UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

CHRISTINA HERRERA, 

 Plaintiff - Appellant, 

v. 

LAS CRUCES PUBLIC SCHOOLS; 

BELINDA LOPEZ; CRISTINA 

SALAZAR, 

 Defendants - Appellees. 

No. 16-2179 

(D.C. No. 2:16-CV-00034-WJ-CG) 

(D. N.M.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BRISCOE, HOLMES, and PHILLIPS, Circuit Judges. 

_________________________________ 

Christina Herrera appeals the district court’s dismissal of her action as 

untimely filed. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the 

dismissal but remand with directions for the district court to enter its dismissal 

without prejudice. 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

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 This order and judgment is not binding precedent, 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

June 13, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

I. BACKGROUND

 Ms. Herrera filed an action in New Mexico state court against her former 

employer, Las Cruces Public Schools, and two former co-workers. She asserted three 

claims: (1) “Disability Discrimination and Retaliation”; (2) “Retaliatory Discharge”; 

and (3) “Intentional Infliction of Emotional Distress, and Prima Facie Tort.” Aplt. 

App. at 16, 23, 24 (capitalization omitted). In her first claim, she alleged that her 

“action [was] for damages under The New Mexico Human Rights Act [(NMHRA)],” 

id. at 16, and that she had received an order of nondetermination from the Human 

Rights Bureau (HRB) of New Mexico’s Department of Workforce Solutions on a 

charge of disability discrimination and retaliation she had filed.1

 She also alleged 

that Las Cruces Public Schools had “discriminated and retaliated against [her] . . . for 

requesting Family Medical leave,” id. at 18, and later referenced the common 

acronym for the federal Family Medical Leave Act, “FMLA,” id. at 22. 

Defendants removed the case to the United States District Court for the 

District of New Mexico, asserting federal-question jurisdiction under 28 U.S.C. 

§ 1331 based on the presence of an FMLA claim, and diversity jurisdiction under 

28 U.S.C. § 1332 based on allegations that Ms. Herrera was an Arizona resident, all 

 1

 New Mexico statutes, New Mexico court rules, and various judicial decisions 

refer to the “HRB,” the “Human Rights Commission,” the “commission,” the 

“NMHRC,” the “HRC,” the “Human Rights Division,” the “Division,” the 

“NMHRD,” and the “HRD.” We view these as interchangeable synonyms for 

purposes of legal analysis but retain their use throughout our disposition when 

quoting from or discussing a source that uses them. We refer only to the “HRB” 

when discussing the facts of Ms. Herrera’s case. 
3 

defendants were New Mexico residents, and the amount in controversy exceeded the 

statutory minimum of $75,000. Defendants also filed a motion to dismiss the first 

and second claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state 

a claim upon which relief can be granted. Defendants argued that Ms. Herrera filed 

those two claims beyond the ninety-day limitations period provided for in N.M. Stat. 

Ann. § 28-1-13(A) and Rule 1-076(D) of the New Mexico Rules Annotated (NMRA). 

The statute provides that “[a] person aggrieved by an order of the [human rights] 

commission may obtain a trial de novo by filing a notice of appeal in the district 

court of the county where the discriminatory practice occurred or where the 

respondent does business.” N.M. Stat. Ann. § 28-1-13(A). “The notice of appeal 

must be filled within ninety days from the date of service of the commission’s order.” 

Id. (emphasis added). 

Materially identical provisions exist in the NMRA. Rule 1-076(B) states: “An 

appeal from the Human Rights Commission may be taken by filing a notice of appeal 

in the form of a complaint in the district court in the manner provided by these rules 

for the filing of a civil action in the district court.” Rule 1-076(B) NMRA. As 

relevant here, Rule 1-076(D) provides that “[a]n appeal from the Human Rights 

Commission shall be taken within ninety (90) days from the date of service on the 

parties to the administrative proceeding of: (1) the commission’s order.” 

Rule 1-076(D)(1) NMRA (emphasis added). Neither the statute nor the rule defines 

the key phrase “date of service.” However, Rule 1-005(B) provides that when 
4 

service is required or permitted to be made by mailing, “[s]ervice . . . is complete 

upon mailing.” Rule 1-005(B) NMRA. 

The nondetermination order Ms. Herrera appealed from was dated 

September 2, 2015. In her complaint, she alleged that the order was mailed on 

September 2, 2015, and that she received it on or about September 6, 2015. She filed 

her complaint on Monday, December 7, 2015, which was ninety-six days after the 

date it was mailed. Based on those dates and their view that “date of service” meant 

“date of mailing,” defendants argued that her complaint was untimely and the two 

NMHRA claims should be dismissed. 

