Padilla v. Reed

• Court: New Mexico Court of Appeals
• Decided: September 14, 2017
• Docket: A-1-CA-36117
• Status: Unpublished

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 THOMAS M. PADILLA,

3 Plaintiff-Appellant,

4 v. No. A-1-CA-36117

5 STACY L. REED,

6 Defendant-Appellee.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Victor S. Lopez, District Judge

9 Ray A. Padilla, PC 10 Ray A. Padilla 11 Albuquerque, NM

12 for Appellant

13 Winger & Associates 14 Nathan Edward Winger 15 Albuquerque, NM

16 for Appellee

17 MEMORANDUM OPINION

18 HANISEE, Judge.

19 {1} Plaintiff appeals from a district court’s order granting Defendant’s motion to

20 dismiss the complaint. We issued a calendar notice proposing to affirm. Plaintiff has 1 responded with a memorandum in opposition. Not persuaded, we affirm the district

2 court.

3 {2} Defendant raises five issues that may be consolidated as a challenge to the

4 district court’s order granting Defendant’s motion to dismiss the complaint for

5 insufficient service of process within the time ordered by the district court. A district

6 court may dismiss a complaint if, based on an objective reasonableness standard, the

7 plaintiff fails to exercise due diligence in serving the complaint upon a defendant.

8 Romero v. Bachicha, 2001-NMCA-048, ¶¶ 23-26, 130 N.M. 610, 28 P.3d 1151. The

9 delay need not be intentional. Id. ¶ 23; Graubard v. Balcor Co., 2000-NMCA-032,

10 ¶ 12, 128 N.M. 790, 999 P.2d 434. We review a district court’s dismissal under an

11 abuse of discretion standard. Graubard, 2000-NMCA-032, ¶ 12. An abuse of

12 discretion occurs if, considering the circumstances before the district court, the court

13 “exceeds the bounds of reason[.]” Summit Elec. Supply Co., Inc. v. Rhodes & Salmon,

14 P.C., 2010-NMCA-086, ¶ 6, 148 N.M. 590, 241 P.3d 188 (internal quotation marks

15 and citation omitted).

16 {3} Here, Plaintiff filed a lawsuit just prior to the running of the statute of

17 limitations, alleging that Defendant was at fault for injuries sustained in a car accident.

18 The complaint was filed in October 2014, but was not served on Defendant. [RP 1] In

19 June 2015 the district court dismissed the complaint for lack of prosecution. [RP 5]

2 1 Plaintiff filed a “[n]otice” to the Court, along with a motion to reinstate, asserting that

2 the parties were involved in settlement negotiations. [RP 6] The district court denied

3 the motion after pointing out that the “notice” did not comply with Rule 1-041(E)

4 NMRA [RP 13] (motions to reinstate). On April 26, 2016, the district court reinstated

5 the complaint on Plaintiff’s motion to reconsider, but stated that the case would be

6 dismissed if Plaintiff did not serve the complaint on Defendant within 30 days. [RP

7 22] Plaintiff did not serve Defendant until June 17, 2016, twenty months after the

8 filing of the complaint and fifty-two days following the district court’s reinstatement

9 of the complaint. [RP 1, 24] Defendant then filed a motion to dismiss for insufficient

10 service, and the motion was granted by the district court. [RP 29, 51]

11 {4} Plaintiff continues to argue that dismissal was inappropriate because he was

12 in settlement negotiations, and he had informed the district court of this. [MIO 2]

13 However, our case law supports the court’s decision. In Romero, this Court held that

14 a thirteen-month delay in serving the defendant justified dismissal when the plaintiff

15 had originally misnamed the defendant but was aware of the defendant’s name and

16 address. 2001-NMCA-048, ¶¶ 24-25. Here, it appears that Defendant was served at

17 the same residence that was listed in the original police report that was made at the

18 time of the accident. [RP 31] In Graubard, we held that an intentional delay was not

19 necessary to dismiss for failure to serve process with due diligence in circumstances

3 1 of a fourteen-month delay. 2000-NMCA-032, ¶¶ 3, 11. The delay in this case was

2 more egregious than either of these two cases, and it appears from the record that

3 effectuation of service was achievable as is required and was directed by the district

4 court upon reinstatement of Plaintiff’s complaint. Indeed, here, the district court gave

5 Plaintiff a second chance and additional time to serve the complaint on Defendant.

6 Yet, Plaintiff failed to satisfy his obligation of service or meet the district court’s

7 deadline. Given the broad deference that we give to the district court under the above-

8 noted abuse of discretion standard, we cannot say that the court erred here.

9 {5} For the reasons set forth above, we affirm.

10 {6} IT IS SO ORDERED.

11 _____________________________ 12 J. MILES HANISEE, Judge

13 WE CONCUR:

14 __________________________________ 15 MICHAEL E. VIGIL, Judge

16 __________________________________ 17 STEPHEN G. FRENCH, Judge