Lowder v. Shoemaker
A-1-CA-34921
N.M. Ct. App.Sep 6, 2017Background
- Plaintiff Steven Lowder filed a complaint in April 2011; the case was largely inactive for years and was reinstated in November 2013.
- Plaintiff had not served defendants before reinstatement; service occurred in December 2013, ~2 years 8 months after filing.
- Defendant Brian Shoemaker moved to dismiss after reinstatement, initially on Rule 1-012(B)(6) and failure to join a necessary party; reply and later motion for reconsideration argued dismissal for lack of prosecution under Rule 1-041(E).
- The district court dismissed the complaint with prejudice, citing, in part, Rule 1-041(E)(1) for lack of prosecution and noting counsel’s failure to appear at a hearing.
- On appeal, Lowder argued dismissal was improper because (1) the district court initially denied dismissal under one subsection, (2) dismissal was not based on lack of prosecution, and (3) he took post-reinstatement action (service and a summary judgment motion).
- The Court of Appeals affirmed, finding more than two years of inaction and no meaningful prosecution after reinstatement until Defendant’s dismissal motion, so dismissal under Rule 1-041(E)(1) was not an abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal was proper for lack of prosecution under Rule 1-041(E)(1) | Lowder: No dismissal motion on that ground; dismissal improper because he acted after reinstatement (service, summary judgment motion) | Shoemaker: Delay (over two years) and lack of excuse warranted dismissal under Rule 1-041(E)(1) | Court: Affirmed dismissal; substantial inaction and minimal post-reinstatement activity supported Rule 1-041(E)(1) dismissal |
| Whether dismissal was procedurally improper because district court previously denied other dismissal grounds | Lowder: District court earlier denied dismissal under E(2) and other bases, so later dismissal was improper | Shoemaker: Reconsideration raised E(1) and facts supported it; court may dismiss on proper grounds shown in record | Court: Reconsideration and record supported applying E(1); no procedural error |
| Whether counsel’s failure to appear was sole basis for dismissal | Lowder: Dismissal rested solely on counsel’s medical no-show at hearing | Shoemaker: Failure to prosecute and delays were independent bases for dismissal | Court: Although court noted counsel no-show, dismissal also rested on lack of prosecution under E(1) |
| Whether district court abused discretion given policy favoring merits | Lowder: Rights to a day in court and merits adjudication weigh against dismissal | Shoemaker: Rule serves to expedite and eliminate stale cases; lengthy inactivity justifies sanction | Court: Balanced factors and found no abuse of discretion; dismissal consistent with rule’s purposes |
Key Cases Cited
- Sarikey v. Sandoval, 404 P.2d 108 (N.M. 1965) (two-year inactivity triggers mandatory dismissal absent exceptions)
- Sewell v. Wilson, 641 P.2d 1070 (N.M. Ct. App. 1982) (dismissal may be an abuse of discretion where special circumstances or active pursuit after lapse exist)
- Summit Elec. Supply Co., Inc. v. Rhodes & Salmon, P.C., 241 P.3d 188 (N.M. Ct. App. 2010) (post-lapse actions to set a trial date can satisfy the rule and prevent dismissal)
- Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 800 P.2d 1063 (N.M. 1990) (appellant bears burden to clearly show trial court error)
- Benz v. Town Ctr. Land, LLC, 314 P.3d 688 (N.M. Ct. App. 2013) (abuse of discretion standard—reversal only where ruling is clearly contrary to facts and circumstances)