Sample et al v. Hilton Worldwide Holdings, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANGELA SAMPLE, and
DAYNE SAMPLE,
Plaintiffs,
v. 	No. Civ. 1:23-cv-00865-SMD-KRS
ASHFORD TRS SANTA FE, LLC,
Defendant.
ORDER DENYING [104] MOTION TO COMPEL
THIS MATTER is before the Court on the Motion to Compel Discovery (Doc. 104), filed
by Plaintiffs Angela Sample and Dwayne Sample.
The Court previously denied two other motions related to discovery filed by Plaintiffs
because the deadline for motions related to discovery has expired. See (Doc. 102 (denying Doc.
90, Motion to Strike Deposition Testimony and For A Protective Order, and Doc. 91, Plaintiffs’
Motion to Compel Production of Documents)). Like Plaintiffs’ previous two motions related to
discovery, the current motion to compel is untimely, and therefore will be denied. See (Doc. 48
Order extending deadline to file motions related to discovery to September 26. 2025).
The current motion to compel also is denied because it omits recitation of a good-faith
request for concurrence, as required by D.N.M. LR-Civ. 7.1(a). The Court denied Plaintiffs’
previous discovery motions on this ground as well. See (Docs. 102, 103). The Local Rule
requirement is distinct from the good-faith conferral requirement in Rule 37(a)(1), which Plaintiffs
cite in their motion. The Local Rule requires a party to advise opposing counsel prior to filing a
motion that the party intends to file the motion, and to ask opposing counsel whether he or she will
agree to the motion. The filing party must state in the motion what the opposing party’s position
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is on the motion as conveyed by the opposing party prior to the motion being filed. Plaintiffs’ prior
exchange with opposing counsel shown in the email attached to the current motion to compel as
Exhibit A relates to a different case. Moreover, it does not inform Defendant that Plaintiffs were
going to file the present motion to compel while seeking Defendant’s position on the motion.
Plaintiffs have already been forewarned once that continuing failures to comply with the rules of
procedure and/or orders of this Court may result in monetary and non-monetary sanctions, which
may include filing restrictions and dismissal of this case. See (Doc. 96, Order Granting Plaintiffs
Leave to File Electronically, at 3). The Court may also strike the non-complying documents. See
Ysais v. N.M. Judicial Standard Com’n, 616 F. Supp. 2d 1176, 1184 (D.N.M. 2009) ([c]ourt may
choose to strike a filing that is not allowed by local rule) (quotations omitted); see also Bustillo v.
Hawk, 44 F. App’x 396, 400-01 (10th Cir. 2002) (unpublished) (upholding district court’s decision
to strike filing based on local rules); In re Hopkins, No. 98-1186, 1998 WL 704710, at *3 n.6 (10th
Cir. Oct. 5, 1998) (unpublished) (noting “it was well within the discretion of the district court to
strike” briefs that did not comply with local rules). When courts strike a filing as improperly filed,
it becomes “a nullity.” Bunn v. Perdue, 966 F.3d 1094, 1099 (10th Cir. 2020) (footnote omitted)
(quoting Synnestvedt v. Astrue, No. 09-443, 2010 WL 125649, *1 n.3 (W.D. Okla. Jan. 7, 2010)).
Plaintiffs are forewarned that future filings that do not comply with D.N.M. LR-Civ. 7.1(a) will
be stricken.
The Court is particularly concerned with Plaintiffs’ continued failures to comply with
D.N.M. LR-Civ. 7-1(a) because the present motion could have been avoided had Plaintiffs
consulted with Defendant before they filed the motion. Plaintiffs raised the issue of missing
documents or pages in documents produced by Defendants at the hearing on October 23, 2025.
See (Doc. 89). At that time, counsel for Defendant responded to Mr. Samples’ statements about
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missing documents, indicating that the documents in question are in the possession of Hilton
Hotels, a different entity from Defendant and a non-party to this case. Federal Rule of Civil
Procedure 34 only requires a party to produce documents that are within that party’s “possession,
custody, or control.” Plaintiffs’ motion to compel seeks “The complete Investigation Report from
Jody Almendarez of Hilton Worldwide INC Executive Customer Relations, dated November
26, 2022” and “The Incident Report from the Hilton Diamond Customer regarding the call on
November 26, 2022.” (Doc. 104 at 2). The defendant in this case is Ashford TRS Santa Fe, LLC.
