Herrera v. Las Cruces Public Schools , 695 F. App'x 361 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 13, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
CHRISTINA HERRERA,
Plaintiff - Appellant,
v. No. 16-2179
(D.C. No. 2:16-CV-00034-WJ-CG)
LAS CRUCES PUBLIC SCHOOLS; (D. N.M.)
BELINDA LOPEZ; CRISTINA
SALAZAR,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, HOLMES, and PHILLIPS, Circuit Judges.
_________________________________
Christina Herrera appeals the district court’s dismissal of her action as
untimely filed. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the
dismissal but remand with directions for the district court to enter its dismissal
without prejudice.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
I. BACKGROUND
Ms. Herrera filed an action in New Mexico state court against her former
employer, Las Cruces Public Schools, and two former co-workers. She asserted three
claims: (1) “Disability Discrimination and Retaliation”; (2) “Retaliatory Discharge”;
and (3) “Intentional Infliction of Emotional Distress, and Prima Facie Tort.” Aplt.
App. at 16, 23, 24 (capitalization omitted). In her first claim, she alleged that her
“action [was] for damages under The New Mexico Human Rights Act [(NMHRA)],”
id. at 16, and that she had received an order of nondetermination from the Human
Rights Bureau (HRB) of New Mexico’s Department of Workforce Solutions on a
charge of disability discrimination and retaliation she had filed.1 She also alleged
that Las Cruces Public Schools had “discriminated and retaliated against [her] . . . for
requesting Family Medical leave,” id. at 18, and later referenced the common
acronym for the federal Family Medical Leave Act, “FMLA,” id. at 22.
Defendants removed the case to the United States District Court for the
District of New Mexico, asserting federal-question jurisdiction under 28 U.S.C.
§ 1331 based on the presence of an FMLA claim, and diversity jurisdiction under
28 U.S.C. § 1332 based on allegations that Ms. Herrera was an Arizona resident, all
1
New Mexico statutes, New Mexico court rules, and various judicial decisions
refer to the “HRB,” the “Human Rights Commission,” the “commission,” the
“NMHRC,” the “HRC,” the “Human Rights Division,” the “Division,” the
“NMHRD,” and the “HRD.” We view these as interchangeable synonyms for
purposes of legal analysis but retain their use throughout our disposition when
quoting from or discussing a source that uses them. We refer only to the “HRB”
when discussing the facts of Ms. Herrera’s case.
2
defendants were New Mexico residents, and the amount in controversy exceeded the
statutory minimum of $75,000. Defendants also filed a motion to dismiss the first
and second claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim upon which relief can be granted. Defendants argued that Ms. Herrera filed
those two claims beyond the ninety-day limitations period provided for in N.M. Stat.
Ann. § 28-1-13(A) and Rule 1-076(D) of the New Mexico Rules Annotated (NMRA).
The statute provides that “[a] person aggrieved by an order of the [human rights]
commission may obtain a trial de novo by filing a notice of appeal in the district
court of the county where the discriminatory practice occurred or where the
respondent does business.” N.M. Stat. Ann. § 28-1-13(A). “The notice of appeal
must be filled within ninety days from the date of service of the commission’s order.”
Id. (emphasis added).
Materially identical provisions exist in the NMRA. Rule 1-076(B) states: “An
appeal from the Human Rights Commission may be taken by filing a notice of appeal
in the form of a complaint in the district court in the manner provided by these rules
for the filing of a civil action in the district court.” Rule 1-076(B) NMRA. As
relevant here, Rule 1-076(D) provides that “[a]n appeal from the Human Rights
Commission shall be taken within ninety (90) days from the date of service on the
parties to the administrative proceeding of: (1) the commission’s order.”
Rule 1-076(D)(1) NMRA (emphasis added). Neither the statute nor the rule defines
the key phrase “date of service.” However, Rule 1-005(B) provides that when
3
service is required or permitted to be made by mailing, “[s]ervice . . . is complete
upon mailing.” Rule 1-005(B) NMRA.
The nondetermination order Ms. Herrera appealed from was dated
September 2, 2015. In her complaint, she alleged that the order was mailed on
September 2, 2015, and that she received it on or about September 6, 2015. She filed
her complaint on Monday, December 7, 2015, which was ninety-six days after the
date it was mailed. Based on those dates and their view that “date of service” meant
“date of mailing,” defendants argued that her complaint was untimely and the two
NMHRA claims should be dismissed.
