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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STEVEN LOWDER,

 3                  Plaintiff-Appellant,

 4 v.                                                                            No. A-1-CA-34921


 5 BRIAN SHOEMAKER AND
 6 THE LAW OFFICE OF BRIAN
 7 SHOEMAKER,

 8                  Defendant-Appellee.

 9 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
10 Denise Barela Shepherd, District Judge

11 Eleanor K. Bratton
12 Albuquerque, NM

13 for Appellant

14 The Shoemaker Law Firm
15 Brian L. Shoemaker
16 Albuquerque, NM

17 Pro Se Appellee

18                                 MEMORANDUM OPINION

19 HANISEE Judge.
 1   {1}   Plaintiff Steven Lowder appeals from the district court’s order denying his

 2 motion to reconsider the dismissal, with prejudice, of the complaint filed against

 3 Defendant Brian Shoemaker and the Law Office of Brian Shoemaker. [RP 154] This

 4 Court filed a calendar notice proposing to affirm on the summary calendar. Plaintiff

 5 filed a memorandum in opposition to the proposed disposition. Not persuaded by

 6 Plaintiff’s arguments, we affirm.

 7   {2}   This Court’s calendar notice proposed to affirm the district court’s order on the

 8 basis that dismissal was proper under Rule 1-041(E)(1) NMRA for lack of

 9 prosecution, and that contrary to Plaintiff’s assertions, dismissal was not solely based

10 on counsel’s failure to appear at the motion hearing. [CN 5-6] Plaintiff contends that

11 this Court’s proposed disposition rests upon a misunderstanding of the context and

12 threshold basis for the district court’s dismissal. [MIO 3] Plaintiff asserts that there

13 was never a motion to dismiss for lack of prosecution before the district court. [Id.]

14 Rather, the only motion to dismiss was Defendant’s pleading filed immediately after

15 the case was reinstated, seeking reversal of the reinstatement, which was a matter

16 within the district court’s sound discretion. [Id.] Plaintiff further asserts that dismissal

17 was not based on his counsel’s failure to prosecute before reinstatement of the case,

18 and could not be based on any failure to prosecute after reinstatement because Plaintiff

19 responded to pleadings and filed a motion for summary judgment. [MIO 4] Plaintiff



                                                2
 1 contends that Defendant failed to move for reconsideration of the order reinstating the

 2 case, was unsuccessful in obtaining dismissal on the merits concerning the

 3 impropriety of the reinstatement, and eventually obtained relief, not on the merits, but

 4 solely on the basis of Plaintiff’s counsel’s failure to appear at the hearing due to a

 5 medical emergency. [MIO 3]

 6   {3}   It appears from the record that although Defendant’s original motion to dismiss

 7 did not raise lack of prosecution as a basis for dismissal, it was later raised by reply

 8 [RP 29] and by way of Defendant’s motion for reconsideration [RP 62]. Defendant’s

 9 motion to dismiss initially argued dismissal on the bases of failure to join a necessary

10 party and failure to state a claim upon which relief may be granted under Rule 1-

11 012(B)(6) NMRA. [RP 20-22] Plaintiff’s response asserted that the action related back

12 to the original date the complaint was filed. [RP 27] Defendant’s reply argued, for the

13 first time, that dismissal for lack of prosecution was warranted under Rule 1-041

14 (E)(2). [RP 29-31] The district court denied the motion on that basis. [RP 60]

15   {4}   Thereafter, Defendant’s motion for reconsideration conceded that denial of

16 Defendant’s motion to dismiss was proper under Rule 1-041(E)(2), but argued that

17 dismissal was instead warranted under a different subsection of the rule, Rule 1-

18 041(E)(1), which provides “a serious sanction for extremely dilatory parties and their

19 counsel.” [RP 63-64] Defendant argued that the purpose of Rule 1-041(E)(1) was to



                                              3
 1 shorten the period of time for non-action in a case from three years to two years, and

 2 provided “a serious sanction for extremely dilatory parties and their counsel.” [RP 63]

 3 Defendant further argued that the ten month delay between the filing of the complaint

 4 and the order reinstating the case, as well as the twenty month delay between the

 5 motion for reinstatement of the case, resulting order reinstating the case, and

 6 Plaintiff’s proper service of the complaint, met the requirement of the rule and

 7 Plaintiff’s failure to offer an excuse for the delay at the prior hearing made dismissal

 8 proper under Rule 1-041(E)(1) and applicable case law. [RP 64] Based on the

 9 pleadings, the district court dismissed the case with prejudice. [RP 118] While the

10 order expresses the district court’s frustration with counsel’s failure to appear [RP

11 117-18], the district court clearly based dismissal, in part, on Rule 1-041(E)(1) for

