This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 LEONARD OLMSTED , 2 Plaintiff-Appellant, 3

v. NO. 31,131 4 SAN MIGUEL HOSPITAL CORPORATION, d/b/a 5 NORTHEASTERN REGIONAL HOSPITAL, 6 WILLIAM CHAFFEE, MICHAEL GALLEGOS, 7 JOSE TITO CHAVEZ, KEITH TUCKER, 8 C.K. HALVERSON, NANCY DRONEN, 9 G. MICHAEL LOPEZ, RUTH D. MARES, 10 RICHARD GROGAN, JENNIFER TOWNSEND, 11 KINGSLEY OZOUDE, FRANKLIN MILLER, 12 TIM HOWARD, ROBBY DANIEL, JOHN DOE, 13 and JANE DOE, 14 Defendants-Appellees. 15 APPEAL FROM THE DISTRICT COURT OF SOCORRO COUNTY 16 Edmund H. Kase III, District Judge 17 Brannen Law, LLC 18 Daniel E. Brannen Jr. 19 Santa Fe, NM 20 for Appellant 21 Montgomery & Andrews, P.A. 22 Walter J. Melendres 232 Andrew S. Montgomery 1 Santa Fe, NM 2 for Appellees 3 MEMORANDUM OPINION 4 5 VIGIL, Judge. 6 Plaintiff appeals from an order of the district court dismissing his amended 7 complaint with prejudice under Rule 1-041(E) NMRA, for failure to prosecute. We 8 affirm. 9 BACKGROUND 10 Plaintiff filed a complaint on January 25, 2007, but never served any 11 Defendants. The amended complaint was filed on September 11, 2007, and seven out 12 of fifteen named Defendants were served . These seven Defendants answered on 13 December 21, 2007, and, on January 4, 2008, Defendant San Miguel Hospital 14 Corporation filed a demand for trial by jury. On July 31, 2008, over ten months after 15 the amended complaint was file d, the district court entered, sua sponte, an order of 16 dismissal pursuant to Rule 1-041(E)(2). The order was apparently not served on 17 Plaintiff or any Defendant. Approximate ly eighteen months later, on February 11, 18 2010, Plaintiff filed a “Request to Reope n Case,” followed by a “Request to Reopen 193 Cause” filed on February 16, 2010. Neitherpleading was served on Defendants. In 1 pertinent part, Plaintiff stated: 2 I am told that the case was dismisse d in July 2008. At which time I was 3 very sick from the effects of surgery for a strangulated internal hernia. 4 I have since recovered. I receive d no notice that the case was about to 5 be dismissed, nor notice that the case had been dismissed. In November 6 2009 the lawyer who helped me with this case suggested that I file a 7 motion for mediation. After somedelay caused by work overload and 8 bad weather I have done so; but have discovered that the case was 9 dismissed in July 2008 at a time whenI was sick, and without any notice 10 to me as far as I know. 11 Plaintiff also filed a “Motion for Mediation” on February 18, 2010, requesting that 12 “before the Court hears this cas e that the case be subjected to mediation.” The district 13 court then filed an order, apparently prepared by Plaintiff, on February 18, 2010, 14 reinstating the case and further ordering “that the case be subjected to mediation.” 15 Plaintiff took no action to bring the case to mediation. Instead, Plaintiff filed 16 a motion for default judgment on November4, 2010. Defendant s responded to this 17 motion on November 19, 2010, and on November 23, 2010, Defendants filed a motion 18 to dismiss with prejudice for failure to prosecute pursuant to Rule 1-041(E). In this 19 pleading, Defendants’ attorney stated , “In a recent telephone conversation with 20 undersigned counsel, Plaintiff did state what he ‘wanted’ but this was not interpreted 21 as a settlement negotiation, especially si nce undersigned counsel had no authority to 224 ‘negotiate’ anything.” Plai ntiff responded to the moti on to dismiss on December 27, 1 2010, and Defendants replied on January 11, 2011. On February 7, 2011, the district 2 court granted Defendants’ mo tion, and dismissed the case with prejudice. Plaintiff 3 appeals. 4 DISCUSSION 5 A. Standard of Review 6 This case involves dismissal of Plainti ff’s claims under Rule 1-041(E). In its 7 entirety the rule states: 8 E. Dismissal of action with and without prejudice. 9 (1) Any party may move to dismiss the action, or any 10 counterclaim, cross-claim or third-party claim with prejudice if the party 11 asserting the claim has failed to take any signifi cant action to bring such 12 claim to trial or other final dis position within two (2) years from the 13 filing of such action or claim. An action or claim shall not be dismissed 14 if the party opposing the motion is incompliance with an order entered 15 pursuant to Rule 1-016 NMRA or w ith any written stipulation approved 16 by the court. 