Ms. Herrera responded that the order was mailed to her attorney on Friday,
September 4, and probably received on Tuesday, September 8, given that
September 6 was a Sunday and the following day, September 7, was a federal holiday
(Labor Day) with no mail delivery. In support, she submitted the envelope in which
the order was mailed to her attorney bearing a postage-machine stamp dated
September 4, 2015. She concluded that if measured from either September 6, 7, or
8—all of which she claimed were possible dates of receipt—her December 7 filing of
the complaint was timely under Rule 1-006 NMRA, which adds three days to the end
of a time period when service is made by mail and further extends the time period
4
when the third day falls on a Saturday, Sunday, or legal holiday to “the next day that
is not a Saturday, Sunday, or legal holiday.” Rule 1-006(C).2
In resolving the dispute, the district court relied on Vigil v. City of Espanola,
No. CIV 08-0980 JB/RLP, 2009 WL 1300746, at *10–11 (D.N.M. Feb. 18, 2009)
(unpublished), which held that “service” in Rule 1-076(D) means “date of mailing”
within “the sense conveyed in rule 1-005,” under which “service by mail is complete
on the date of mailing,” Rule 1-005(B) NMRA. The district court determined that in
Ms. Herrera’s case, the date of service was either September 2 (the date on the order
and, presumably, the mailing date), September 3, or September 4 (the date stamped
on the envelope Ms. Herrera submitted), and when measured from those dates, the
complaint was due on December 1, 2, or 3. Aplt. App. at 40–41 & n.1. Hence,
Ms. Herrera’s December 7 complaint was untimely. The court also observed that
Rule 1-006’s time-computation rules do not apply when they are “expressly
supersede[d]” by “another Supreme Court rule of procedure,” Rule 1-006(A) NMRA,
and that Rule 1-076(D) expressly superseded Rule 1-006’s three-day time extension
for mail service by stating “[t]he three (3) day mailing period set forth in Rule 1-006
does not apply to the time limit for filing a notice of appeal,” Rule 1-076(D) NMRA.
2
In her response to the motion to dismiss, Ms. Herrera relied on a similar
extension of the last day of a time period found in Rule 1-006(A) but which is not
specifically tied to a three-day extension period. The district court’s discussion
reflects that reliance, but for analytical purposes, there is no material difference
between the last-day portions of Rule 1-006(A) and Rule 1-006(C).
5
The court further found no equitable reason to toll the limitations period
because Ms. Herrera had not demonstrated any extraordinary circumstances that
prevented her from timely filing her complaint, there was no indication that the HRB
failed to notify her of the nondetermination order, and she had not asked the court “to
create some novel equitable basis to exempt her from [the] statute of limitations.”
Aplt. App. at 42. The court therefore concluded that her NMHRA “claims [were]
time barred.” Id. The court also entered a separate judgment dismissing “all claims
in [the] action . . . WITH PREJUDICE, thus disposing of [the] case in its entirety.”
Id. at 44.
Ms. Herrera filed a motion for relief from judgment under Federal Rule of
Civil Procedure 59(e) to which she attached two affidavits. In one, Ms. Herrera
attested that she had received the nondetermination order on September 10. In the
other, her attorney attested to receipt of her copy on September 8 in an envelope
postmarked September 4. In denying the Rule 59(e) motion, the district court
disagreed with Ms. Herrera that Rule 1-006’s last-day exclusion applied, explaining
that by the court’s calculations, the last day of the period did not fall on a Saturday,
Sunday, or legal holiday. The court also rejected her argument that it had improperly
relied on September 4 as a possible start date for calculating the complaint’s
timeliness.
Next, the court disagreed that delay in receipt warranted tolling of the
deadline. The court reiterated that the limitations period began to run on the date of
mailing, not receipt, and that even if Ms. Herrera’s receipt of the order was delayed
6
by eight days (from September 2 till September 10), she still had eighty-two days to
timely file her complaint. This distinguished her case from those she relied on,
which involved limitations periods that expired due to inevitable systemic
complications or an agency error that cause the plaintiff’s attorney to not receive
notice of the order until the limitations period had expired. The court also concluded
that she was not entitled to equitable tolling on the ground that the nondetermination
order informed her that her notice of appeal had to be filed in state court “WITHIN
NINETY (90) DAYS OF YOUR RECEIPT OF THIS ORDER,” Aplt. App. at 15.
The court noted that the order also referenced § 28-1-13(A)’s requirement that the
ninety-day period ran “from the date of service of this Order of Nondetermination,”
Aplt. App. at 14, and reasoned that, as in Vigil, 2009 WL 1300746, at *13, the law
was the statute, not the HRB’s warning, and it was up to Ms. Herrera and her attorney
to investigate further before relying on the warning. Finally, to the extent
Ms. Herrera sought equitable estoppel based on the HRB’s warning, the court
concluded that she had not met state-law criteria for such relief, in particular the
requirement to establish “affirmative misconduct on the part of the government.”
