Lipe v. Albuquerque Public Schools et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
TATIA LIPE,
Plaintiff,
v. 	1:23-cv-00899-GBW-JMR
ALBUQUERQUE PUBLIC SCHOOLS and
NEW MEXICO DEPARTMENT OF PUBLIC
EDUCATION,
Defendants.
ORDER GRANTING APS’S MOTION FOR SANCTIONS
AND GRANTING IN PART PLAINTIFF’S MOTION
THIS MATTER comes before the Court on Defendant Albuquerque Public Schools’
(“APS’s”) Motion for Sanctions, filed March 6, 2026. Doc. 218; see also Docs. 219–23 (APS’s
declarations in support of the motion). Plaintiff filed a response on March 8, 2026. Doc. 225.
APS filed a reply on March 23, 2026. Doc. 237. Plaintiff then filed a Motion for Leave to File
Surreply and Motion to Disregard Improper New Matter and Collateral Attacks in APS’s Reply
on March 26, 2026. Doc. 243. APS’s motion is GRANTED. Plaintiff’s motion is GRANTED IN
PART and DENIED IN PART.
APS’s affidavit of expenses is due May 1, 2026. Plaintiff’s objections, if any, are due 14
days after APS’s affidavit is filed. Plaintiff may not file a sur-reply.
I. 	Defendant’s Motion (Doc. 218)
APS requests that Plaintiff’s counsel be sanctioned for “(1) failure to attend depositions
she scheduled; and (2) for engaging in deceitful conduct.” Doc. 218 at 1.
Plaintiff’s counsel failed to attend five depositions that she noticed. In total, Plaintiff
noticed eight depositions for March 3, 2026. See Doc. 190 (Notice of Deposition for Andy
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Gutierrez); Doc. 191 (Notice of Deposition for Margaret Crist); Doc. 192 (Notice of Deposition
for Bernadette Lucero-Turner); Doc. 193 (Notice of Deposition for Manuel Alzaga); Doc. 195
(Notice of Deposition for Jerry Thorn); Doc. 205 (Notice of Deposition for Linda Elliot); Doc.
206 (Notice of Deposition for Angelique Torres); Doc. 207 (Notice of Deposition for Stephanie
Avila). APS filed, and the Court eventually granted, motions for protective orders for the latter
three depositions. See Doc. 228. However, the remaining five depositions were not vacated, and
APS did not file notices of non-appearances.
On March 3, 2026, defense counsel appeared for the scheduled depositions. Doc. 218 at
2. Plaintiff’s counsel did not. The first witness of the day appeared. Id. Three other witnesses
were prepared to appear as scheduled. Id. at 5. The fifth witness, Jerry Thorn, did not plan to
appear because Plaintiff did not inform him about his deposition or subpoena him. Id.; see also
Doc. 221.
In an email exchange, Plaintiff’s counsel asserted that she called and left a message with
defense counsel’s office on February 27, 2026, to cancel the depositions. Doc. 218 at 3. Defense
counsels’ respective receptionists submitted sworn declarations explaining that their law firms
did not receive any messages from Plaintiff’s counsel on February 27, 2026. Docs. 220, 222. In
the response briefing, Plaintiff’s counsel did not defend herself against the accusation that she
lied about cancelling the deposition. See generally Doc. 225.
Rule 30(g)(1), titled “Failure to Attend a Deposition or Serve a Subpoena; Expenses”
states:
A party who, expecting a deposition to be taken, attends in person or by an attorney
may recover reasonable expenses for attending, including attorney’s fees, if the
noticing party failed to:
(1) attend and proceed with the deposition; or
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(2) serve a subpoena on a nonparty deponent, who consequently did not attend.
FED. R. C IV. P. 30(g). “An award of expenses pursuant to Rule 30(g) is within the discretion of
the trial court.” Renfro v. Spartan Computer Servs., Inc., No. 07-2050-CM, 2008 WL 650338, at
*2 (D. Kan. Mar. 6, 2008).
The Court also “may assess attorney’s fees when a party has acted in bad faith,
vexatiously, wantonly, or for oppressive reasons.” Chambers v. NASCO, Inc., 501 U.S. 32, 45–
46, 111 S. Ct. 2123, 2133, 115 L. Ed. 2d 27 (1991) (quotations omitted). This sanction power is
inherent to the Court, thus, is separate from the expressly granted power to impose fees under
Rule 30(g). See id. at 42–43.
Here, APS is plainly entitled to “reasonable expenses for attending” the five depositions.
FED. R. C IV. P. 30(g); see also Long v. E. New Mexico Univ. Bd. of Regents, No. CIV 13-380
RB/SMV, 2015 WL 13662875, at *3 (D.N.M. Apr. 29, 2015) (imposing fees when there was “a
clear violation of Rule 30(g)(1)”). Plaintiff noticed five depositions, and she failed to “attend and
proceed” with each deposition. FED. R. C IV. P. 30(g)(1). As to Mr. Thorn, she also failed to
“serve a subpoena on a nonparty deponent, who consequently did not attend.” FED. R. C IV. P.
30(g)(2). Defense counsel “expected a deposition to be taken” and “attend[ed] in person.”1 FED.
R. C IV. P. 30(g). By the plain language of Rule 30(g), the Court may award APS expenses. As
such, the Court orders Plaintiff to pay APS’s reasonable expenses for attending the depositions
and preparing this motion.