Ms. Herrera responded that the order was mailed to her attorney on Friday, 

September 4, and probably received on Tuesday, September 8, given that 

September 6 was a Sunday and the following day, September 7, was a federal holiday 

(Labor Day) with no mail delivery. In support, she submitted the envelope in which 

the order was mailed to her attorney bearing a postage-machine stamp dated 

September 4, 2015. She concluded that if measured from either September 6, 7, or 

8—all of which she claimed were possible dates of receipt—her December 7 filing of 

the complaint was timely under Rule 1-006 NMRA, which adds three days to the end 

of a time period when service is made by mail and further extends the time period 
5 

when the third day falls on a Saturday, Sunday, or legal holiday to “the next day that 

is not a Saturday, Sunday, or legal holiday.” Rule 1-006(C).2

In resolving the dispute, the district court relied on Vigil v. City of Espanola, 

No. CIV 08-0980 JB/RLP, 2009 WL 1300746, at *10–11 (D.N.M. Feb. 18, 2009) 

(unpublished), which held that “service” in Rule 1-076(D) means “date of mailing” 

within “the sense conveyed in rule 1-005,” under which “service by mail is complete 

on the date of mailing,” Rule 1-005(B) NMRA. The district court determined that in 

Ms. Herrera’s case, the date of service was either September 2 (the date on the order 

and, presumably, the mailing date), September 3, or September 4 (the date stamped 

on the envelope Ms. Herrera submitted), and when measured from those dates, the 

complaint was due on December 1, 2, or 3. Aplt. App. at 40–41 & n.1. Hence, 

Ms. Herrera’s December 7 complaint was untimely. The court also observed that 

Rule 1-006’s time-computation rules do not apply when they are “expressly 

supersede[d]” by “another Supreme Court rule of procedure,” Rule 1-006(A) NMRA, 

and that Rule 1-076(D) expressly superseded Rule 1-006’s three-day time extension 

for mail service by stating “[t]he three (3) day mailing period set forth in Rule 1-006 

does not apply to the time limit for filing a notice of appeal,” Rule 1-076(D) NMRA. 

 2

 In her response to the motion to dismiss, Ms. Herrera relied on a similar 

extension of the last day of a time period found in Rule 1-006(A) but which is not 

specifically tied to a three-day extension period. The district court’s discussion 

reflects that reliance, but for analytical purposes, there is no material difference 

between the last-day portions of Rule 1-006(A) and Rule 1-006(C). 
6 

The court further found no equitable reason to toll the limitations period 

because Ms. Herrera had not demonstrated any extraordinary circumstances that 

prevented her from timely filing her complaint, there was no indication that the HRB 

failed to notify her of the nondetermination order, and she had not asked the court “to 

create some novel equitable basis to exempt her from [the] statute of limitations.” 

Aplt. App. at 42. The court therefore concluded that her NMHRA “claims [were] 

time barred.” Id. The court also entered a separate judgment dismissing “all claims 

in [the] action . . . WITH PREJUDICE, thus disposing of [the] case in its entirety.” 

Id. at 44. 

Ms. Herrera filed a motion for relief from judgment under Federal Rule of 

Civil Procedure 59(e) to which she attached two affidavits. In one, Ms. Herrera 

attested that she had received the nondetermination order on September 10. In the 

other, her attorney attested to receipt of her copy on September 8 in an envelope 

postmarked September 4. In denying the Rule 59(e) motion, the district court 

disagreed with Ms. Herrera that Rule 1-006’s last-day exclusion applied, explaining 

that by the court’s calculations, the last day of the period did not fall on a Saturday, 

Sunday, or legal holiday. The court also rejected her argument that it had improperly 

relied on September 4 as a possible start date for calculating the complaint’s 

timeliness. 

Next, the court disagreed that delay in receipt warranted tolling of the 

deadline. The court reiterated that the limitations period began to run on the date of 

mailing, not receipt, and that even if Ms. Herrera’s receipt of the order was delayed 
7 

by eight days (from September 2 till September 10), she still had eighty-two days to 

timely file her complaint. This distinguished her case from those she relied on, 

which involved limitations periods that expired due to inevitable systemic 

complications or an agency error that cause the plaintiff’s attorney to not receive 

notice of the order until the limitations period had expired. The court also concluded 

that she was not entitled to equitable tolling on the ground that the nondetermination 

order informed her that her notice of appeal had to be filed in state court “WITHIN 

NINETY (90) DAYS OF YOUR RECEIPT OF THIS ORDER,” Aplt. App. at 15. 

The court noted that the order also referenced § 28-1-13(A)’s requirement that the 

ninety-day period ran “from the date of service of this Order of Nondetermination,” 

Aplt. App. at 14, and reasoned that, as in Vigil, 2009 WL 1300746, at *13, the law 

was the statute, not the HRB’s warning, and it was up to Ms. Herrera and her attorney 

to investigate further before relying on the warning. Finally, to the extent 

Ms. Herrera sought equitable estoppel based on the HRB’s warning, the court 

concluded that she had not met state-law criteria for such relief, in particular the 

requirement to establish “affirmative misconduct on the part of the government.” 

