This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STEVEN LOWDER,
3 Plaintiff-Appellant,
4 v. No. A-1-CA-34921
5 BRIAN SHOEMAKER AND 6 THE LAW OFFICE OF BRIAN 7 SHOEMAKER,
8 Defendant-Appellee.
9 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 10 Denise Barela Shepherd, District Judge
11 Eleanor K. Bratton 12 Albuquerque, NM
13 for Appellant
14 The Shoemaker Law Firm 15 Brian L. Shoemaker 16 Albuquerque, NM
17 Pro Se Appellee
18 MEMORANDUM OPINION
19 HANISEE Judge. 1 {1} Plaintiff Steven Lowder appeals from the district court’s order denying his
2 motion to reconsider the dismissal, with prejudice, of the complaint filed against
3 Defendant Brian Shoemaker and the Law Office of Brian Shoemaker. [RP 154] This
4 Court filed a calendar notice proposing to affirm on the summary calendar. Plaintiff
5 filed a memorandum in opposition to the proposed disposition. Not persuaded by
6 Plaintiff’s arguments, we affirm.
7 {2} This Court’s calendar notice proposed to affirm the district court’s order on the
8 basis that dismissal was proper under Rule 1-041(E)(1) NMRA for lack of
9 prosecution, and that contrary to Plaintiff’s assertions, dismissal was not solely based
10 on counsel’s failure to appear at the motion hearing. [CN 5-6] Plaintiff contends that
11 this Court’s proposed disposition rests upon a misunderstanding of the context and
12 threshold basis for the district court’s dismissal. [MIO 3] Plaintiff asserts that there
13 was never a motion to dismiss for lack of prosecution before the district court. [Id.]
14 Rather, the only motion to dismiss was Defendant’s pleading filed immediately after
15 the case was reinstated, seeking reversal of the reinstatement, which was a matter
16 within the district court’s sound discretion. [Id.] Plaintiff further asserts that dismissal
17 was not based on his counsel’s failure to prosecute before reinstatement of the case,
18 and could not be based on any failure to prosecute after reinstatement because Plaintiff
19 responded to pleadings and filed a motion for summary judgment. [MIO 4] Plaintiff
2 1 contends that Defendant failed to move for reconsideration of the order reinstating the
2 case, was unsuccessful in obtaining dismissal on the merits concerning the
3 impropriety of the reinstatement, and eventually obtained relief, not on the merits, but
4 solely on the basis of Plaintiff’s counsel’s failure to appear at the hearing due to a
5 medical emergency. [MIO 3]
6 {3} It appears from the record that although Defendant’s original motion to dismiss
7 did not raise lack of prosecution as a basis for dismissal, it was later raised by reply
8 [RP 29] and by way of Defendant’s motion for reconsideration [RP 62]. Defendant’s
9 motion to dismiss initially argued dismissal on the bases of failure to join a necessary
10 party and failure to state a claim upon which relief may be granted under Rule 1-
11 012(B)(6) NMRA. [RP 20-22] Plaintiff’s response asserted that the action related back
12 to the original date the complaint was filed. [RP 27] Defendant’s reply argued, for the
13 first time, that dismissal for lack of prosecution was warranted under Rule 1-041
14 (E)(2). [RP 29-31] The district court denied the motion on that basis. [RP 60]
15 {4} Thereafter, Defendant’s motion for reconsideration conceded that denial of
16 Defendant’s motion to dismiss was proper under Rule 1-041(E)(2), but argued that
17 dismissal was instead warranted under a different subsection of the rule, Rule 1-
18 041(E)(1), which provides “a serious sanction for extremely dilatory parties and their
19 counsel.” [RP 63-64] Defendant argued that the purpose of Rule 1-041(E)(1) was to
3 1 shorten the period of time for non-action in a case from three years to two years, and
2 provided “a serious sanction for extremely dilatory parties and their counsel.” [RP 63]
3 Defendant further argued that the ten month delay between the filing of the complaint
4 and the order reinstating the case, as well as the twenty month delay between the
5 motion for reinstatement of the case, resulting order reinstating the case, and
6 Plaintiff’s proper service of the complaint, met the requirement of the rule and