17 (2) Unless a pretrial scheduling order has been entered pursuant 18 to Rule 1-016 NMRA, the court on its own motion or upon the motion 19 of a party may dismiss without prej udice the action or any counterclaim, 20 cross-claim or third party claim if th e party filing the action or asserting 21 the claim has failed to take any signi ficant action in connection with the 22 action or claim within the previous one hundred and eighty (180) days. 23 A copy of the order of dismissal sh all be forthwith mailed by the court 24 to all parties of record in the case. Within thirty (30) days after service 255 of the order of dismissal, any party may move for reinstatement of the 1 case. Upon good cause shown, the court shall reinstate the case and shall 2 enter a pretrial scheduling order pursu ant to Rule 1-016 NMRA. At least 3 twice during each calendar year, the court shall review all actions 4 governed by this paragraph. 5 The proper interpretation of this rule is a question of law that we review de novo. 6 Allen v. LeMaster , 2012-NMSC-001, ¶ 11, 267 P.3d 806. “When construing our 7 procedural rules, we use the same rules of construction app licable to the interpretation 8 of statutes. We first look to the language of the rule. If the rule is unambiguous, we 9 give effect to its language and re frain from further interpretation.” Id. (internal 10 quotation marks and citations omitted). 11 A district court has discretion to dismiss a case for lack of prosecution under 12 Rule 1-041(E), and reversal is proper if th e district court abuses its discretion. Summit 13 Elec. Supply Co. v. Rhodes & Salmon, P.C. , 2010-NMCA-086, ¶ 6, 148 N.M. 590, 14 241 P.3d 188, cert. denied , 2010-NMCERT-008, 148 N.M. 942, 242 P.3d 1288. 15 “Discretion is abused when the court exceeds the bounds of reason, all the 16 circumstances before it being considered.” Id. (internal quotation marks and citation 17 omitted). 18 With the language of the rule before us, and keeping in mind our standard of 19 review, we address Plaintiff’s arguments. 206 B. Tolling 1 First, Plaintiff asserts that dismi ssal with prejudice was improper under Rule 2 1-041(E)(1) because at the time Defendants f iled the motion to dismiss, two years had 3 not elapsed. Plaintiff comes to this c onclusion by arguing that the time in which the 4 case was dismissed without prejudice under Rule 1-041(E)(2) (i.e., from July 31, 2008 5 through February 18, 2010), does not count to ward the two-year period, because the 6 two-year period is “tolled” during the time the case is dismissed. While making this 7 argument on appeal, Plaintiff concedes that this argument was not made in the district 8 court. We therefore agree with Defendant s that this argument was not preserved for 9 our review. See Rule 12-216(A) NMRA (“To preserve a question for review it must 10 appear that a ruling or decision by the district court was fairly invoked[.]”); Rio 11 Grande Kennel Club v. City of Albuquerque , 2008-NMCA-093, ¶ 13, 144 N.M. 636, 12 190 P.3d 1131 (“[W]e conclude th at [the p]laintiffs failed to preserve the issue 13 regarding amendment of their complaint b ecause they did not invoke a ruling from the 14 district court on that issue.”). 15 Plaintiff asserts that the issue was preserved under Weststar Mortgage Corp. 16 v. Jackson , 2002-NMCA-009, ¶ 50, 131 N.M. 493, 39 P.3d 710 (concluding that 17 plaintiff’s argument on appeal that pos t-judgment interest is mandatory was 187 adequately preserved when plaintiff argued inthe district court that a case barring pre1 judgment interest on punitive damages did not apply because pre- and post-judgment 2 interest are different), rev’d on other grounds by2003-NMSC-002, 133 N.M. 114, 61 3 P.3d 823. We are not convinced. In re sponse to Defendants’ motion to dismiss, 4 Plaintiff argued: (1) he was seeking an opportunity to mediate his claims; (2) neither 5 side prosecuted the case; and (3) Defendants could have moved to dismiss at any time 6 in the fall of 2009. These arguments are far removed from the tolling argument now 7 made on appeal, unlike the arguments made in the district court and on appeal in 8 Weststar