Aplt. App. at 60 (internal quotation marks omitted). This appeal followed.3

 3

 We note that, contrary to 10th Cir. R. 10.3(C)(7), 10.3(D)(2), and 30.1(B)(1), 

Ms. Herrera’s appendix does not include her notice of appeal, which designated only 

the district court’s order denying her Rule 59(e) motion as the order appealed, or any 

of the other documents she was required to include: (1) defendants’ motion to 

dismiss, her response to it, and defendants’ supporting reply; and (2) her Rule 59 

motion and defendants’ response to it (she did not file a reply). We may, however, 

take judicial notice of the omitted filings. See Guttman v. Khalsa, 669 F.3d 1101, 

(continued) 
8 

II. SUBJECT MATTER JURISDICTION

 On appeal, Ms. Herrera first contends that the district court lacked federal 

question jurisdiction because she did not plead any federal claims. Defendants 

respond that an FMLA claim is evident in the complaint. We need not resolve this 

dispute because, on de novo review, Knight v. Mooring Capital Fund, LLC, 749 F.3d 

1180, 1183 (10th Cir. 2014), we conclude that the district court had diversity 

jurisdiction under 28 U.S.C. § 1332(a). 

A district court may exercise removal jurisdiction over “any civil action 

brought in a State court of which the district courts of the United States have original 

jurisdiction.” 28 U.S.C. § 1441(a). The parties do not dispute, nor is there any 

question, whether the two requirements for diversity jurisdiction under § 1332(a) 

were met here—complete diversity of citizenship between the parties and adequate 

proof of jurisdictional facts suggesting that the amount in controversy exceeded 

 

1127 n.5 (10th Cir. 2012) (stating that we can take judicial notice of filings in the 

district court even when they are not included in the record on appeal). We elect to 

do so here despite the discretion we have to decline to consider issues for which an 

inadequate appendix is provided. See 10th Cir. R. 10.3(B) and 30.1(B)(3); see also 

Burnett v. Sw. Bell Tel., L.P., 555 F.3d 906, 910 (10th Cir. 2009) (explaining that 

“we regularly decline to hear claims predicated upon record evidence not included in 

the appendix,” and summarily affirming on that basis). We do acknowledge that 

Ms. Herrera submitted her Rule 59(e) motion and defendants’ response to it as part of 

her docketing statement, but she also should have included them in the appendix. 

Finally, many of the appendix citations in Ms. Herrera’s opening appellate brief 

appear erroneous, which has made this court’s work more difficult and less efficient. 
9 

$75,000.4

 But as Ms. Herrera points out, under what is commonly referred to as the 

forum-defendant rule, “[a] civil action otherwise removable solely on the basis of 

[diversity] jurisdiction . . . may not be removed if any of the parties in interest 

properly joined and served as defendants is a citizen of the State in which such action 

is brought.” Id. § 1441(b)(2). 

Facially, the forum-defendant rule might serve as a bar to removal in this case: 

all three defendants were served. But Ms. Herrera did not contest removal on this (or 

any other) basis before the district court. And as she concedes, the forum-defendant 

rule is a procedural rule, not a jurisdictional one, and can therefore be waived if the 

plaintiff does not raise a § 1441(b)(2) objection in the district court but instead 

proceeds with the action. See Am. Oil Co. v. McMullin, 433 F.2d 1091, 1093–95 

(10th Cir. 1970) (concluding that prior, substantially similar version of § 1441(b)(2) 

was procedural, not jurisdictional, and therefore waivable); see also Brazell v. Waite, 

 4

 In their notice of removal, defendants pointed out that Ms. Herrera sought a 

variety of damages, including lost earnings and punitive damages, and posited that 

“[a]n award of past and future earnings alone would satisfy the $75,000.00 

requirement” given that her annual salary was approximately $56,000 and she had 

last been employed with the school district more than four years ago. Aplt. App. 

at 29–30. An “estimate of the potential damages [derived] from the allegations in the 

complaint” is an acceptable means of “proving jurisdictional facts that [make] it 

possible that $75,000 [is] in play.” McPhail v. Deere & Co., 529 F.3d 947, 955 

(10th Cir. 2008). 
10 

525 F. App’x 878, 884 (10th Cir. 2013) (same regarding current version of 

§ 1441(b)(2))5

.

6

Ms. Herrera admits that she did not seek remand on this basis but asserts that it 

was because, by its terms, the forum-defendant rule applies only where a civil action 

is “removable solely on the basis of [diversity] jurisdiction,” 28 U.S.C. § 1441(b)(2) 

(emphasis added). She claims she took defendants at their word when they also 

asserted federal-question jurisdiction, the existence of which foreclosed reliance on 

the forum-defendant rule. This argument is not credible. Ms. Herrera well knew 

whether she raised a federal claim under FMLA, and in fact she now disavows that 

she had. If she wanted a remand, she surely could have argued in the district court 

that there was no federal question jurisdiction and that, with diversity as the only 

remaining basis for the district court’s jurisdiction, the forum-defendant could be 

properly invoked. She did not do so and therefore waived the protections of the 

forum-defendant rule. 

 5

 Consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1, we cite to our 

unpublished decision in Brazell and to other unpublished Tenth Circuit decisions 

only for their persuasive value. 

6

 Most other circuits to consider the issue have reached the same conclusion. 

