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Murray v. Kim

Court of Appeals of Colorado, Seventh Division

October 24, 2019

Jordan Murray, Plaintiff-Appellee,
v.
Bum Soo Kim, Defendant-Appellant.

          Jefferson County District Court No. 16CV31729 Honorable Margie L. Enquist, Judge

          Bendinelli Law Firm, P.C., Marco F. Bendinelli, Westminster, Colorado, for Plaintiff-Appellee

          Law Office of Robert B. Hunter, Christopher J. Metcalfe, Denver, Colorado, for Defendant-Appellant

          OPINION

          J. JONES JUDGE

         ¶ 1 Defendant, Bum Soo Kim, appeals the district court's judgment and in particular its order denying his motion to dismiss the complaint of plaintiff, Jordan Murray. He argues that, under the particular facts of this case, the district court didn't have discretion to reinstate the case under C.R.C.P. 60(b) after the court had dismissed it without prejudice for failure to submit proof of service of process. Because we agree with Mr. Kim, we reverse the judgment and remand with directions to dismiss the case.

         I. Background

         ¶ 2 Ms. Murray, through counsel, filed her complaint on November 8, 2016, asserting claims for negligence and negligence per se against Mr. Kim arising from a car accident. The next day, the district court issued a "Civil Procedure Order" that said (in all capital letters), "FAILURE TO COMPLY WITH ANY OF THE DEADLINES SET FORTH IN THIS ORDER MAY RESULT IN DISMISSAL WITHOUT FURTHER NOTICE." One of those deadlines required Ms. Murray to file a return of service of process within sixty-three days of filing the complaint pursuant to C.R.C.P. 4(m). Ms. Murray's counsel didn't submit proof of service by that time, and the court dismissed the case for that reason without prejudice on January 13, 2017.[1] The statute of limitations on the claims expired twelve days later.

         ¶ 3 On September 13, 2017 (243 days after dismissal), Ms. Murray's counsel filed a motion to reinstate the case. The motion sought relief under C.R.C.P. 60(b)(3), or alternatively under C.R.C.P. 60(b)(5), arguing that the order of dismissal was void for failure to give Ms. Murray adequate notice in accordance with C.R.C.P. 121, section 1-10 and C.R.C.P. 41(b)(2), and that failing to reinstate the case would be "inequitable" because she would be "left without remedy."

         ¶ 4 Without giving Mr. Kim a chance to respond, the district court granted Ms. Murray's motion the same day:

The Civil Procedure Order, had counsel read it, indicates that failure to comply with the Order will result in dismissal without prejudice without further notice. This Court is not responsible for Plaintiff's counsel's failure to read or follow the Court's Orders.
Nonetheless, this Court finds that justice would not be served by penalizing Plaintiff for [her] counsel's oversight. Resolution on the merits will not unduly prejudice the Defense. This case is reopened; Plaintiff to serve the Defendant's insurance company within 7 days' hereof and to thereafter actively prosecute this case in compliance with the C.R.C.P. and this Court's CPO.

         ¶ 5 Mr. Kim then moved to dismiss the case as barred by the statute of limitations and asked the court to clarify the legal basis for its reinstatement of the complaint. The district court denied Mr. Kim's motion to dismiss, explicitly finding that Ms. Murray had established excusable neglect: "[T]he Court finds that Plaintiff has met [her] burden of establishing excusable neglect for the delay, and that this action shall be reinstated in the interest of justice."

         ¶ 6 The case went to trial, and a jury returned a verdict in Ms. Murray's favor in the amount of $39, 906.18.

         II. Discussion

         ¶ 7 Mr. Kim contends that the district court lacked the discretion under Rule 60(b) to vacate its earlier dismissal ...


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