This decision of the New Mexico Court of Appeals was not selected for publication in 

the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the 

citation of unpublished decisions. Electronic decisions may contain computergenerated errors or other deviations from the official version filed by the Court of 

Appeals.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-40903

RUTH GARCIA ARAGON,

Plaintiff-Appellant,

v.

FORREST BRUNSON; BRUNSON

ELECTRICAL; and BRECCO, INC,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY

Daniel A. Bryant, District Court Judge

Marshall Law, P.C.

Stephen R. Marshall

Albuquerque, NM

King Law Firm

Ian F. King

Albuquerque, NM

for Appellant

Civerolo, Gralow & Hill

Justin L. Robbs

Hannah R. Jiacoletti

Albuquerque, NM

The Law Offices of Montoya & Murphy-Kollar

Gino L. Montoya

Oklahoma City, OK

for Appellees

MEMORANDUM OPINION
MEDINA, Judge.

{1} Plaintiff Ruth Aragon appeals the district court’s order dismissing her complaint 

against Defendants Forrest Brunson (individually), Brecco, Inc., and Brunson Electrical 

because Plaintiff failed to serve Defendants with reasonable diligence under Rule 1-

004(C) NMRA. Plaintiff argues that the district court erred because (1) Plaintiff served 

the complaint within a reasonable time after the statute of limitations expired; and (2) 

Defendants were not prejudiced by the delay in service. Plaintiff also argues that the 

district court’s decision denied her equal protection under the law by improperly limiting 

her access to the court system. We affirm.

BACKGROUND

{2} This case arises from an alleged car accident in Alamogordo, New Mexico 

between Plaintiff and Defendant Brunson in June 2019. Plaintiff alleged various 

negligence-based personal injury claims against Defendant Brunson and claims of 

vicarious liability against Defendant Brecco, Inc. and Defendant Brunson Electrical. 

Before filing her complaint, Plaintiff sent Defendants a demand letter in an attempt to 

resolve the matter without litigation. The parties did not come to a resolution, and 

Plaintiff filed her complaint on June 10, 2021. Plaintiff did not obtain a summons or 

attempt to serve any of the Defendants after filing the complaint. According to 

Defendants, neither Plaintiff nor her counsel informed them or their insurers that she 

filed the complaint.

{3} The case remained inactive for approximately six months. On December 9, 2021, 

Plaintiff’s counsel withdrew, Plaintiff’s new counsel simultaneously entered his 

appearance, and the district court entered an order requiring in part that Plaintiff serve 

each Defendant with the summons and the complaint. Defendants hired counsel in April 

2022 to represent them and discover “what was going on with this case.” Defendants’ 

counsel looked at the court docket and discovered that new counsel had entered an 

appearance on behalf of Plaintiff, and on April 4, 2022, counsel for Defendants emailed 

Plaintiff’s new counsel asking whether they had served the complaint on Defendants. 

Plaintiff’s counsel did not respond until June 21, 2022, when Plaintiff asked whether 

defense counsel could accept service on behalf of the Defendants. Defendant’s counsel 

replied that he would have to confer with Defendants. The statute of limitations ran on 

Plaintiff’s claims on June 13, 2022—three years after the alleged accident. See NMSA 

1978, § 37-1-8 (1976) (stating that actions “for an injury to the person” must be brought 

“within three years”). Plaintiff served Defendants with the complaint on June 30, 2022, 

slightly over a year after the complaint had been filed. 

{4} On August 1, 2022, all three Defendants moved to dismiss Plaintiff’s complaint 

under Rule 1-012(B)(5) (insufficiency of service of process) and (B)(6) NMRA (failure to 

state a claim). Defendants argued that Plaintiff failed to serve Defendants with 

reasonable diligence, and Plaintiff’s claims had already expired because the failure to 

serve did not toll the statute of limitations. Defendants attached an April 4, 2022 email, 

as an exhibit to their motion to dismiss in which defense counsel asked Plaintiff’s new 
counsel whether Plaintiff had served Defendants and, if so, to provide the service 

information. 

