Musick v. Sierra Nev. Prop. Mgmt. Co.
| Decision Date | 03 May 2016 |
| Docket Number | NO. 34,134,34,134 |
| Parties | THOMAS LEON MUSICK, Plaintiff-Appellant, v. SIERRA NEVADA PROPERTY MANAGEMENT COMPANY, LLC, ADVANCED TOWER SERVICES, INC., and TELEBEEPER OF NEW MEXICO, INC., Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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.
APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
Garrett Law Firm, P.A.
Michael T. Garrett
Clovis, NM
for Appellant
Sutin, Thayer & Browne
Benjamin E. Thomas
Albuquerque, NM for Appellees Sierra Nevada Property Management Company, LLC and
TeleBEEPER of New Mexico, Inc.
Keleher & McLeod, P.A.
Benjamin F. Feuchter
Albuquerque, NM
for Appellee Advanced Tower Services
{1} Plaintiff Thomas Leon Musick appeals from the district court's order granting the motions to dismiss of Defendants Sierra Nevada Property Management Company, LLC (SNPM) and Advanced Tower Services, Inc. (ATS) for failure to prosecute and of Defendant TeleBEEPER of New Mexico, Inc. (TeleBEEPER) for failure to state a claim. We affirm as to SNPM and ATS and reverse and remand as to TeleBEEPER.
{2} Plaintiff filed his complaint for breach of contract and damages against SNPM and ATS on April 25, 2012. Plaintiff alleged that he entered a lease and amended leases with third parties for the construction of a telecommunications tower on his property and that the leases with amendments were assigned to SNPM, which terminated the lease without removing its towers and improvements within the time designated in the lease. Plaintiff further alleged that the towers and improvementswere thereby abandoned and became his property and that he suffered damages when SNPM engaged ATS to trespass and remove the property six years later.
{3} A summons was issued to ATS on April 25, 2012, and it filed its answer on May 31, 2012. The district court, on its own motion, on March 25, 2013, dismissed the case without prejudice for inaction for the previous one hundred eighty days. On April 8, 2013, Plaintiff filed a motion to reinstate, and the district court entered an order of reinstatement on April 9, 2013. An alias summons was issued to SNPM on April 12, 2013. On May 20, 2013, a Marvin Tanner of Reno, Nevada filed a response to the complaint on behalf of an SNPM, indicating that the company was not the one that had engaged in business in New Mexico as alleged in the complaint.
{4} Plaintiff served interrogatories and a request for production of documents on ATS on May 22, 2013, and ATS served its answers and responses on July 1, 2013. ATS then served interrogatories and requests for production on Plaintiff on July 15, 2013, and Plaintiff responded on August 1, 2013. A second alias summons was issued to SNPM on October 10, 2013.
{5} On March 31, 2014, with the concurrence of counsel for ATS, Plaintiff moved for leave to file an amended complaint, which motion was granted and the amended complaint was filed on April 8, 2014. The amended complaint added TeleBEEPER as a defendant. The next day, a third alias summons was issued to SNPM in care ofTeleBEEPER. ATS answered the amended complaint on April 14, 2014. On May 27, 2014, both SNPM and TeleBEEPER filed motions to dismiss. SNPM alleged that Plaintiff had failed to exercise due diligence in serving SNPM with process. TeleBEEPER asserted that Plaintiff named TeleBEEPER to avoid dismissal based on his inaction regarding SNPM and that the amended complaint failed to state a claim against it. ATS joined in the motions to dismiss, claiming that dismissal was also warranted of the claims against ATS.
{6} Plaintiff requested a trial setting on June 4, 2014, and, on June 12, 2014, the district court set trial for December 16, 2014. On June 18, 2014, a fourth alias summons was issued to SNPM, and SNPM was served with process on June 20, 2014. After hearing the motions to dismiss on July 29, 2014, the district court, on August 28, 2014, entered its decision and order granting the motions.
{7} The district court dismissed SNPM because Plaintiff did not act with due diligence in serving SNPM with process. A district court may dismiss a complaint if, based on an objective reasonableness standard, the plaintiff fails to exercise due diligence in serving the complaint upon a defendant. Romero v. Bachicha, 2001-NMCA-048, ¶¶ 23-26, 130 N.M. 610, 28 P.3d 1151. The delay need not be intentional. Id. ¶ 23; Graubard v. Balcor Co., 2000-NMCA-032, ¶ 12, 128 N.M. 790, 999 P.2d 434.
