Barbeau v. HoppenrathBarbeau v. Hoppenrath
{1} Plаintiffs Ronald and Leora Barbeau (Barbeaus) originally filed their personal injury claim (first complaint) against Defendant Kim Hoppenrath (Hoppenrath) and Farmers Insurance Company of Oregon in the United States District Court for the District of Oregon (Oregon federal court) two days before the New Mexico statute of limitations on the claim expired. After the federal magistrate dismissed the suit and denied the motion to transfer venue to New Mexico, Barbeaus filed a second complaint in New Mexico district court attempting to avail themselves of the New Mexico Savings Statute, NMSA 1978, § 37-1-14 (1880). The district court granted summary judgment to Hoppenrath and dismissed the ease with prejudice. Barbeaus appeal. We affirm.
I. STANDARD OF REVIEW
{2} The standard of review for a motion for summary judgment is whether there are any genuine issues of material fact and whether the moving party is entitled to summary judgment as a matter of law. Williams v. Cent. Consol. Sch. Dist.,
II. BACKGROUND
{3} In response to Barbeaus’ second complaint, Hoppenrath filed a motion for summаry judgment, to which she attached Bar-beaus’ first complaint and the entire order entered by the federal magistrate; neither was contested by Barbeaus. The first complaint alleges that Barbeaus were citizens оf Oregon and that one of the defendants, Farmers Insurance Company of Oregon, was a citizen of Oregon. Given the nature of the cause of action, the only arguable basis for federal court jurisdiction would bе diversity of citizenship. 28 U.S.C. § 1332 (1996). By alleging that the plaintiffs and one of the defendants were all citizens of Oregon, Bar-beaus defeated diversity and eliminated subject matter jurisdiction. Therefore, the claim was clearly imprоperly filed in Oregon federal court.
{4} The federal magistrate’s order provides additional information about the prosecution of the case in Oregon. After Hoppenrath filed her motion to dismiss the first comрlaint on jurisdictional grounds, Bar-beaus conceded that there was no personal jurisdiction in Oregon and then filed a motion to transfer venue to New Mexico pursuant to 28 U.S.C. § 1406(a) (1996). Section 1406(a) permits federal cоurts, “in the interest of justice,” to transfer cases to the district in which the case should have been brought. The federal magistrate observed that the attorney for Barbeaus “knew or should have known that there was not subjeсt matter jurisdiction at the time he filed the case.” The federal magistrate, recognizing that failing to transfer could result in the inability of Barbeaus to recover due to the statute of limitations, nonetheless refused to transfer because he found that Barbeaus’ counsel “was not diligent in this case.” The federal magistrate dismissed the case for lack of personal and subject matter jurisdiction, and denied the motion to transfer venuе.
{5} Barbeaus then re-filed their action in New Mexico district court within the six-month time limit pursuant to Section 37-1-14. They also filed a motion for summary judgment. Before the district court heard the motions, the parties stipulated to the fоllowing facts:
(1) Barbeaus were injured on October 8, 1995, in an automobile accident in Bernalillo County, New Mexico.
(2) On October 6, 1998, Barbeaus filed a complaint against Hoppenrath and Farmers Insurance Compаny of Oregon in Oregon federal court.
(3) On February 3, 1999, Federal Magistrate Coffin dismissed the ease for lack of personal and subject matter jurisdiction.
(4) Hoppenrath was a resident of Wisconsin and had no conneсtions to Oregon.
(5) On May 4,1999, the case was re-filed in New Mexico.
{6} At the hearing, the district court heard the arguments of the parties. Without explaining its rationale, the district court entered an order granting Hoppenrath’s motion for summary judgment and dismissing the case against Bаrbeaus with prejudice. We review the district court’s order de novo.
III. ANALYSIS
{7} The New Mexico Savings Statute reads as follows: “If, after the commencement of an action, the plaintiff fail therein for any cause, except negligence in its prosecution, and a new suit be commenced within six months thereafter, the second suit shall, for the purposes herein contemplated, be deemed a continuation of the first.” Sectiоn 37-1-14. There is no dispute that the second suit was timely filed.
{8} Hoppenrath argues for affirmance urging this Court to hold that the New Mexico Savings Statute does not apply to out-of-state cases. We need not reaсh this issue and specifically decline to do so because we hold that Barbeaus were negligent in the prosecution of their case and, thus, the New Mexico Savings Statute does not apply.
{9} Barbeaus cоntend that the statute does apply to their case because they were not negligent in its prosecution. First, they argue that the federal magistrate order cannot
{10} Barbeaus also argue that a party should not be penalized for filing in an improper forum because the choice of forum should be left to the discretion of the plaintiff and thаt in New Mexico negligence in prosecution only applies to cases that are dismissed for failure to actually prosecute citing to Gathman-Matotan Architects & Planners, Inc. v. State Dep’t of Fin. Admin.,
{11} We agree with Barbeaus that courts should not second guess an attorney’s rationale in filing in one jurisdiction or another; however, whatever forum chosen must at least arguably provide personal and subject matter jurisdiction. In this case, Barbeaus waited to file their complaint until two days before the expiration of the statute of limitations. They defeated subject matter jurisdiction by the very allegations in their complaint and then conceded lack of рersonal jurisdiction. Certainly, if Barbeaus’ attorney was unsure of which court would have jurisdiction, he could have filed the case simultaneously in New Mexico and Oregon; this becomes particularly important in light of the extremely short period of time remaining before expiration of the statute of limitations. While Barbeaus would like us to view their actions as strategic, we view them as demonstrating a clear disregard of the elemеntary requirements of jurisdiction.
{12} Consequently, the key issue before this Court is whether Barbeaus’ actions rise to the level of negligent prosecution of their case. Barbeaus would have us hold that “negligence in its prosеcution” is limited to only those cases where the action is filed but not actually prosecuted, relying on Gathman-Matotan. We disagree. Gathman-Matotan characterizes Section 37-1-14 as “a tolling statute, which оperates to suspend the running of an otherwise applicable statute of limitations when an action is timely commenced and later dismissed, except when the dismissal is based on a failure to prosecutе the action with reasonable diligence.” Id. at 493-94,
{13} The Iowa Supreme Court in Sautter v. Interstate Power Co.,
{14} In White v. Tucker,
{15} We agree with the reasoning in these cases. The Savings Statute is intended to protect those who prosecute their action in
{16} The district court had before it the first complaint, the federal magistrate order, and the stipulated facts, which together support the conclusion that Barbeaus were negligent in the prosecution of their case. Two days before the expiration of the statute of limitations, Barbeaus filed their first complaint, which on its face defeated subjеct matter jurisdiction, and then conceded that there was no personal jurisdiction over the remaining defendant. The Barbeaus made no showing that the filing in Oregon federal court was an innocent mistake or an erroneous guess at an elusive jurisdictional fact known only to the defendants or any other circumstance that might serve to excuse what otherwise appears clearly to be negligence. Under the undisputed facts of this case, there was negligence in prosecution as a matter of law. The district court properly granted summary judgment.
IV. CONCLUSION
{17} We do not decide whether the New Mexico Savings Statute applies to оut-of-state cases because in this case, the New Mexico Savings Statute is clearly inapplicable based on Barbeaus’ negligent prosecution of the case. We affirm the district court’s grant of summary judgment to Hoppenrath and the dismissal with prejudice of Barbeaus’ complaint.
{18} IT IS SO ORDERED.