While Hilton Worldwide Holdings, Inc. was at one time also a named defendant, it has not been a
party to this case since November 6, 2023, when Plaintiffs filed an amended complaint that named
only Ashford TRS Santa Fe, LLC. See (Doc. 9). Plaintiffs were informed at the October 23 hearing
that these documents are not in Ashford TRS Santa Fe, LLC’s possession, custody or control, yet
proceeded with filing a motion to compel Ashford TRS Santa Fe, LLC to produce documents it
does not have. The motion to compel lacks merit. What’s more, Defendant might have alerted
Plaintiffs to the aforementioned defects in the motion had Plaintiffs consulted with defense counsel
prior to filing it.
The motion also seeks missing pages from a document that apparently was produced by
Ashford TRS Santa Fe, LLC in this litigation. But the Court will not compel production of those
missing pages because the motion to compel is untimely, and because Plaintiffs failed to consult
with Defendant prior to filing the motion. Plaintiffs were aware from the Court’s previous orders
on their other discovery motions of both these obstacles to their motion prior to filing the motion.
Therefore, Plaintiffs will not be excused from complying with previously imposed deadlines or
the conferral requirement, and in the future they may be sanctioned for filing motions that continue
to ignore the Court’s previous rulings in which Plaintiffs were made aware of those deadlines and
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requirements. See Fed. R. Civ. P. 11(b)(1), (2) (“By presenting to the court a pleading, written
motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney
or unrepresented party certifies that to the best of the person’s knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances: … it is not being presented for any
improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of
litigation” and “the claims, defenses, and other legal contentions are warranted by existing law or
by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing
new law”).
Nevertheless, if the document produced by Ashfrod TRS Santa Fe, LLC was in fact missing
the pages identified by Plaintiffs in their motion, the Court believes, as a matter of professional
courtesy, Defendant should either provide Plaintiffs with the missing pages or explain to Plaintiffs
(preferably by email, so it is in writing) why the pages in question are not “missing” or else cannot
be produced. Again, had Plaintiffs consulted with Defendant prior to filing the motion, the matter
might have been resolved in a similar fashion without the need for the Court to get involved.
Plaintiffs are once again reminded of their duty to comply with all rules of procedure and
orders of the Court.
Generally, pro se litigants are held to the same standards of
professional responsibility as trained attorneys. It is a pro se
litigant’s responsibility to become familiar with and to comply with
the Federal Rules of Civil Procedure and the Local Rules of the
United States District Court for the District of New Mexico (the
“Local Rules”).
Guide for Pro Se Litigants at 4, United States District Court, District of New Mexico (October
2022). The Local Rules, the Guide for Pro Se Litigants, and a link to the Federal Rules of Civil
Procedure are available on the Court’s website: http://www.nmd.uscourts.gov.
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Rule 41(b) of the Federal Rules of Civil Procedure states: “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). “Although the language of Rule 41(b) requires that the
defendant file a motion to dismiss, the Rule has long been interpreted to permit courts to dismiss
actions sua sponte for a plaintiff’s failure to prosecute or comply with the rules of civil procedure
or court’s orders.” Gustafson v. Luke, 696 Fed. Appx. 352, 354 (10th Cir. 2017) ) (quoting Olsen
v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003)).
Pursuant to Federal Rule of Civil Procedure 41(b), a district court
may dismiss an action with prejudice if the plaintiff fails “to comply
with [the Federal Rules of Civil Procedure] or any order of court.”
A district court may dismiss an action under Rule 41(b) after finding
that certain enumerated criteria support a dismissal. These criteria
include “(1) the degree of actual prejudice to the defendant; (2) the
amount of interference with the judicial process; (3) the culpability
of the litigant; (4) whether the court warned the party in advance that
dismissal 	of 	the 	action 	would 	be 	a 	likely 	sanction 	for
noncompliance; and (5) the efficacy of lesser sanctions.” Mobley v.
McCormick, 40 F.3d 337, 340 (10th Cir. 1994) (quoting Ehrenhaus
v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992)).
Olsen, 333 F.3d at 1204. Plaintiffs are again reminded that the Court may recommend that the case
be dismissed if, going forward, Plaintiffs do not comply with court orders or applicable rules of
procedure.
IT IS ORDERED that Plaintiffs’ Motion to Compel Discovery (Doc. 104), is DENIED.
THIS 28th day of October 2025.
___________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
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