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Barbeau v. Hoppenrath8/29/2001
ere injured on October 8, 1995, in an automobile accident in Bernalillo County, New Mexico.
(2) On October 6, 1998, Barbeaus filed a complaint against Hoppenrath and Farmers Insurance Company of Oregon in Oregon federal court.
(3) On February 3, 1999, Federal Magistrate Coffin dismissed the case for lack of personal and subject matter jurisdiction.
(4) Hoppenrath was a resident of Wisconsin and had no connections to Oregon. (5) On May 4, 1999, the case was re-filed in New Mexico.
At the hearing, the district court heard the arguments of the parties. Without explaining its rationale, the district court entered an order granting Hoppenrath's motion for summary judgment and dismissing the case against Barbeaus with prejudice. We review the district court's order de novo.
III. ANALYSIS
The New Mexico Savings Statute reads as follows: "If, after the commencement of an action, the plaintiff fail therein for any cause, except negligence in its prosecution, and a new suit be commenced within six months thereafter, the second suit shall, for the purposes herein contemplated, be deemed a continuation of the first." Section 37-1-14. There is no dispute that the second suit was timely filed.
Hoppenrath argues for affirmance urging this Court to hold that the New Mexico Savings Statute does not apply to out-of-state cases. We need not reach this issue and specifically decline to do so because we hold that Barbeaus were negligent in the prosecution of their case and, thus, the New Mexico Savings Statute does not apply.
Barbeaus contend that the statute does apply to their case because they were not negligent in its prosecution. First, they argue that the federal magistrate order cannot be relied upon to show negligence because it was based on speculation and there was no hearing. We do not rely on the magistrate's order except to confirm what appears to be true based on the undisputed facts and the law we apply later in this opinion.
Barbeaus also argue that a party should not be penalized for filing in an improper forum because the choice of forum should be left to the discretion of the plaintiff and that in New Mexico negligence in prosecution only applies to cases that are dismissed for failure to actually prosecute citing to Gathman-Matotan Architects & Planners, Inc. v. State Dep't of Fin. Admin., 109 N.M. 492, 493, 787 P.2d 411, 412 (1990). We address these arguments together.
We agree with Barbeaus that courts should not second guess an attorney's rationale in filing in one jurisdiction or another; however, whatever forum chosen must at least arguably provide personal and subject matter jurisdiction. In this case, Barbeaus waited to file their complaint until two days before the expiration of the statute of limitations. They defeated subject matter jurisdiction by the very allegations in their complaint and then conceded lack of personal jurisdiction. Certainly, if Barbeaus' attorney was unsure of which court would have jurisdiction, he could have filed the case simultaneously in New Mexico and Oregon; this becomes particularly important in light of the extremely short period of time remaining before expiration of the statute of limitations. While Barbeaus would like us to view their actions as strategic, we view them as demonstrating a clear disregard of the elementary requirements of jurisdiction.
Consequently, the key issue before this Court is whether Barbeaus' actions rise to the level of negligent prosecution of their case. Barbeaus would have us hold that "negligence in its prosecution" is limited to only those cases where the action is filed but
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