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Barbeau v. Hoppenrath8/29/2001
not actually prosecuted, relying on Gathman-Matotan. We disagree. Gathman-Matotan characterizes Section 37-1-14 as "a tolling statute, which operates to suspend the running of an otherwise applicable statute of limitations when an action is timely commenced and later dismissed, except when the dismissal is based on a failure to prosecute the action with reasonable diligence." Id. at 493-94, 787 P.2d at 412-13. While the Gathman court did not specifically define "negligence in its prosecution," it held that failure to prosecute and negligence in the prosecution were one and the same for purposes of Section 37-1-14. Because New Mexico case law has not comprehensively defined what constitutes "negligence in the prosecution," we look to other jurisdictions for guidance.
The Iowa Supreme Court in Sautter v. Interstate Power Co., 563 N.W.2d 609, 611 (Iowa 1997) held that when plaintiffs had knowledge of the facts that would deny them jurisdiction, their failure to file in the correct forum constituted "negligence in the prosecution." See also Wetter v. Dubuque Aerie No. 568 of the Fraternal Order of Eagles, 588 N.W.2d 130, 132 (Iowa Ct. App. 1998) (where the ultimate and determinative jurisdictional fact was implicitly and peculiarly known only to the defendants and there was no evidence plaintiff was less than diligent in choosing a forum, the Iowa Savings Statute applies).
In White v. Tucker, 369 N.E.2d 90 (Ill. App. Ct. 1977), the Illinois Court of Appeals held that the plaintiff must have commenced his original cause of action with an honest but mistaken belief that he was doing so in a court of proper jurisdiction in order to be entitled to the benefits of the Illinois Savings Statute. Id. at 92-93. The court in White explained the rationale for the due diligence requirement: unless the applicability of the savings statute is restricted to those cases where any problem with jurisdiction is based on an honest but mistaken belief on the part of a plaintiff, the plaintiff could file a complaint in any jurisdiction at any time prior to the expiration of the limitation period secure in the knowledge that the mere filing of a complaint in any jurisdiction would automatically entitle the plaintiff to re-file the same action in Illinois. Id. at 92-93.
We agree with the reasoning in these cases. The Savings Statute is intended to protect those who prosecute their action in a non-negligent manner; the plaintiff must choose a forum that arguably has the power to decide the matter involved.
The district court had before it the first complaint, the federal magistrate order, and the stipulated facts, which together support the conclusion that Barbeaus were negligent in the prosecution of their case. Two days before the expiration of the statute of limitations, Barbeaus filed their first complaint, which on its face defeated subject matter jurisdiction, and then conceded that there was no personal jurisdiction over the remaining defendant. The Barbeaus made no showing that the filing in Oregon federal court was an innocent mistake or an erroneous guess at an elusive jurisdictional fact known only to the defendants or any other circumstance that might serve to excuse what otherwise appears clearly to be negligence. Under the undisputed facts of this case, there was negligence in prosecution as a matter of law. The district court properly granted summary judgment.
III. CONCLUSION
We do not decide whether the New Mexico Savings Statute applies to out-of-state cases because in this case, the New Mexico Savings Statute is clearly inapplicable based on Barbeaus' negligent prosecution of the case. We affirm the district court's grant of summary judgme
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