NMCA: District court can’t dismiss case under Rule 1-041(E)(1) if plaintiff is in compliance with a scheduling order

In a legal malpractice case, the defendant moved to dismiss with prejudice under Rule 1-041(E)(1) for failure to take significant action to advance the case. The district court denied the motion, and entered a scheduling order. The plaintiff complied with the scheduling order’s deadlines, filing lists of exhibits, fact witnesses, and expert witnesses.

The defendant, however, still wanted out of the case, and filed a motion to reconsider the denial of his Rule 1-041(E)(1) motion. This time, the district court granted the motion.

In Rodriguez v. Sanchez, the Court of Appeals reversed, because Rule 1-041(E)(1) states that “[a]n action or claim shall not be dismissed if the party opposing the motion is in compliance with an order entered pursuant to Rule 1-016[.]” The defendant argued that the plaintiff’s compliance with the scheduling order didn’t matter because the order was entered after the motion to dismiss was filed. All that mattered, according to the defendant, were the plaintiff’s actions to advance the case in the two years before the motion to dismiss was filed.

Judge Hanisee’s opinion rejected the defendant’s arguments because they were based on New Mexico case law interpreting previous versions of Rule 1-041(E), which lacked the language prohibiting dismissal where the plaintiff is in compliance with a scheduling order.

The lesson to be drawn from this is that a lawyer should not rely on case law interpreting a statute or rule without carefully reviewing whether the language of the statute or rule has changed. It may well be that changes in the language will render the earlier case law inoperative.

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