Aplt. App. at 60 (internal quotation marks omitted). This appeal followed.3
3
We note that, contrary to 10th Cir. R. 10.3(C)(7), 10.3(D)(2), and 30.1(B)(1),
Ms. Herrera’s appendix does not include her notice of appeal, which designated only
the district court’s order denying her Rule 59(e) motion as the order appealed, or any
of the other documents she was required to include: (1) defendants’ motion to
dismiss, her response to it, and defendants’ supporting reply; and (2) her Rule 59
motion and defendants’ response to it (she did not file a reply). We may, however,
take judicial notice of the omitted filings. See Guttman v. Khalsa, 669 F.3d 1101,
(continued)
7
II. SUBJECT MATTER JURISDICTION
On appeal, Ms. Herrera first contends that the district court lacked federal
question jurisdiction because she did not plead any federal claims. Defendants
respond that an FMLA claim is evident in the complaint. We need not resolve this
dispute because, on de novo review, Knight v. Mooring Capital Fund, LLC, 749 F.3d
1180, 1183 (10th Cir. 2014), we conclude that the district court had diversity
jurisdiction under 28 U.S.C. § 1332(a).
A district court may exercise removal jurisdiction over “any civil action
brought in a State court of which the district courts of the United States have original
jurisdiction.” 28 U.S.C. § 1441(a). The parties do not dispute, nor is there any
question, whether the two requirements for diversity jurisdiction under § 1332(a)
were met here—complete diversity of citizenship between the parties and adequate
proof of jurisdictional facts suggesting that the amount in controversy exceeded
1127 n.5 (10th Cir. 2012) (stating that we can take judicial notice of filings in the
district court even when they are not included in the record on appeal). We elect to
do so here despite the discretion we have to decline to consider issues for which an
inadequate appendix is provided. See 10th Cir. R. 10.3(B) and 30.1(B)(3); see also
Burnett v. Sw. Bell Tel., L.P., 555 F.3d 906, 910 (10th Cir. 2009) (explaining that
“we regularly decline to hear claims predicated upon record evidence not included in
the appendix,” and summarily affirming on that basis). We do acknowledge that
Ms. Herrera submitted her Rule 59(e) motion and defendants’ response to it as part of
her docketing statement, but she also should have included them in the appendix.
Finally, many of the appendix citations in Ms. Herrera’s opening appellate brief
appear erroneous, which has made this court’s work more difficult and less efficient.
8
$75,000.4 But as Ms. Herrera points out, under what is commonly referred to as the
forum-defendant rule, “[a] civil action otherwise removable solely on the basis of
[diversity] jurisdiction . . . may not be removed if any of the parties in interest
properly joined and served as defendants is a citizen of the State in which such action
is brought.” Id. § 1441(b)(2).
Facially, the forum-defendant rule might serve as a bar to removal in this case:
all three defendants were served. But Ms. Herrera did not contest removal on this (or
any other) basis before the district court. And as she concedes, the forum-defendant
rule is a procedural rule, not a jurisdictional one, and can therefore be waived if the
plaintiff does not raise a § 1441(b)(2) objection in the district court but instead
proceeds with the action. See Am. Oil Co. v. McMullin, 433 F.2d 1091, 1093–95
(10th Cir. 1970) (concluding that prior, substantially similar version of § 1441(b)(2)
was procedural, not jurisdictional, and therefore waivable); see also Brazell v. Waite,
4
In their notice of removal, defendants pointed out that Ms. Herrera sought a
variety of damages, including lost earnings and punitive damages, and posited that
“[a]n award of past and future earnings alone would satisfy the $75,000.00
requirement” given that her annual salary was approximately $56,000 and she had
last been employed with the school district more than four years ago. Aplt. App.
at 29–30. An “estimate of the potential damages [derived] from the allegations in the
complaint” is an acceptable means of “proving jurisdictional facts that [make] it
possible that $75,000 [is] in play.” McPhail v. Deere & Co., 529 F.3d 947, 955
(10th Cir. 2008).
9
525 F. App’x 878, 884 (10th Cir. 2013) (same regarding current version of
§ 1441(b)(2))5.6
Ms. Herrera admits that she did not seek remand on this basis but asserts that it
was because, by its terms, the forum-defendant rule applies only where a civil action
is “removable solely on the basis of [diversity] jurisdiction,” 28 U.S.C. § 1441(b)(2)
(emphasis added). She claims she took defendants at their word when they also
asserted federal-question jurisdiction, the existence of which foreclosed reliance on
the forum-defendant rule. This argument is not credible. Ms. Herrera well knew
whether she raised a federal claim under FMLA, and in fact she now disavows that
she had. If she wanted a remand, she surely could have argued in the district court
that there was no federal question jurisdiction and that, with diversity as the only
remaining basis for the district court’s jurisdiction, the forum-defendant could be
properly invoked. She did not do so and therefore waived the protections of the
forum-defendant rule.
5
Consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1, we cite to our
unpublished decision in Brazell and to other unpublished Tenth Circuit decisions
only for their persuasive value.
6
Most other circuits to consider the issue have reached the same conclusion.
