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Malm v. Villegas

Supreme Court of Colorado, En Banc

January 20, 2015

In Re Lillian R. Malm, Plaintiff:
v.
Marion Brigitte Villegas, Defendant

Original Proceeding Pursuant to C.A.R. 21 . Jefferson County District Court Case No. 05CV4355. Honorable Lily W. Oeffler, Judge.

Rule Made Absolute.

SYLLABUS

Villegas petitioned for relief pursuant to C.A.R. 21 from an order of the district court granting Malm's motion to reopen her personal injury lawsuit, some six years after it had been marked inactive and closed. The court denied Villegas's motion to reconsider and dismiss the action for failure to prosecute, despite the passage of more than seven years between the filing and service of the complaint. Relying largely on Malm's self-reported efforts to find and serve Villegas, and Villegas's failure to demonstrate prejudice from the delay, the district court effectively found that service was had within a reasonable time. The supreme court issued a rule to show cause why the district court had not abused its discretion in declining to dismiss for failure to prosecute.

The supreme court made its rule absolute and remanded with directions to dismiss the action. Because the delay between filing and service of the complaint extended beyond expiration of the applicable statute of limitations and there were no factual findings that the delay was the product of either wrongful conduct by the defendant or some formal impediment to service, the supreme court found that service was not had within a reasonable time, and therefore, the district court abused its discretion in declining to dismiss the lawsuit for failure to prosecute.

Attorneys for Plaintiff-Respondent: Springer and Steinberg, P.C., Michael P. Zwiebel, Jeffrey A. Springer, Matthew Giacomini, Jason Astle, Denver, Colorado.

Attorneys for Defendant-Petitioner: Bayer & Carey, P.C., Marianne Lizza-Irwin, Andrew C. Nickel, Peter M. Spiessbach, Denver, Colorado.

OPINION

Page 423

COATS, JUSTICE

[¶1] Villegas petitioned for relief pursuant to C.A.R. 21 from an order of the district court granting Malm's motion to reopen her personal injury lawsuit, some six years after it had been marked inactive and closed. The court denied Villegas's motion to reconsider and dismiss the action for failure to prosecute, despite the passage of more than seven years between the filing and service of the complaint. Relying largely on Malm's self-reported efforts to find and serve Villegas, and Villegas's failure to demonstrate prejudice from the delay, the district court effectively found that service was had within a reasonable time.

[¶2] Because service following commencement of the action by filing a complaint with the court was delayed for an unreasonable length of time, the district court abused its discretion in declining to dismiss the lawsuit for failure to prosecute. The rule is therefore made absolute, and the matter is remanded to the district court with directions to dismiss the action.

I.

[¶3] Lillian Malm commenced this action against Marion Villegas by filing a complaint with the district court in December 2005. The complaint alleged that Villegas caused Malm to suffer personal injuries in an automobile accident in 2002, some two years and eleven months earlier. It was undisputed that the complaint was therefore filed approximately one month before expiration of the applicable three-year statute of limitations.

[¶4] In September 2006, having failed to find and personally serve Villegas, Malm moved for permission to establish quasi in rem jurisdiction by attaching Villegas's insurance policy and accomplishing service through publication. Although the court granted her motion and she demonstrated service by publication, in response to a motion to dismiss for lack of personal jurisdiction by Villegas's insurer, appearing specially, the court ultimately found quasi in rem jurisdiction to be an improper means of acquiring jurisdiction over Villegas's property. ...


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