                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS April 27, 2009
                                                                Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                   Clerk of Court


    RICHARD R. MARTINEZ,

                Plaintiff-Appellant,

    v.                                                    No. 08-2167
                                              (D.C. No. 1:06-CV-01201-LH-RHS)
    JARED BLACKBURN; HYUNDAI                               (D. N.M.)
    MOTOR AMERICA,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before BRISCOE, BALDOCK, and HOLMES, Circuit Judges.



         Richard R. Martinez, appearing pro se, appeals from the district court’s

entry of judgment in favor of defendants Hyundai Motor America and one of its

employees, Jared Blackburn, on the ground that the suit was time-barred. We

have jurisdiction under 28 U.S.C. § 1291 and affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                          I

      While riding as a passenger in a Hyundai Elantra on October 16, 2002,

Mr. Martinez’s son, a disabled adult, was injured in an accident. A week later,

Mr. Martinez began discussions with Hyundai, seeking to settle an alleged

product-liability claim regarding the car’s air bag. The parties exchanged

numerous letters and, apparently, some telephone calls, all without reaching any

compromise. By letter dated August 4, 2005, Hyundai expressed regret that it

could not “informally resolve” the matter. R. at 49. Hyundai also explained to

Mr. Martinez that it disagreed with the sums he requested, expressed a belief that

its goodwill offer, apparently $1,000, would provide a fair remedy, and advised

him that “[s]hould you reconsider our offer or have any further questions

regarding our position, please do not hesitate to contact us.” Id.

      In February 2006, Mr. Martinez sent another letter to Hyundai, asking for

$15,823.73. In a letter dated November 8, 2006, Mr. Blackburn responded on

behalf of Hyundai that the matter had “been reviewed by all pertinent personnel

who have determined that we will be unable to offer any assistance.” Id. at 50.

      Shortly after receipt of Mr. Blackburn’s letter, on December 8, 2006,

Mr. Martinez initiated the underlying action pro se. After discovery, defendants

filed a motion for summary judgment. The district court granted the motion on

one of the three grounds defendants advanced, that New Mexico’s three-year

statute of limitations for personal injury claims, N.M. Stat. § 37-1-8, had run prior

                                         -2-
to the filing of the action, and that there was no reason to toll the limitations

period. Mr. Martinez has appealed.

                                           II

      We review the district court’s entry of summary judgment de novo,

applying the same substantive legal standards as the district court. Simms v.

Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321,

1326 (10th Cir. 1999). Summary judgment “should be rendered if the pleadings,

the discovery and disclosure materials on file, and any affidavits show that there

is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c).

      Affording a liberal construction to Mr. Martinez’s pro se filings, see Hall v.

Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991), we see no error in the

district court’s resolution of this case. Despite the fact that Mr. Martinez filed his

complaint on a court form for claims arising under 42 U.S.C. § 1983, he asserted

no constitutional violations, but only a tort claim under a theory of product

liability. Accordingly, the district court concluded there was no state action and

implicitly took jurisdiction under 28 U.S.C. § 1332(a) based on diversity of

citizenship. 1 In diversity cases, the statute of limitations of the forum state, here

New Mexico, governs personal-injury actions. Dow Chem. Corp. v. Weevil-Cide

1
       Mr. Martinez is a citizen of New Mexico, and defendants apparently are
citizens of California. The amount-in-controversy requirement, $75,000, appears
satisfied, as Mr. Martinez sought $180,000 in damages.

                                           -3-
Co., 897 F.2d 481, 483-84 (10th Cir. 1990). In New Mexico, “[a]ctions must be

brought . . . for an injury to the person . . . within three years.” N.M. Stat.

§ 37-1-8. This statute applies to personal injuries arising in product-liability

cases. See Sawtell v. E.I. du Pont de Nemours & Co., 22 F.3d 248, 249 (10th Cir.

1994) (applying New Mexico law); Martinez v. Showa Denko, K.K., 964 P.2d 176,

181 (N.M. App. 1998).

      Mr. Martinez has not taken issue with, nor do we see error in, the district

court’s conclusion that the three-year period began running on the date of the

accident, October 16, 2002, or at the very latest approximately one week after the

accident, when he first contacted Hyundai about his son’s injuries and asserted a

product-liability claim. Thus, the limitations period ended sometime in October

2005, but Mr. Martinez did not file this action until December 8, 2006,

approximately one year after that period had ended. He argues that defendants

stalled negotiations until after the limitations period had run and therefore he is

entitled to tolling of the statute of limitations. But this contention is fatally

undermined by the letter Hyundai wrote to him on August 4, 2005, nearly three

months before the end of the limitations period. Despite any alleged stalling that

occurred prior to that date, the August 4 letter made reasonably clear that

Hyundai considered negotiations to be at an end, leaving Mr. Martinez with

nearly three months in which to file his lawsuit before the limitations period

ended in mid- or late-October 2005. We see no indication that defendants

                                           -4-
induced Mr. Martinez to forego filing suit by fraudently leading him to believe

that the matter would be settled until after the limitations period, a situation that

the New Mexico Supreme Court has suggested might warrant tolling. See

Crumpton v. Humana, Inc., 661 P.2d 54, 55 (N.M. 1983). Indeed, as in

Crumpton, where the court concluded that the plaintiff was not entitled to tolling

during the parties’ period of settlement negotiations, Hyundai conveyed a final

offer of compromise within the limitations period—the August 4 letter, which

reiterated Hyundai’s belief that its goodwill offer would provide a fair remedy

and invited Mr. Martinez to reconsider his rejection of that offer. We therefore

see no evidence that the actions of Hyundai were fraudulent and induced

Mr. Martinez into delaying the filing of his action until after the limitations

period expired.

      Mr. Martinez further argues that he simply was unaware of the statute of

limitations. This, however, does not merit tolling. Coslett v. Third St. Grocery,

876 P.2d 656, 664 (N.M. App. 1994).

      Finally, Mr. Martinez’s contention that he was never given the opportunity

to personally present and argue his case before a judge or jury does not amount to

a deprivation of due process. The propriety of deciding a case by summary

judgment, and doing so without a hearing, are well-established judicial

procedures. See Fed. R. Civ. P. 56 (setting forth summary judgment criteria);

Shannon v. Graves, 257 F.3d 1164, 1167 (10th Cir. 2001) (stating that the

                                          -5-
Seventh Amendment right to a jury trial “is not violated by proper entry of

summary judgment, because such a ruling means that no triable issue exists to be

submitted to a jury”); Geear v. Boulder Cmty. Hosp., 844 F.2d 764, 766 (10th Cir.

1988) (explaining that a party’s right to be heard on summary judgment “may be

fulfilled by the court’s review of the briefs and supporting affidavits and

materials submitted to the court”). Moreover, there is no indication that the

parties’ written materials were insufficient to inform the district court’s

disposition. 2

                                          III

       The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     Jerome A. Holmes
                                                     Circuit Judge




2
        Mr. Martinez states that because his documentation was submitted to the
district court through and at the request of opposing counsel, “[i]t is reasonable to
question that all documentation we provided to opposing coun[sel] was presented
in its entirety to the judge.” Aplt. Br. at 3. But even assuming such an
arrangement existed, Mr. Martinez has not identified any documents that opposing
counsel failed to provide to the district court on his behalf.

                                          -6-
