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 th e district court to enter its dismissal without prejudice.

* After examining the briefs and appellate record, th is 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 Court2 I. BACKGROUND Ms. Herrera filed an action in New Me xico state court ag ainst her former employer, Las Cruces Public Schools, and two former co-w orkers. She asserted three claims: (1) “Disability Disc rimination 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 und er The New Mexico Human Rights Act [(NMHRA)],” id. at 16, and that she had received an or der of nondetermination from the Human Rights Bureau (HRB) of New Mexico’s De partment of Workforce Solutions on a charge of disability discrimina tion and retaliati on she had filed. 1 She also alleged that Las Cruces Public Schools had “discrimin ated and retaliated ag ainst [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 Un ited States District Court for the District of New Mexico, as serting federal-question ju risdiction 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 alle gations that Ms. Herrera wa s an Arizona resident, all

1 New Mexico statutes, New Mexico court rules, and various judicial decisions refer to the “HRB,” the “Human Right s Commission,” the “commission,” the “NMHRC,” the “HRC,” the “Human Righ ts Division,” the “Division,” the “NMHRD,” and the “HRD.” We view these as interchang eable 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, a nd the amount in controversy exceeded the statutory minimum of $75,000. Defendants also filed a motion to dismiss the first and second claims under Federa l 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 limi tations 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 aggr ieved by an order of the [human rights] commission may obtain a trial de novo by fili ng a notice of appeal in the district court of the county where the discrimi natory 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 ma y be taken by filing a notice of appeal in the form of a complaint in the district court in th e manner provided by these rules for the filing of a civil action in the dist rict court.” Rule 1-076(B) NMRA. As relevant here, Rule 1-076(D) provides that “[a]n appeal fr om the Human Rights Commission shall be taken within ninety (90) days from the date of service on the parties to the administrative proceedi ng 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 serv ice.” However, Rule 1-0 05(B) provides that when4 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. He rrera 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 Se ptember 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 a nd their view that “d ate 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 wa s mailed to her attorney on Friday, September 4, and probably received on Tuesday, Se ptember 8, given that September 6 was a Sunday and the following da y, 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 da tes of receipt—her December 7 filing of the complaint was timely unde r Rule 1-006 NMRA, which adds three days to the end of a time period when serv ice is made by mail and furt her extends the time period5 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 1300 746, at *10–11 (D.N.M. Feb. 18, 2009) (unpublished), which held that “service” in Rule 1-076(D) mean s “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 Septem ber 2 (the date on the order and, presumably, the mailing date), September 3, or Sept ember 4 (the date stamped on the envelope Ms. Herrera submitted), a nd 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 co mplaint 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 ru le of procedure,” Rule 1-006(A) NMRA, and that Rule 1-076(D) expr essly 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 di smiss, Ms. Herrera relied on a similar extension of the last day of a time peri od 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, ther e 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 extraord inary circumstances that prevented her from timely filing her compla int, there was no indi cation 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] statut e of limitations.” Aplt. App. at 42. The court therefore concluded that her NM HRA “claims [were] time barred.” Id. The court also entered a separa te 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 rece ived the nondetermination order on September 10. In the other, her attorney attested to receipt of her copy on Se ptember 8 in an envelope postmarked September 4. In denying the Rule 59(e) motion, the district court disagreed with Ms. Herrera th at Rule 1-006’s last-day ex clusion applied, explaining that by the court’s calculati ons, the last day of the peri od did not fall on a Saturday, Sunday, or legal holiday. The court also re jected her argument th at it had improperly relied on September 4 as a possible star t date for calculati ng 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 delayed7 by eight days (from September 2 till September 10), she stil l had eighty-two days to timely file her complaint. This distinguished her cas e from those she relied on, which involved limitations periods that expired due to inevitable systemic complications or an agency error that cause the plainti ff’s attorney to not receive notice of the order until the limitations peri od had expired. The court also concluded that she was not entitled to equitable toll ing on the ground that the nondetermination order informed her that her notice of a ppeal 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 refere nced § 28-1-13(A)’s requirement that the ninety-day period ran “from th e 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, an d it was up to Ms. Herrera and her attorney to investigate further befo re relying on the warning. Finally, to the extent Ms. Herrera sought equitable estoppel ba sed on the HRB’s warning, the court concluded that she had not me t state-law criteria for such relief, in particular the requirement to establish “a ffirmative misconduct on the part of the government.” Aplt. App. at 60 (internal quotation ma rks 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 he r 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 defendant s’ supporting reply; and (2) her Rule 59 motion and defendants’ re sponse 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 c ourt lacked federal question jurisdiction because she did not plead any federal claims. Defendants respond that an FMLA claim is evident in the co mplaint. 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 rem oval 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 fo r diversity jurisdic tion under § 1332(a) were met here—complet e diversity of citizenship betw een the parties and adequate proof of jurisdictional facts suggesting that the amount in controversy exceeded

