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THOMAS M. PADILLA,
Plaintiff-Appellant,
v.
STACY L. REED,
Defendant-Appellee.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY,
Victor S. Lopez, District Judge
Ray A. Padilla, PC, Ray A. Padilla,
Albuquerque, NM, for Appellant
Winger & Associates, Nathan Edward
Winger, Albuquerque, NM, for Appellee
J. MILES HANISEE, Judge. WE CONCUR:
MICHAEL E. VIGIL, Judge, STEPHEN G. FRENCH, Judge
{1} Plaintiff appeals
from a district court’s order granting Defendant’s motion to dismiss the
complaint. We issued a calendar notice proposing to affirm. Plaintiff has
responded with a memorandum in opposition. Not persuaded, we affirm the
district court.
{2} Defendant raises
five issues that may be consolidated as a challenge to the district court’s
order granting Defendant’s motion to dismiss the complaint for insufficient
service of process within the time ordered by the district court. A district
court may dismiss a complaint if, based on an objective reasonableness
standard, the plaintiff fails to exercise due diligence in serving the
complaint upon a defendant.
Romero v. Bachicha,
2001-NMCA-048, ¶¶ 23-26,
130 N.M. 610,
28 P.3d 1151. The delay need not be intentional.
Id. ¶ 23;
Graubard v. Balcor Co.,
2000-NMCA-032, ¶ 12,
128 N.M. 790,
999 P.2d
434. We review a district court’s dismissal under an abuse of discretion
standard.
Graubard,
2000-NMCA-032, ¶ 12. An abuse of discretion occurs
if, considering the circumstances before the district court, the court “exceeds
the bounds of reason[.]”
Summit Elec. Supply Co., Inc.
v. Rhodes
& Salmon, P.C.,
2010-NMCA-086, ¶ 6,
148 N.M. 590,
241 P.3d 188
(internal quotation marks and citation omitted).
{3} Here, Plaintiff filed
a lawsuit just prior to the running of the statute of limitations, alleging
that Defendant was at fault for injuries sustained in a car accident. The
complaint was filed in October 2014, but was not served on Defendant. [RP 1] In
June 2015 the district court dismissed the complaint for lack of prosecution.
[RP 5] Plaintiff filed a “[n]otice” to the Court, along with a motion to
reinstate, asserting that the parties were involved in settlement negotiations.
[RP 6] The district court denied the motion after pointing out that the
“notice” did not comply with Rule
1-041(E) NMRA [RP 13] (motions to reinstate).
On April 26, 2016, the district court reinstated the complaint on Plaintiff’s
motion to reconsider, but stated that the case would be dismissed if Plaintiff
did not serve the complaint on Defendant within 30 days. [RP 22] Plaintiff did
not serve Defendant until June 17, 2016, twenty months after the filing of the
complaint and fifty-two days following the district court’s reinstatement of
the complaint. [RP 1, 24] Defendant then filed a motion to dismiss for
insufficient service, and the motion was granted by the district court. [RP 29,
51]
{4} Plaintiff
continues to argue that dismissal was inappropriate because he was in
settlement negotiations, and he had informed the district court of this. [MIO
2] However, our case law supports the court’s decision. In
Romero, this
Court held that a thirteen-month delay in serving the defendant justified
dismissal when the plaintiff had originally misnamed the defendant but was
aware of the defendant’s name and address.
2001-NMCA-048, ¶¶ 24-25. Here, it
appears that Defendant was served at the same residence that was listed in the
original police report that was made at the time of the accident. [RP 31] In
Graubard,
we held that an intentional delay was not necessary to dismiss for failure to
serve process with due diligence in circumstances of a fourteen-month delay.
2000-NMCA-032, ¶¶ 3, 11. The delay in this case was more egregious than either
of these two cases, and it appears from the record that effectuation of service
was achievable as is required and was directed by the district court upon
reinstatement of Plaintiff’s complaint. Indeed, here, the district court gave
Plaintiff a second chance and additional time to serve the complaint on
Defendant. Yet, Plaintiff failed to satisfy his obligation of service or meet
the district court’s deadline. Given the broad deference that we give to the
district court under the above-noted abuse of discretion standard, we cannot
say that the court erred here.
{5} For the reasons set
forth above, we affirm.