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Fernandez v. Char-Li-Jon Inc.9/21/1994
BLACK, Judge
On April 14, 1993, Tina Fernandez ("Plaintiff") sued The Caravan East Nite Club, Inc. ("Caravan"), advancing one count of negligence and one count of strict liability in tort. Plaintiff alleged that she had been served a drink that contained pieces of glass at the Caravan East Nightclub ("the nightclub") on April 20, 1990. Caravan had, however, sold its interest in the nightclub in 1972. Char-Li-Jon, Inc. ("CLJ") was the owner of the nightclub at the time of the alleged injury . CLJ received a copy of the complaint on June 14, 1993. On August 9, 1993, Plaintiff filed an amended complaint naming CLJ and adding two counts of breach of warranty. CLJ moved to dismiss on the ground that the appropriate statute of limitations had run before it received notice or was named a defendant. The district court granted the motion. We affirm the dismissal of the negligence and strict liability counts but reverse on the warranty counts.
I. STANDARD OF REVIEW
A complaint is subject to dismissal if it does not allege facts which could entitle the plaintiff to relief. SCRA 1986, 1-012(B)(6) (Repl. 1992) ("Rule 12"); ), cert. denied, 115 N.M. 709, 858 P.2d 85(1993). Rule 12 dismissal is a remedy not often justified. See . In reviewing a dismissal under Rule 12, we will accept as true all facts properly pleaded. Id.
II. BACKGROUND
The original summons was issued in the name of Caravan. Vonlo, Inc. was the registered owner of the nightclub at the time the original suit was filed and was served in May 1993. On May 26, 1993, Plaintiff applied to the court for an alias summons pursuant to SCRA 1986, 1-004(K) (Repl. 1992). CLJ received the alias summons by mail on June 14, 1993. On August 9, 1993, more than three, but less than four years after the incident, Plaintiff filed an amended complaint first naming CLJ as an additional defendant. The new complaint also added claims for breach of the implied warranties of merchantability and fitness for a particular purpose.
III. TORT CLAIMS
A. Statute of Limitations
Plaintiff alleged her injury occurred on April 20, 1990. She filed her lawsuit on April 14, 1993, but did not serve CLJ until June 14, 1993. She did not serve CLJ with a complaint that named CLJ as a defendant until September 27, 1993. In addition to the warranty claims, both Plaintiff's original complaint and her amended complaint contained one count sounding in negligence and another based upon strict liability. An action seeking recovery for personal injury as a result of a defendant's alleged negligence is governed by the three-year period of limitation contained in NMSA 1978, Section 37-1-8 (Repl. Pamp. 1990). See (citing the predecessor to Section 37-1-8). An action seeking recovery for personal injury under strict liability is governed by the same three-year statute of limitations. See Bassham v. Owens-Corning Fiber Glass Corp., 327 F. Supp. 1007, 1008 (D.N.M. 1971) (citing the predecessor to Section 37-1-8).
Plaintiff did not name or serve CLJ as a defendant in this action until more than three years had passed. The counts seeking to recover for Plaintiff's personal injuries based on strict liability and CLJ's alleged negligence are therefore barred by Section 37-1-8.
B. Relation Back
Plaintiff argues that the amended complaint against CLJ "related back" to the date of filing the original complaint and thus complied with Section 37-1-8. Plaintiff's "relation back" argument is premised on SC
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