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

 2 BRITTANY DICKEY,

 3          Plaintiff-Appellant,

 4 v.                                                                          No. 31,527

 5   GENERAL GROWTH PROPERTIES,
 6   INC., a New Mexico Corporation, and
 7   DALE ERVIN, JR. d/b/a PRIMITIVE
 8   FEAR,

 9          Defendants-Appellees.

10 APPEAL FROM DISTRICT COURT OF BERNALILLO COUNTY
11 Beatrice J. Brickhouse, District Judge

12 Mel B. O’Reilly
13 Albuquerque, NM

14 for Appellant

15   Beall & Biehler
16   Peter Grueninger
17   Josh A. Harris
18   Albuquerque, NM

19 for Appellees
 1                             MEMORANDUM OPINION

 2 BUSTAMANTE, Judge.

 3 INTRODUCTION

 4        Plaintiff Brittany Dickey appeals the district court’s dismissal of her personal

 5 injury action. On December 16, 2011, this Court filed a notice of proposed summary

 6 disposition proposing to reverse. Defendants filed a memorandum in opposition,

 7 which we have duly considered. We reverse the district court and remand for further

 8 proceedings.

 9 BACKGROUND

10        Plaintiff filed a personal injury action in district court on October 31, 2006.

11 [RP 1] At the time Defendants filed their motion to dismiss on March 31, 2011,

12 Plaintiff’s action had been pending for four years and five months. [RP 181] In

13 February 2008 the district court had entered a pretrial order pursuant to Rule 1-016

14 NMRA with a trial setting for December 2008 and a June 2008 deadline by which

15 Plaintiff was supposed to disclose her expert witness. [RP 105-07] Plaintiff failed to

16 do so, blaming the lapse in part on her absence from the country for part of the time.

17 [RP 129-30] Defendants moved to dismiss based on Plaintiff’s violation of the

18 pretrial order. [RP 111-15] On September 22, 2008, the district court denied the

19 motion to dismiss, ordered Plaintiff to disclose her expert within sixty days, reset the


                                              2
 1 trial date from December 2008 to March 2009, and ordered Plaintiff to pay

 2 Defendants’ attorney fees incurred in moving to dismiss. [RP 158-59] The March

 3 2009 trial setting was subsequently vacated, apparently due to judge reassignments.

 4 [RP 173] Defendants filed for bankruptcy, and an automatic stay of the present action

 5 was entered in April 2009. [RP 178] The stay was lifted in November 2010. [RP

 6 182] On March 31, 2011, about five months after the stay was lifted, Defendants

 7 moved to dismiss for lack of prosecution under Rule 1-041(B). [RP 181-83] In

 8 response, Plaintiff, who had taken no action during the five months after the stay was

 9 lifted, immediately requested a pretrial conference. [RP 187] On July 8, 2011, the

10 district court granted Defendants’ motion to dismiss with prejudice pursuant to Rule

11 1-041(B). [RP 204]

12 DISCUSSION

13        As applicable to this action, Rule 1-041(B) states:

14        For failure of the plaintiff to prosecute or to comply with these rules or
15        any order of court, a defendant may move for dismissal of an action or
16        of any claim against the defendant. . . . Unless the court in its order for
17        dismissal otherwise specifies, a dismissal under this paragraph . . .
18        operates as an adjudication upon the merits.

19 Rule 1-041(E)(1) NMRA provides:

20        Any party may move to dismiss the action, or any counterclaim,
21        cross-claim or third-party claim with prejudice if the party asserting the
22        claim has failed to take any significant action to bring such claim to trial
23        or other final disposition within two (2) years from the filing of such

                                               3
 1        action or claim. An action or claim shall not be dismissed if the party
 2        opposing the motion is in compliance with an order entered pursuant to
 3        Rule 1-016 NMRA or with any written stipulation approved by the court.
 4

 5        Defendants argue that this Court’s proposed reversal does not adequately defer

 6 to the district court. [MIO 3] “District courts have discretion in determining whether

 7 to dismiss a case for inactivity, and their decisions shall be reversed if they abuse their

 8 discretion.” Summit Elec. Supply Co. v. Rhodes & Salmon, P.C., 2010-NMCA-086,

 9 ¶ 6, 148 N.M. 590, 241 P.3d 188. “Discretion is abused when the court exceeds the

10 bounds of reason, all the circumstances before it being considered.” Id. (internal

11 quotation marks and citation omitted). “[W]e make no attempt to fix a standard of

12 what action is sufficient to satisfy the requirement of the rule, for each case must be

13 determined upon its own particular facts and circumstances.” Martin v. Leonard

14 Motor-El Paso, 75 N.M. 219, 222, 402 P.2d 954, 956-57 (1965). “A Rule 1-041(B)

15 dismissal with prejudice, being a drastic sanction, should be used sparingly.” Gila Res.

