UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

JOSEPH MONTANO, 

 Plaintiff-Appellant, 

v. 

PUBLIC SERVICE COMPANY OF 

NEW MEXICO, 

 Defendant-Appellee. 

No. 14-2146 

(D.C. No. 1:14-CV-00079-WJ-SCY) 

(D. New Mexico)

 

ORDER AND JUDGMENT*

 

Before BACHARACH, PORFILIO, and BALDOCK, Circuit Judges. 

 

 Mr. Joseph Montano sued for retaliation under Title VII of the Civil 

Rights Act and race discrimination under the New Mexico Human Rights 

Act.1

 He filed a complaint in state court in November 2012, but the action 

was dismissed without prejudice in June 2013 for failure to diligently 

 

*

 The Court has determined that oral argument would not materially 

aid our consideration of the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th 

Cir. R. 34.1(G). Thus, we have decided the appeal based on the briefs. Our 

order and judgment does not constitute binding precedent except under the 

doctrines of law of the case, res judicata, and collateral estoppel. 

1

 Mr. Montano also claimed breach of an implied contract. On this 

claim, the district court granted summary judgment to the defendant. 

Mr. Montano states that he is appealing the summary judgment ruling, but 

he has not presented any argument on why the ruling was incorrect. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 23, 2015

Elisabeth A. Shumaker 

Clerk of Court

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prosecute. The state court reinstated the action in November 2013, after the 

limitations period would have expired. After the defendant removed the 

case to federal court, the federal district court dismissed the action based 

on timeliness. In the ensuing appeal, we must decide if the suit was timely. 

Our answer turns on the meaning of the state court’s reinstatement. In our 

view, the reinstatement reactivated the original action, which was timely.2

Thus, we reverse. 

 We review the dismissal de novo. See Braxton v. Zavaras, 614 F.3d 

1156, 1159 (10th Cir. 2010) (“We review de novo the dismissal of an 

action under Rule 12(b)(6) based on the statute of limitations.”). In 

engaging in de novo review, we accept the complaint’s factual allegations 

as true and construe them in the light most favorable to the plaintiff. 

United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001). 

 The issue of timeliness turns on the limitations period and the timing 

of the suit. Mr. Montano had to seek administrative relief. See Shikles v. 

Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005) (“It is 

well-established that Title VII requires a plaintiff to exhaust his or her 

 

2

 In its motion to dismiss, the defendant did not challenge the 

timeliness of the original complaint, although it did “not concede that the 

lawsuit [had been] filed within 90 days of receiving any right to sue 

letters.” Appellant’s App. at 17. Because the defendant has not challenged 

the timeliness of the original complaint (filed in November 2012), we may 

assume it was timely filed for purposes of this appeal. 

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administrative remedies before filing suit.”); Lobato v. State Env’t Dep’t, 

267 P.3d 65, 68 (N.M. 2011) (stating that claims under the New Mexico 

Human Rights Act “require administrative exhaustion before a plaintiff can 

bring suit”). If dissatisfied, Mr. Montano could sue within 90 days of the 

agency’s determination. See 42 U.S.C. § 2000e-5(f)(1) (2012); N.M. Stat. 

Ann. § 28-1-13(A) (2005). 

 Mr. Montano timely sued in state court on November 15, 2012. But 

the suit was dismissed without prejudice for lack of prosecution. In 

dismissing the action, a state court said Mr. Montano could move for 

reinstatement within 30 days. He did,3

 and the state court ordered 

reinstatement in November 2013. The issue of timeliness turns on when the 

action began: November 2012 (when Mr. Montano filed the state-court 

suit) or November 2013 (when the action was reinstated). 

 If we rely on the date of the original complaint, the suit would be 

timely. Though this action was dismissed, it was reinstated. Thus, we must 

determine the effect of reinstatement. 

 Interpreting New Mexico law on reinstatement, the state intermediate 

court of appeals held in Wershaw v. Davis that reinstatement serves to 

reactivate the previously dismissed action. 929 P.2d 984, 986 (N.M. Ct. 

