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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-39558

DAVID GRIEGO,

Plaintiff-Appellant,

v.

JOHN SERNA,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF MORA COUNTY

Flora Gallegos, District Court Judge 

Christopher P. Lucero

Albuquerque, NM

for Appellant

Riley Keller Alderete Gonzales

David A. Gonzales

Mathew R. Wadsworth

Victor E. Sanchez

Albuquerque, NM

for Appellee

MEMORANDUM OPINION

IVES, Judge.

{1} The district court dismissed Plaintiff David Griego’s suit against Defendant John 

Serna1 on the grounds that he had failed to serve process on Defendant “with 

 

1While this appeal was pending, Mr. Serna died. Following a motion to substitute, this Court substituted 

Sophie Serna, personal representative of the estate of John Serna, as Defendant. However, because the 

discussion of this opinion relates to events that transpired during Mr. Serna’s lifetime when he was a party 

in the underlying action, we refer to Mr. Serna as Defendant. 
reasonable diligence,” as required by Rule 1-004(C)(2) NMRA. Plaintiff appeals, 

contending that the district court abused its discretion. We affirm the dismissal, and as a 

result, we do not reach the abatement questions that arose due to the death of 

Defendant during the pendency of this appeal. 

DISCUSSION

{2} We review a dismissal based on inadequate service of process for abuse of 

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

abuse of discretion occurs when the ruling is clearly against the logic and effect of the 

facts and circumstances of the case. We cannot say the [district] court abused its 

discretion by its ruling unless we can characterize it as clearly untenable or not justified 

by reason.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal 

quotation marks and citation omitted). Relatedly, we will not find an abuse of discretion 

solely because the district court might have reached a different result, see Talley v. 

Talley, 1993-NMCA-003, ¶ 12, 115 N.M. 89, 847 P.2d 323 (“When there exist reasons 

both supporting and detracting from a [district] court decision, there is no abuse of 

discretion.”), and we presume the correctness of the district court’s decision. Farmers, 

Inc. v. Dal Mach. & Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063.

{3} Rule 1-004(C)(2) states that “[s]ervice of process shall be made with reasonable 

diligence.” Although the rule does not define “reasonable diligence,” the relevant case 

law interprets this language to impose an objective standard under which courts 

“consider the totality of circumstances,” and “weigh the actions taken by [the plaintiff] to 

obtain service against the prejudice to the [defendant] resulting from the delay of 

service.” Martinez, 2003-NMCA-023, ¶ 27. 

{4} Here, the district court applied this test and concluded that Plaintiff’s actions did 

not satisfy this objective standard of “reasonable diligence.” On appeal, Plaintiff does 

not appear to argue that the district court applied the wrong test, but rather that it 

applied the correct test in an erroneous manner. Specifically, Plaintiff argues that the 

district court erred by: (1) failing to consider the length of the delay and Plaintiff’s 

reasons for it, which he claims were reasonable because they are consistent with a 

common civil litigation practice; and (2) failing to identify and weigh specific prejudice to 

Defendant resulting from the delay in service. We discuss Plaintiff’s claims of error in 

turn. 

I. The District Court Did Not Err in Weighing the Delay in Service 

{5} The crux of Plaintiff’s first claim of error is that the district court—in weighing the 

“totality of circumstances” under the Martinez test, id.—failed to properly consider the 

reasons for the five-and-a-half month period of delay between the filing of Plaintiff’s 

complaint and the eventual service of process on Defendant. In essence, Plaintiff 

argues that during this period he withheld service of process to engage in the “common 

practice” of “prelitigation negotiation.” As Plaintiff explains, civil plaintiffs must 

occasionally file a suit in order to toll a statute of limitations, but then such plaintiffs may 
choose to withhold service of process in an effort to “negotiate . . . claims without 

litigation.” He asserts that this practice “helps reduce the litigation burden on New 

Mexico’s courts” by encouraging less costly forms of dispute resolution. In Plaintiff’s 

view, by following this widespread practice he acted with diligence in pursuing the claim, 

and the district court erred in failing to weigh this diligence in its “totality of 

circumstances” reasonable diligence analysis. Moreover, he argues that the five-and-ahalf month period of delay was “well within the timeframe for service that this [Court] 

and other [c]ourts have blessed”—a fact that he argues was ignored by the district 

court. 