See Lively v. Wild Oats Market, Inc., 456 F.3d 933, 940 (9th Cir. 2006) (collecting
cases). Further, some courts have held that a plaintiff waives the protections of the
forum-defendant rule if she fails to file a motion to remand based on any defects
other than subject matter jurisdiction within 30 days of removal, as required by
28 U.S.C. § 1447(c). See, e.g., Lively, 456 F.3d at 942; Handelsman v. Bedford Vill.
Assocs. Ltd. P’ship, 213 F.3d 48, 50 n.2 (2d Cir. 2000). We need not consider the
time limit because Ms. Herrera advanced no objections to removal in the district
court, within 30 days of removal or otherwise.
10
III. MERITS
A. Dismissal of NMHRA claims
1. The jurisdictional nature of the limitations issue
At the outset, we must first address Ms. Herrera’s argument that the district
court erred in considering evidence outside of the complaint and making findings of
fact on a Rule 12(b)(6) motion. See Aplt. Opening Br. at 30–33. To be sure, a
statute of limitations can be raised as an affirmative defense under Rule 12(b)(6)
when the time bar is clear from the face of the complaint. Sierra Club v. Okla. Gas
& Elec. Co., 816 F.3d 666, 671 (10th Cir. 2016); Aldrich v. McCulloch Props., Inc.,
627 F.2d 1036, 1041 n.4 (10th Cir. 1980). But the New Mexico Supreme Court has
explained that “the timely filing of a notice of appeal from an NMHRA
administrative order is effective to give the district court jurisdiction to try the case
de novo under [N.M. Stat. Ann.] Section 28-1-13.” Mitchell-Carr v. McLendon,
980 P.2d 65, 70 (N.M. 1999) (emphasis added) (internal quotation marks omitted).
“[T]he district court must dismiss an NMHRA claim if the prerequisites of obtaining
an order from the Division and appealing that order within thirty days are not
satisfied.” Id. (considering prior version of statute with thirty-day limitations
period). Whether Ms. Herrera’s complaint was timely filed, therefore, is a
jurisdictional issue. And in that circumstance, Federal Rule of Civil Procedure
12(b)(1), which allows the “defense . . . [of] lack of subject-matter jurisdiction” to be
asserted “by motion,” is the proper procedural mechanism, not Rule 12(b)(6).
11
This is an important distinction because, as it turned out, defendants’ challenge
to Ms. Herrera’s compliance with the limitations period was in the nature of a factual
attack rather than a facial attack. A “facial attack” is based “on the complaint’s
allegations as to subject matter jurisdiction [and] questions the sufficiency of the
complaint,” whereas a factual attack goes beyond the complaint’s allegations “and
challenge[s] the facts upon which subject matter jurisdiction depends.” Holt v.
United States, 46 F.3d 1000, 1002–03 (10th Cir. 1995).
Here, defendants sought dismissal based only on the allegations in the
complaint and the nondetermination order, which was referenced in the complaint
and attached to their dismissal motion. This gives the appearance of a facial attack.
But the motion ultimately turned on varying factual allegations regarding the date the
nondetermination order was mailed to and received by Ms. Herrera and her attorney
and the legal significance of those dates. In fact, in her response to the motion,
Ms. Herrera offered another document for the district court’s consideration—the
envelope in which a copy of the nondetermination order was mailed to her attorney—
and made additional factual allegations regarding possible mailing and receipt dates
that were later than the dates she alleged in her complaint (and more favorable to
her). Hence, we construe defendants’ motion as a factual attack on the court’s
subject matter jurisdiction.
When considering a factual attack on subject matter jurisdiction mounted in a
motion to dismiss, “a district court may not presume the truthfulness of the
complaint’s factual allegations,” and it “has wide discretion to allow affidavits, other
12
documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.”
Id. at 1003. Unless the jurisdictional issue is intertwined with the merits of the case,
considering evidence outside the complaint does not convert the dismissal motion
into one for summary judgment under Federal Rule of Civil Procedure 56. Id. The
jurisdictional issue here was not intertwined with the merits of the case.
Accordingly, we reject Ms. Herrera’s argument that the district court erred in
considering documents outside of her complaint and making factual findings.
2. Standard of review
Our review of a Rule 12(b)(1) dismissal is de novo. Colo. Envtl. Coal. v.
Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004).
3. Meaning of “date of service”
Our first task on the merits of this appeal is to determine the meaning of the
term “date of service” as used in N.M. Stat. Ann. § 28-1-13(A) and Rule 1-076(D)(1)
NMRA. Despite measuring the ninety-day time limit from the service date, neither
the statute nor the rule defines “date of service.” Plaintiff claims “date of service”
means “date of receipt.” Defendants claim it means “date of mailing.” As noted, the
district court sided with defendants, and so do we, bearing in mind that our task is not
to reach our own judgment about New Mexico law but to “follow the most recent
decisions of the state’s highest court.” Wade v. EMCASCO Ins. Co., 483 F.3d 657,
665-66 (10th Cir. 2007). If the state’s highest court has not provided a controlling
decision, we must “predict what the state supreme court would do” by “seek[ing]
guidance from decisions rendered by lower courts in the relevant state, appellate
13
decisions in other states with similar legal principles, district court decisions
interpreting the law of the state in question, and the general weight and trend of
authority in the relevant area of law.” Id. at 666 (citations and internal quotation
marks omitted). Neither party has asked us to certify any question of law to the New
Mexico Supreme Court, nor are we inclined to.
