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

 2 JARDINERO INVESTMENTS, LLC,

 3                  Plaintiff-Appellant,

 4 v.                                                                            No. A-1-CA-36109

 5   JARDINERO PROFESSIONAL PLAZA
 6   CONDOMINIUM ASSOCIATION, INC.,
 7   a New Mexico nonprofit corporation;
 8   CARMEL BUILDING PARTNERS, LLC,
 9   a New Mexico LLC; and HEAD FOR THE
10   BEACH GROUP OF NEW MEXICO, LLC,
11   a New Mexico LLC,

12                  Defendants-Appellees.

13 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
14 Clay Campbell, District Judge

15 Crowley & Gribble, PC
16 Clayton E. Crowley
17 Albuquerque, NM

18 for Appellant

19   Sutin, Thayer & Browne
20   Susan M. Hapka
21   Andrew J. Simons
22   Albuquerque, NM
 1 for Appellees

 2                             MEMORANDUM OPINION

 3 HANISEE, Judge.

 4   {1}   Plaintiff argues that the district court erred in denying its motion to reconsider

 5 the district court’s earlier order denying Plaintiff’s motion to reinstate the case. [See

 6 generally DS 3-4] This Court issued a notice of proposed disposition proposing to

 7 affirm. Plaintiff and Defendants filed responses to our notice of proposed disposition.

 8 We have duly considered the responses and, for the reasons stated in the notice of

 9 proposed disposition and below, we affirm.

10   {2}   As discussed in our notice of proposed disposition, Plaintiff filed a complaint

11 for declaratory judgment and damages against Defendants on October 1, 2012 [RP 1-

12 4], and on April 13, 2016, the district court dismissed this case for the second time for

13 lack of prosecution [RP 130]. [CN 2] Following this dismissal, Plaintiff filed a timely

14 motion to reinstate the case [RP 132-33]; Defendants filed a response [RP 138-52];

15 and on September 26, 2016, the district court held a hearing on Plaintiff’s motion for

16 reinstatement and denied the motion [RP 180]. [CN 2] The written order denying the

17 motion was filed on September 29, 2016. [RP 180; CN 2] In the interim, on September

18 27, 2016, Plaintiff filed a motion to reconsider. [RP 158-79; see also RP 186-96, 201;




                                               2
 1 CN 2] On November 7, 2016, the district court entered the order denying Plaintiff’s

 2 motion for reconsideration, which is the subject of this appeal. [RP 205-06; CN 2-3]

 3   {3}   In our notice of proposed disposition, we noted that the April 13, 2016 order,

 4 entered pursuant to the court’s own motion, refers to the fact that “no significant

 5 action has been taken in 180 or more days” and allows any party to move for

 6 reinstatement of the case within thirty days of service [RP 130], and this language

 7 tracks that of Rule 1-041(E)(2) NMRA, which permits dismissals without prejudice.

 8 [CN 3] Because it did not appear that Plaintiff made any assertions as to why the delay

 9 in this case was not wholly without justification, we proposed to conclude that the

10 district court did not abuse its discretion in finding that Plaintiff did not show good

11 cause for reinstatement. [CN 3-5] See Summit Elec. Supply Co. v. Rhodes & Salmon,

12 P.C., 2010-NMCA-086, ¶ 7, 148 N.M. 590, 241 P.3d 188 (providing that under Rule

13 1-041(E)(2), the party seeking reinstatement following dismissal must make a

14 showing of good cause as to why the case should be reinstated); see id. (recognizing

15 that the standard is whether a party “is ready, willing, and able to proceed with the

16 prosecution of his claim and that the delay in prosecution is not wholly without

17 justification” (internal quotation marks and citation omitted)); see id. ¶ 9 (stating that

18 this Court reviews the district court’s determination as to good cause shown for an

19 abuse of discretion).


                                               3
 1   {4}   In response to our notice of proposed disposition, Plaintiff does not contend that

 2 it established that the delay in prosecution was not wholly without justification.