1127 n.5 (10th Cir. 2012) (sta ting that we can take judici al 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 discreti on we have to decline to c onsider 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 Ci r. 2009) (explaining that “we regularly decline to hear claims pred icated 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 a nd defendants’ response to it as part of her docketing statement, but she also should have include d 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 ot herwise removable solely on the basis of [diversity] jurisdicti on . . . may not be removed if an y 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 se rve as a bar to removal in this case: all three defendants were serv ed. 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) objec tion 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) (con cluding that prior, s ubstantially similar ve rsion of § 1441(b)(2) was procedural, not jurisdictiona l, and therefore waivable); see also Brazell v. Waite ,

4 In their notice of removal, defendant s pointed out that Ms. Herrera sought a variety of damages, including lost earnin gs 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 da mages [derived] from th e allegations in the complaint” is an ac ceptable 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-defenda nt rule applies only where a civil action is “removable solely on the basis of [div ersity] jurisdiction,” 28 U.S.C. § 1441(b)(2) (emphasis added). She clai ms she took defendants at th eir 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 federa l claim under FMLA, and in fa ct 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 jurisdic tion and that, with di versity as the only remaining basis for the distri ct court’s jurisdiction, th e 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 is sue 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 sh e fails to file a motion to remand based on any defects other than subject matter jurisdiction with in 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. Herrer a 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 natu re 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 af firmative 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 (10t h Cir. 1980). But the New Mexico Supreme Court has explained that “the time ly filing of a notice of appeal from an NMHRA administrative order is effectiv e 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 th e prerequisites of obtaining an order from the Division and appealing that order within thirty days are not satisfied.” Id. (considering prior version of stat ute with thirty-day limitations period). Whether Ms. Herrera’s complain t was timely filed, therefore, is a jurisdictional issue. And in that circumstance, Federa l Rule of Civil Procedure 12(b)(1), which allows the “def ense . . . [of] lack of subject-matter ju risdiction” to be asserted “by motion,” is the proper pro cedural mechanism, not Rule 12(b)(6).12 This is an important distinction because , as it turned out, defendants’ challenge to Ms. Herrera’s compliance wi th 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 ma tter jurisdiction [and] questi ons the sufficiency of the complaint,” whereas a factual attack goes beyond th e complaint’s allegations “and challenge[s] the facts upon which subj ect matter jurisdiction depends.” Holt v. United States , 46 F.3d 1000, 1002–03 (10th Cir. 1995). Here, defendants sought dismissal ba sed only on the allegations in the complaint and the nondetermination order, which was referenced in the complaint and attached to their dismissa l motion. This gives the app earance of a facial attack. But the motion ultimately turned on varying f actual allegations rega rding the date the nondetermination order was ma iled to and received by Ms . Herrera and her attorney and the legal significance of t hose 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 nondetermin ation order was mailed to her attorney— and made additional factual allegations regarding possibl e mailing and receipt dates that were later than the da tes she alleged in her compla int (and more favorable to her). Hence, we construe defendants’ motion as a fa ctual attack on the court’s subject matter jurisdiction. When considering a factual attack on s ubject matter jurisdiction mounted in a motion to dismiss, “a district court ma y not presume the truthfulness of the complaint’s factual allegations ,” and it “has wide discreti on to allow affidavits, other13 documents, and a limited evidentiary hearing to resolve disputed ju risdictional facts.” Id. at 1003. Unless the jurisdictional issue is intertwined with the merits of the case, considering evidence outside the complaint does not c onvert the dismissal motion into one for summary judgment under Fe deral Rule of Civil Procedure 56. Id. The jurisdictional issue here wa s not intertwined with th e merits of the case. Accordingly, we reject Ms . Herrera’s argument that th e district court erred in considering documents outsi de 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, 12 27 (10th Cir. 2004). 3. Meaning of “date of service” Our first task on the merits of this a ppeal is to determin e the meaning of the term “date of service” as us ed in N.M. Stat. Ann. § 28-1 -13(A) and Rule 1-076(D)(1) NMRA. Despite measuring the ninety-day time limit fro m the service date, neither the statute nor the rule defines “date of serv ice.” Plaintiff claims “date of service” means “date of receipt.” Defendants claim it means “date of mai ling.” As noted, the district court sided with defe ndants, and so do we, bearing in mind that our task is not to reach our own judgment about New Mexi co law but to “fo llow 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 ha s not provided a controlling decision, we must “predict what the st ate supreme court would do” by “seek[ing] guidance from decisions rendered by lower cour ts in the relevant state, appellate14 decisions in other states w ith similar legal principles , district court decisions interpreting the law of the state in questi on, and the general we ight 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 Mexi co 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 compla inant’s attorney a nd 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 Me xico 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 ma tters such as time limitations for appeals, a rule a dopted by the Supreme Court governs over an inconsistent statute,” and th at 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; th e statute and the ru le are materially identical.15 touch on whether the time for appeal runs fr om the “date of serv ice,” whether “on the complainant’s attorney,” as defendants s uggest, Aplee. Response Br. at 20, or otherwise. Nor did Maples say anything about serv ice being “complete upon mailing,” id. It merely identified the controlling rule, whic h measured the time for appeal from the date an order is file d, 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 Mexi co 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 stat e rule of appellate procedure governed the time for an app eal from a state district cour t decision, and that a state rule of civil procedure governing the ti me for appealing an action by a state administrative body to a state di strict court was inapplicable. Id. at 947–48. AAA did not concern “date of service,” whether se rvice is “complete upon mailing,” or even an appeal from a decision by a state administrative body. 8 For her interpretation th at “date of service” e quals “date of receipt,” Ms. Herrera leans heavily on two decisions. The first is from th e New Mexico Court

