Jones et al v. Bank et al

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
MICHAEL J. JONES and
TAMERA A. JONES,
Plaintiffs,
v. Civ. No. 2:25-472 MLG/GJF
PIONEER BANK, ADRIANN RAGSDALE,
DEE ANN NUNEZ, and
DOVENMUEHLE MORTGAGE, INC.,
Defendants.
ORDER DENYING PLAINTIFFS’
MOTION TO CONDUCT LIMITED DISCOVERY AND
MOTION TO COMPEL SUBSTANTIVE RESPONSE AND DISCOVERY
THIS MATTER is before the Court upon Plaintiffs’ Memorandum of Law in Support of
Declaration and Motion for Leave to Conduct Limited Early Discovery (“Motion for Discovery”)
(Dkt. No. 94) and Plaintiffs’ Motion to Compel Substantive Response and Production, or
Alternatively to Strike or Disregard Out-of-Sequence Opposition and to Reset Briefing (“Motion
to Compel”) (Dkt. No. 98). These motions are fully briefed. See Dkt. Nos. 95, 97, 101–02. For the
reasons stated below, the Court DENIES each of these Motions a premature.
In their Motion for Discovery, Plaintiffs ask the Court to order Defendants to produce
“document-custody and servicing-authority materials,” which Plaintiffs contend are necessary to
prosecute their surviving claims and which, according to Plaintiffs, Defendants have so far refused
to provide “through statutory channels.” Dkt. No. 94 at 1. Relatedly, in their Motion to Compel,
Plaintiffs seek “substantive response[s] and production tied to the surviving claims.” Dkt. No. 98
at 2.
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On January 16, 2026, the Court determined that good cause existed to delay issuance of a
scheduling order until after resolution of Defendants’ Motion to Dismiss for Lack of Jurisdiction.
Dkt. No. 80. Although Defendants’ jurisdictional challenge has now been resolved (Dkt. No. 91),
the Court has not yet issued an initial scheduling order due to the unsettled nature of the pleadings.
See, e.g., Dkt. Nos. 85 (Plaintiffs’ Motion for Leave to File Second Amended Complaint), 90
(Pioneer Bank Defendants’ response in opposition), 93 (DMI’s response in opposition). Because
this case remains in its initial stages, with discovery not yet underway and the operative pleading
not yet settled or answered, Plaintiffs’ requests for discovery are premature.
Once the presiding judge resolves Plaintiffs’ Motion to Amend and Defendants have
answered the operative complaint, the Court will, in accordance with its ordinary practice and
Federal Rules of Civil Procedure 16 and 26(f), issue an initial scheduling order that sets deadlines
for the parties to meet and confer and to submit a Joint Status Report and Provisional Discovery
Plan. Concurrently, the Court will schedule a telephonic initial scheduling conference at which it
will impose discovery deadlines and discovery limits on the parties.1 Until then, “[a] party may
not seek discovery from any source before the parties have conferred as required by Rule 26(f),”
except in limited circumstances.2 See Fed. R. Civ. P. 26(d). In the meantime, the Court finds good
cause to extend its delay of the issuance of a scheduling order pending resolution of Plaintiffs’
Motion for Leave to File Second Amended Complaint (“Motion to Amend”) and Defendants’
answers or responses to the operative pleading.
1 Should DMI file a dispositive motion targeted to the operative pleading, as it forecasts in its response to Plaintiffs’
Motion for Discovery (see Dkt. No. 95 at 3), it is possible that the Court’s scheduling conference and discovery may
be further delayed pending resolution of that motion.
2 Federal Rule of Civil Procedure 26(d)(2)(A) permits a party to propound on another party a request under Rule 34
more than 21 days after the complaint is served. But here, it is not settled which complaint – as between the First
Amended Complaint or the newly-proposed second amended complaint – is the operative one. Moreover, a Rule 34
request served before the parties’ Rule 26(f) conference is not “considered to have been served” until the time of the
conference. Fed. R. Civ. P. 26(d)(2)(B).
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Plaintiffs’ Motion to Compel, in which they ask the Court to compel the production of
documents pursuant to Federal Rule of Civil Procedure 37 (Dkt. No. 98), is likewise premature
and not well-taken. Rule 37 permits a party to move to compel discovery when another party fails
to respond to the moving party’s discovery request. See Fed. R. Civ. P. 37(a)(3)(B). But once
again, discovery is not yet underway. Moreover, Plaintiffs have failed to comply with the dictates
of Rule 37.3 See, e.g., Fed. R. Civ. P. 37(a)(1) (requiring certification that the movant conferred in
good faith with the party failing to produce discovery); Fed. R. Civ. P. 37(a)(3)(B) (permitting a
party to move to compel if a party fails to answer an interrogatory submitted under Rule 33 or to
produce documents requested under Rule 34).
Curiously, in their Motion to Compel, Plaintiffs also complain that DMI’s response to their
Motion for Leave to File Second Amended Complaint was untimely or out of sequence. Dkt. No.
98. But that argument, too, is without merit. In its Amended Order Setting Omnibus Motions
Hearing and Staying Briefing (Dkt. No. 76), the Court stayed briefing pending further order of the
Court. Dkt. No. 76. Then, in its January 16, 2026 Proposed Findings and Recommended
Disposition (“PFRD”), the undersigned recommended that the “[t]he litigation hold that precludes
the filing of additional motions and stays briefing on pending motions . . . be LIFTED” by the
presiding judge upon resolution of the PFRD. Dkt. No. 81. Before the presiding judge could
resolve the PFRD, however, and despite the ongoing litigation hold, Plaintiffs filed their Motion
to Amend on February 3, 2026. Dkt. No. 85. It was not until February 23, 2026, when the presiding
judge adopted the PFRD, that the litigation hold was lifted. Dkt. No. 91 at 3. As a result, DMI’s
response to the Motion to Amend, which was filed fourteen days after the presiding judge lifted
3 As DMI notes, Plaintiffs have also failed to comply with Local Rule 37, which requires a moving party to attach to
their motion a copy of the discovery requests at issue and any responses or objections thereto. See D.N.M.LR-Civ. 37.
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the litigation hold, was timely and proper. Moreover, Plaintiffs filed a second reply in support of
their Motion to Amend (see Dkt. No. 97), which the Court has considered in providing its
recommendations to the presiding judge on Plaintiffs’ Motion to Amend in its concurrently-filed
PFRD. See Dkt. No. 104. Thus, Plaintiffs have not suffered prejudice from the sequencing or
timing of DMI’s response, and there is no basis for striking that response or for resetting the
briefing deadlines on the Motion to Amend. Rather, the Motion to Amend is ripe for resolution
and is, in fact, the subject of the Court’s concurrently-filed PFRD. See id.
IT IS THEREFORE ORDERED that Plaintiffs’ Memorandum of Law in Support of
Declaration and Motion for Leave to Conduct Limited Early Discovery (“Motion for Discovery”)
(Dkt. No. 94) and Plaintiffs’ Motion to Compel Substantive Response and Production, or
Alternatively to Strike or Disregard Out-of-Sequence Opposition and to Reset Briefing (“Motion
to Compel”) (Dkt. No. 98) are DENIED.
IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure 16(b)(2),
there is good cause to extend the delay in entering a scheduling order in this case until after
Plaintiffs’ Motion for Leave to File Second Amended Complaint (Dkt. No. 85) is resolved and
after Defendants have answered or responded to Plaintiffs’ operative complaint.
SO ORDERED.
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THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
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