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Rupp v. Hurley3/5/1999
e circumstances here--involving among other things the joinder of the manufacturer and the statutory prohibition against filing a complaint with the courts against a qualified health care provider until after the Medical Review Commission proceedings are complete--excuse them from searching the court file to see if they were named in the original complaint. They contend that "it was entirely reasonable for them to have concluded that Plaintiff had first sued the manufacturer and, after the Panel proceedings, filed an amended complaint adding the physicians." We might agree with this contention in the circumstances of this case. But then Defendants go too far when they argue that, " o say, as Plaintiff does, that the physicians should have known they were named in the original complaint, it is necessary to say that they should have assumed Plaintiff's counsel would have violated the law, and because they did file a panel application, violated the law for no apparent purpose." Plaintiff, without violating any law, could have filed a timely complaint against Defendants after the panel proceedings, see NMSA 1978, Section 41-5-22 (indicating statute of limitations is tolled from time that application is filed with the Medical Review Commission until thirty days after the panel's decision is filed and served), and then filed an amended complaint prior to serving the initial complaint on Defendants, see Rule 1-015(A) NMRA 1999 (permitting amendment of pleading "once as a matter of course at any time before responsive pleading is served"). The statute-of-limitations defense raised in Defendants' answer could not be pinned down without checking the original complaint to see whether Defendants were named in that pleading and when it was filed.
{29} In these circumstances, we are unwilling to say that Defendants' Rule 1-012(B)(5) defense was not "available" when it would have been apparent from the court file. We recognize that it is an additional, though by no means onerous, burden to check the court file so early in the litigation. But a Rule 1-012(B)(5) defense is a "technical" defense, and the rules of civil procedure provide that cases should proceed on the merits unless such defenses are raised as soon as possible in the proceedings.
3. Should the Trial Court's Ruling Be Treated as a Sanction?
{30} Returning to the weak and contradictory reasons Plaintiff gave for the delay of service and emphasizing the trial court's finding of prejudice against them, Defendants argue that the dismissal should be affirmed as a sanction "granted because of Plaintiff's delay and failure to present any believable excuse for that delay." For purposes of Discussion, we assume without deciding that trial courts have the inherent power to issue a sanction of dismissal in these circumstances. The difficulty for Defendants, however, is that they never moved for dismissal as a sanction, and the record does not support a Conclusion that the trial court considered its ruling a sanction.
{31} At the December 20, 1996, hearing, the trial court, as part of its oral ruling stated: "I have thought long and hard about the issues before the Court, not only in preparation for the hearing but during the course of the hearing, and I cannot determine that there's any alternative sanction that I can impose, short of dismissal of the case." While the court used the word "sanction," the argument preceding the announcement--focusing, as it did, on the factual and legal circumstances that might or might not support dismissal based on insufficiency of service of process--does not support the notion that it was used in the sense of punishment for improper conduct.
{32} More to the point, however, other acti
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