Clements v. Mercantel

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO No. A-1-CA-39085

JESSE CLEMENTS,

Plaintiff-Appellant, v.

GREGG MERCANTEL, personally and as

Secretary of the New Mexico Corrections

Department; NEW MEXICO CORRECTIONS

DEPARTMENT, CENTRAL NEW MEXICO

CORRECTIONAL FACILITY, and

CORRECTIONS OFFICERS JANE AND

JOHN DOES 1 AND 2,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF GUADALUPE COUNTY

Floripa Gallegos, District Judge

Law Offices of Augustine M. Rodriguez, L.L.C.

Augustine M. Rodriguez

Albuquerque, NM for Appellant

Jarmie & Rogers, P.C.

Mark D. Jarmie

Matthew D. Bullock

Albuquerque, NM for Appellees

MEMORANDUM OPINION

HANISEE, Chief Judge. {1} Plaintiff appeals from the district court’s order denying his third motion to reinstate his complaint following dismissal for lack of prosecution. This Court issued a calendar notice proposing to summarily affirm. Plaintiff filed a memorandum in opposition and Defendants filed a memorandum in support, both of which we have duly considered. Unpersuaded that the district court abused its discretion or otherwise committed reversible error, we affirm. {2} Plaintiff maintains that the district court erred when it denied his third motion for reinstatement under Rule 1-041(E)(2) NMRA and allowed Defendants to defend against reinstatement without having filed an answer. [MIO PDF 1-4] The arguments contained in Plaintiff’s memorandum in opposition do not persuade us that this Court’s proposed summary disposition was in error and do not otherwise impact our analysis or our disposition of this case. As such, we affirm for the reasons stated in our notice of proposed disposition. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the burden is on the party opposing the proposed disposition to clearly point out errors in fact or law.”). {3} IT IS SO ORDERED.

J. MILES HANISEE, Chief Judge

WE CONCUR:

ZACHARY A. IVES, Judge

JANE B. YOHALEM, Judge