 

3

 Mr. Montano called his filing a “motion to reopen,” but it was treated 

as a motion for reinstatement. 

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App. 1992). The court explained that there was no need for a new 

complaint because the operative complaint was the one already filed. See 

id. (“Because a new complaint is not filed and the case is simply 

reactivated, there is no problem with the running of the statute of 

limitations.”). Under Wershaw, the suit is deemed “filed” in November 

2012 because that suit was eventually reactivated. With a filing date in 

November 2012, the action was timely. 

 The defendant argues that Wershaw is distinguishable for three 

reasons. 

1. The New Mexico Supreme Court has stated that King v. Lujan

 remains good law. 

2. Policy considerations favor strict enforcement of the 90-day 

 limitations period. 

3. The complaint became a nullity upon the order of dismissal. 

We reject all of these arguments. 

 In King v. Lujan, the New Mexico Supreme Court held that the 

statute of limitations is not tolled by a dismissal for lack of prosecution. 

646 P.2d 1243, 1244-45 (N.M. 1982). The defendant argues that this 

portion of King remains good law. For the sake of argument, we can 

assume the defendant is correct. But this part of King is beside the point 

because we need not address, one way or the other, whether dismissal 

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tolled the limitations period. The issue involves when the action began 

rather than the possibility of tolling.4

 The defendant also urges policy considerations supporting strict 

enforcement of the 90-day limitations period. But these policy 

considerations do not leave us free to ignore the state district court’s 

reinstatement of the original complaint. Our task is simply to determine 

when the action began. When the court reactivated the original suit, it was 

as though it had never been dismissed. In these circumstances, policy 

considerations should not interfere with our straightforward task of 

determining when the operative complaint was filed. 

 Finally, the defendant argues that when the complaint was dismissed, 

the complaint became a nullity, as though it had never been filed. 

Appellee’s Resp. Br. at 4-7. That was true before New Mexico created the 

procedure for reinstatement. See King, 646 P.2d at 1244-45 (“[W]e hold 

that a dismissal without prejudice operates to leave the parties as if no 

 

4

 The defendant relies on Meiboom v. Watson, 994 P.2d 1154 (N.M. 

2000). There the New Mexico Supreme Court dealt with the effect of 

relieving a party from an order of dismissal under N.M. Stat. Ann., Rule 1-

060(GB)(6). Meiboom, 994 P.2d at 1157. Pointing out that King and 

Wershaw involved a “significantly different” statute, the court concluded 

that the cases were neither controlling nor relevant. Id. at 1157-59. In 

drawing this conclusion, the New Mexico Supreme Court acknowledged 

that the rules had changed since King, obviating the need to file a new 

complaint after a dismissed case had been reinstated. Id. at 1158-59. After 

acknowledging this change in the rules, the New Mexico Supreme Court 

pointed out that it was “not disturbing Wershaw’s holding.” Id. at 1159. 

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action had been brought at all.”). But New Mexico later created a 

procedure for reinstating the dismissed action,5

 which the state court 

utilized to reactivate the suit. The state court could not reactivate 

something that had never existed. Thus, upon reinstatement, it is no longer 

possible to view the dismissed action as if it never existed. 

 Because the original suit was timely and was reactivated, it should 

not have been dismissed. Accordingly, we reverse and remand for further 

proceedings. 

 Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge 

 

5

 As the court explained in Wershaw: 

[T]he rules of civil procedure regarding involuntary dismissals 

have been substantially changed since the decision in King. 

Prior to the change, if a case was dismissed for lack of 

prosecution, a new complaint was required to be filed to place 

the matter back on the court’s docket. The new rules, however, 

allow for the reinstatement of a case that has been dismissed 

without prejudice for lack of prosecution upon a showing of 

good cause. Thus, a new complaint need not be filed in order 

to proceed. 

929 P.2d at 986 (citations omitted). 

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