       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: ___________

Filing Date: December 17, 2013

Docket No. 32,335

KEN SNOW and ALLENE SNOW,

       Plaintiffs-Appellants,

v.

WARREN POWER & MACHINERY,
INC., d/b/a WARREN CAT, and
BRININSTOOL EQUIPMENT SALES,

       Defendants-Appellees,

and

MIDWEST HOSE & SPECIALTY, INC.,
GANDY CORPORATION, REPCON, INC.,
and HOLLY CORPORATION,

       Defendants.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Sheri A. Raphaelson, District Judge

Fadduol, Cluff & Hardy, P.C.
Richard L. Hardy
Eileen M. Shearin
Lubbock, TX

Sanders and Westbrook, P.C.
Maureen A. Sanders
Albuquerque, NM

for Appellants

Rodey, Dickason, Sloan, Akin & Robb, P.A.
Thomas A. Outler

                                        1
Richard E. Hatch
Albuquerque, NM

Civerolo, Gralow, Hill & Curtis, P.A.
Lawrence H. Hill
Justin L. Robbs
Albuquerque, NM

for Appellees

                                          OPINION

GARCIA, Judge.

{1}      We withdraw our opinion filed on December 12, 2013 and substitute the following
in its place. Plaintiffs appeal from two orders granting summary judgment to Defendants
Warren Power & Machinery, Inc., d/b/a Warren CAT and Brininstool Equipment Sales
based upon the running of the statute of limitations. The question we must answer is whether
the statute of limitations expired despite Plaintiffs’ motion to amend that was filed on the last
day of the applicable limitation period. The motion was not addressed or granted until days
after the limitation period expired. Plaintiffs raise two defenses to overcome the statute of
limitations: (1) the applicability of the relation-back theory under Rule 1-015(C) NMRA;
and (2) the applicability of the doctrine of equitable tolling. Under the factual circumstances
in this case, we conclude that the district court did not err when it granted summary
judgment to Warren CAT and Brininstool based upon the expiration of the statute of
limitations.

BACKGROUND

{2}    On January 20, 2009, Plaintiff Ken Snow was injured at Navajo Refinery when a
hose assembly came loose from a water pump and struck him in the leg while he was
working. The hose had been manufactured by Midwest Hose & Specialty, Inc. and sold to
Warren CAT. Warren CAT then rented the hose to Brininstool Equipment Sales who then
supplied the hose to Navajo Refinery.

{3}     On August 15, 2011, Ken Snow and his wife, Allene Snow, filed their initial
complaint and sought damages for Ken Snow’s injuries. Plaintiffs’ initial complaint named
Midwest Hose & Specialty, Inc., Gandy Corporation, Repcon, Inc., and Holly Corporation
as Defendants. On September 8, 2011, Plaintiffs filed their first amended complaint,
correcting a date. On January 20, 2012, at 4:23 p.m., Plaintiffs filed a motion for leave to file
a second amended complaint, seeking to add Warren CAT and Brininstool as additional new
defendants. It is undisputed that Plaintiffs’ motion for leave to file the second amended
complaint was filed on the final day before the relevant statute of limitations would expire.
See NMSA 1978, § 37-1-8 (1976).

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{4}     The district court entered an order, by electronic filing, granting leave to file the
second amended complaint on Friday, January 27, 2012, at 4:05 p.m. Plaintiffs did not file
their second amended complaint until Monday, January 30, 2012, at 10:56 a.m. Warren CAT
and Brininstool were subsequently served with the second amended complaint on February
2 and 6, 2012. Warren CAT and Brininstool both moved for summary judgment, asserting
that the statute of limitations had expired prior to the filing of the second amended
complaint. The district court granted both motions, holding that the statute of limitations
barred Plaintiffs’ claims against Warren CAT and Brininstool. Plaintiffs timely appealed the
granting of summary judgment in favor of Warren CAT and Brininstool.