. 9 Finally, we decline to address the issue because it does not involve a 10 jurisdictional question, a matter of general public interest or fundamental error or 11 Plaintiff’s fundamental rights. See Rule 12-216(B) (providing that the rule or 12 preservation “shall not preclude the appellate court from considering jurisdictional 13 questions or, in its discretion, questions i nvolving: (1) general public interest; or (2) 14 fundamental error or fundamental rights of a party”). 158 C. Significant Action 1 Plaintiff argues that the district court abused its discretion in dismissing his 2 claims because he took significant action tobring his case to final disposition before 3 Defendants moved to dismiss. We disagree. 4 From September 2007 until February 2010, a period of approximately twenty5 nine months, Plaintiff took no action whatsoever to bring his claims to trial or a final 6 disposition. In February 2010, Plaintiff aske d that the case be reinstated after it had 7 already been dismissed for approximately nineteen months, seeking mediation. 8 However, the motion was not served on Defe ndants, depriving them of an opportunity 9 to oppose reinstatement of the case. Moreover, even after the cas e was reinstated and 10 Plaintiff was granted his request for medi ation, he did nothing to bring the case to 11 mediation, or otherwise resolve the cas e until November 2010, when he filed the 12 motion for a default judgment. This was approximately thirty-eight months after the 13 amended complaint was filed. When De fendants filed the motion for dismissal in 14 November 2010, approximately thirty-eight months after the amended complaint was 15 filed, counsel acknowledged a “recent” telephone conversation in which Plaintiff 16 stated what he “wanted.” 179 Plaintiff contends that his actions in: (1) seeking mediation; (2) filing a motion 1 for default judgment; and (3) having a te lephone conversation with defense counsel 2 about what he “wanted” constitute “significan t action” to bring his claims to trial or 3 other final disposition under Rule 1-041(E)(1). Plaintiff contends that these actions 4 are sufficient as a matter of law under Ru le 1-041(E)(1). We disagree with this 5 proposition. “‘[W]e make no attempt to fix a standard of what action is sufficient to 6 satisfy the requirement of the rule, for each case must be determined upon its own 7 particular facts and circumstances.’” Summit , 2010-NMCA-086, ¶ 6 (quoting Martin 8 v. Leonard Motor-El Paso , 75 N.M. 219, 222, 402 P.2d 954, 956-57 (1965)). In this 9 case, Plaintiff’s motion seeking mediation was filed approximately twenty-nine 10 months after the amended complaint was f iled; the motion for default judgment was 11 filed approximately thirty-eight months af ter the amended complaint was filed; and 12 the telephone conversation withdefense counsel also occurred approximately thirty13 eight months after the amended complaint was filed. Under the circumstances, we 14 cannot conclude that the district court abused its discretion in dismissing Plaintiff’s 15 claims for failing to prosecute them. Our courts have found an abuse of discretion 16 when special circumstances impeded a plaintiff’s prosecution of his claims, or where 1710 a plaintiff actively pursued his claims after a prior lapse in activity. Id. ¶ 14. 1 However, such circumstances are not present in this case. 2 Plaintiff asserts that under the reasoning of Summit , the district court abused its 3 discretion in granting De fendants’ motion to dismiss under Rule 1-041(E)(1). 4 However, we conclude that Summit is factually and legally distinguishable from the 5 case before us to such a degree as to be of no assistance whatsoever to Plaintiff. In 6 Summit , one of the two plaintiffs filed a bankruptcy action, and the district court 7 entered an order closing the case as to all claims, specifying that a reopen fee would 8 not be required if the movant sought reinstatement within sixty days after termination 9 of the bankruptcy stay. 2010-NMCA-086, ¶ 3. One year later, within nine days after 10 the bankruptcy proceedings were concluded, the plaintiffs moved for reinstatement 11 of the case under Rule 1-041(E)(2), and requested a trial setting. Summit , 2010- 12 NMCA-086, ¶¶ 4, 7. In response, the de fendant moved to dismiss under Rule 1- 13 041(E)(1), which the district court granted. Summit , 2010-NMCA-086, ¶ 4. We 14 concluded that the plaintiffs demonstrated good cause for reinstatement of the case 15 under Rule 1-041(E)(2) and that the district court abused its discretion in dismissing 16 the case under Rule 1-041(E)(1), because the plaintiffs moved to reinstate the case 17 before the defendant moved to dismiss. Summit , 2010-NMCA-086, ¶¶ 8-9, 11. 1811 For the foregoing reasons, we conclude th at the district court did not abuse its 1 discretion in dismissing the amended complaint pursuant to Rule 1-041(E)(1). 2 D. Rule 1-016 Order 3 Plaintiff’s final argument is that the di strict court had no discretion to dismiss 4 the case under Rule 1-041(E)(1). Specifically, Plaintiff contends that the February 18, 5 2010 order of the district court reinstating th e case, and further ordering, “that the case 6 be subjected to mediation” constitutes an order entered pursuant to Rule 1-016(A)(5) 7 (“In any action the court may in its discreti on direct the attorneys for the parties and 8 any unrepresented parties to appear beforeit for a conference or conferences before 9 trial for such purposes as . . . facilitating the settlement of the case.”). Therefore, 10 Plaintiff’s argument continues, dismissal was prohibited by th e express language of 11 Rule 1-041(E)(1) stating, “A n action or claim shall not be dismissed if the party 12 opposing the motion is in compliance with anorder entered pursuant to Rule 1-016[.]” 13 Plaintiff concedes that this argument wa s not raised before the district court. 14 For the reasons discussed above under Plain tiff’s tolling argument, we do not address 15 this argument. 1612 CONCLUSION 1 The order of the district court is affirmed. 2 IT IS SO ORDERED. 3

______________________________ 4 MICHAEL E. VIGIL, Judge 5 WE CONCUR: 6

_________________________________ 7 CELIA FOY CASTILLO, Chief Judge 8

_________________________________ 9 LINDA M. VANZI, Judge 10