Atherton v. Chapman

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 ARLENE RUTH ATHERTON,
3 Plaintiff-Appellant,
4 v. No. A-1-CA-36123
5 ROBERT CHAPMAN, individually and as
6 PRESIDENT OF SANTA FE HARDWARE,
7 SANTA FE HARDWARE; CITY OF SANTA FE:
8 SANTA FE TRANSIT a/k/a SANTA FE TRAILS
9 BUS SYSTEM and JOHN DOE 1,
10 Defendants-Appellees.
11 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
12 David K. Thomson, District Judge
13 Arlene Ruth Atherton
14 Albuquerque, NM
15 Pro Se Appellant
16 Riley Shane & Keller P.A.
17 Daniel A. Alderete
18 Tyler J. Bates
19 Carmela D. Starace
20 Albuquerque, NM
21 for Appellee Santa Fe Hardware
22 Hatcher Law Group, P.A.
1 Scott P. Hatcher
2 Santa Fe, NM
3 for Appellee City of Santa Fe
4 MEMORANDUM OPINION
5 ZAMORA, Judge.
6 {1} Plaintiff appeals the dismissal of her lawsuit for lack of prosecution and lack
7 of participation in discovery. We issued a notice of proposed disposition proposing
8 to dismiss the appeal insofar as it attempts to challenge the district court’s order of
9 dismissal, and to affirm the district court’s refusal to reinstate the case. Our notice was
10 sent to the address Plaintiff provided, 6121 Indian School Road NE, Albuquerque,
11 NM 87110. The notice was also emailed to the email address provided by Plaintiff.
12 In addition, Defendants filed a memorandum in support that was served on Plaintiff
13 at the mailing address she provided. In sum, Plaintiff has been given proper and actual
14 notice of the proposed disposition.
15 {2} Rather than filing a memorandum in opposition to the proposed disposition,
16 Plaintiff has filed three documents entitled “Notice” of one thing or another. The
17 second of these notices, filed on January 23, acknowledges that the notice of proposed
18 disposition was received at the mailing address provided by Plaintiff. The notice then
19 states that our notice was scanned and emailed to Plaintiff, but she was unable to open
2
1 it. On January 25 Plaintiff filed another notice, which unfortunately is written in
2 indecipherable handwriting. Once Plaintiff became aware of the document issued by
3 this Court, it was incumbent on her to investigate the contents of that document and
4 to comply with our appellate rules by filing a memorandum in opposition to our
5 proposed disposition, assuming she wishes to avoid summary disposition of the
6 appeal. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 6837 (holding that the party opposing summary disposition must clearly point out errors in
8 fact or law in that proposed disposition). That responsibility is not vitiated by the fact
9 that Plaintiff was apparently unable to open an electronic version of the notice sent to
10 her by an unnamed individual, who received the notice at the mailing address
11 provided by Plaintiff. There has been ample opportunity since that time for Plaintiff
12 to obtain a paper copy of the notice by mail, wherever she may be residing at the
13 present time, or alternatively to request an electronic version of the notice directly
14 from this Court (and, incidentally, to provide a working email address since the email
15 address Plaintiff previously provided apparently did not allow this Court’s notice to
16 reach Plaintiff).
17 {3} Plaintiff’s failure to file a memorandum in opposition to the notice of proposed
18 summary disposition, within twenty days of the date that notice was filed, means that
3
1 Plaintiff has failed to comply with the time limitations set out in Rule 12-210(D)(2)
2 NMRA. We therefore affirm the district court’s refusal to reinstate the case and
3 dismiss this appeal.
4 {4} IT IS SO ORDERED.
5
6 M. MONICA ZAMORA, Judge
7 WE CONCUR:
8
9 LINDA M. VANZI, Chief Judge
10
11 EMIL J. KIEHNE, Judge
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