 3 Instead, Plaintiff contends: (1) it “served discovery the day before the dismissal was

 4 received by the parties[,]” so it is Plaintiff’s position that “the fact that discovery was

 5 served before the case was dismissed causes the analysis of delay ‘wholly without

 6 justification’ to be moot” [MIO 1-2]; and (2) during the hearing on Plaintiff’s motion

 7 to reinstate the case, the district court improperly conflated Rule 1-041(E)(1) and Rule

 8 1-041(E)(2) [MIO 2-8].

 9   {5}   We are not persuaded by Plaintiff’s contentions. The record reflects that

10 Plaintiff filed a certificate of service on October 13, 2015, certifying that Plaintiff

11 emailed its discovery responses to opposing counsel on October 12, 2015. [RP 129]

12 The next court filing occurred on April 13, 2016, at 4:03:30 P.M., when the district

13 court entered the relevant disposition order for lack of prosecution. [RP 130] Later

14 that day, at 4:57:46 P.M., Plaintiff filed a certificate of service certifying that it

15 emailed discovery requests to opposing counsel on April 13, 2016. [RP 131] More

16 than 180 days had passed between the entry of the certificate of service on October

17 13, 2015, and the entry of the district court’s disposition order for lack of prosecution

18 on April 13, 2016, without any significant action in connection with the claims in this

19 case. Therefore, we conclude that the district court acted within its authority, as set


                                                4
 1 forth in Rule 1-041(E)(2), to dismiss the case without prejudice. See id. (“Unless a

 2 pretrial scheduling order has been entered pursuant to Rule 1-016 NMRA, the court

 3 on its own motion or upon the motion of a party may dismiss without prejudice the

 4 action or any counterclaim, cross-claim or third party claim if the party filing the

 5 action or asserting the claim has failed to take any significant action in connection

 6 with the action or claim within the previous one hundred and eighty (180) days.”).

 7   {6}   Despite Plaintiff’s insistence that the district court conflated Rule 1-041(E)(2)

 8 with Rule 1-041(E)(1) during the hearing on Plaintiff’s motion for reinstatement [MIO

 9 2-8], the record does not support this assertion. See Rule 1-041(E)(2) (discussed

10 above); Rule 1-041(E)(1) (“Any party may move to dismiss the action, or any

11 counterclaim, cross-claim or third-party claim with prejudice if the party asserting the

12 claim has failed to take any significant action to bring such claim to trial or other final

13 disposition within two (2) years from the filing of such action or claim.”). The record

14 reflects that the April 13, 2016 order was entered pursuant to Rule 1-041(E)(2),

15 resulting in a dismissal without prejudice. [RP 130]

16   {7}   To have the case reinstated, Plaintiff was required to show good cause. See

17 Summit, 2010-NMCA-086, ¶ 7 (stating that good cause is established by a showing

18 that the party is ready, willing, and able to proceed with the prosecution of its claim,

19 and that the delay in prosecution is not wholly without justification); see also Rule 1-


                                                5
 1 041(E)(2) (“Within thirty (30) days after service of the order of dismissal, any party

 2 may move for reinstatement of the case. Upon good cause shown, the court shall

 3 reinstate the case and shall enter a pretrial scheduling order pursuant to Rule 1-016

 4 NMRA.”). Plaintiff did not meet its burden, so the district court denied its motion for

 5 reinstatement. [RP 211] As discussed in our notice of proposed disposition, in the

 6 absence of good cause, we cannot say that the district court erred in denying Plaintiff’s

 7 motion to reinstate the case or in denying Plaintiff’s motion to reconsider. [CN 4]

 8   {8}   For the reasons stated in our notice of proposed disposition and herein, we

 9 affirm.

10   {9}   IT IS SO ORDERED.


11                                                _____________________________
12                                                J. MILES HANISEE, Judge


13 WE CONCUR:



14 __________________________________
15 JONATHAN B. SUTIN, Judge


16 __________________________________
17 M. MONICA ZAMORA, Judge




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