STANDARD OF REVIEW

{5}     We review de novo a district court’s grant of summary judgment, construing the
evidence most favorably to the non-moving party. City of Albuquerque v. BPLW Architects
& Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M. 717, 213 P.3d 1146; Headley v. Morgan
Mgmt. Corp., 2005-NMCA-045, ¶ 5, 137 N.M. 339, 110 P.3d 1076. “Summary judgment
is appropriate where there are no genuine issues of material fact and the movant is entitled
to judgment as a matter of law.” Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126
N.M. 396, 970 P.2d 582. “A defendant seeking summary judgment . . . bears the initial
burden of negating at least one of the essential elements upon which the plaintiff's claims are
grounded.” S. Farm Bureau Cas. Co. v. Hiner, 2005-NMCA-104, ¶ 9, 138 N.M. 154, 117
P.3d 960 (internal quotation marks and citation omitted). “Once such a showing is made, the
burden shifts to the plaintiff to come forward with admissible evidence to establish each
required element of the claim.” Id. “If the facts are undisputed and only a legal interpretation
of the facts remains, summary judgment is the appropriate remedy.” Bd. of Cnty. Comm’rs
v. Risk Mgmt. Div., 1995-NMSC-046, ¶ 4, 120 N.M. 178, 899 P.2d 1132. “Summary
judgment should not be granted when material issues of fact remain or when the facts are
insufficiently developed for determination of the central issues involved.” Vieira v. Estate
of Cantu, 1997-NMCA-042, ¶ 17, 123 N.M. 342, 940 P.2d 190. “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. We review questions of law de novo.”
Haas Enters., Inc. v. Davis, 2003-NMCA-143, ¶ 9, 134 N.M. 675, 82 P.3d 42. We conclude
that there are no material facts in dispute and we can decide this case as a matter of law.

DISCUSSION

{6}      Plaintiffs claim that two exceptions to the statute of limitations are applicable in this
case. First, Plaintiffs contend that the second amended complaint should relate back to the
date of the initial complaint under Rule 1-015(C) because Warren CAT and Brininstool
knew of the accident before the limitations period expired. Second, Plaintiffs contend that
the filing of their motion for leave to file the second amended complaint tolled the statute
of limitations until the second amended complaint was actually filed. We address each
argument in turn.


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I.     Relation-Back to the Initial Complaint Under Rule 1-015(C)

{7}    Were Plaintiffs to prevail under their relation-back theory, Warren CAT and
Brininstool would be treated as if they were named as Defendants in the initial complaint,
long before the expiration of the statute of limitations. Rule 1-015(C) sets forth the specific
requirements for an amended complaint to relate back to the original pleading. Rule 1-
015(C) provides:

       Whenever the claim or defense asserted in the amended pleading arose out
       of the conduct, transaction [,] or occurrence set forth or attempted to be set
       forth in the original pleading, the amendment relates back to the date of the
       original pleading. An amendment changing the party against whom a claim
       is asserted relates back if the foregoing provision is satisfied and, within the
       period provided by law for commencing the action against him, the party to
       be brought in by amendment:
               (1) has received such notice of the institution of the action that he
       will not be prejudiced in maintaining his defense on the merits; and
               (2) knew or should have known that, but for a mistake concerning
       the identity of the proper party, the action would have been brought against
       him.

{8}      It is undisputed in this case that the second amended complaint arises out of the same
accident and resulting injury set forth in the initial complaint. Defendants made a prima facie
case as to the expiration of the statute of limitations by demonstrating the respective dates
on which the accident occurred and the second amended complaint was granted and filed.
See Romero v. Ole Tires, Inc., 1984-NMCA-092, ¶ 11, 101 N.M. 759, 688 P.2d 1263.
Thereafter, Plaintiffs had the burden of showing they satisfied the requirements of Rule 1-
015(C). Id.; see also Romero v. Bachicha, 2001-NMCA-048, ¶¶ 12, 14, 130 N.M. 610, 28
P.3d 1151 (“[W]hen the proper party was not served and therefore is not before the court,
a plaintiff must demonstrate compliance with the rule. . . . Under these circumstances, we
will . . . require [a p]laintiff to bear his burden of proving that adequate notice was given
[under Rule 1-015(C)(1), (2)] within the period for commencing the action.”). “The rationale
of Rule 1-015[(C)] is to preclude use of the statute of limitations mechanically to prevent
adjudication of a claim where the real parties in interest were sufficiently alerted to the
proceedings or were involved in them unofficially from an early stage.” Macias v. Jaramillo,
2000-NMCA-086, ¶ 20, 129 N.M. 578, 11 P.3d 153 (internal quotation marks and citation
omitted).

