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.
J., concurs. Tow, J., specially concurs.
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 ...