See Lively v. Wild Oats Market, Inc., 456 F.3d 933, 940 (9th Cir. 2006) (collecting 

cases). Further, some courts have held that a plaintiff waives the protections of the 

forum-defendant rule if she fails to file a motion to remand based on any defects 

other than subject matter jurisdiction within 30 days of removal, as required by 

28 U.S.C. § 1447(c). See, e.g., Lively, 456 F.3d at 942; Handelsman v. Bedford Vill. 

Assocs. Ltd. P’ship, 213 F.3d 48, 50 n.2 (2d Cir. 2000). We need not consider the 

time limit because Ms. Herrera advanced no objections to removal in the district 

court, within 30 days of removal or otherwise. 
11 

III. MERITS

A. Dismissal of NMHRA claims

1. The jurisdictional nature of the limitations issue 

At the outset, we must first address Ms. Herrera’s argument that the district 

court erred in considering evidence outside of the complaint and making findings of 

fact on a Rule 12(b)(6) motion. See Aplt. Opening Br. at 30–33. To be sure, a 

statute of limitations can be raised as an affirmative defense under Rule 12(b)(6) 

when the time bar is clear from the face of the complaint. Sierra Club v. Okla. Gas 

& Elec. Co., 816 F.3d 666, 671 (10th Cir. 2016); Aldrich v. McCulloch Props., Inc., 

627 F.2d 1036, 1041 n.4 (10th Cir. 1980). But the New Mexico Supreme Court has 

explained that “the timely filing of a notice of appeal from an NMHRA 

administrative order is effective to give the district court jurisdiction to try the case 

de novo under [N.M. Stat. Ann.] Section 28-1-13.” Mitchell-Carr v. McLendon, 

980 P.2d 65, 70 (N.M. 1999) (emphasis added) (internal quotation marks omitted). 

“[T]he district court must dismiss an NMHRA claim if the prerequisites of obtaining 

an order from the Division and appealing that order within thirty days are not 

satisfied.” Id. (considering prior version of statute with thirty-day limitations 

period). Whether Ms. Herrera’s complaint was timely filed, therefore, is a 

jurisdictional issue. And in that circumstance, Federal Rule of Civil Procedure 

12(b)(1), which allows the “defense . . . [of] lack of subject-matter jurisdiction” to be 

asserted “by motion,” is the proper procedural mechanism, not Rule 12(b)(6). 
12 

This is an important distinction because, as it turned out, defendants’ challenge 

to Ms. Herrera’s compliance with the limitations period was in the nature of a factual 

attack rather than a facial attack. A “facial attack” is based “on the complaint’s 

allegations as to subject matter jurisdiction [and] questions the sufficiency of the 

complaint,” whereas a factual attack goes beyond the complaint’s allegations “and 

challenge[s] the facts upon which subject matter jurisdiction depends.” Holt v. 

United States, 46 F.3d 1000, 1002–03 (10th Cir. 1995). 

Here, defendants sought dismissal based only on the allegations in the 

complaint and the nondetermination order, which was referenced in the complaint 

and attached to their dismissal motion. This gives the appearance of a facial attack. 

But the motion ultimately turned on varying factual allegations regarding the date the 

nondetermination order was mailed to and received by Ms. Herrera and her attorney 

and the legal significance of those dates. In fact, in her response to the motion, 

Ms. Herrera offered another document for the district court’s consideration—the 

envelope in which a copy of the nondetermination order was mailed to her attorney—

and made additional factual allegations regarding possible mailing and receipt dates 

that were later than the dates she alleged in her complaint (and more favorable to 

her). Hence, we construe defendants’ motion as a factual attack on the court’s 

subject matter jurisdiction. 

When considering a factual attack on subject matter jurisdiction mounted in a 

motion to dismiss, “a district court may not presume the truthfulness of the 

complaint’s factual allegations,” and it “has wide discretion to allow affidavits, other 
13 

documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.” 

Id. at 1003. Unless the jurisdictional issue is intertwined with the merits of the case, 

considering evidence outside the complaint does not convert the dismissal motion 

into one for summary judgment under Federal Rule of Civil Procedure 56. Id. The 

jurisdictional issue here was not intertwined with the merits of the case. 

Accordingly, we reject Ms. Herrera’s argument that the district court erred in 

considering documents outside of her complaint and making factual findings. 

2. Standard of review 

Our review of a Rule 12(b)(1) dismissal is de novo. Colo. Envtl. Coal. v. 

Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004). 

3. Meaning of “date of service” 

 Our first task on the merits of this appeal is to determine the meaning of the 

term “date of service” as used in N.M. Stat. Ann. § 28-1-13(A) and Rule 1-076(D)(1) 

NMRA. Despite measuring the ninety-day time limit from the service date, neither 

the statute nor the rule defines “date of service.” Plaintiff claims “date of service” 

means “date of receipt.” Defendants claim it means “date of mailing.” As noted, the 

district court sided with defendants, and so do we, bearing in mind that our task is not 

to reach our own judgment about New Mexico law but to “follow the most recent 

decisions of the state’s highest court.” Wade v. EMCASCO Ins. Co., 483 F.3d 657, 

665-66 (10th Cir. 2007). If the state’s highest court has not provided a controlling 

decision, we must “predict what the state supreme court would do” by “seek[ing] 

guidance from decisions rendered by lower courts in the relevant state, appellate 
14 

decisions in other states with similar legal principles, district court decisions 

interpreting the law of the state in question, and the general weight and trend of 

authority in the relevant area of law.” Id. at 666 (citations and internal quotation 

marks omitted). Neither party has asked us to certify any question of law to the New 

Mexico Supreme Court, nor are we inclined to. 