{8} We review a district court's dismissal under an abuse of discretion standard. Graubard, 2000-NMCA-032, ¶ 12. An abuse of discretion occurs if, considering the circumstances before the district court, the court "exceeds the bounds of reason[.]" Summit Elec. Supply Co., Inc. v. Rhodes & Salmon, P.C., 2010-NMCA-086, ¶ 6, 148 N.M. 590, 241 P.3d 188 (internal quotation marks and citation omitted).
{9} Plaintiff did not serve SNPM until after SNPM filed its motion to dismiss, more than two years after the complaint was filed. Plaintiff, in that time, had four alias summonses issued to SNPM. There is some dispute as to whether an original summons was issued; the record proper does not indicate that it was, and the district court found that the first summons to SNPM was issued almost a year after the complaint was filed. As Plaintiff points out, however, the district court clerk had the responsibility to issue a summons at the time of filing. Rule 1-004(A)(2) NMRA. Assuming that summons was issued, Plaintiff nevertheless did not serve it.
{10} Plaintiff asserts that SNPM was not registered to transact business in New Mexico and that he performed research and retained investigators to search for SNPM's corporate offices, all to no avail. The district court concluded, however, that Plaintiff did not exercise due diligence in seeking to serve SNPM. The district court found that Plaintiff failed to reasonably pursue three available avenues: the attorneyshe knew represented SNPM, the Secretary of State, and the first corporation listed on his investigator's list.
{11} We cannot say that the district court abused its discretion by finding that Plaintiff failed to exercise due diligence by pursuing these leads. First, as the district court noted, Plaintiff knew the identity of SNPM's attorneys on March 30, 2004 as the result of the contract termination. The district court assumed that Plaintiff could have served those attorneys. Although the district court may not have been correct in its assumption, Plaintiff did not inquire of the attorneys if they would accept service on behalf of SNPM.
{12} Second, as to the Secretary of State, NMSA 1978, Section 38-1-6.1(B)(1993) provides in part:
If no person has been designated by a foreign limited liability company doing business in this state as its statutory agent upon whom service of process can be made, or if upon diligent search neither the agent so designated nor any of the managers of the company can be found in this state, then, upon the filing of an affidavit by the plaintiff to that effect, together with service upon the secretary of state of two copies of the process in the cause, the secretary of state shall accept service of process as the agent of the foreign limited liability company[.]
Plaintiff did not seek to pursue this statutory option.
{13} Third, in April 2013, Plaintiff's investigator developed a list of three companies with the name of SNPM. The correct SNPM was the first on the list, but Plaintiff did not attempt to serve all three of the companies on the list.
{14} In his briefing on appeal, Plaintiff has not sought to explain his failure to pursue any of these options. Instead, Plaintiff points to the actions that he did take, in particular his request for a trial setting, arguing that he acted with due diligence.
{15} Most of Plaintiff's arguments, however, do not directly address the service of process issue. With respect to service of process, Plaintiff contends that his attorney contacted TeleBEEPER on April 5, 2014 and then learned that the representative of TeleBEEPER, who Plaintiff knew dealt with ATS, was also the "managing member" of SNPM. However, Plaintiff does not address the reasons that his learning of this information on April 5, 2014 justified his failure to serve SNPM at an earlier time, as stated by the district court in its decision and order.
{16} On April 9, 2014, Plaintiff served TeleBEEPER as agent for SNPM, leading to the motions to dismiss by both SNPM and TeleBEEPER. Upon receipt of those motions, Plaintiff filed a request for a trial setting, and the district court set the case for trial eight days after receiving the request. Plaintiff argues that his request for a trial setting indicated his "good faith action to prosecute this case to avoid dismissal."
{17} As we have intimated, this argument does not directly address the district court's dismissal for failure to exercise due diligence in serving SNPM with process. Rather, it raises arguments connected to a dismissal based on Rule 1-041(E)(1) NMRA. That rule permits a district court to dismiss a claim with prejudice "if theparty asserting the claim has failed to take any significant action to bring such claim to trial or other final disposition within two (2) years from the filing" of the claim.
{18} The district court did consider arguments concerning Plaintiff's due diligence under Rule 1-041(E)(1). In its decision and order, it stated that it considered the factors discussed in Jones v. Montgomery Ward & Co. that our Supreme Court stated needed to be addressed in connection with a Rule 1-041(E)(1) motion: "1) all written and...
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