Defendants contend that two New Mexico Supreme Court decisions hold “that
the time for filing an appeal from an agency decision runs from the date the decision
is entered or the date of service on the complainant’s attorney and that service is
complete upon mailing.” Aplee. Response Br. at 20. We do not read those cases the
same way. One of those cases, Maples v. State, 791 P.2d 788 (N.M. 1990),
concerned the conflict between a New Mexico Supreme Court rule requiring an
appeal to the judiciary from a ruling by the state Workers Compensation Hearing
Officer to be filed “within thirty days from the filing of the order,” id. at 788(emphasis omitted), and a state statute that “allow[ed] filing thirty days after the
order [was] mailed,” id. at 789. The court held that in “procedural matters such as
time limitations for appeals, a rule adopted by the Supreme Court governs over an
inconsistent statute,” and that the Supreme Court has “the power to set the time for
all appeals from final orders, including appeals from final orders of administrative
agencies.” Id. at 790 (internal quotation marks omitted).7 The Maples court did not
7
We do not have such a conflict here; the statute and the rule are materially
identical.
14
touch on whether the time for appeal runs from the “date of service,” whether “on the
complainant’s attorney,” as defendants suggest, Aplee. Response Br. at 20, or
otherwise. Nor did Maples say anything about service being “complete upon
mailing,” id. It merely identified the controlling rule, which measured the time for
appeal from the date an order is filed, not from the “date of service.”
Defendants’ contention that service is complete upon mailing to a claimant’s
attorney finds even less support in the other New Mexico Supreme Court case they
rely on, American Automobile Ass’n v. State Corp. Commission, 697 P.2d 946 (N.M.
1985) (AAA). In AAA, the court held only that a state rule of appellate procedure
governed the time for an appeal from a state district court decision, and that a state
rule of civil procedure governing the time for appealing an action by a state
administrative body to a state district court was inapplicable. Id. at 947–48. AAA did
not concern “date of service,” whether service is “complete upon mailing,” or even
an appeal from a decision by a state administrative body.8
For her interpretation that “date of service” equals “date of receipt,”
Ms. Herrera leans heavily on two decisions. The first is from the New Mexico Court
8
Defendants also point to James v. New Mexico Human Services Department,
742 P.2d 530, 532 (N.M. Ct. App. 1987), for its rejection of an argument that the
time for appealing an agency’s decision ran from the date the plaintiff received the
decision because “it is virtually impossible to calculate appeal time when it runs from
receipt of the decision rather than the date of the decision itself.” However, the
controlling court rule at issue in James specifically provided that the time limit for an
appeal is measured from “the date of the order, decision or action appealed.” Id.
at 531 (quotation omitted). James is, therefore, materially distinguishable from this
case.
15
of Appeals, Downer v. New Mexico Corrections Department, No. 30,602 (N.M. Ct.
App. Dec. 29, 2010) (unpublished). In Downer, the district court determined that the
plaintiff’s notice of appeal was untimely under Rule 1-076(D) and § 28-1-13(A).
Downer, slip op. at 2. The court of appeals issued a calendar notice proposing
summary reversal. In its memorandum opinion, the court found that the
administrative decision informing the plaintiff that he had “ninety days from receipt
of the letter to appeal to the district court . . . was sufficient to preclude summary
judgment on the issue of the timeliness of the appeal.” Id. at 3.
In support of that conclusion, the appeals court cited to Ocana v. American
Furniture Co., 91 P.3d 58 (N.M. 2004). In Ocana, the New Mexico Supreme Court
reversed a grant of summary judgment based on a late notice of appeal under
§ 28-1-13(A) and Rule 1-076(D) because the plaintiff’s attorney did not receive a
copy of a no-probable-cause decision until after the limitations period had run.
Id. at 67. The Court held that “[u]nder these facts, a fact-finder could find that the
Division’s actions tolled the time limits.” Id. Ocana explicitly declined to “discuss
whether the [limitations] period begins to run on the date the complainant actually
receives notice of the no-probable-cause decision from the Division.” Id.
Neither Downer nor Ocana sheds any light on the meaning of the term “date of
service.” Ocana is explicitly a tolling case, and Downer is most properly viewed the
same; the dispositions in both turned on the representation in the communication to
the plaintiff or her attorney that receipt of the decision triggered the ninety-day
period. And while Downer rejected the defendant’s contention “that the date of
16
service is the date the decision is mailed,” it did so “for the reasons stated in [the
court’s] calendar notice.” Downer, slip op. at 3–4.