16 Info. Project v. N.M. Water Quality Control Comm’n, 2005-NMCA-139, ¶ 40, 138

17 N.M. 625, 124 P.3d 1164 (internal quotation marks and citation omitted). “Dismissals

18 under [former] Rule 41(B) are limited to instances where the plaintiff’s conduct

19 warranting dismissal is extreme.” Id. (internal quotation marks and citations omitted).

20        In reviewing the course of events in this case, we consider both the two-year-

21 and-five-month period between the time Plaintiff filed the case in October 2006 and

                                                4
 1 Defendants filing for bankruptcy in April 2009, and the five-month period between

 2 the lifting of the bankruptcy stay on November 8, 2010, and the filing of Defendants’

 3 motion to dismiss on March 31, 2011. Although Defendants brought their March 31,

 4 2011, motion to dismiss and the district court granted it pursuant to Rule 1-041(B),

 5 we observe that at no point in the course of events did the circumstances satisfy the

 6 requirements of Rule 1-041(E), which allow a defendant to move to dismiss with

 7 prejudice if the plaintiff “has failed to take any significant action to bring such claim

 8 to trial or other final disposition within two (2) years from the filing of such action.”

 9        In their motion to dismiss, Defendants correctly asserted that Plaintiff’s last

10 action in the case was in November 2008. [RP 181] That fact is not as probative of

11 a failure to prosecute the action as it might seem on its face. In November 2008, the

12 December 2008 trial setting had already been vacated. [RP 159] Shortly thereafter,

13 the case was reassigned to a different judge, whom Defendants excused, requiring

14 another reassignment. [RP 173-74] And shortly after that, Defendants filed for

15 bankruptcy, staying the case for over a year and a half. Given this series of events, we

16 fail to see any particular actions Plaintiff should have taken between November 2008

17 and the lifting of the bankruptcy stay in November 2010.

18        Defendants’ memo in opposition makes two arguments concerning the

19 bankruptcy stay. They point out that Plaintiff never filed a motion in bankruptcy court


                                               5
 1 to lift the stay to an extent that her New Mexico action could proceed, which she could

 2 have done at any time during the approximately nineteen-month duration of the stay.

 3 [MIO 3-4 ¶ 5; RP 197-98] While Plaintiff apparently could have done so, nothing in

 4 the record supports a conclusion that her failure to file such a motion caused undue

 5 delay in the present case, and we decline to speculate as to whether she should have

 6 moved to lift the stay.

 7        Defendants also point out that Plaintiff took no action in her case for five

 8 months after the stay was lifted, and then acted only after Defendants filed their

 9 motion to dismiss. [MIO 5 ¶ 6] This inaction, however, must be considered in the

10 context of previous events. As noted above, Defendants had previously moved for

11 dismissal on August 1, 2008, based on Plaintiff’s failure to timely disclose her expert

12 witness. [RP 111-22] As also noted above, the district court denied the motion to

13 dismiss and ordered, among other things, that Plaintiff pay Defendants’ attorney fees

14 incurred in moving to dismiss. [RP 158-59] Thus, when Defendants again moved to

15 dismiss on March 31, 2011, the district court had already addressed Plaintiff’s

16 violation of the expert disclosure deadline, and had imposed the attorney fee sanction.

17 The record does not reveal any subsequent failures on the part of Plaintiff to abide by

18 a court order. The district court (now with a different judge) was faced only with an

19 arguably dilatory failure of Plaintiff to take some further action over the preceding


                                              6
 1 five months to move her case forward. Although the district court, in considering the

 2 March 2011 motion to dismiss, presumably was permitted to consider the cumulative

 3 effect of this new five-month delay combined with the previous purported delays, we

 4 conclude that Plaintiff’s conduct in allowing this additional five months to pass was

 5 not so extreme as to warrant dismissal with prejudice. As we observed in our notice

 6 of proposed summary disposition, Rule 1-041(E)(2) provides that “if the party filing

 7 the action . . . has failed to take any significant action in connection with the action or

 8 claim within the previous one hundred and eighty (180) days,” the district court may

 9 dismiss the action without prejudice on its own or a party’s motion. This suggests that

10 the courts are expected to tolerate periods of inactivity on the order of six months, and

11 even then the dismissal is without prejudice. Accordingly, we conclude that the

12 district court abused its discretion in these circumstances.

13 CONCLUSION

14        For the reasons stated above and in our notice of proposed summary

15 disposition, we reverse the district court and remand for further proceedings.

16        IT IS SO ORDERED.



17
18                                           MICHAEL D. BUSTAMANTE, Judge

19 WE CONCUR:

                                                7
1
2 RODERICK T. KENNEDY, Judge


3
4 TIMOTHY L. GARCIA, Judge




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