Jefferson County District Court No. 16CV31729 Honorable
Margie L. Enquist, Judge
Bendinelli Law Firm, P.C., Marco F. Bendinelli, Westminster,
Colorado, for Plaintiff-Appellee
Office of Robert B. Hunter, Christopher J. Metcalfe, Denver,
Colorado, for Defendant-Appellant
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.
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. 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
6 The case went to trial, and a jury returned a verdict in
Ms. Murray's favor in the amount of $39, 906.18.
7 Mr. Kim contends that the district court lacked the
discretion under Rule 60(b) to vacate its earlier dismissal