In the calendar notice, the court of appeals reasoned that “the appeal procedure
is not now clear” because both the nondetermination letter and an agency regulation
indicated that the ninety-day period begins to run from the date the decision is
received, not when it is mailed, as could be gleaned from applying Rule 1-005(B) to
“date of service” in Rule 1-076(D). Downer, Notice Proposed Summary Disposition,
at 3–5 (undated) (emphasis added).9 Because of the lack of clarity, and because
Downer had appealed within ninety days of receiving the decision, the court of
appeals proposed to reverse the district court’s ruling that the appeal was untimely,
citing New Mexico authority for the proposition that “only the most unusual
circumstances beyond the control of the parties – such as error on the part of the
court – will warrant overlooking procedural defects.” Id. at 5 (brackets and internal
quotation marks omitted). It is therefore clear that the memorandum opinion in
Downer did not decide whether “date of service” is the date of mailing or the date of
receipt but elected to reverse on equitable grounds.10
9
We have obtained a copy of the calendar notice from the New Mexico Court
of Appeals.
10
Downer and all other unpublished New Mexico cases we cite in this
decision are not precedential, but they “may be cited for any persuasive value.” Rule
12-405(A) NMRA.
17
Finally, in a case decided after Downer, Haynes v. Presbyterian Healthcare
Services, No. 34,489, 2015 WL 4366698 (N.M. Ct. App. June 30, 2015)
(unpublished), cert. quashed, No. S-1-SC-35456 (N.M. Apr. 14, 2016), the New
Mexico Court of Appeals suggested that Rule 1-076’s phrase “date of service” means
date of mailing. In Haynes, the appeals court had issued a calendar notice proposing
to affirm the district court’s dismissal of the plaintiff’s NMHRA claims for failure to
file a timely appeal. Id. at *1. In its decision, the court described its calendar notice
as “noting that Appellant’s complaint was filed in the district court ninety-one days
after the New Mexico Human Rights Commission . . . issued its waiver[11] and that
. . . § 28-1-13 . . . and Rule 1-076(D) . . . require the complaint be filed within ninety
days.” Id. (emphasis added). And in the calendar notice, the court stated that the
waiver was “issued and mailed” on the same day. Haynes, No. 34,489, Notice
Proposed Summary Disposition, at 2 (N.M. Ct. App. May 28, 2015).12 Hence, by
referring to the date of issue, which the calendar notice makes clear was the same as
the mailing date, Haynes clearly stands for the proposition that service under both the
statute and the rule is complete upon mailing.13
11
The date of service of “the director’s or complainant’s notice of waiver of
the complainant’s rights to hearing before the Commission” is another event that
triggers the ninety-day appeal period. Rule 1-076(D)(2) NMRA.
12
As with Downer, we have obtained a copy of the calendar notice from the
New Mexico Court of Appeals.
13
Haynes also concluded that Rule 1-006’s three-day extension of the
ninety-day period when service is made by mail was inapplicable under the express
(continued)
18
The other case Ms. Herrera relies on for her view that “date of service” means
“date of receipt” is DePaula v. Easter Seals El Mirador, No. 14-CV-252 MCA/SCY,
2015 WL 12751708 (D.N.M. Jan. 27, 2015) (unpublished). In DePaula, the federal
district court noted that Downer was decided after Vigil v. City of Espinosa, the case
the district court had relied on in Ms. Herrera’s case, and found Downer persuasive
for its tolling discussion, quoting from it at length and concluding that the plaintiff’s
appeal was timely because it was filed exactly ninety days after he received the
agency’s decision. Id. at *4. Hence DePaula is a tolling case. It does not assist us
in determining the meaning of the term “date of service.”
In addition to Haynes, we find Vigil helpful in predicting how the New Mexico
Supreme Court would rule on the meaning of “date of service” in Rule 1-076(D)
because it contains a considered and on-point analysis of the issue. In Vigil, the court
reasoned that “rule 1-076 uses ‘service’ as that term is defined elsewhere in the
[NMRA]” specifically in Rule 1-005 (“Service [by mail] is complete upon mailing”),
and that “there is nothing in rule 1-076 that would command a different definition of
‘service’ within its context.” Vigil, 2009 WL 1300746, at *10. The court found
additional support for its view in the fact that deadlines for other types of appeals set
out in the NMRA “always depend[] on the action of the agency or court,” not “on
receipt or any other action by the parties.” Id. at *11. The court also relied on
authority from other jurisdictions that in the service-of-process context, the burden of
terms of Rule 1-076(D). As noted, the district court in Ms. Herrera’s case reached
the same conclusion, which she has not challenged on appeal.
