                                                        FILED
                                            United States Court of Appeals
                UNITED STATES COURT OF APPEALS      Tenth Circuit

                       FOR THE TENTH CIRCUIT                    April 23, 2015

                                                             Elisabeth A. Shumaker
                                                                 Clerk of Court
JOSEPH MONTANO,

           Plaintiff-Appellant,
                                                  No. 14-2146
v.                                     (D.C. No. 1:14-CV-00079-WJ-SCY)
                                                (D. New Mexico)
PUBLIC SERVICE COMPANY OF
NEW MEXICO,

           Defendant-Appellee.


                       ORDER AND JUDGMENT *


Before BACHARACH, PORFILIO, and BALDOCK, Circuit Judges.


     Mr. Joseph Montano sued for retaliation under Title VII of the Civil

Rights Act and race discrimination under the New Mexico Human Rights

Act. 1 He filed a complaint in state court in November 2012, but the action

was dismissed without prejudice in June 2013 for failure to diligently

*
      The Court has determined that oral argument would not materially
aid our consideration of the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th
Cir. R. 34.1(G). Thus, we have decided the appeal based on the briefs. Our
order and judgment does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel.
1
      Mr. Montano also claimed breach of an implied contract. On this
claim, the district court granted summary judgment to the defendant.
Mr. Montano states that he is appealing the summary judgment ruling, but
he has not presented any argument on why the ruling was incorrect.
prosecute. The state court reinstated the action in November 2013, after the

limitations period would have expired. After the defendant removed the

case to federal court, the federal district court dismissed the action based

on timeliness. In the ensuing appeal, we must decide if the suit was timely.

Our answer turns on the meaning of the state court’s reinstatement. In our

view, the reinstatement reactivated the original action, which was timely. 2

Thus, we reverse.

      We review the dismissal de novo. See Braxton v. Zavaras, 614 F.3d

1156, 1159 (10th Cir. 2010) (“We review de novo the dismissal of an

action under Rule 12(b)(6) based on the statute of limitations.”). In

engaging in de novo review, we accept the complaint’s factual allegations

as true and construe them in the light most favorable to the plaintiff.

United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001).

      The issue of timeliness turns on the limitations period and the timing

of the suit. Mr. Montano had to seek administrative relief. See Shikles v.

Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005) (“It is

well-established that Title VII requires a plaintiff to exhaust his or her


2
       In its motion to dismiss, the defendant did not challenge the
timeliness of the original complaint, although it did “not concede that the
lawsuit [had been] filed within 90 days of receiving any right to sue
letters.” Appellant’s App. at 17. Because the defendant has not challenged
the timeliness of the original complaint (filed in November 2012), we may
assume it was timely filed for purposes of this appeal.


                                     -2-
administrative remedies before filing suit.”); Lobato v. State Env’t Dep’t,

267 P.3d 65, 68 (N.M. 2011) (stating that claims under the New Mexico

Human Rights Act “require administrative exhaustion before a plaintiff can

bring suit”). If dissatisfied, Mr. Montano could sue within 90 days of the

agency’s determination. See 42 U.S.C. § 2000e-5(f)(1) (2012); N.M. Stat.

Ann. § 28-1-13(A) (2005).

     Mr. Montano timely sued in state court on November 15, 2012. But

the suit was dismissed without prejudice for lack of prosecution. In

dismissing the action, a state court said Mr. Montano could move for

reinstatement within 30 days. He did, 3 and the state court ordered

reinstatement in November 2013. The issue of timeliness turns on when the

action began: November 2012 (when Mr. Montano filed the state-court

suit) or November 2013 (when the action was reinstated).

     If we rely on the date of the original complaint, the suit would be

timely. Though this action was dismissed, it was reinstated. Thus, we must

determine the effect of reinstatement.