{5} Plaintiff responded that service was timely because service may take place within 

a period of time that includes the length of the statute of limitations plus a reasonable 

time thereafter. Plaintiff argued the timing was reasonable and Defendants’ motion 

should be denied because Plaintiff served Defendants less than one month after the 

statute of limitations expired. Defendants replied that the actual issue was not the 

timeliness of service, but whether Plaintiff exercised diligence in attempting service 

under Rule 1-004(C)(2) (stating that service of process “shall be made with reasonable 

diligence”). 

{6} During a hearing on the motion, Defendants argued that Plaintiff failed to 

demonstrate an intent to pursue her claims because Plaintiff did not attempt to serve 

Defendants for more than a year after filing the complaint and during that time Plaintiff 

made no attempt to contact Defendants other than to ask if Defendants’ attorney would 

accept service. Defendants argued they suffered both factual and procedural prejudice 

by the delay, pointing out that witnesses memories had faded, documents relating to the 

incident had become unavailable, and the scene of the accident has since changed. 

Procedurally, Defendants argued that Plaintiff’s delay forced Defendants to lose the 

option to remove the case to federal court under diversity jurisdiction and forced 

Defendants to lose the ability to exercise a preemptory excusal against the assigned 

district court judge in state court. Plaintiff reiterated her arguments from her briefing: a 

defendant need only be served within a reasonable time of the end of the statute of 

limitations, and case law did not support Defendants’ prejudice argument because 

Defendants were aware of a potential lawsuit from the prefiling negotiations. 

{7} At the conclusion of the hearing the district court found that the statute of 

limitations was not tolled by the mere filing of the complaint stating,

At about a year after the incident occurred, the court finds that after the 

filing of the complaint, nothing was happening in this case. There were no 

communications between the parties, no conversations between counsel, 

no [inaudible] discussion of whether or not the parties would agree that the 

statute of limitations should be tolled [inaudible] to give opportunity to 

negotiate. No summons was issued, no action was taken so the court 

finds that in fact, the statute of limitations was not tolled and that the step 

necessary to toll the statute of limitations, service of process on the 

Defendants did not occur until after the statute of limitations.

The district court entered an order, finding: (1) “Plaintiff filed her complaint on June 10, 

2021”; (2) “[a]fter filing, Plaintiff failed to obtain a summons or make any attempt to 

serve until June 21, 2022”; (3) “Plaintiff was aware of the lack of service”; and (4) 

“Plaintiff had the information necessary to locate and serve Defendants.” The district 

court concluded that “[a]ccordingly, because Plaintiff did not exercise reasonable 
diligence in prosecution of her suit, the statute of limitations was not tolled by the filing 

of Plaintiff’s complaint on June 10, 2021.” This appeal followed.

DISCUSSION

{8} Plaintiff argues that we should review the district court’s order de novo. Contrary 

to Plaintiff’s framing of the issue as to whether the complaint was barred by the statute 

of limitations, Defendants’ arguments and the district court’s order are based on 

whether Plaintiff served Defendants with reasonable diligence as required by Rule 1-

004(C)(2). See Prieto v. Home Educ. Livelihood Program (H.E.L.P.), 1980-NMCA-114, 

¶ 12, 94 N.M. 738, 616 P.2d 1123 (holding that the district court “in the exercise of its 

inherent power and in its discretion, independent of statute, may dismiss a case for 

failure to prosecute when it is satisfied that plaintiff has not applied due diligence in the 

prosecution of [their] suit”). “A district court’s determination that a plaintiff failed to act 

with reasonable diligence under Rule 1-004(C)(2), and whether the complaint should be 

dismissed as a result, is reviewed only for abuse of discretion.” Murphy v. Lash, 2024-

NMCA-031, ¶ 18, ___ P.3d ___ (A-1-CA-39628, Oct. 26, 2023). The district court’s 

determination of whether a plaintiff exercised reasonable diligence is “based on a 

standard of objective reasonableness.” Id. (internal quotation marks and citation 

omitted). 

