Padilla v. Reed ( 2017 )

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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
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