12 lack of prosecution. [RP 118]

13   {5}   The record supports the district court’s decision. More than two years passed

14 from the date the complaint was filed in April 2011 [RP 1] to the date the case was

15 reinstated in November 2013 [RP 14], at which time Plaintiff had not yet even served

16 the complaint on Defendants. [RP 14] See Sarikey v. Sandoval, 1965-NMSC-072, ¶ 6,

17 75 N.M. 271, 404 P.2d 108 (“If no action is taken for a period of at least two years,

18 after filing the complaint, to bring the case to a final determination, the case must be

19 dismissed upon motion of the opposite party unless dismissal is prevented by certain



                                              4
 1 well defined exceptions.”). Plaintiff did not serve Defendants with the complaint until

 2 December 2013 [RP 18], two years and eight months after the complaint was

 3 originally filed [RP 1].

 4   {6}   As to any action taken by Plaintiff after the case was reinstated, our case law

 5 has recognized that such may constitute a good faith effort to satisfy the requirement

 6 that action be taken to bring a case to a final determination. See Sewell v. Wilson,

 7 1982-NMCA-017, ¶ 38, 97 N.M. 523, 641 P.2d 1070 (“Abuse of discretion has been

 8 found where dismissal results in an injustice and special circumstances impeded [a]

 9 plaintiff’s prosecution of his claim, or where a claim is being pursued actively after

10 a prior lapse in activity.”). Plaintiff, however,took no such action; after the case was

11 reinstated, the only action Plaintiff took was to serve Defendant for the first time,

12 having been ordered to do so by the district court. [RP 15] It was not until Defendant

13 moved to dismiss [RP 20] that Plaintiff filed a motion for summary judgment [RP 39].

14 Aside from the motion to reinstate, and subsequent service of the complaint on

15 Defendants, Plaintiff took no meaningful action to prosecute the case for almost three

16 years since the initial filing of the complaint. [RP 1; RP 14; RP 39]

17   {7}   In light of the policies underlying Rule 1-041(E), which are designed to

18 expedite the prosecution of cases, we cannot conclude that the district court abused

19 its discretion. We recognize that Rule 1-041(E) serves dual purposes, it “is intended



                                              5
 1 to promote judicial efficiency and to conclude stale cases, but it should not be applied

 2 in complete disregard of this court’s often stated concerns for the rights of litigants to

 3 have their day in court and their cases decided on the merits and not on trivial

 4 technicalities.” Sewell, 1982-NMCA-017, ¶ 35 (internal quotation marks and citation

 5 omitted). Despite years of taking no action in the case, Plaintiff was given an

 6 opportunity to litigate his case upon reinstatement. Yet all Plaintiff did was serve

 7 Defendant as ordered by the district court. It was not until after Defendant filed a

 8 motion to dismiss that Plaintiff filed a motion for summary judgment, four months

 9 after the case was reinstated. [RP 14; 39] Cf. Summit Elec. Supply Co., Inc. v. Rhodes

10 & Salmon, P.C., 2010-NMCA-086, ¶ 12, 148 N.M. 590, 241 P.3d 188 (“The filing of

11 a motion for a trial setting on the merits amounted to action by the plaintiff to bring

12 the case to its final determination and, moreover, because the action came before the

13 defendant elected to invoke his right to dismissal, the court concluded that the plaintiff

14 had satisfied the rule.”). We therefore do not believe this decision is at odds with the

15 dual purpose of the rule.

16   {8}   We therefore conclude that Plaintiff has not demonstrated error on appeal. See

17 Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6,

18 800 P.2d 1063 (stating that the burden is on the Plaintiff to clearly demonstrate that

19 the trial court erred). Based on the above facts, as found in the record, we find no



                                               6
 1 abuse of discretion by the district court in dismissing the case for lack of prosecution,

 2 upon reconsideration of its prior ruling. See Summit, 2010-NMCA-086, ¶ 10 (“A

 3 reviewing court will uphold a district court’s analysis except in cases where discretion

 4 had been abused.”); see also Benz v. Town Ctr. Land, LLC, 2013-NMCA-111, ¶ 11,

 5 314 P.3d 688 (“An abuse of discretion occurs when a ruling is clearly contrary to the

 6 logical conclusions demanded by the facts and circumstances of the case.” (internal

 7 quotation marks and citation omitted)).

 8   {9}    For all of these reasons, and those stated in this Court’s calendar notice, we

 9 affirm the district court’s order.

10   {10}   IT IS SO ORDERED.


11                                          ____________________________________
12                                          J. MILES HANISEE, Judge


13 WE CONCUR:


14 ___________________________
15 MICHAEL E. VIGIL, Judge


16 ___________________________
17 TIMOTHY L. GARCIA, Judge




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