{9}     The dispute in this case concerns the notice requirements of Rule 1-015(C)(1), (2).
See Ole Tires, 1984-NMCA-092, ¶ 15 (explaining that the notice requirements protect a
defendant’s right to invoke a statute of limitations defense). We must now determine whether
(1) Warren CAT and Brininstool had adequate notice of the institution of the action; and (2)
they knew, or should have known, that but for inadvertence that arose due to mistaken
identity, the action would have been brought against them. Rule 1-015(C)(1),(2); see

                                              4
Bachicha, 2001-NMCA-048, ¶ 12 (“The real inquiry when an amendment changes the name
of a party is whether the newly identified or added party had adequate notice of the
institution of the action and knew, or should have known, that but for the mistake, the action
would have been brought against it.”). If these two requirements were met, Plaintiffs’
amended complaint will relate back to the date of the initial complaint.

{10} At the outset, we note that the requirements of both subsections under Rule 1-015(C)
must be fulfilled before the statute of limitations has run. Ole Tires, 1984-NMCA-092, ¶ 12.
Accordingly, our first inquiry must address whether Warren CAT or Brininstool received
notice that the lawsuit had been instituted at any point prior to the expiration of the statute
of limitations. It is undisputed in this case that Warren CAT and Brininstool were both
informed of the accident and its resulting injury almost immediately after it occurred.

1.     Notice Under Rule 1-015(C)(1)

{11} Plaintiffs allege that both Defendants received notice of the institution of this lawsuit
when they became aware of the accident and its resulting injury. We disagree. It is well
established that a plaintiff cannot demonstrate compliance with the requirements of Rule 1-
015(C)(1) merely by showing that a defendant was aware of the possibility that an action
might be brought. See Bachicha, 2001-NMCA-048, ¶ 20 (holding that the submission of
interrogatories to a defendant did not provide adequate notice of the institution of an action
against that defendant). Accordingly, we reject Plaintiffs’ contention that Defendants
received notice of the lawsuit when they became aware of the accident and resulting injury.
See id.

{12} The record in this case is completely void of any indication that, prior to its receipt
of Plaintiffs’ second amended complaint, Brininstool was aware that Plaintiffs had instituted
this lawsuit or that it might be named as a Defendant. Brininstool did not investigate the
accident and injury, report the claim and potential lawsuit to risk managers or liability
insurers, retain counsel, or take any other action to preserve potential evidence and
testimony. See Macias, 2000-NMCA-086, ¶¶ 27-29 (finding notice where (1) the plaintiff
had filed a claim against the defendant’s insurance company immediately after an accident;
(2) he had corresponded with the insurance company and other defendants for several
months prior to filing the original complaint; (3) the insurance company knew that the
complaint had been filed; and (4) the insurance company retained counsel to defend itself
and the original defendants). Based upon Plaintiffs’ lack of evidence, we conclude that it was
not until service of the second amended complaint on February 6, 2012, that Brininstool
received any notice of this lawsuit. Since Brininstool had no notice of the institution of the
action prior to being served with the second amended complaint, we conclude that Plaintiffs
failed to satisfy the requirements of Rule 1-015(C)(1). Accordingly, the second amended
complaint against Brininstool does not relate back to the filing of the initial complaint under
Rule 1-015(C)(1).

{13}   The record reflects that Warren CAT similarly took no action with regard to the

                                              5
accident and resulting injury. Unlike Brininstool, however, Warren CAT was served a
subpoena requesting documents relevant to the accident and injury on December 13, 2011,
approximately one month before the statute of limitations expired. We thus conclude that
Plaintiffs presented evidence sufficient to establish that Warren CAT became aware of the
lawsuit before the statute of limitations had run on their claims. At a minimum, such notice
and knowledge creates an issue of fact regarding the requirement set forth in Rule 1-
015(C)(1). If the requirement under Rule 1-015(C)(2) was also met, then Plaintiffs’ amended
complaint against Warren CAT could potentially relate back to the date of the initial
complaint. However, we reject Plaintiff’s claims against Warren CAT on the basis of Rule
1-015(C)(2) and need not address the notice requirement under Rule 1-015(C)(1) any further.

