or partly reject or reverse, or resubmit to the master with instructions.”
Fed. R. Civ. P. 53(f)(1). However, the Special Master’s factual findings are not reviewable in the
instant matter because the parties, with the court’s approval, stipulated that the factual findings of
the Special Master would be final. Fed. R. Civ. P. 53(f)(3)(B). The Order appointing the Special
Master (the “Order of Appointment”) provides: “In reviewing the actions of the Special Master,
the parties will be deemed to have stipulated that findings of fact made by the Special Master
will be final, except for a party who objects to this portion of the Order, in writing and filed with
the Court, within seven (7) days of the date of this Order.” ECF No. 202 at ¶ 8. No party objected
to this provision of the Order of Appointment. Therefore, this court will not disturb the Special
Master’s findings of fact.
B. 	The Special Master Reached Correct Conclusions of Law.
The court reviews the Special Master’s conclusions of law de novo. Fed. R. Civ. P.
53(f)(4).
Regarding Defendants’ Objections, the court first notes that part of the relief requested in
Defendants’ Motion – that the court enter a protective order “staying and prohibiting the
enforcement of the Subpoena” – is now moot, as the subpoena has been withdrawn. Defendants
also request that the court “[p]rohibit further discovery directed at undersigned and Defendants
without prior leave of Court,” ECF No. 235 at 29, but good cause does not exist to issue such a
prohibition. The subpoena has been withdrawn, Defendants’ request is overly broad, and despite
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Defendants’ contention that conferral here would not have been productive, the court disagrees
and finds that if counsel had complied with the duty imposed by Federal Rule of Civil Procedure
26(c) to confer before requesting a protective order, it is highly likely that the need to involve the
court here would have been obviated entirely. And despite Defendants’ implications otherwise
within the Objections, in the Motion, Defendants only requested relief in relation to the
subpoena, not in relation to the alleged actions of Plaintiff’s counsel during a deposition. See
ECF No. 235 at 29.
Similarly, Defendants request that the court award sanctions pursuant to Federal Rule of
Civil Procedure 45(d)(1) and 28 U.S.C. § 1927 “as a result of the improper Subpoena.” Id.; see
28 U.S.C. § 1927 (“Any attorney or other person admitted to conduct cases in any court of the
United States or any Territory thereof who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to satisfy personally the excess costs,
expenses, and attorneys’ fees reasonably incurred because of such conduct.”). Defendants have
made no showing that counsel for Plaintiff engaged in sanctionable conduct by issuing the
subpoena, stating only that the subpoena was “based on a baseless claim of counsel’s
involvement in a transaction,” id. at 27, that counsel for Defendants was provided with a “grossly
minimal mileage fee of only $43” in connection with the subpoena, id., and that the timing of the
subpoena after becoming aware of Defendants’ intent to seek sanctions and summary
judgment—together with a later email from Plaintiff’s counsel stating that any such forthcoming
motions would be viewed as “personal”—“strongly suggests an improper and retaliatory
purpose.” Id. at 27-28. Defendants do not sufficiently address or explain why the claim of
counsel’s involvement in a transaction was “baseless,” and the court disagrees that the behavior
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of Plaintiff’s counsel or the mileage fee suggests an improper or retaliatory purpose. In short, no
“serious and standard disregard for the orderly process of justice” is evidenced here. See Miera v.
Dairyland Ins. Co., 143 F.3d 1337, 1342 (10th Cir. 1998) (“Because § 1927 is penal in nature,
the award should be made only in instances evidencing serious and standard disregard for the
orderly process of justice.”) (quoting White v. American Airlines, Inc., 915 F.2d 1414, 1427
(10th Cir. 1990), and Dreiling v. Peugeot Motors of Am., Inc., 768 F.2d 1159, 1165 (10th Cir.
1985) (internal quotation marks omitted)). And the relief Defendants request in the Motion does
not refer to the conduct of Plaintiff’s counsel during the deposition, making consideration of that
alleged conduct unnecessary.
Finally, the court finds that there is good cause for the restrictions placed upon deposition
conduct by the Special Master. In reaching this conclusion, the court notes, inter alia, the issues
that gave rise to the Motion, as well as the parties’ long habit of “adopting patterns of opposition
to any and all requests from opposing counsels,” ECF No. 22, and their general lack of
cooperation throughout the course of this action. See, e.g., ECF No. 214 at 1-2. The court further
finds that the restrictions imposed by the Special Master are minimal and are reasonably
calculated to facilitate more productive conduct in future depositions.
Accordingly, the Special Master’s Order is adopted by this court. In closing, the court
respectfully warns the parties that going forward, filing frivolous objections and failing to
confer with opposing counsel absent good cause could result in the court ordering briefing
on the question of whether sanctions should be awarded.
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III. 	Conclusion
For each of the foregoing reasons, Defendants’ Objections to the Special Master’s Order
(ECF No. 265) are OVERRULED and the Special Master’s Order (ECF No. 251) is
ADOPTED, in all respects.
IT IS SO ORDERED.1
DATED: March 23, 2026 	BY THE COURT:
Susan Prose
United States Magistrate Judge
1 Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after
service of a Magistrate Judge’s order or recommendation, any party may serve and file written
objections with the Clerk of the United States District Court for the District of Colorado. 28
U.S.C. §§ 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a), (b). Failure to make any such objection will
result in a waiver of the right to appeal the Magistrate Judge’s order or recommendation. See
Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver
rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119,
1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require
review, including when a “pro se litigant has not been informed of the time period for objecting
and the consequences of failing to object”).
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