 Defendants contend that two New Mexico Supreme Court decisions hold “that 

the time for filing an appeal from an agency decision runs from the date the decision 

is entered or the date of service on the complainant’s attorney and that service is 

complete upon mailing.” Aplee. Response Br. at 20. We do not read those cases the 

same way. One of those cases, Maples v. State, 791 P.2d 788 (N.M. 1990), 

concerned the conflict between a New Mexico Supreme Court rule requiring an 

appeal to the judiciary from a ruling by the state Workers Compensation Hearing 

Officer to be filed “within thirty days from the filing of the order,” id. at 788 

(emphasis omitted), and a state statute that “allow[ed] filing thirty days after the 

order [was] mailed,” id. at 789. The court held that in “procedural matters such as 

time limitations for appeals, a rule adopted by the Supreme Court governs over an 

inconsistent statute,” and that the Supreme Court has “the power to set the time for 

all appeals from final orders, including appeals from final orders of administrative 

agencies.” Id. at 790 (internal quotation marks omitted).7

 The Maples court did not 

 7

 We do not have such a conflict here; the statute and the rule are materially 

identical. 
15 

touch on whether the time for appeal runs from the “date of service,” whether “on the 

complainant’s attorney,” as defendants suggest, Aplee. Response Br. at 20, or 

otherwise. Nor did Maples say anything about service being “complete upon 

mailing,” id. It merely identified the controlling rule, which measured the time for 

appeal from the date an order is filed, not from the “date of service.” 

 Defendants’ contention that service is complete upon mailing to a claimant’s 

attorney finds even less support in the other New Mexico Supreme Court case they 

rely on, American Automobile Ass’n v. State Corp. Commission, 697 P.2d 946 (N.M. 

1985) (AAA). In AAA, the court held only that a state rule of appellate procedure 

governed the time for an appeal from a state district court decision, and that a state 

rule of civil procedure governing the time for appealing an action by a state 

administrative body to a state district court was inapplicable. Id. at 947–48. AAA did 

not concern “date of service,” whether service is “complete upon mailing,” or even 

an appeal from a decision by a state administrative body.8

 For her interpretation that “date of service” equals “date of receipt,” 

Ms. Herrera leans heavily on two decisions. The first is from the New Mexico Court 

 8

 Defendants also point to James v. New Mexico Human Services Department, 

742 P.2d 530, 532 (N.M. Ct. App. 1987), for its rejection of an argument that the 

time for appealing an agency’s decision ran from the date the plaintiff received the 

decision because “it is virtually impossible to calculate appeal time when it runs from 

receipt of the decision rather than the date of the decision itself.” However, the 

controlling court rule at issue in James specifically provided that the time limit for an 

appeal is measured from “the date of the order, decision or action appealed.” Id. 

at 531 (quotation omitted). James is, therefore, materially distinguishable from this 

case. 
16 

of Appeals, Downer v. New Mexico Corrections Department, No. 30,602 (N.M. Ct. 

App. Dec. 29, 2010) (unpublished). In Downer, the district court determined that the 

plaintiff’s notice of appeal was untimely under Rule 1-076(D) and § 28-1-13(A). 

Downer, slip op. at 2. The court of appeals issued a calendar notice proposing 

summary reversal. In its memorandum opinion, the court found that the 

administrative decision informing the plaintiff that he had “ninety days from receipt

of the letter to appeal to the district court . . . was sufficient to preclude summary 

judgment on the issue of the timeliness of the appeal.” Id. at 3. 

In support of that conclusion, the appeals court cited to Ocana v. American 

Furniture Co., 91 P.3d 58 (N.M. 2004). In Ocana, the New Mexico Supreme Court 

reversed a grant of summary judgment based on a late notice of appeal under 

§ 28-1-13(A) and Rule 1-076(D) because the plaintiff’s attorney did not receive a 

copy of a no-probable-cause decision until after the limitations period had run. 

Id. at 67. The Court held that “[u]nder these facts, a fact-finder could find that the 

Division’s actions tolled the time limits.” Id. Ocana explicitly declined to “discuss 

whether the [limitations] period begins to run on the date the complainant actually 

receives notice of the no-probable-cause decision from the Division.” Id. 

Neither Downer nor Ocana sheds any light on the meaning of the term “date of 

service.” Ocana is explicitly a tolling case, and Downer is most properly viewed the 

same; the dispositions in both turned on the representation in the communication to 

the plaintiff or her attorney that receipt of the decision triggered the ninety-day 

period. And while Downer rejected the defendant’s contention “that the date of 
17 

service is the date the decision is mailed,” it did so “for the reasons stated in [the 

court’s] calendar notice.” Downer, slip op. at 3–4. 