2.      Mistake Concerning Identity Under Rule 1-015(C)(2)

{14} Under Rule 1-015(C)(2), Plaintiffs must establish that Warren CAT was not made
a party to the lawsuit before the statute of limitations expired because of “inadvertence due
to mistaken identity.” Ole Tires, 1984-NMCA-092, ¶ 17. Here, there was no attempt to assert
that a mistake was made concerning the identity of Warren CAT and its relationship to the
equipment involved in the accident. Plaintiffs even went so far as to subpoena Warren CAT
to obtain evidence after the lawsuit was initiated. The situation appears to be similar to the
situation in Ole Tires where, “lacking information that might have been discovered, a party
did not plead a potential claim.” Id. ¶ 17. Under the facts presented, Plaintiffs failed to
exercise the due diligence necessary to obtain discoverable information about Warren CAT
and then act on the information obtained prior to the expiration of the statute of limitation.
See Bachicha, 2001-NMCA-048, ¶ 21 ( noting that “the critical question is whether [the
p]laintiff exercised due diligence”).

{15} Plaintiffs have cited only to evidence that Warren CAT possessed various facts that
would enable it to understand that Plaintiffs might potentially add it as a party to the lawsuit,
at least upon further inquiry. Nevertheless, the record does not contain any evidence that
Warren CAT had “reason to make further inquiry” based upon the information provided. Ole
Tires, 1984-NMCA-092, ¶ 24. Warren CAT was required to have sufficient information to
reasonably “know or have reason to know that it was a likely party to the [P]laintiffs’ suit.”
Id. ¶ 20. The circumstances under which Warren CAT learned of the lawsuit gave no
reasonable warning that Plaintiffs intended to sue Warren CAT. Based upon these facts,
Warren CAT was entitled to assume that, unless it was sued within the limitations period,
Plaintiffs did not have any claims that they intended to assert against Warren CAT.

{16} The substantive issue in this instance was the exercise of due diligence by Plaintiffs
to identify and add Warren CAT as an additional defendant before the statute of limitations
expired. Id. ¶ 17 (refusing to hold that the mistaken identity requirement under Rule 1-
015(C)(2) was satisfied where “the situation appear[ed] to be one in which, lacking
information that might have been discovered, a party did not plead a potential claim”).
Plaintiffs failed to present evidence that they exercised due diligence in regard to their
investigation and identification of Warren CAT as an additional defendant earlier in the

                                               6
proceedings. Any such failure to exercise diligence in the discovery process must be held
against Plaintiffs. Id. On the facts and record before us, the evidence would not establish that
Plaintiffs met their burden of proof under Rule 1-015(C)(2). That Warren CAT could have
been a defendant, or received subpoena requests at a time when the statute of limitations had
not yet expired, is simply insufficient to convey the status of “likely party” or demonstrate
a fact pertinent to the inquiry of mistaken identity. As a result, we conclude that the district
court did not err when it ruled that the amended complaint against Warren CAT cannot relate
back to the initial complaint under Rule 1-015(C).

II.    Equitable Tolling

{17} Plaintiffs assert that a motion to amend their complaint, with the amended complaint
attached to the motion, tolls the statute of limitation when the motion is filed prior to the
running of the limitations period. Given that the amended complaint could have been filed
on the day the order granting Plaintiffs’ motion to amend was filed, filing the following
Monday unequivocally missed the recognized deadline. Plaintiffs cite various federal cases
in support of their position and ask this Court to follow federal precedent in this state court
proceeding. See Ocana v. Am. Furniture Co., 2004-NMSC-018, ¶¶ 15-18, 135 N.M. 539, 91
P.3d 58 (applying federal precedent to the doctrine of equitable tolling where a Title VII
claim involved a federal statute). By their argument, Plaintiffs ask this Court to adopt a
bright-line rule whereby the statute of limitations is tolled for the period of time between the
filing of a motion to amend the complaint until the subsequent ruling is entered on the
motion. See Moore v. State of Ind., 999 F.2d 1125, 1131 (7th Cir. 1993) (“As a party has no
control over when a court renders its decision regarding the proposed amended complaint,
the submission of a motion for leave to amend, properly accompanied by the proposed
amended complaint that provides notice of the substance of those amendments, tolls the
statute of limitations, even though technically the amended complaint will not be filed until
the court rules on the motion.”). New Mexico has never recognized such an exception, and
this Court is asked to address this issue as a matter of first impression.

{18} Although we have not yet addressed the exact question raised by this appeal, “New
Mexico directly recognizes the distinct legal theory of equitable tolling.” Slusser v. Vantage
Builders, Inc., 2013-NMCA-073, ¶ 13, 306 P.3d 524. As such, we shall address the federal
precedent cited by Plaintiffs, but we ultimately rely on New Mexico precedent to deny
Plaintiffs’ claim for equitable tolling.