{9} Here, the district court found that “Plaintiff failed to obtain a summons or make 

any attempt to serve [Defendants] until June 21, 2022[,]” even though “Plaintiff filed her 

complaint on June 10, 2021.” Based on our review of the record, we agree. Plaintiff 

provided no reasoning, explanation, or justification for the delay in service in either her 

response to Defendants’ motion or at the motion hearing. Similarly, Plaintiff fails to 

explain the delay of service on appeal, instead focusing on whether service was 

reasonably timely only from the standpoint of the applicable statute of limitations. 

Plaintiff failed to provide the district court with facts regarding any attempts Plaintiff 

made to serve Defendants with the complaint prior to the expiration of the statute of 

limitations or explanation why Plaintiff made no such attempts despite Plaintiff’s 

knowledge of Defendants’ locations. See id. ¶ 19 (considering the circumstances before 

the district court when reviewing dismissal of a complaint under Rule 1-004(C)(2)). 

Simply put, Plaintiff provides no circumstances demonstrating the district court erred 

when it determined that “Plaintiff did not exercise reasonable diligence in prosecution of 

her suit.”

{10} When a “[district] court determines that a plaintiff failed to exercise due diligence 

in serving process on a defendant, the court must exercise its discretion to determine 

whether the delay warrants dismissal of the complaint.” Romero v. Bachica, 2001-

NMCA-048, ¶ 23, 130 N.M. 610, 28 P.3d 1151. In the proceedings below, Defendants 

argued they were prejudiced by the delay in service because the delay harmed 

Defendants’ factual investigation into the alleged accident and forced Defendants to 

forgo certain procedural, litigation options. Given these arguments, the district court’s 

determination was not “clearly against the logic and effect of the facts and 

circumstances before the [district] court, or the reasonable, probable, and actual 
deductions to be drawn from such facts and circumstances” necessary to find an abuse 

of discretion. Martinez v. Segovia, 2003-NMCA-023, ¶ 29, 133 N.M. 240, 62 P.3d 331 

(internal quotation marks and citation omitted). Therefore, we hold that the district court 

did not abuse its discretion by granting Defendants’ motion to dismiss for failure to serve 

with reasonable diligence. 

{11} Finally, Plaintiff contends that the district court’s decision violated her equal 

protection rights by creating two classes of plaintiffs—those that file early to preserve 

their claims and those that do not. This argument was not preserved at the district court 

and is underdeveloped in Plaintiff’s briefing on appeal. Therefore, we decline to address 

this argument further. See Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701 

(“This Court has no duty to review an argument that is not adequately developed.”); ITT 

Educ. Serv., Inc. v. Taxation & Revenue Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M. 244, 

959 P.2d 969 (stating that this Court will not consider propositions that are unsupported 

by citation to authority); State v. Leon, 2013-NMCA-011, ¶ 33, 292 P.3d 493 (“We 

generally do not consider issues on appeal that are not preserved below.” (internal 

quotation marks and citation omitted)).

{12} Further, we observe that this Court has previously discussed at length the district 

court’s inherent authority to control and manage its own docket and the cases before it, 

including dismissing cases because a plaintiff has failed to prosecute a case. Prieto, 

1980-NMCA-114, ¶ 12; see also Belser v. O’Cleireachain, 2005-NMCA-073, ¶ 3, 137 

N.M. 623, 114 P.3d 303 (recognizing a district court’s inherent authority to manage 

cases before it); Pizza Hut of Santa Fe, Inc. v. Branch, 1976-NMCA-051, ¶ 8, 89 N.M. 

325, 552 P.2d 227 (stating that district courts have control over their dockets and 

inherent power to manage their own affairs to achieve the orderly and expeditious 

disposition of cases). 

CONCLUSION

{13} For the forgoing reasons, we affirm the district court’s order dismissing Plaintiff’s 

complaint. 

{14} IT IS SO ORDERED.

JACQUELINE R. MEDINA, Judge

WE CONCUR:

J. MILES HANISEE, Judge

KATHERINE A. WRAY, Judge