Jones v. Montgomery Ward & Co., Inc.
| Decision Date | 11 July 1985 |
| Docket Number | No. 15519,15519 |
| Citation | 702 P.2d 990,103 N.M. 45,1985 NMSC 62 |
| Parties | Fred T. JONES, Petitioner, v. MONTGOMERY WARD & COMPANY, INC., Respondent. |
| Court | New Mexico Supreme Court |
The district court granted a motion by defendant Montgomery Ward & Co. to dismiss plaintiff Fred Jones' personal injury action for failure to prosecute under NMSA 1978, Civ.P.Rule 41(e) (Repl.Pamp.1980), and for failure to substitute parties as required by NMSA 1978, Civ.P.Rule 25(a) (Repl.Pamp.1980). The Court of Appeals affirmed in a memorandum opinion. We granted certiorari and now reverse.
The sole issue we address is whether dismissal of plaintiff's action was proper under Rule 41(e).
Plaintiff originally filed a personal injury action pro se on July 8, 1977 seeking damages for injuries arising out of an accident involving a tractor-trailer truck he was driving. Essentially, plaintiff alleged that defendant's employees had improperly changed a tire inner tube by installing the tube with small creases. Plaintiff further alleged that the creases caused a slow leak which in turn caused overheating of a tire and a blowout. Plaintiff lost control of the truck after the blowout and the vehicle overturned resulting in substantial injury to plaintiff.
Within two weeks after suit was filed, plaintiff sought the assistance of counsel and filed a first amended complaint. On May 5, 1978, a second amended complaint was filed. These amendments dealt primarily with the addition of certain insurance carriers as party plaintiffs.
Prior to pursuing his New Mexico action, plaintiff had filed a personal injury action in Texas arising out of the same accident. The defendants in Texas included the manufacturer of the tractor-trailer, the manufacturer of a stabilizer assembly on the truck, and the tire manufacturer. Substantial discovery was obtained by plaintiff in both the Texas and New Mexico actions.
On June 18, 1981, almost four years after plaintiff had filed in New Mexico, defendant moved to dismiss for failure to prosecute under Rule 41(e). Plaintiff opposed this motion on grounds that extensive discovery had taken place, that resolution of the Texas suit could potentially render moot the New Mexico action, and that plaintiff's counsel had previously notified the district court that plaintiff and counsel were fully prepared to try the New Mexico case first. Plaintiff also requested an immediate trial date in connection with his opposition to defendant's motion. On February 18, 1982 the district court denied the motion to dismiss on grounds that plaintiff had actively engaged in substantial discovery and litigation in the Texas lawsuit. Plaintiff was later given a tentative trial date in March, 1982.
Plaintiff died in June, 1982 without either the New Mexico or Texas cases having been tried. On learning of plaintiff's death, defendant filed a suggestion of death pursuant to Rule 25(a), and notified plaintiff's counsel of this action.
Approximately one year later, defendant again moved to dismiss for failure to prosecute under Rule 41(e). Defendant also urged dismissal for failure to comply with the Rule 25(a) requirement that parties be substituted on suggestion of death. On August 16, 1983 the district court dismissed with prejudice on both grounds. The Court of Appeals affirmed the dismissal solely on the basis that the action had not been actively prosecuted and thus did not reach the Rule 25(a) issue. We therefore address only the propriety of dismissing plaintiff's action for failure to prosecute.
Rule 41(e)(1) provides that where it appears that a plaintiff in a civil proceeding has "failed to take any action to bring such action or proceeding to its final determination for a period of at least three years after the filing of said action or proceeding ... any party to such action or proceeding may have the same dismissed with prejudice to the prosecution." This Court in State ex rel. Reynolds v. Molybdenum Corp. of America, 83 N.M. 690, 697, 496 P.2d 1086, 1093 (1972) held that in considering a motion to dismiss under Rule 41(e), the district court "should determine, upon the basis of the court record and the matters presented at the hearing, whether such action has been timely taken by the plaintiff ... and, if not, whether he has been excusably prevented from taking such action." This Court further held that a motion to dismiss under Rule 41(e) is directed at the discretion of the district court and its ruling will not be overturned but for an abuse of discretion. Id.
Many factors must be considered by the district court in ruling on a motion to dismiss pursuant to Rule 41(e), whether or not they are made a part of the court file. These factors include 1) all written and oral communications between the court and counsel; 2) actual hearings by the court on motions; 3) negotiations and other actions between counsel looking toward the early conclusion of the case; 4) all discovery proceedings; and 5) any other matters which arise and the actions taken by counsel in concluding litigation. See id. at 694-95, 496 P.2d at 1090-91; Sewell v. Wilson, 97 N.M. 523, 527, 641 P.2d 1070, 1074 (Ct.App.), cert. denied, 98 N.M. 50, 644 P.2d 1039 (1982).
In affirming the district court dismissal, the appeals court looked only to the one and one-half year period that transpired between the district court's February 18, 1982 order refusing to dismiss and the August 16, 1983 dismissal order. During this period the appeals court found only discovery activity initiated by defendant which, the court reasoned, did not qualify as activity by plaintiff sufficient to avert dismissal under Rule 41(e). See Gilman v. Bates, 72 N.M. 288, 383 P.2d 253 (1963). Accordingly, the court concluded there was no abuse of discretion in dismissing the action due to the one and one-half year...
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