1.     Application of Equitable Tolling Under Federal Law

{19} Plaintiffs argue that “[t]his Court should allow tolling of the statute of limitations for
the period of time between the filing of a motion to amend and a court’s ruling on that
motion, because during that passage of time Plaintiffs are unable to file an amended
complaint adding a party.” See Mayes v. AT & T Info. Sys, Inc., 867 F.2d 1172, 1173 (8th
Cir. 1989) (per curiam); Rademaker v. E.D. Flynn Exp. Co., 17 F.2d 15, 17 (5th Cir. 1927);
Longo v. Pa. Elec. Co., 618 F.Supp. 87, 89 (W.D. Pa. 1985), aff’d, 856 F.2d 183 (3d Cir.

                                               7
1988); Eaton Corp. v. Appliance Valves Co., 634 F.Supp. 974, 982-83 (N.D. Ind. 1984),
aff’d on other grounds, 790 F.2d 874 (Fed. Cir. 1986); Gloster v. Pa. R.R. Co., 214 F.Supp.
207, 208 (W.D. Pa. 1963). Plaintiffs argue that they “should not be penalized for their
inability to file a motion to amend adding a party within the statute of limitations period
absent court permission.”

{20} We agree with Plaintiffs that “[a]ny number of factors could delay the [district
c]ourt’s approval” of a motion, and that equitable tolling should apply under certain
circumstances. However, the factors for delay cited by Plaintiffs, including “scheduling a
hearing, a [j]udge being reassigned, retiring[,] or absent for an extended period of time for
medical reasons,” are absent in the present case. More significantly, Plaintiffs have
overlooked the dispositive factual distinguishment present in almost every case they have
cited in support of their argument. The plaintiffs in each of those cases filed their amended
complaints on the day the motion to amend was granted. See Mayes, 867 F.2d at 1173 (“On
October 20, 1987, the district court granted [the appellant’s] motion to amend, whereupon
[the appellant] filed her amended complaint.”); Longo, 618 F.Supp. at 88 (“[The district
c]ourt signed an order permitting such amendment on November 2, 1983; and on this same
day, the amended complaint was filed by [the p]laintiff[.]”); Gloster, 214 F.Supp. at 208
(relying on a case where the amended complaint was filed before the motion to amend was
heard or entered). Even in the few cases where the plaintiffs filed their amended complaints
after their motions to amend were granted, those plaintiffs had diligently provided notice of
their complaints to the defendants they were seeking to add. See Rademaker, 17 F.2d at 16
(tolling the statute of limitations where process was issued and served on the newly added
defendant within the applicable statute of limitations, but the amended complaint was not
filed until after the statute had expired); Eaton Corp., 634 F.Supp. at 982 (relying on the
reasoning in Rademaker); see also Nett v. Bellucci, 774 N.E.2d 130, 138 (Mass. 2002)
(applying equitable tolling where the newly added defendant “was served with the motion
to amend and notified of the fact that the motion had been filed, all prior to the expiration
of the seven-year repose period”). Thus, application of the federal equitable tolling doctrine
will toll the statute of limitations from the date of tolling until the date a plaintiff’s motion
to amend the original complaint is granted. See Perez v. Paramount Commc’ns, Inc., 709
N.E.2d 83, 87 (N.Y. 1999) (“Thus, from the date the toll began until it ended on November
3, 1993—the date of entry of the order granting [the] plaintiff permission to add MSG as a
defendant—the [s]tatute of [l]imitations was tolled[.]”).

{21} Even under the federal authority provided by Plaintiffs, the statute of limitations
would only have been tolled until January 27, the date the district court granted Plaintiffs’
motion to amend. However, Plaintiffs did not actually file their amended complaint until
January 30. Plaintiffs filed their amended complaint three days after the extended period
expired. Accordingly, it was still three days late. This technical failure may have been
excusable had Plaintiffs diligently served Defendants with notice of the amended complaint
within the original statutory limitations period, but the record reflects that Warren CAT and
Brininstool were not notified or otherwise served with the second amended complaint until
February—nearly two weeks later. The federal authority cited by Plaintiffs is therefore

                                               8
inapplicable to salvage their amended complaint filed on January 30 when the tolling period
expired three days earlier, on January 27. We now address equitable tolling as it exists in
New Mexico.