8 Defendants also point to James v. New Mexico Hu man Services Department , 742 P.2d 530, 532 (N.M. Ct. App. 1987), fo r its rejection of an argument that the time for appealing an agency’s decision ran from the date the plai ntiff received the decision because “it is virtually impossible to calculate app eal time when it runs from receipt of the decision rather than the date of the deci sion itself.” However, the controlling court rule at issue in James specifically provided th at the time limit for an appeal is measured from “t he date of the order, deci sion 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 a ppeals issued a calendar notice proposing summary reversal. In its memorandum opinion, the court found that the administrative decision informing the pl aintiff that he had “ninety days from receipt of the letter to appeal to the district court . . . wa s sufficient to preclude summary judgment on the issue of the ti meliness 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 th ese facts, a fact-finde r could find that the Division’s actions tolled the time limits.” Id. Ocana explicitly declin ed to “discuss whether the [limitations] period begins to run on the date the complainant actually receives notice of the no-probable-cau se decision from the Division.” Id. Neither Downer nor Ocana sheds any light on the meani ng 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 th e representation in the communication to the plaintiff or her attorney that receipt of the decisi on triggered the ninety-day period. And while Downer rejected the defendant’s c ontention “that the date of17 service is the date the decisi on 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 th at “the appeal procedure is not now clear ” because both the nondetermination letter and an agency regulation indicated that the ninety-day period begi ns to run from the date the decision is received, not when it is mailed, as could be gleaned fr om 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 th at the appeal was untimely, citing New Mexico authority for the proposition that “only the most unusual circumstances beyond the control of the par ties – such as error on the part of the court – will warrant overlooki ng procedural defects.” Id. at 5 (brackets and internal quotation marks omitted). It is theref ore 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 re verse on equitable grounds. 10

