284 P.3d 389
N.M. Ct. App.2012Background
- Foster injured July 18, 2006 at Bloomfield Nursing and Rehabilitation in Bloomfield, NM.
- On July 1, 2009, Foster filed a federal diversity action naming five defendants.
- The federal court dismissed November 18, 2009 for lack of subject matter jurisdiction due to non-diverse citizenship.
- Foster refiled in New Mexico state district court on December 7, 2009 seeking a continuation under NMSA 37-1-14.
- Defendants moved for summary judgment arguing the action was untimely and not saved by the saving statute; the district court granted partial summary judgment.
- The New Mexico Court of Appeals held the district court erred in finding negligence in prosecution and time-bar; the case was remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 37-1-14 applies to save Foster’s suit from time-bar based on federal dismissal. | Foster is entitled to saving under § 37-1-14 as a continuation of the federal action. | Foster’s federal suit was dismissed due to lack of jurisdiction stemming from non-diverse parties, alleging negligence in prosecution precludes saving. | Yes; § 37-1-14 applies and negates time-bar. |
| Whether Foster was negligent in prosecuting the federal case. | Foster did not act negligently; filing in federal court was not in bad faith. | Foster had knowledge defeating diversity, showing negligence in prosecution. | Defendants failed to prove negligence; no prima facie showing of negligence. |
| Whether prior district court dismissal for lack of prosecution affects applicability of saving statute here. | Dismissal for lack of prosecution does not preclude saving under § 37-1-14 if timely refiling. | Such dismissal might bar saving if regarded as negligence. | Dismissal without prejudice for lack of prosecution does not bar saving under § 37-1-14; it leaves the action as if not brought. |
Key Cases Cited
- Amica Mut. Ins. Co. v. McRostie, 2006-NMCA-046 (N.M. Ct. App. 2006) (liberal saving statute purpose; protects diligent suitors)
- Barbeau v. Hoppenrath, 2001-NMCA-077 (N.M. Ct. App. 2001) (negligence in prosecution limits saving statute protection)
- Shell Rocky Mountain Prod., LLC v. Ultra Res., Inc., 415 F.3d 1158 (10th Cir. 2005) (corporate citizenship and principal place of business determinations for diversity jurisdiction)
- Barbeau v. Hoppenrath, 2001-NMCA-077 (N.M. Ct. App. 2001) (negligence in forum choice analysis and saving statute applicability)
- Gathman-Matotan Architects & Planners, Inc. v. State Dep’t of Fin. & Admin., 109 N.M. 492, 787 P.2d 411 (N.M. 1990) (saving statute and non-negligent dismissal context)