7 Plaintiff’s failure to offer an excuse for the delay at the prior hearing made dismissal
8 proper under Rule 1-041(E)(1) and applicable case law. [RP 64] Based on the
9 pleadings, the district court dismissed the case with prejudice. [RP 118] While the
10 order expresses the district court’s frustration with counsel’s failure to appear [RP
11 117-18], the district court clearly based dismissal, in part, on Rule 1-041(E)(1) for
12 lack of prosecution. [RP 118]
13 {5} The record supports the district court’s decision. More than two years passed
14 from the date the complaint was filed in April 2011 [RP 1] to the date the case was
15 reinstated in November 2013 [RP 14], at which time Plaintiff had not yet even served
16 the complaint on Defendants. [RP 14] See Sarikey v. Sandoval, 1965-NMSC-072, ¶ 6,
17 75 N.M. 271, 404 P.2d 108 (“If no action is taken for a period of at least two years,
18 after filing the complaint, to bring the case to a final determination, the case must be
19 dismissed upon motion of the opposite party unless dismissal is prevented by certain
4 1 well defined exceptions.”). Plaintiff did not serve Defendants with the complaint until
2 December 2013 [RP 18], two years and eight months after the complaint was
3 originally filed [RP 1].
4 {6} As to any action taken by Plaintiff after the case was reinstated, our case law
5 has recognized that such may constitute a good faith effort to satisfy the requirement
6 that action be taken to bring a case to a final determination. See Sewell v. Wilson,
7 1982-NMCA-017, ¶ 38, 97 N.M. 523, 641 P.2d 1070 (“Abuse of discretion has been
8 found where dismissal results in an injustice and special circumstances impeded [a]
9 plaintiff’s prosecution of his claim, or where a claim is being pursued actively after
10 a prior lapse in activity.”). Plaintiff, however,took no such action; after the case was
11 reinstated, the only action Plaintiff took was to serve Defendant for the first time,
12 having been ordered to do so by the district court. [RP 15] It was not until Defendant
13 moved to dismiss [RP 20] that Plaintiff filed a motion for summary judgment [RP 39].
14 Aside from the motion to reinstate, and subsequent service of the complaint on
15 Defendants, Plaintiff took no meaningful action to prosecute the case for almost three
16 years since the initial filing of the complaint. [RP 1; RP 14; RP 39]
17 {7} In light of the policies underlying Rule 1-041(E), which are designed to
18 expedite the prosecution of cases, we cannot conclude that the district court abused
19 its discretion.
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STEVEN LOWDER,
3 Plaintiff-Appellant,
4 v. No. A-1-CA-34921
5 BRIAN SHOEMAKER AND 6 THE LAW OFFICE OF BRIAN 7 SHOEMAKER,
8 Defendant-Appellee.
9 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 10 Denise Barela Shepherd, District Judge
11 Eleanor K. Bratton 12 Albuquerque, NM
13 for Appellant
14 The Shoemaker Law Firm 15 Brian L. Shoemaker 16 Albuquerque, NM
17 Pro Se Appellee
18 MEMORANDUM OPINION
19 HANISEE Judge. 1 {1} Plaintiff Steven Lowder appeals from the district court’s order denying his
2 motion to reconsider the dismissal, with prejudice, of the complaint filed against
3 Defendant Brian Shoemaker and the Law Office of Brian Shoemaker. [RP 154] This
4 Court filed a calendar notice proposing to affirm on the summary calendar. Plaintiff
5 filed a memorandum in opposition to the proposed disposition. Not persuaded by
6 Plaintiff’s arguments, we affirm.
7 {2} This Court’s calendar notice proposed to affirm the district court’s order on the
8 basis that dismissal was proper under Rule 1-041(E)(1) NMRA for lack of
9 prosecution, and that contrary to Plaintiff’s assertions, dismissal was not solely based
10 on counsel’s failure to appear at the motion hearing. [CN 5-6] Plaintiff contends that
11 this Court’s proposed disposition rests upon a misunderstanding of the context and
12 threshold basis for the district court’s dismissal. [MIO 3] Plaintiff asserts that there
13 was never a motion to dismiss for lack of prosecution before the district court. [Id.]
