v. NO. 30,160 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Valerie Mackie Huling, District Judge

Similar documents
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 32,043. APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY Teddy L. Hartley, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 32,270

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 29,040. APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY James A. Hall, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 30,404. APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY John W. Pope, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. 28,756

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. A-1-CA-36061

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. 35,295. APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY James M. Hudson, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. 35,282

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 29,675. APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY Stephen K. Quinn, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 34,076. APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY James T. Martin, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. 31,751

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. 34,939. APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Mark A. Macaron, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. vs. No. 31,783. APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY James Waylon Counts, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 33,155. APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY Francis J. Mathew, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 29,729. APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY H.R. Quintero, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. 35,373. APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Briana H. Zamora District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 32,032

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 33,102. APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY Jane Shuler Gray, District Judge

v. NO. 29,253 and 29,288 Consolidated K.L.A.S. ACT, INC., APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY Edmund H. Kase, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. 34,707

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. APPEAL FROM THE DISTRICT COURT OF UNION COUNTY John M. Paternoster, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. A-1-CA-36389

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. 35,281. APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Clay Campbell, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. A-1-CA-37056

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. vs. No. 33,274

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. A-1-CA-37097

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. A-1-CA-37470

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. 34,635

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 29,570. APPEAL FROM THE DISTRICT COURT OF LEA COUNTY Gary L. Clingman, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. 29,485

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. 35,216. APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Mark A. Macaron, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 35,317. APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY James Waylon Counts, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. A-1-CA-36864

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 31,306. APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY Karen L. Townsend, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 31,852

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 33,354

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. vs. No. 34,512. APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY Marci Beyer, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 28,918. APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY Sam B. Sanchez, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 31,861. APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Theresa M. Baca, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. 35,200. APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Alan Malott, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. 34,846

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. 29,796. APPEAL FROM THE DISTRICT COURT OF UNION COUNTY John M. Patersnoster, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. A-1-CA-37409

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 28,930

v. NO. 31,295 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY Manuel I. Arrieta, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. A-1-CA-34797

v. No. 29,132 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Ted Baca, District Judge

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 34,292 5 MIGUEL CARDENAS,

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Alan M. Malott, District Judge

v. NO. 29,799 APPEAL FROM THE WORKERS COMPENSATION ADMINISTRATION Gregory D. Griego, Workers Compensation Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 33,903. APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY Valerie A. Huling, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. A-1-CA-36095

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Released for Publication December 4, COUNSEL

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 ALBERT SERRANO, 3 Worker-Appellant, 4 v. No. 33,922

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 30,625

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 31,192. APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Nan G. Nash, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. A-1-CA-36753

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. A-1-CA APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY Jeff McElroy, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Stan Whitaker, District Judge

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO. v. NO. 33,579

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY Robert A. Aragon, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 32,910

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 29,423. APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY Daniel Viramontes, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 32,440

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 35,594

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. A-1-CA-34915

Certiorari Denied, No. 29,120, April 12, Released for Publication April 20, COUNSEL

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 34,112

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY Michael E. Vigil, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. 33,195

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 33,945. APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY Violet C. Otero, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. 35,103

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. 2 STATE OF NEW MEXICO ex rel. 3 HUMAN SERVICES DEPARTMENT and 4 AMY J.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 34,107. APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY James T. Martin, District Judge

Released for Publication August 21, COUNSEL

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. A-1-CA-36193

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 29,303

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. A-1-CA-35184

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY John M. Paternoster, District Judge

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO. v. NO. S-1-SC APPEAL FROM THE NEW MEXICO PUBLIC REGULATION COMMISSION

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. A-1-CA-36202

Petition for Writ of Certiorari Denied May 18, 1988 COUNSEL

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 32,842. APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY Daylene Marsh, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. 29,602. APPEAL FROM THE DISTRICT COURT OF LEA COUNTY Gary L. Clingman, District Judge

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. NO. A-1-CA-37547

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY J. Richard Brown, District Judge

Certiorari Not Applied For COUNSEL

Transcription:

0 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule -0 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO CHARLES R. ARASIM, Plaintiff-Appellant, v. NO. 0,0 OFFICER EVANGELINE MARTINEZ, BCSO, Defendant-Appellee. 0 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Valerie Mackie Huling, District Judge Darrell M. Allen Albuquerque, NM for Appellant Brennan & Sullivan, P.A. Gianna M. Mendoza Santa Fe, NM for Appellee FRY, Chief Judge. MEMORANDUM OPINION Charles Arasim (Plaintiff) appeals from the district court s order granting Officer Evangeline Martinez s (Defendant) motion to dismiss Plaintiff s claims for lack of jurisdiction. [RP ] Plaintiff raises one issue on appeal: whether the district

