 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
 3   also note that this electronic memorandum opinion may contain computer-generated errors or other
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 5   filing date.
 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 CHARLES R. ARASIM,

 8          Plaintiff-Appellant,

 9 v.                                                           NO. 30,160

10 OFFICER EVANGELINE
11 MARTINEZ, BCSO,

12          Defendant-Appellee.


13 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
14 Valerie Mackie Huling, District Judge

15 Darrell M. Allen
16 Albuquerque, NM

17 for Appellant

18 Brennan & Sullivan, P.A.
19 Gianna M. Mendoza
20 Santa Fe, NM

21 for Appellee
22                                 MEMORANDUM OPINION

23 FRY, Chief Judge.

24          Charles Arasim (Plaintiff) appeals from the district court’s order granting

25 Officer Evangeline Martinez’s (Defendant) motion to dismiss Plaintiff’s claims for

26 lack of jurisdiction. [RP 46] Plaintiff raises one issue on appeal: whether the district
 1 court erred in ruling that the statute of limitations was not equitably tolled during the

 2 pendency of the federal litigation. [DS 3] This Court’s calendar notice proposed

 3 summary affirmance. [CN1] Plaintiff has filed a memorandum in opposition that we

 4 have duly considered. [MIO] Unpersuaded, however, we affirm.

 5 DISCUSSION

 6        When facts relevant to a statute of limitations issue are not in dispute, the

 7 standard of review is whether the district court correctly applied the law to the

 8 undisputed facts. Haas Enters., Inc. v. Davis, 2003-NMCA-143, ¶ 9, 134 N.M. 675,

 9 82 P.3d 42. We review questions of law de novo. Id.

10        The following facts are undisputed. The parties agree that the applicable statute

11 of limitations is two years. See NMSA 1978, § 41-4-15(A) (1977). [RP 20, 34] In

12 addition, the parties agree that Plaintiff’s cause of action accrued on the date that

13 Defendant filed the underlying complaint against Plaintiff in Bernalillo metropolitan

14 court on April 18, 2006. [Id.] The parties further agree that on November 11, 2006,

15 Plaintiff filed his federal lawsuit against the County of Bernalillo and Defendant

16 Martinez. [Id.] On July 30, 2008, Defendant Martinez filed a motion to dismiss

17 Plaintiff’s fourth amended claim based on qualified immunity and other grounds. [Id.]

18 Plaintiff did not respond to Defendant’s motion in federal court. [Id.] On August 20,

19 2008, Plaintiff voluntarily dismissed his federal lawsuit without prejudice. [Id.]


                                               2
 1 About two months later, on October 31, 2008, Plaintiff filed the present lawsuit for

 2 deprivation of state constitutional rights, malicious abuse of process, and deprivation

 3 of state statutory rights against Defendant Martinez. [Id., RP 1]

 4        Defendant asserts that Plaintiff’s tort claims are barred by the statute of

 5 limitations since the applicable two-year statute of limitations expired on April 18,

 6 2008, and Plaintiff filed his complaint in state district court more than six months

 7 later, on October 31, 2008. [RP 18-25; 39-42] Plaintiff contends that his filing of the

 8 complaint in federal court tolled the statute of limitations. [RP 33- 37] The district

 9 court dismissed Plaintiff’s complaint with prejudice on the grounds that the statute of

10 limitations barred Plaintiff’s claims. [RP 46] We agree.

11        NMSA 1978, Section 37-1-14 (1880) is a statutory saving statute that provides:

12              If, after the commencement of an action, the plaintiff fail therein
13        for any cause, except negligence in its prosecution, and a new suit be
14        commenced within six months thereafter, the second suit shall, for the
15        purposes herein contemplated, be deemed a continuation of the first.