{6} Even if we accept the general principle that post-complaint and preservice 

negotiation can be consistent with Rule 1-004(C)(2)’s “reasonable diligence” standard, 

we agree with the district court that no such negotiation occurred here. The record is 

devoid of any indication of contact between Plaintiff and Defendant—or even Plaintiff 

and Defendant’s insurer—during the five-and-a-half month period between the filing of 

the complaint and the eventual service of process. In an attempt to show the kind of 

“prelitigation negotiation practice” that he believes to be reasonably diligent, Plaintiff 

points to: (1) a letter that his counsel sent to Defendant’s insurance carrier two weeks 

before the suit was filed; (2) a voicemail received from the insurance adjuster in 

response to that letter five days later; and (3) an email chain with an insurance adjuster 

dated ten days after service of process was effectuated. However, it is undisputed that 

none of these communications took place during the five-and-a-half month period of 

delay that is relevant to Rule 1-004(C)(2)’s reasonable diligence analysis. Moreover, 

although the initial letter to the insurer states that “[a] demand letter will follow shortly”—

suggesting a potential start of prelitgation negotiation—the record contains no 

subsequent demand letter or any further indication that Defendant or his insurer were 

ever made aware of the filing of the lawsuit prior to process being served. These 

circumstances, in conjunction with the undisputed fact that service was never attempted 

during the relevant five-and-a-half month period of delay, indicate that the district court’s 

conclusions about Plaintiff’s lack of reasonable diligence were not so “clearly against

the logic and effect of the facts and circumstances of the case” as to constitute an 

abuse of discretion. Rojo, 1999-NMSC-001, ¶ 41. In addition, the mere fact that other 

cases have accepted longer delays for service of process is not a basis for concluding 

that the district court abused its discretion here. The totality of circumstances standard 

for “reasonable diligence” under Rule 1-004(C)(2) is fact-intensive, and the lack of a 

bright-line rule, coupled with the discretion entrusted to district courts, invariably leads to 

different outcomes because the length of the delay is not the only factor courts must 

consider. Courts must also consider other factors, such as the reasons for the delay, 

what efforts were made to effect service, and prejudice resulting from the delay. With 

respect to factors other than the length of delay, Plaintiff has not accounted for any 

differences between the cases he relies on and his own case, and we do not believe 

that any of the cited cases support the conclusion that the district court abused its 

discretion here.

II. Plaintiff Has Not Established That the District Court Erred in Its Prejudice 

Analysis
{7} Before we discuss what Plaintiff argues regarding the prejudice factor, we 

emphasize that Plaintiff has not made a substantial evidence challenge to the district 

court’s finding that “Defendant was prejudiced by [the] delay” in service. See Rule 12-

318(A)(3), (4) NMRA. That finding is therefore binding on appeal. Crutchfield v. N.M. 

Dep’t of Tax’n & Revenue, 2005-NMCA-022, ¶ 17, 137 N.M. 26, 106 P.3d 1273.

{8} Plaintiff argues that the district court erred in failing “to identify and weigh any 

specific prejudice [Defendant] suffered, as binding precedent required it to do.” The 

binding precedent referred to by Plaintiff is Martinez, 2003-NMCA-023, ¶ 27, which he 

reads to impose a strict requirement that a court may only dismiss a suit under Rule 1-

004(C)(2) if the court identifies “specific prejudice” that is “actually suffered” by a 

defendant. At the outset, we note that Plaintiff crafts no argument as to why Martinez’s 

broadly framed “totality of circumstances,” 2003-NMCA-023, ¶ 27, test should be 

interpreted in this manner, and to the extent Plaintiff urges this Court to impose such a 

requirement, his argument is conclusory and underdeveloped. See Elane Photography, 

LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (“To rule on an inadequately briefed 

issue, this Court would have to develop the arguments itself, effectively performing the 

parties’ work for them.”). 

{9} Plaintiff also argues that the district court’s dismissal “largely rested on its finding 

that [Defendant] had suffered prejudice,” but we do not believe the record supports 

Plaintiff’s argument. Both the order of dismissal and the court’s oral ruling focus on (1) 

the lack of attempts to actually serve Defendant, even though Plaintiff knew where 

Defendant resided; (2) Defendant’s lack of notice of the pending lawsuit; and (3) the 

lack of any communication or negotiation between the parties during the five-and-a-half 

month period of delay between the filing of the complaint and the service of process. In 

the order of dismissal, the district court found, among other things, that “Defendant was 

prejudiced by this delay.” Martinez makes clear that it is appropriate for a court to 

consider “prejudice to the [defendant] resulting from the delay of service,” 2003-NMCA023, ¶ 27, and we see nothing in the record suggesting that the district court placed 

such great weight on prejudice that its ruling amounts to an abuse of discretion. See 

Rojo, 1999-NMSC-001, ¶ 41.

CONCLUSION

{10} We affirm. 

{11} IT IS SO ORDERED.

ZACHARY A. IVES, Judge

WE CONCUR:

KRISTINA BOGARDUS, Judge

SHAMMARA H. HENDERSON, Judge