In the calendar notice, the court of appeals reasoned that “the appeal procedure 

is not now clear” because both the nondetermination letter and an agency regulation 

indicated that the ninety-day period begins to run from the date the decision is 

received, not when it is mailed, as could be gleaned from applying Rule 1-005(B) to 

“date of service” in Rule 1-076(D). Downer, Notice Proposed Summary Disposition, 

at 3–5 (undated) (emphasis added).9

 Because of the lack of clarity, and because 

Downer had appealed within ninety days of receiving the decision, the court of 

appeals proposed to reverse the district court’s ruling that the appeal was untimely, 

citing New Mexico authority for the proposition that “only the most unusual 

circumstances beyond the control of the parties – such as error on the part of the 

court – will warrant overlooking procedural defects.” Id. at 5 (brackets and internal 

quotation marks omitted). It is therefore clear that the memorandum opinion in 

Downer did not decide whether “date of service” is the date of mailing or the date of 

receipt but elected to reverse on equitable grounds.10

 9

 We have obtained a copy of the calendar notice from the New Mexico Court 

of Appeals. 

10 Downer and all other unpublished New Mexico cases we cite in this 

decision are not precedential, but they “may be cited for any persuasive value.” Rule 

12-405(A) NMRA. 
18 

Finally, in a case decided after Downer, Haynes v. Presbyterian Healthcare 

Services, No. 34,489, 2015 WL 4366698 (N.M. Ct. App. June 30, 2015) 

(unpublished), cert. quashed, No. S-1-SC-35456 (N.M. Apr. 14, 2016), the New 

Mexico Court of Appeals suggested that Rule 1-076’s phrase “date of service” means 

date of mailing. In Haynes, the appeals court had issued a calendar notice proposing 

to affirm the district court’s dismissal of the plaintiff’s NMHRA claims for failure to 

file a timely appeal. Id. at *1. In its decision, the court described its calendar notice 

as “noting that Appellant’s complaint was filed in the district court ninety-one days 

after the New Mexico Human Rights Commission . . . issued its waiver[11] and that 

. . . § 28-1-13 . . . and Rule 1-076(D) . . . require the complaint be filed within ninety 

days.” Id. (emphasis added). And in the calendar notice, the court stated that the 

waiver was “issued and mailed” on the same day. Haynes, No. 34,489, Notice 

Proposed Summary Disposition, at 2 (N.M. Ct. App. May 28, 2015).12 Hence, by 

referring to the date of issue, which the calendar notice makes clear was the same as 

the mailing date, Haynes clearly stands for the proposition that service under both the 

statute and the rule is complete upon mailing.

13

 11 The date of service of “the director’s or complainant’s notice of waiver of 

the complainant’s rights to hearing before the Commission” is another event that 

triggers the ninety-day appeal period. Rule 1-076(D)(2) NMRA. 

12 As with Downer, we have obtained a copy of the calendar notice from the 

New Mexico Court of Appeals. 

13 Haynes also concluded that Rule 1-006’s three-day extension of the 

ninety-day period when service is made by mail was inapplicable under the express 

(continued) 
19 

The other case Ms. Herrera relies on for her view that “date of service” means 

“date of receipt” is DePaula v. Easter Seals El Mirador, No. 14-CV-252 MCA/SCY, 

2015 WL 12751708 (D.N.M. Jan. 27, 2015) (unpublished). In DePaula, the federal 

district court noted that Downer was decided after Vigil v. City of Espinosa, the case 

the district court had relied on in Ms. Herrera’s case, and found Downer persuasive 

for its tolling discussion, quoting from it at length and concluding that the plaintiff’s 

appeal was timely because it was filed exactly ninety days after he received the 

agency’s decision. Id. at *4. Hence DePaula is a tolling case. It does not assist us 

in determining the meaning of the term “date of service.” 

In addition to Haynes, we find Vigil helpful in predicting how the New Mexico 

Supreme Court would rule on the meaning of “date of service” in Rule 1-076(D) 

because it contains a considered and on-point analysis of the issue. In Vigil, the court 

reasoned that “rule 1-076 uses ‘service’ as that term is defined elsewhere in the 

[NMRA]” specifically in Rule 1-005 (“Service [by mail] is complete upon mailing”), 

and that “there is nothing in rule 1-076 that would command a different definition of 

‘service’ within its context.” Vigil, 2009 WL 1300746, at *10. The court found 

additional support for its view in the fact that deadlines for other types of appeals set 

out in the NMRA “always depend[] on the action of the agency or court,” not “on 

receipt or any other action by the parties.” Id. at *11. The court also relied on 

authority from other jurisdictions that in the service-of-process context, the burden of 

 

terms of Rule 1-076(D). As noted, the district court in Ms. Herrera’s case reached 

the same conclusion, which she has not challenged on appeal. 
20 

proving service is on the party invoking a court’s jurisdiction, but a rebuttable 

presumption of valid service “arises upon a showing that the statutes or rules 

prescribing the manner of service have been followed.” Id. at *12. This system 

“provides an effective way for [a] party to prove jurisdiction” and “prevents the 

injustice of allowing parties to thwart a court’s proper jurisdiction by making 

unsubstantiated allegations that they did not receive notice of an action.” Id. The 

court concluded that the plaintiff had not rebutted the presumption that proper service 

was made on the date the nondetermination order was mailed to her. Id.14

Based largely on Vigil and to a somewhat lesser extent on Haynes, we 

conclude that “date of service” in both Rule 1-076(D) and § 28-1-13(A) means “date 

of mailing” when service is effected by mailing. Here, the district court determined 

that the latest mailing date was September 4, and measured from that date, the 

ninety-day period ended on December 3. Because Ms. Herrera did not file her 

complaint until December 7, it was untimely. 