14 Rather, the only motion to dismiss was Defendant’s pleading filed immediately after
15 the case was reinstated, seeking reversal of the reinstatement, which was a matter
16 within the district court’s sound discretion. [Id.] Plaintiff further asserts that dismissal
17 was not based on his counsel’s failure to prosecute before reinstatement of the case,
18 and could not be based on any failure to prosecute after reinstatement because Plaintiff
19 responded to pleadings and filed a motion for summary judgment. [MIO 4] Plaintiff
2 1 contends that Defendant failed to move for reconsideration of the order reinstating the
2 case, was unsuccessful in obtaining dismissal on the merits concerning the
3 impropriety of the reinstatement, and eventually obtained relief, not on the merits, but
4 solely on the basis of Plaintiff’s counsel’s failure to appear at the hearing due to a
5 medical emergency. [MIO 3]
6 {3} It appears from the record that although Defendant’s original motion to dismiss
7 did not raise lack of prosecution as a basis for dismissal, it was later raised by reply
8 [RP 29] and by way of Defendant’s motion for reconsideration [RP 62]. Defendant’s
9 motion to dismiss initially argued dismissal on the bases of failure to join a necessary
10 party and failure to state a claim upon which relief may be granted under Rule 1-
11 012(B)(6) NMRA. [RP 20-22] Plaintiff’s response asserted that the action related back
12 to the original date the complaint was filed. [RP 27] Defendant’s reply argued, for the
13 first time, that dismissal for lack of prosecution was warranted under Rule 1-041
14 (E)(2). [RP 29-31] The district court denied the motion on that basis. [RP 60]
15 {4} Thereafter, Defendant’s motion for reconsideration conceded that denial of
16 Defendant’s motion to dismiss was proper under Rule 1-041(E)(2), but argued that
17 dismissal was instead warranted under a different subsection of the rule, Rule 1-
18 041(E)(1), which provides “a serious sanction for extremely dilatory parties and their
19 counsel.” [RP 63-64] Defendant argued that the purpose of Rule 1-041(E)(1) was to
3 1 shorten the period of time for non-action in a case from three years to two years, and
2 provided “a serious sanction for extremely dilatory parties and their counsel.” [RP 63]
3 Defendant further argued that the ten month delay between the filing of the complaint
4 and the order reinstating the case, as well as the twenty month delay between the
5 motion for reinstatement of the case, resulting order reinstating the case, and
6 Plaintiff’s proper service of the complaint, met the requirement of the rule and
7 Plaintiff’s failure to offer an excuse for the delay at the prior hearing made dismissal
8 proper under Rule 1-041(E)(1) and applicable case law. [RP 64] Based on the
9 pleadings, the district court dismissed the case with prejudice. [RP 118] While the
10 order expresses the district court’s frustration with counsel’s failure to appear [RP
11 117-18], the district court clearly based dismissal, in part, on Rule 1-041(E)(1) for
12 lack of prosecution. [RP 118]
13 {5} The record supports the district court’s decision. More than two years passed
14 from the date the complaint was filed in April 2011 [RP 1] to the date the case was
15 reinstated in November 2013 [RP 14], at which time Plaintiff had not yet even served
16 the complaint on Defendants. [RP 14] See Sarikey v. Sandoval, 1965-NMSC-072, ¶ 6,
17 75 N.M. 271, 404 P.2d 108 (“If no action is taken for a period of at least two years,
18 after filing the complaint, to bring the case to a final determination, the case must be
19 dismissed upon motion of the opposite party unless dismissal is prevented by certain
4 1 well defined exceptions.”). Plaintiff did not serve Defendants with the complaint until
2 December 2013 [RP 18], two years and eight months after the complaint was
3 originally filed [RP 1].