19
proving service is on the party invoking a court’s jurisdiction, but a rebuttable
presumption of valid service “arises upon a showing that the statutes or rules
prescribing the manner of service have been followed.” Id. at *12. This system
“provides an effective way for [a] party to prove jurisdiction” and “prevents the
injustice of allowing parties to thwart a court’s proper jurisdiction by making
unsubstantiated allegations that they did not receive notice of an action.” Id. The
court concluded that the plaintiff had not rebutted the presumption that proper service
was made on the date the nondetermination order was mailed to her. Id.14
Based largely on Vigil and to a somewhat lesser extent on Haynes, we
conclude that “date of service” in both Rule 1-076(D) and § 28-1-13(A) means “date
of mailing” when service is effected by mailing. Here, the district court determined
that the latest mailing date was September 4, and measured from that date, the
ninety-day period ended on December 3. Because Ms. Herrera did not file her
complaint until December 7, it was untimely.
4. Ms. Herrera’s counterarguments
Ms. Herrera offers a number of arguments why it is improper to follow Vigil’s
interpretation of “date of service.” She first points out that the NMRA “govern the
procedure in the district courts of New Mexico in all suits of a civil nature,” and
14
We note that in Montano v. Public Service Co. of New Mexico,
No. 1:14-cv-00079 WJ/SCY, 2015 WL 12861177, at *2 (D.N.M. Aug. 3, 2015)
(unpublished), the same district judge who later decided Ms. Herrera’s case followed
Vigil’s holding that “date of service” means “the date the Order [of]
Non-Determination was mailed.”
20
“[e]xcept where [the NMRA] explicitly provide otherwise, the [NMRA] do not apply
where there are contrary statutory provisions concerning special statutory or
summary proceedings.” Rule 1-001(A) NMRA. Ms. Herrera posits that NMHRA
proceedings appear to fit under Rule 1-001(A)’s “special statutory proceedings”
exception, and that there is a contrary agency regulation that would override
Rule 1-005(B)’s provision that service by mail is complete upon mailing. We
disagree because, even assuming the truth of her premise (that NMHRA proceedings
are “special statutory proceedings”), Ms. Herrera’s conclusion rests on a faulty
reading of Rule 1-001, which renders the NMRAs inapplicable in the face of
“contrary statutory provisions,” Rule 1-001(A) NMRA (emphasis added), not
contrary agency regulations.
Next, Ms. Herrera contends that Rule 1-076(D) does not govern determination
of “date of service” because Rule 1-076(H) provides that the NMRAs “apply to and
govern the procedure in the district court for de novo appeals from the Human Rights
Commission” only “[a]fter service of the complaint,” whereas service of the agency
decision that triggers the ninety-day appeal period occurs prior to service of the
complaint. We reject this argument. In Maples, the New Mexico Supreme Court
stated in no uncertain terms that it has “the power to set the time for appeals from
final orders, including appeals from final orders of administrative agencies.”
791 P.2d at 790. In promulgating Rule 1-076(D), the Supreme Court did just that,
and it can decide when the date of service occurs for purposes of “set[ting] its own
time limitations for appeals.” Maples, 791 P.2d at 790. Part of deciding when the
21
date of service occurs is deciding whether to define “‘service . . . in the sense
conveyed in rule 1-005.” Vigil, 2009 WL 1300746, at *11 (emphasis added). That
occurs during the pendency of a case, not before the court acquires jurisdiction, as
Ms. Herrera suggests. In other words, although a state court does not acquire
jurisdiction over an NMHRA matter until a complaint is filed appealing the agency
decision, it is empowered to look back at service of the decision and apply its
ninety-day rule in the manner it sees fit, which, we have concluded, is accomplished
by determining the date the decision was mailed. Thus, we are unpersuaded that
when attempting to define “date of service” as used in Rule 1-076(D), Rule 1-076(H)
precludes reference to Rule 1-005(B)’s directive that “[s]ervice . . . is complete upon
mailing.”
Ms. Herrera also argues that the time for appeal should be based on
§ 9.1.1.10(C) of the New Mexico Administrative Code (NMAC), which provides that
when the agency’s “director determines that no probable cause exists, . . . the director
will advise the complainant of his or her right to appeal the determination in district
court within 30 days [the former statutory deadline] after receipt of the
determination” (emphasis added). She observes that by regulation, the agency “may
look [to the NMRA] for guidance” when there is no “specific provision governing an
action in the [NMHRA] or in [the NMAC],” N.M. Code § 9.1.1.2(B), and she
therefore proposes that when an NMAC provision is on point, the NMRA do not
“override . . . procedures during the agency process prior to the filing of the de
novo appeal.” Aplt. Opening Br. at 27.