4. Ms. Herrera’s counterarguments 

Ms. Herrera offers a number of arguments why it is improper to follow Vigil’s 

interpretation of “date of service.” She first points out that the NMRA “govern the 

procedure in the district courts of New Mexico in all suits of a civil nature,” and 

 14 We note that in Montano v. Public Service Co. of New Mexico, 

No. 1:14-cv-00079 WJ/SCY, 2015 WL 12861177, at *2 (D.N.M. Aug. 3, 2015) 

(unpublished), the same district judge who later decided Ms. Herrera’s case followed

Vigil’s holding that “date of service” means “the date the Order [of] 

Non-Determination was mailed.” 
21 

“[e]xcept where [the NMRA] explicitly provide otherwise, the [NMRA] do not apply 

where there are contrary statutory provisions concerning special statutory or 

summary proceedings.” Rule 1-001(A) NMRA. Ms. Herrera posits that NMHRA 

proceedings appear to fit under Rule 1-001(A)’s “special statutory proceedings” 

exception, and that there is a contrary agency regulation that would override 

Rule 1-005(B)’s provision that service by mail is complete upon mailing. We 

disagree because, even assuming the truth of her premise (that NMHRA proceedings 

are “special statutory proceedings”), Ms. Herrera’s conclusion rests on a faulty 

reading of Rule 1-001, which renders the NMRAs inapplicable in the face of 

“contrary statutory provisions,” Rule 1-001(A) NMRA (emphasis added), not 

contrary agency regulations. 

 Next, Ms. Herrera contends that Rule 1-076(D) does not govern determination 

of “date of service” because Rule 1-076(H) provides that the NMRAs “apply to and 

govern the procedure in the district court for de novo appeals from the Human Rights 

Commission” only “[a]fter service of the complaint,” whereas service of the agency 

decision that triggers the ninety-day appeal period occurs prior to service of the 

complaint. We reject this argument. In Maples, the New Mexico Supreme Court 

stated in no uncertain terms that it has “the power to set the time for appeals from 

final orders, including appeals from final orders of administrative agencies.” 

791 P.2d at 790. In promulgating Rule 1-076(D), the Supreme Court did just that, 

and it can decide when the date of service occurs for purposes of “set[ting] its own 

time limitations for appeals.” Maples, 791 P.2d at 790. Part of deciding when the 
22 

date of service occurs is deciding whether to define “‘service . . . in the sense 

conveyed in rule 1-005.” Vigil, 2009 WL 1300746, at *11 (emphasis added). That 

occurs during the pendency of a case, not before the court acquires jurisdiction, as 

Ms. Herrera suggests. In other words, although a state court does not acquire 

jurisdiction over an NMHRA matter until a complaint is filed appealing the agency 

decision, it is empowered to look back at service of the decision and apply its 

ninety-day rule in the manner it sees fit, which, we have concluded, is accomplished 

by determining the date the decision was mailed. Thus, we are unpersuaded that 

when attempting to define “date of service” as used in Rule 1-076(D), Rule 1-076(H) 

precludes reference to Rule 1-005(B)’s directive that “[s]ervice . . . is complete upon 

mailing.” 

Ms. Herrera also argues that the time for appeal should be based on 

§ 9.1.1.10(C) of the New Mexico Administrative Code (NMAC), which provides that 

when the agency’s “director determines that no probable cause exists, . . . the director 

will advise the complainant of his or her right to appeal the determination in district 

court within 30 days [the former statutory deadline] after receipt of the 

determination” (emphasis added). She observes that by regulation, the agency “may 

look [to the NMRA] for guidance” when there is no “specific provision governing an 

action in the [NMHRA] or in [the NMAC],” N.M. Code § 9.1.1.2(B), and she 

therefore proposes that when an NMAC provision is on point, the NMRA do not 

“override . . . procedures during the agency process prior to the filing of the de 

novo appeal.” Aplt. Opening Br. at 27. 
23 

We are unconvinced. First, as Ms. Herrera points out, the regulation’s 

reference to a 30-day period is erroneous—either a “remnant[] of an older version of 

the statute or a typo.” Id. at 27 n.6. But that is not why we find her argument 

unconvincing. Instead, just as she concedes that the ninety-day period of 

§ 28-1-13(A) “trumps the [erroneous] regulation[],” id. (emphasis added), so too, 

under the plain terms of N.M. Code § 9.1.1.2(B), does § 28-1-13(A)’s “date of 

service” trigger trump the regulation’s reference to “receipt” as the event that starts 

the ninety-day appeal period. A fortiori, the regulation is also trumped by the use of 

“date of service” in Rule 1-076(D) because, as reasoned in Maples, 791 P.2d at 790, 

the New Mexico Supreme Court, not the state legislature, has the power to fix the 

time for “appeals from final orders of administrative agencies,” and therefore a court 

rule “controls over conflicting law.” Accordingly, Maples leads us to the NMRA, not 

the NMAC, in determining when the “date of service” occurs, which is a 

determination to be made by the judiciary, whether through an NMRA or case law 

interpreting the NMRA. 