16 This saving statute does not apply to claims brought under the New Mexico Tort

17 Claims Act, NMSA 1978, §§ 41-4-1 to -29 (1976, as amended through 2009). Estate

18 of Gutierrez ex rel. Haney v. Albuquerque Police Dep’t, 104 N.M. 111, 114, 717 P.2d

19 87, 90 (Ct. App. 1986), overruled on other grounds Bracken v. Yates Petroleum

20 Corp., 107 N.M. 463, 466, 760 P.2d 155, 158 (1988). Since no statutory saving

21 clause applies, Plaintiff must rely on the principles of “equitable tolling,” a

                                              3
 1 nonstatutory tolling theory which suspends a limitations period, in order to claim that

 2 his complaint in state district court is not barred by the statute of limitations. See

 3 Ocana v. Am. Furniture Co., 2004-NMSC-018, ¶ 15, 135 N.M. 539, 91 P.3d 58;

 4 Gathman-Matotan Architects & Planners, Inc. v. State Dep't of Fin. & Admin., 109

 5 N.M. 492, 494, 787 P.2d 411, 413 (1990). In Ocana, our Supreme Court recognized

 6 that “[e]quitable tolling typically applies in cases where a litigant was prevented from

 7 filing suit because of an extraordinary event beyond his or her control.” Ocana, 2004-

 8 NMSC-018, ¶ 15.

 9         Prior to Ocana, in Gathman-Matotan, the New Mexico Supreme Court had

10 noted that New Mexico law provides that the statute of limitations is tolled when a

11 case is dismissed for improper venue. 109 N.M. at 494, 787 P.2d at 413; see Bracken,

12 107 N.M. at 466, 760 P.2d at 158. In addition, in Gathman-Matotan, our Supreme

13 Court noted that New Mexico law has also allowed the statute of limitations to be

14 tolled when a federal court, which presided over a plaintiff’s first action, refuses in its

15 discretion to entertain pendent jurisdiction over the plaintiff’s state tort claims. 109

16 N.M. at 494, 787 P.2d at 413 (observing that “Bracken []. . . overruled Gutierrez . .

17 . [such that] the filing of an action later dismissed without prejudice for reasons such

18 as improper venue or a federal court’s discretionary refusal to entertain pendent

19 jurisdiction tolls the statute of limitations applicable to the claim”).


                                                4
 1        In the memorandum, Plaintiff argues that Ocana and Gathman-Matotan “do not

 2 necessarily define the outer limits for the application of the doctrine [of equitable

 3 tolling].” [MIO 2] Plaintiff argues that, unlike in Gathman-Matotan, Plaintiff did not

 4 fail to prosecute his case. Rather, he points out, Plaintiff filed his state claims in

 5 federal court within the statute of limitations. [Id.] He relies on language in Bracken

 6 to the effect that “[t]he filing itself shows [Plaintiff’s] proper diligence . . . which such

 7 statutes of limitation were intended to insure.” Bracken, 107 N.M. at 465, 760 P.2d

 8 at 157 (internal quotation marks and citation omitted). Thus, Plaintiff argues, the

 9 filing of his complaint in federal court showed the proper diligence on his part which

10 tolled the applicable statute of limitations. [MIO 3-4] We are not persuaded.

11        In this case, Plaintiff was not prevented from filing his lawsuit in state district

12 court because of “an extraordinary event beyond his or her control.” See Ocana,

13 2004-NMSC-018, ¶ 15. Moreover, this case does not involve a court’s dismissal of

14 Plaintiff’s complaint without prejudice for improper venue nor the federal court’s

15 discretionary refusal to entertain pendent jurisdiction over Plaintiff’s state claims filed

16 in the federal court case. See Gathman-Matotan, 109 N.M. at 494, 787 P.2d at 413.

17 Rather, in this case, Plaintiff, apparently faced with Defendant’s qualified immunity

18 motion to dismiss in federal court, voluntarily dismissed his complaint filed in federal

19 court and refiled his complaint in state district court outside the statute of limitations.


                                                 5
1 Under the circumstances, pursuant Gathman-Matotan and the equitable tolling

2 doctrine articulated in Ocana, we hold that equitable tolling does not apply to toll the

3 statute of limitations in this case.

4 CONCLUSION

5        We affirm the district court’s order dismissing this case as barred by the statute

6 of limitations. [RP 46]

7        IT IS SO ORDERED.



8
9                                          CYNTHIA A. FRY, Chief Judge

10 WE CONCUR:



11
12 CELIA FOY CASTILLO, Judge



13
14 TIMOTHY L. GARCIA, Judge




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