22
We are unconvinced. First, as Ms. Herrera points out, the regulation’s
reference to a 30-day period is erroneous—either a “remnant[] of an older version of
the statute or a typo.” Id. at 27 n.6. But that is not why we find her argument
unconvincing. Instead, just as she concedes that the ninety-day period of
§ 28-1-13(A) “trumps the [erroneous] regulation[],” id. (emphasis added), so too,
under the plain terms of N.M. Code § 9.1.1.2(B), does § 28-1-13(A)’s “date of
service” trigger trump the regulation’s reference to “receipt” as the event that starts
the ninety-day appeal period. A fortiori, the regulation is also trumped by the use of
“date of service” in Rule 1-076(D) because, as reasoned in Maples, 791 P.2d at 790,
the New Mexico Supreme Court, not the state legislature, has the power to fix the
time for “appeals from final orders of administrative agencies,” and therefore a court
rule “controls over conflicting law.” Accordingly, Maples leads us to the NMRA, not
the NMAC, in determining when the “date of service” occurs, which is a
determination to be made by the judiciary, whether through an NMRA or case law
interpreting the NMRA.
Relatedly, Ms. Herrera notes that the regulation requires the director to notify
a complainant of the right to appeal “by certified mail, return receipt requested.”
N.M. Code § 9.1.1.10(C). Because that procedure was not followed in her case, she
contends that “any uncertainties about the date of service should be resolved in [her]
favor.” Aplt. Opening Br. at 30. But Ms. Herrera argued to the district court that a
copy of the nondetermination letter was mailed to her attorney on September 4, and
on appeal she contends that it is the date of service on her attorney that counts.
23
Hence, there is no uncertainty about the latest possible date the copy was mailed to
her attorney, and as the district court properly concluded, even when measured from
that date (September 4), the complaint was untimely.15
Finally, Ms. Herrera would have us note that Rule 1-005(B) is not the only
NMRA defining service by mail—she claims that Rule 1-004 defines service of
process by mail “as occurring upon receipt – when the summons and complaint are
served, even if service is by mail.” Id. at 28. We construe this argument as founded
on Rule 1-004(E)(3), as we can locate no other relevant subparagraph of the rule.
However, subparagraph (E)(3) does not say that service by mail is complete upon
receipt but that it is “complete on the date the receipt [for the envelope or package
containing the summons and complaint, writ, or other process] is signed as provided
by this subparagraph.” Rule 1-004(E)(3) NMRA. Nothing in Rule 1-076, which
specifically applies to “appeals from the Human Rights Commission,” suggests that a
nondetermination order must be served in this manner for purposes of determining
the “date of service.” Nor do we see any compelling reason why the additional
precautions used in serving process on a defendant in a civil case, which is “the
means by which jurisdiction is obtained over a person to compel the person to appear
in a judicial proceeding,” Rule 1-001(B)(3) NMRA, should apply to the service of a
15
Ms. Herrera now complains that the date on the envelope used to mail her
attorney’s copy is not a postmark but a postage-meter stamp and therefore not proof
of mailing on September 2. Given the district court’s conclusion that the complaint
was untimely even when measuring the limitations period from September 4, we fail
to see the point in this argument.
24
nondetermination order to a potential plaintiff/appellant, which does not establish
jurisdiction at all. We therefore reject this argument.
5. Equitable tolling and equitable estoppel
The district court rejected Ms. Herrera’s arguments for equitable tolling and
equitable estoppel. Ms. Herrera has not argued that the district court erred in doing
so. Accordingly, she has waived appellate review of the issue. See State Farm Fire
& Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (explaining that issue
not raised in opening brief is waived).
6. Conclusion on NMHRA claims
A dismissal for lack of subject matter jurisdiction generally is without
prejudice under both federal law and New Mexico law. Brown v. Buhman, 822 F.3d
1151, 1179 (10th Cir. 2016), cert. denied, 137 S. Ct. 828 (2017); Mitchell-Carr v.
McLendon, 980 P.2d 65, 71 (N.M. 1999). Consequently, although we affirm the
district court’s dismissal of the first and second claims, which arose under the
NMHRA, based on the untimeliness of the complaint, we must remand for the court
to enter its dismissal without prejudice.
B. Dismissal of third claim
Ms. Herrera argues that the district court erred in dismissing her third claim
because that claim was not subject to the NMHRA’s ninety-day statute of limitations.
Defendants argue that she failed to preserve this issue because she raises it for the
first time on appeal even though she recognized in her Rule 59(e) motion that the
court had dismissed the case in its entirety.
25
We agree that Ms. Herrera has waived appellate review of the dismissal of her
third claim. Where, as here, “a post-judgment motion serves as the only means of
bringing an issue to the district court’s attention, a party may not forgo that
procedure and raise the issue for the first time on appeal.” See Acheff v. United
States, 595 F. App’x 741, 743 (10th Cir. 2014). Further, absent an argument for
plain-error review, we do not consider theories or contentions for reversal raised for
the first time on appeal. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131
(10th Cir. 2011) (“[T]he failure to argue for plain error and its application on appeal
. . . surely marks the end of the road for an argument for reversal not first presented
to the district court.”). Ms. Herrera has not argued for plain-error review.
Accordingly, she has waived the district court’s dismissal of her third claim.
IV. CONCLUSION
The district court’s judgment is affirmed but we remand with instructions that
the court enter the dismissal of claims one and two without prejudice.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
26