Relatedly, Ms. Herrera notes that the regulation requires the director to notify 

a complainant of the right to appeal “by certified mail, return receipt requested.” 

N.M. Code § 9.1.1.10(C). Because that procedure was not followed in her case, she 

contends that “any uncertainties about the date of service should be resolved in [her] 

favor.” Aplt. Opening Br. at 30. But Ms. Herrera argued to the district court that a 

copy of the nondetermination letter was mailed to her attorney on September 4, and 

on appeal she contends that it is the date of service on her attorney that counts. 
24 

Hence, there is no uncertainty about the latest possible date the copy was mailed to 

her attorney, and as the district court properly concluded, even when measured from 

that date (September 4), the complaint was untimely.15

Finally, Ms. Herrera would have us note that Rule 1-005(B) is not the only 

NMRA defining service by mail—she claims that Rule 1-004 defines service of 

process by mail “as occurring upon receipt – when the summons and complaint are 

served, even if service is by mail.” Id. at 28. We construe this argument as founded 

on Rule 1-004(E)(3), as we can locate no other relevant subparagraph of the rule. 

However, subparagraph (E)(3) does not say that service by mail is complete upon 

receipt but that it is “complete on the date the receipt [for the envelope or package 

containing the summons and complaint, writ, or other process] is signed as provided 

by this subparagraph.” Rule 1-004(E)(3) NMRA. Nothing in Rule 1-076, which 

specifically applies to “appeals from the Human Rights Commission,” suggests that a 

nondetermination order must be served in this manner for purposes of determining 

the “date of service.” Nor do we see any compelling reason why the additional 

precautions used in serving process on a defendant in a civil case, which is “the 

means by which jurisdiction is obtained over a person to compel the person to appear 

in a judicial proceeding,” Rule 1-001(B)(3) NMRA, should apply to the service of a 

 15 Ms. Herrera now complains that the date on the envelope used to mail her 

attorney’s copy is not a postmark but a postage-meter stamp and therefore not proof 

of mailing on September 2. Given the district court’s conclusion that the complaint 

was untimely even when measuring the limitations period from September 4, we fail 

to see the point in this argument.
25 

nondetermination order to a potential plaintiff/appellant, which does not establish 

jurisdiction at all. We therefore reject this argument. 

5. Equitable tolling and equitable estoppel

 The district court rejected Ms. Herrera’s arguments for equitable tolling and 

equitable estoppel. Ms. Herrera has not argued that the district court erred in doing 

so. Accordingly, she has waived appellate review of the issue. See State Farm Fire 

& Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (explaining that issue 

not raised in opening brief is waived). 

6. Conclusion on NMHRA claims

A dismissal for lack of subject matter jurisdiction generally is without 

prejudice under both federal law and New Mexico law. Brown v. Buhman, 822 F.3d 

1151, 1179 (10th Cir. 2016), cert. denied, 137 S. Ct. 828 (2017); Mitchell-Carr v. 

McLendon, 980 P.2d 65, 71 (N.M. 1999). Consequently, although we affirm the 

district court’s dismissal of the first and second claims, which arose under the 

NMHRA, based on the untimeliness of the complaint, we must remand for the court 

to enter its dismissal without prejudice. 

B. Dismissal of third claim 

 Ms. Herrera argues that the district court erred in dismissing her third claim 

because that claim was not subject to the NMHRA’s ninety-day statute of limitations. 

Defendants argue that she failed to preserve this issue because she raises it for the 

first time on appeal even though she recognized in her Rule 59(e) motion that the 

court had dismissed the case in its entirety. 
26 

We agree that Ms. Herrera has waived appellate review of the dismissal of her 

third claim. Where, as here, “a post-judgment motion serves as the only means of 

bringing an issue to the district court’s attention, a party may not forgo that 

procedure and raise the issue for the first time on appeal.” See Acheff v. United 

States, 595 F. App’x 741, 743 (10th Cir. 2014). Further, absent an argument for 

plain-error review, we do not consider theories or contentions for reversal raised for 

the first time on appeal. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 

(10th Cir. 2011) (“[T]he failure to argue for plain error and its application on appeal 

. . . surely marks the end of the road for an argument for reversal not first presented 

to the district court.”). Ms. Herrera has not argued for plain-error review. 

Accordingly, she has waived the district court’s dismissal of her third claim. 

IV. CONCLUSION

 The district court’s judgment is affirmed but we remand with instructions that 

the court enter the dismissal of claims one and two without prejudice. 

Entered for the Court 

Mary Beck Briscoe 

Circuit Judge