APS requests that Plaintiff be sanctioned for her alleged “willful misrepresentations.”
Doc. 237 at 9. APS argues that Plaintiff lied to defense counsel about cancelling the depositions.
1 Had APS’s counsel failed to attend, they themselves may have been open to sanctions under
Rule 37(d)(1) (“Party's Failure to Attend Its Own Deposition”).
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Doc. 218 at 1, 3. APS further argues that Plaintiff lied by implying in her deposition notices that
she was going to subpoena the witnesses. See Doc. 237 at 4; see also Doc. 192 (“Ms. Lucero-
Turner is a former employee of Albuquerque Public Schools. Her appearance will be compelled
by subpoena issued pursuant to Fed. R. Civ. P. 45. “); Doc. 193 (same as to Mr. Alzaga); Doc.
195 (same as to Mr. Thorn). However, “APS is not seeking punitive fees.” Id. at 8. Besides
reasonable expenses, APS only requests that, as a sanction, Plaintiff not be allowed to re-
schedule the five depositions. In a discovery hearing held on March 25, 2026, the Court
separately decided that Plaintiff may not set any further depositions in this case. See Doc. 246
(“The parties may not take any additional depositions in this matter.”). Discovery in this matter
is closed. Having already found that APS is entitled to fees under Rule 30(g) and that Plaintiff
may not take any further depositions, the Court need not address the parties’ argument regarding
Plaintiff’s alleged willful misrepresentations. The Court has already fully granted the relief APS
requested based on these alleged misrepresentations.
Plaintiff provides lengthy arguments in her response briefing. See Doc. 225. However,
they are almost entirely irrelevant. Plaintiff’s briefing does not grapple with the relevant legal
standard or facts. E.g. FED. R. C IV. P. 30(g). Plaintiff does not dispute that she noticed the five
depositions, or that she failed to attend them. She does not defend herself against the accusation
that she lied about canceling the depositions. Instead, Plaintiff argues that “APS must show bad
faith.” Doc. 225 at 7 (citing Chambers, 501 U.S. at 44–46). However, Rule 30(g) does not
require a showing of bad faith. Plaintiff further argues that she should not be fined for failing to
attend the depositions because she never subpoenaed the witnesses. Doc. 225 at 5, 6, 9–10. This
argument bears no relation to the text of Rule 30(g) or its case law. Because Plaintiff’s briefing
does not engage with the correct legal standards or the legally relevant facts, the Court largely
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does not address her response briefing.
For the reasons stated above, APS’s motion is GRANTED. By May 1, 2026, APS must
file an affidavit of expenses related to attending the depositions of Andy Gutierrez, Margaret
Crist, Bernadette Lucero-Turner, Manuel Alzaga, and Jerry Thorn and preparing the sanctions
motion. Plaintiff’s objections to the reasonableness of the expenses, if any, are due 14 days after
APS’s affidavit is filed. Plaintiff may not argue against the imposition of fees.
II. 	Plaintiff’s Motion (Doc. 243)
Plaintiff filed a Motion for Leave to File Surreply and Motion to Disregard Improper
New Matter and Collateral Attacks in APS’s Reply. Doc. 243. APS has not yet had the
opportunity to respond to this motion.
In the reply briefing for APS’s Motion for Sanctions (Doc. 218), APS cites a separate
state case where Plaintiff’s counsel was sanctioned. Doc. 237 at 3; Doc. 237-1 (sanctions order
from the other matter). Plaintiff’s counsel requests that the Court disregard this information.
Plaintiff views APS’s inclusion of this material as a “personal attack” and an improper attempt to
“impeach counsel’s credibility.” Doc. 243 at 3. Plaintiff’s proposed sur-reply directly responds to
APS’s inclusion of this other case where, according to APS’s briefing, Plaintiff’s counsel was
sanctioned.
Per Plaintiff’s request, the Court will disregard the information APS provided regarding
Plaintiff’s counsel’s extraneous legal dispute. This information is inconsequential because the
Court has found fully in APS’s favor without considering the information. While it was not
inherently improper for APS to reference another lawsuit, “[f]actual findings in one case
ordinarily are not admissible for their truth in another case.” Nat’l Fair Hous. All. v. Brookdale
Santa Fe, 621 F. Supp. 3d 1271, 1280 (D.N.M. 2022) (citations omitted). Because the Court is
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disregarding APS’s arguments, the Court will not allow Plaintiff to file a sur-reply to address
those arguments.
Plaintiff’s motion is GRANTED IN PART and DENIED IN PART.
III. 	Conclusion
APS’s Motion for Sanctions (Doc. 218) is GRANTED. By May 1, 2026, APS must file
an affidavit of expenses related to attending the depositions of Andy Gutierrez, Margaret Crist,
Bernadette Lucero-Turner, Manuel Alzaga, and Jerry Thorn and preparing the sanctions motion.
Plaintiff’s objections to the reasonableness of the expenses, if any, are due 14 days after APS’s
affidavit is filed.
Plaintiff’s Motion for Leave to File Surreply and Motion to Disregard Improper New
Matter and Collateral Attacks in APS’s Reply (Doc. 243) is GRANTED IN PART and DENIED
IN PART. The Court will disregard the requested information. Plaintiff may not file a sur-reply.
________________________________
JENNIFER M. ROZZONI
United States Magistrate Judge
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