     Interpreting New Mexico law on reinstatement, the state intermediate

court of appeals held in Wershaw v. Davis that reinstatement serves to

reactivate the previously dismissed action. 929 P.2d 984, 986 (N.M. Ct.


3
      Mr. Montano called his filing a “motion to reopen,” but it was treated
as a motion for reinstatement.


                                    -3-
App. 1992). The court explained that there was no need for a new

complaint because the operative complaint was the one already filed. See

id. (“Because a new complaint is not filed and the case is simply

reactivated, there is no problem with the running of the statute of

limitations.”). Under Wershaw, the suit is deemed “filed” in November

2012 because that suit was eventually reactivated. With a filing date in

November 2012, the action was timely.

      The defendant argues that Wershaw is distinguishable for three

reasons.

      1.    The New Mexico Supreme Court has stated that King v. Lujan
            remains good law.

      2.    Policy considerations favor strict enforcement of the 90-day
            limitations period.

      3.    The complaint became a nullity upon the order of dismissal.

We reject all of these arguments.

      In King v. Lujan, the New Mexico Supreme Court held that the

statute of limitations is not tolled by a dismissal for lack of prosecution.

646 P.2d 1243, 1244-45 (N.M. 1982). The defendant argues that this

portion of King remains good law. For the sake of argument, we can

assume the defendant is correct. But this part of King is beside the point

because we need not address, one way or the other, whether dismissal




                                     -4-
tolled the limitations period. The issue involves when the action began

rather than the possibility of tolling. 4

      The defendant also urges policy considerations supporting strict

enforcement of the 90-day limitations period. But these policy

considerations do not leave us free to ignore the state district court’s

reinstatement of the original complaint. Our task is simply to determine

when the action began. When the court reactivated the original suit, it was

as though it had never been dismissed. In these circumstances, policy

considerations should not interfere with our straightforward task of

determining when the operative complaint was filed.

      Finally, the defendant argues that when the complaint was dismissed,

the complaint became a nullity, as though it had never been filed.

Appellee’s Resp. Br. at 4-7. That was true before New Mexico created the

procedure for reinstatement. See King, 646 P.2d at 1244-45 (“[W]e hold

that a dismissal without prejudice operates to leave the parties as if no
4
      The defendant relies on Meiboom v. Watson, 994 P.2d 1154 (N.M.
2000). There the New Mexico Supreme Court dealt with the effect of
relieving a party from an order of dismissal under N.M. Stat. Ann., Rule 1-
060(GB)(6). Meiboom, 994 P.2d at 1157. Pointing out that King and
Wershaw involved a “significantly different” statute, the court concluded
that the cases were neither controlling nor relevant. Id. at 1157-59. In
drawing this conclusion, the New Mexico Supreme Court acknowledged
that the rules had changed since King, obviating the need to file a new
complaint after a dismissed case had been reinstated. Id. at 1158-59. After
acknowledging this change in the rules, the New Mexico Supreme Court
pointed out that it was “not disturbing Wershaw’s holding.” Id. at 1159.


                                       -5-
action had been brought at all.”). But New Mexico later created a

procedure for reinstating the dismissed action, 5 which the state court

utilized to reactivate the suit. The state court could not reactivate

something that had never existed. Thus, upon reinstatement, it is no longer

possible to view the dismissed action as if it never existed.

      Because the original suit was timely and was reactivated, it should

not have been dismissed. Accordingly, we reverse and remand for further

proceedings.


                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




5
      As the court explained in Wershaw:

      [T]he rules of civil procedure regarding involuntary dismissals
      have been substantially changed since the decision in King.
      Prior to the change, if a case was dismissed for lack of
      prosecution, a new complaint was required to be filed to place
      the matter back on the court’s docket. The new rules, however,
      allow for the reinstatement of a case that has been dismissed
      without prejudice for lack of prosecution upon a showing of
      good cause. Thus, a new complaint need not be filed in order
      to proceed.

929 P.2d at 986 (citations omitted).


                                       -6-