2.      Application of Equitable Tolling in New Mexico

{22} “Equitable tolling is a nonstatutory tolling theory which suspends a limitations
period.” Slusser, 2013-NMCA-073, ¶ 13 (internal quotation marks and citation omitted).
“We determine the applicability of equitable tolling on a case-by-case basis, with an eye
toward cases where a litigant was prevented from filing suit because of an extraordinary
event beyond his or her control.” Id. (internal quotation marks and citation omitted).
“Generally, a litigant seeking equitable tolling bears the burden of establishing two elements:
(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Id. ¶ 16 (internal quotation marks and citation omitted).
“The purpose of equitable tolling is to give the plaintiff extra time if he needs it. If he doesn’t
need[,] it there is no basis for depriving the defendant of the protection of the statute of
limitations.” Id. ¶ 14 (internal quotation marks and citation omitted).

{23} We conclude that equitable tolling does not apply under the particular facts of this
case because Plaintiffs failed to present the district court with evidence that they have
diligently pursued their rights or that extraordinary circumstances stood in their way. See
Stringer v. Dudoich, 1978-NMSC-071, ¶ 3, 92 N.M. 98, 583 P.2d 462 (stating that the party
asserting equitable tolling bears the burden of providing sufficient facts that if proven would
toll the statute). Plaintiffs here failed to factually establish that they were reasonably diligent
in their efforts to identify Warren CAT and Brininstool as potential Defendants and that
extraordinary circumstances stood in their way. Instead, Plaintiffs’ briefing on appeal
produced facts indicating that the evidence known to exist well within the statute of
limitation would support their claim against Warren CAT and Brininstool. Despite this
evidence, Plaintiffs have not explained the due diligence of their discovery efforts and why
they did not proceed to use the evidence obtained to achieve a timely amendment to their
complaint within the statutory limitation period. Effectively, Plaintiffs failed to produce
factual evidence regarding the efforts they undertook, if any, to diligently pursue their rights.
Instead, Plaintiffs merely assert that equitable tolling “seems reasonable” where the motion
to amend was timely filed, but the district court ruled on the motion after the limitation
period expired. Finally, Plaintiffs offered no evidence to establish the existence of an
extraordinary circumstance that was claimed to be standing in their way and preventing the
diligent pursuit of their rights.

{24} “[T]he purpose of a statute of limitations is to put defendants on notice of adverse
claims and to prevent plaintiffs from sleeping on their rights.” Butler v. Deutsche Morgan
Grenfell, Inc., 2006-NMCA-084, ¶ 23, 140 N.M. 111, 140 P.3d 532 (internal quotation
marks and citation omitted). Summary judgment is appropriate where Plaintiffs have offered
no facts to explain why they did not earlier attempt to add Defendants. See Slusser, 2013-
NMCA-073, ¶ 20 (“To provide the district court with a basis to apply equitable tolling in this

                                                9
case, [the p]laintiff must show that she was unable to discover the facts constituting [the
d]efendant’s discriminatory intent, despite her diligence to assert her rights.”) “This court
is inclined to believe that such facts should be forthcoming in order to satisfy the due
diligence requirement of equitable tolling.” Id. (alteration, internal quotation marks, and
citation omitted). Neither Plaintiffs’ response to the motions for summary judgment, nor
their briefing on appeal establish the nature of their efforts and diligence to discover the facts
that would support their new cause of action against Warren CAT and Brininstool. See id.
As a result, Plaintiffs have failed to carry their burden to establish the two requirements for
equitable tolling under Slusser, 2013-NMCA-073, ¶ 16. The district court did not err in
granting summary judgment against Plaintiffs on the ground that the statute of limitation had
properly expired.

CONCLUSION

{25} The statute of limitations expired prior to the filing of Plaintiffs’ second amended
complaint against Warren CAT and Brininstool. Neither the relation-back theory under Rule
1-015(C) nor the doctrine of equitable tolling apply to save Plaintiffs’ late filing of the
second amended complaint. The statute of limitations ruling is dispositive, and we affirm the
district court’s grant of summary judgment in favor of Warren CAT and Brininstool.

{26}    IT IS SO ORDERED.

                                                _____________________________________
                                                TIMOTHY L. GARCIA, Judge

WE CONCUR:

___________________________________
RODERICK T. KENNEDY, Chief Judge

___________________________________
J. MILES HANISEE, Judge




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