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Rupp v. Hurley3/5/1999
fter, on August 8, 1995, Defendants filed a motion with supporting authorities seeking dismissal of Counts VII and VIII of the amended complaint for failure to state a claim upon which relief could be granted. Counts VII and VIII asserted claims for breach of implied warranties under provisions of the New Mexico Uniform Commercial Code. The motion and accompanying brief made no mention of Rule 1-012(B)(5) and did not otherwise challenge the propriety or timeliness of service of process on Defendants.
{7} On September 14, 1995, Defendants filed a "Motion to Dismiss for Failure to Serve Process in a Timely Manner," seeking dismissal with prejudice of the action because Plaintiff "failed to exercise due diligence to timely serve these defendants within a reasonable period of time after initiating her lawsuit." Neither the motion nor the accompanying memorandum brief mentions Rule 1-012(B)(5) specifically, a circumstance upon which Plaintiff relied in her arguments to the district court. Defendants now rely on the same circumstance on appeal as a ground for affirmance.
{8} On October 12, 1995, Plaintiff filed her response to the motion to dismiss for failure to timely serve process. Plaintiff failed to assert or argue that the Defendants' motion was itself untimely pursuant to the provisions of Rules 1-012(G) or 1-012(H)(1). Instead, Plaintiff's response was factually based. Plaintiff argued Defendants had notice of the filing of the original complaint and that service was delayed with at least their tacit approval in order to accommodate the Medical Review Commission process. Plaintiff also vaguely asserted that Defendants had failed to cooperate in her attempts to arrange a convenient time and place for effecting service. Defendants took issue with Plaintiff's factual assertions by memo filed October 25, 1995.
{9} Following a hiatus in the litigation--caused in part by an appeal to this court on an issue unrelated to the matter before us now--Plaintiff filed an amended response to the motion to dismiss for untimely service. Again Plaintiff did not mention Rules 1-012(G) or 1-012(H)(1). Instead, she reasserted that she had exercised "reasonable diligence" within the meaning of Rule 1-004(F) NMRA 1999, and that in any event a large portion of the delay had occurred "at the behest of defense counsel," and because of difficulty scheduling an appointment with Defendants to effect service.
{10} In their reply to Plaintiff's amended response, Defendants again controverted Plaintiff's factual assertions concerning the reason for the delay. In particular, they denied that their counsel had any knowledge of the filing of the original complaint. Defendants also denied that they or counsel had any contact or conversations concerning service of the complaint until after the amended complaint was served in May 1995.
{11} The trial court held an evidentiary hearing on December 20, 1996. Defendants presented testimony concerning the routine practice of their insurer and attorneys in responding to filed litigation, as well as receipt and handling of the amended complaint served on Defendants in May 1995. Plaintiff presented testimony from a former employee of her attorney concerning difficulties encountered in having the clerk's office issue a summons and in effecting service on the Defendants.
{12} In argument, Defendants denied any knowledge of the filing of the suit until May 1995. In particular, defense counsel denied any personal knowledge of the suit prior to service on Defendants, in direct contradiction to Plaintiff's counsel's representations made in pleadings and affidavits. Plaintiff's counsel argued that the delay was not undue and was perhaps unavo
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