9 We have obtained a copy of the cal endar notice from the New Mexico Court of Appeals.

10 Downer and all other unpublished New Me xico cases we cite in this decision are not precedential, but they “may be cited for any persua sive 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 co mplaint was filed in the dist rict 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) . . . re quire the complaint be filed within ninety days.” Id. (emphasis added). And in the calenda r 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 cl ear was the same as the mailing date, Haynes clearly stands for the proposi tion 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 no tice 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 serv ice is made by mail was ina pplicable under the express (continued)19 The other case Ms. Herrera re lies 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 ex actly 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 cons idered 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 (“Servi ce [by mail] is complete upon mailing”), and that “there is nothing in rule 1-076 th at 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 th at deadlines for other types of appeals set out in the NMRA “always depend[] on the act ion of the agency or court,” not “on receipt or any other ac tion by the parties.” Id. at *11. The court also relied on authority from other jurisdicti ons that in the service-of-p rocess context, the burden of terms of Rule 1-076(D). As noted, the dist rict court in Ms. He rrera’s case reached the same conclusion, which she has not challenged on appeal.20 proving service is on the pa rty invoking a court’s juri sdiction, but a rebuttable presumption of valid service “arises upon a showing that the statutes or rules prescribing the manner of serv ice 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 ju risdiction by making unsubstantiated allegations that they di d not receive notice of an action.” Id. The court concluded that the plai ntiff had not rebutted the pres umption that proper service was made on the date the nondetermina tion 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, th e district court determined that the latest mailing da te was September 4, and me asured from that date, the ninety-day period ended on December 3. Because Ms. Herrera did not file her complaint until D ecember 7, it was untimely. 4. Ms. Herrera’s counterarguments Ms. Herrera offers a number of argum ents why it is improper to follow Vigil ’s interpretation of “date of se rvice.” She first points out that the NMRA “govern the procedure in the district cour ts of New Mexico in all su its 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 1286 1177, at *2 (D.N.M. Aug. 3, 2015) (unpublished), the same distri ct 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 otherwis e, the [NMRA] do not apply where there are contrary statutory provi sions concerning special statutory or summary proceedings.” Rule 1-001(A) NMRA. Ms. Herrera posits that NMHRA proceedings appear to fit under Rule 1-0 01(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 (tha t NMHRA proceedings are “special statutory pro ceedings”), Ms. Herrera’s conclusion rests on a faulty reading of Rule 1-001, which renders th e 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 go vern determination of “date of service” becau se 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 co mplaint,” whereas serv ice of the agency decision that triggers the ni nety-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 “t he power to set the time for appeals from final orders, including appeal s from final orders of ad ministrative agencies.” 791 P.2d at 790. In promulgating Rule 1- 076(D), the Supreme Court did just that, and it can decide when the da te of service occurs for pur poses of “set[ting] its own time limitations for appeals.” Maples , 791 P.2d at 790. Part of deciding when the22 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 ma tter until a complaint is fi led 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 servic e” as used in Rule 1-076(D), Rule 1-076(H) precludes reference to Rule 1-005(B)’s direc tive 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 Administ rative Code (NMAC), which provides that when the agency’s “dir ector 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 form er statutory deadline] after receipt of the determination” (emphasis added). She obser ves that by regulation, the agency “may look [to the NMRA] for guidance” when ther e 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 agen cy 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, ju st 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 regul ation’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 stat e legislature, has the power to fix the time for “appeals from final orders of admini strative agencies,” a nd therefore a court rule “controls over conflic ting law.” Accordingly, Maples leads us to the NMRA, not the NMAC, in determining when the “d ate of service” o ccurs, which is a determination to be made by the judiciar y, whether through an NMRA or case law interpreting the NMRA. Relatedly, Ms. Herrera notes that the regulation require s the director to notify a complainant of the right to appeal “by certified mail, re turn receipt requested.” N.M. Code § 9.1.1.10(C). Because that pr ocedure 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 a ttorney on September 4, and on appeal she contends that it is the date of service on her atto rney that counts.24 Hence, there is no uncertainty about the la test possible date the copy was mailed to her attorney, and as the district court prop erly 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 occurri ng upon receipt – when the summons and complaint are served, even if service is by mail.” Id. at 28. We construe th is argument as founded on Rule 1-004(E)(3), as we can locate no ot her relevant subparagraph of the rule. However, subparagraph (E)(3) does not say that service by mail is complete upon receipt but that it is “compl ete on the date the receipt [fo r 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 “app eals from the Human Rights Co mmission,” 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 da te on the envelope used to mail her attorney’s copy is not a postmark but a pos tage-meter stamp and therefore not proof of mailing on September 2. Given the distri ct court’s conclusion that the complaint was untimely even when measuring the limi tations period from Sept ember 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 ther efore reject this argument. 5. Equitable tolling and equitable estoppel The district court rejected Ms. Herre ra’s arguments for equitable tolling and equitable estoppel. Ms. Herr era has not argued that the di strict 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) (exp laining that issue not raised in opening brief is waived). 6. Conclusion on NMHRA claims A dismissal for lack of subject matte r jurisdiction generally is without prejudice under both federal la w and New Mexico law. Brown v. Buhman , 822 F.3d 1151, 1179 (10t h Cir. 2016), cert. denied , 137 S. Ct. 828 (2017); Mitchell-Carr v. McLendon , 980 P.2d 65, 71 (N.M. 1999). Cons equently, 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 co mplaint, we must remand for the court to enter its dismissal without prejudice. B. Dismissal of third claim Ms. Herrera argues that the district c ourt erred in dismissing her third claim because that claim was not s ubject to the NMHRA’s ninety-d ay 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 a ppellate review of th e dismissal of her third claim. Where, as here, “a post-j udgment motion serves as the only means of bringing an issue to the di strict court’s attention, a party may not forgo that procedure and raise the issue fo r the first time on appeal.” See Acheff v. United
States , 595 F. App’x 741, 743 (10t h Cir. 2014). Further, absent an argument for plain-error review, we do not consider theori es 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 failur e to argue for plain error a nd its application on appeal . . . surely marks the end of the road for an ar gument 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 dism issal 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 cl aims one and two without prejudice.

Entered for the Court
Mary Beck Briscoe Circuit Judge