0 court erred in ruling that the statute of limitations was not equitably tolled during the pendency of the federal litigation. [DS ] This Court s calendar notice proposed summary affirmance. [CN] Plaintiff has filed a memorandum in opposition that we have duly considered. [MIO] Unpersuaded, however, we affirm. DISCUSSION When facts relevant to a statute of limitations issue are not in dispute, the standard of review is whether the district court correctly applied the law to the undisputed facts. Haas Enters., Inc. v. Davis, 00-NMCA-,, N.M., P.d. We review questions of law de novo. Id. The following facts are undisputed. The parties agree that the applicable statute of limitations is two years. See NMSA, --(A) (). [RP 0, ] In addition, the parties agree that Plaintiff s cause of action accrued on the date that Defendant filed the underlying complaint against Plaintiff in Bernalillo metropolitan court on April, 00. [Id.] The parties further agree that on November, 00, Plaintiff filed his federal lawsuit against the County of Bernalillo and Defendant Martinez. [Id.] On July 0, 00, Defendant Martinez filed a motion to dismiss Plaintiff s fourth amended claim based on qualified immunity and other grounds. [Id.] Plaintiff did not respond to Defendant s motion in federal court. [Id.] On August 0, 00, Plaintiff voluntarily dismissed his federal lawsuit without prejudice. [Id.]

0 0 About two months later, on October, 00, Plaintiff filed the present lawsuit for deprivation of state constitutional rights, malicious abuse of process, and deprivation of state statutory rights against Defendant Martinez. [Id., RP ] Defendant asserts that Plaintiff s tort claims are barred by the statute of limitations since the applicable two-year statute of limitations expired on April, 00, and Plaintiff filed his complaint in state district court more than six months later, on October, 00. [RP -; -] Plaintiff contends that his filing of the complaint in federal court tolled the statute of limitations. [RP - ] The district court dismissed Plaintiff s complaint with prejudice on the grounds that the statute of limitations barred Plaintiff s claims. [RP ] We agree. NMSA, Section -- (0) is a statutory saving statute that provides: 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. This saving statute does not apply to claims brought under the New Mexico Tort Claims Act, NMSA, -- to - (, as amended through 00). Estate of Gutierrez ex rel. Haney v. Albuquerque Police Dep t, 0 N.M.,, P.d, 0 (Ct. App. ), overruled on other grounds Bracken v. Yates Petroleum Corp., 0 N.M.,, 0 P.d, (). Since no statutory saving clause applies, Plaintiff must rely on the principles of equitable tolling, a

0 nonstatutory tolling theory which suspends a limitations period, in order to claim that his complaint in state district court is not barred by the statute of limitations. See Ocana v. Am. Furniture Co., 00-NMSC-0,, N.M., P.d ; Gathman-Matotan Architects & Planners, Inc. v. State Dep't of Fin. & Admin., 0 N.M.,, P.d, (0). In Ocana, our Supreme Court recognized that [e]quitable tolling typically applies in cases where a litigant was prevented from filing suit because of an extraordinary event beyond his or her control. Ocana, 00- NMSC-0,. Prior to Ocana, in Gathman-Matotan, the New Mexico Supreme Court had noted that New Mexico law provides that the statute of limitations is tolled when a case is dismissed for improper venue. 0 N.M. at, P.d at ; see Bracken, 0 N.M. at, 0 P.d at. In addition, in Gathman-Matotan, our Supreme Court noted that New Mexico law has also allowed the statute of limitations to be tolled when a federal court, which presided over a plaintiff s first action, refuses in its discretion to entertain pendent jurisdiction over the plaintiff s state tort claims. 0 N.M. at, P.d at (observing that Bracken []... overruled Gutierrez... [such that] the filing of an action later dismissed without prejudice for reasons such as improper venue or a federal court s discretionary refusal to entertain pendent jurisdiction tolls the statute of limitations applicable to the claim ).

0 In the memorandum, Plaintiff argues that Ocana and Gathman-Matotan do not necessarily define the outer limits for the application of the doctrine [of equitable tolling]. [MIO ] Plaintiff argues that, unlike in Gathman-Matotan, Plaintiff did not fail to prosecute his case. Rather, he points out, Plaintiff filed his state claims in federal court within the statute of limitations. [Id.] He relies on language in Bracken to the effect that [t]he filing itself shows [Plaintiff s] proper diligence... which such statutes of limitation were intended to insure. Bracken, 0 N.M. at, 0 P.d at (internal quotation marks and citation omitted). Thus, Plaintiff argues, the filing of his complaint in federal court showed the proper diligence on his part which tolled the applicable statute of limitations. [MIO -] We are not persuaded. In this case, Plaintiff was not prevented from filing his lawsuit in state district court because of an extraordinary event beyond his or her control. See Ocana, 00-NMSC-0,. Moreover, this case does not involve a court s dismissal of Plaintiff s complaint without prejudice for improper venue nor the federal court s discretionary refusal to entertain pendent jurisdiction over Plaintiff s state claims filed in the federal court case. See Gathman-Matotan, 0 N.M. at, P.d at. Rather, in this case, Plaintiff, apparently faced with Defendant s qualified immunity motion to dismiss in federal court, voluntarily dismissed his complaint filed in federal court and refiled his complaint in state district court outside the statute of limitations.

Under the circumstances, pursuant Gathman-Matotan and the equitable tolling doctrine articulated in Ocana, we hold that equitable tolling does not apply to toll the statute of limitations in this case. CONCLUSION We affirm the district court s order dismissing this case as barred by the statute of limitations. [RP ] IT IS SO ORDERED. 0 WE CONCUR: CYNTHIA A. FRY, Chief Judge CELIA FOY CASTILLO, Judge TIMOTHY L. GARCIA, Judge