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Graubard v. Balcor Co.3/14/2000
to the statute of limitations running during the seven months between the filing of the petition and service of the notice); Peters v. E.W. Bliss Co., 100 F.R.D. 341, 342 (E.D. Penn 1983) (noting the change in the federal rules of civil procedure providing a 120 day time limit for serving process but determining this amendment was not applicable, the court determined that the lack of prejudice to the defendant was dispositive).
We are persuaded that New Mexico case law controls the outcome of this appeal and that the test enunciated in Prieto provides for a district court to exercise its discretion in determining whether a delay in service of process demonstrates a lack of due diligence on the part of a plaintiff based on a standard of objective reasonableness. We are not persuaded that Prieto should be interpreted as requiring a showing of intentional delay.
Plaintiff argues that, even if Prieto does not require a showing of intent to delay, the district court properly exercised its discretion in considering the lack of evidence of an intentional delay in denying Balcor's motion to dismiss. Because the district court's letter decision indicates that it denied the motion based on the failure to show intentional delay, we reverse the order denying Balcor's motion to dismiss and remand to allow the district court to reconsider the motion to determine if the plaintiff failed to exercise due diligence in serving process on Balcor's predecessor in interest based on a standard of objective reasonableness and, if so, to exercise its discretion in determining whether the delay warrants a dismissal of the complaint.
The order denying Balcor's motion to dismiss is reversed and this matter is remanded to the district court for further proceedings.
IT IS SO ORDERED.
A. JOSEPH ALARID, Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
JONATHAN B. SUTIN, Judge
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