4 {6} As to any action taken by Plaintiff after the case was reinstated, our case law
5 has recognized that such may constitute a good faith effort to satisfy the requirement
6 that action be taken to bring a case to a final determination. See Sewell v. Wilson,
7 1982-NMCA-017, ¶ 38, 97 N.M. 523, 641 P.2d 1070 (“Abuse of discretion has been
8 found where dismissal results in an injustice and special circumstances impeded [a]
9 plaintiff’s prosecution of his claim, or where a claim is being pursued actively after
10 a prior lapse in activity.”). Plaintiff, however,took no such action; after the case was
11 reinstated, the only action Plaintiff took was to serve Defendant for the first time,
12 having been ordered to do so by the district court. [RP 15] It was not until Defendant
13 moved to dismiss [RP 20] that Plaintiff filed a motion for summary judgment [RP 39].
14 Aside from the motion to reinstate, and subsequent service of the complaint on
15 Defendants, Plaintiff took no meaningful action to prosecute the case for almost three
16 years since the initial filing of the complaint. [RP 1; RP 14; RP 39]
17 {7} In light of the policies underlying Rule 1-041(E), which are designed to
18 expedite the prosecution of cases, we cannot conclude that the district court abused
19 its discretion. We recognize that Rule 1-041(E) serves dual purposes, it “is intended
5 1 to promote judicial efficiency and to conclude stale cases, but it should not be applied
2 in complete disregard of this court’s often stated concerns for the rights of litigants to
3 have their day in court and their cases decided on the merits and not on trivial
4 technicalities.” Sewell, 1982-NMCA-017, ¶ 35 (internal quotation marks and citation
5 omitted). Despite years of taking no action in the case, Plaintiff was given an
6 opportunity to litigate his case upon reinstatement. Yet all Plaintiff did was serve
7 Defendant as ordered by the district court. It was not until after Defendant filed a
8 motion to dismiss that Plaintiff filed a motion for summary judgment, four months
9 after the case was reinstated. [RP 14; 39] Cf. Summit Elec. Supply Co., Inc. v. Rhodes
10 & Salmon, P.C., 2010-NMCA-086, ¶ 12, 148 N.M. 590, 241 P.3d 188 (“The filing of
11 a motion for a trial setting on the merits amounted to action by the plaintiff to bring
12 the case to its final determination and, moreover, because the action came before the
13 defendant elected to invoke his right to dismissal, the court concluded that the plaintiff
14 had satisfied the rule.”). We therefore do not believe this decision is at odds with the
15 dual purpose of the rule.
16 {8} We therefore conclude that Plaintiff has not demonstrated error on appeal. See
17 Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6,
18 800 P.2d 1063 (stating that the burden is on the Plaintiff to clearly demonstrate that
19 the trial court erred). Based on the above facts, as found in the record, we find no
6 1 abuse of discretion by the district court in dismissing the case for lack of prosecution,
2 upon reconsideration of its prior ruling. See Summit, 2010-NMCA-086, ¶ 10 (“A
3 reviewing court will uphold a district court’s analysis except in cases where discretion
4 had been abused.”); see also Benz v. Town Ctr. Land, LLC, 2013-NMCA-111, ¶ 11,
5 314 P.3d 688 (“An abuse of discretion occurs when a ruling is clearly contrary to the
6 logical conclusions demanded by the facts and circumstances of the case.” (internal
7 quotation marks and citation omitted)).
8 {9} For all of these reasons, and those stated in this Court’s calendar notice, we
9 affirm the district court’s order.
10 {10} IT IS SO ORDERED.
11 ____________________________________ 12 J. MILES HANISEE, Judge
13 WE CONCUR:
14 ___________________________ 15 MICHAEL E. VIGIL, Judge
16 ___________________________ 17 TIMOTHY L. GARCIA, Judge