Herrera v. Las Cruces Public Schools

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 13, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
CHRISTINA HERRERA,

Plaintiff - Appellant,

v. No. 16-2179
(D.C. No. 2:16-CV-00034-WJ-CG)
LAS CRUCES PUBLIC SCHOOLS; (D. N.M.)
BELINDA LOPEZ; CRISTINA
SALAZAR,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before BRISCOE, HOLMES, and PHILLIPS, Circuit Judges.
_________________________________

Christina Herrera appeals the district court’s dismissal of her action as

untimely filed. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the

dismissal but remand with directions for the district court to enter its dismissal

without prejudice.

*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
 I. BACKGROUND

Ms. Herrera filed an action in New Mexico state court against her former

employer, Las Cruces Public Schools, and two former co-workers. She asserted three

claims: (1) “Disability Discrimination and Retaliation”; (2) “Retaliatory Discharge”;

and (3) “Intentional Infliction of Emotional Distress, and Prima Facie Tort.” Aplt.

App. at 16, 23, 24 (capitalization omitted). In her first claim, she alleged that her

“action [was] for damages under The New Mexico Human Rights Act [(NMHRA)],”

id. at 16, and that she had received an order of nondetermination from the Human

Rights Bureau (HRB) of New Mexico’s Department of Workforce Solutions on a

charge of disability discrimination and retaliation she had filed.1 She also alleged

that Las Cruces Public Schools had “discriminated and retaliated against [her] . . . for

requesting Family Medical leave,” id. at 18, and later referenced the common

acronym for the federal Family Medical Leave Act, “FMLA,” id. at 22.

Defendants removed the case to the United States District Court for the

District of New Mexico, asserting federal-question jurisdiction under 28 U.S.C.

§ 1331 based on the presence of an FMLA claim, and diversity jurisdiction under

28 U.S.C. § 1332 based on allegations that Ms. Herrera was an Arizona resident, all

1
New Mexico statutes, New Mexico court rules, and various judicial decisions
refer to the “HRB,” the “Human Rights Commission,” the “commission,” the
“NMHRC,” the “HRC,” the “Human Rights Division,” the “Division,” the
“NMHRD,” and the “HRD.” We view these as interchangeable synonyms for
purposes of legal analysis but retain their use throughout our disposition when
quoting from or discussing a source that uses them. We refer only to the “HRB”
when discussing the facts of Ms. Herrera’s case.

2
defendants were New Mexico residents, and the amount in controversy exceeded the

statutory minimum of $75,000. Defendants also filed a motion to dismiss the first

and second claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state

a claim upon which relief can be granted. Defendants argued that Ms. Herrera filed

those two claims beyond the ninety-day limitations period provided for in N.M. Stat.

Ann. § 28-1-13(A) and Rule 1-076(D) of the New Mexico Rules Annotated (NMRA).

The statute provides that “[a] person aggrieved by an order of the [human rights]

commission may obtain a trial de novo by filing a notice of appeal in the district

court of the county where the discriminatory practice occurred or where the

respondent does business.” N.M. Stat. Ann. § 28-1-13(A). “The notice of appeal

must be filled within ninety days from the date of service of the commission’s order.”

Id. (emphasis added).

Materially identical provisions exist in the NMRA. Rule 1-076(B) states: “An

appeal from the Human Rights Commission may be taken by filing a notice of appeal

in the form of a complaint in the district court in the manner provided by these rules

for the filing of a civil action in the district court.” Rule 1-076(B) NMRA. As

relevant here, Rule 1-076(D) provides that “[a]n appeal from the Human Rights

Commission shall be taken within ninety (90) days from the date of service on the

parties to the administrative proceeding of: (1) the commission’s order.”

Rule 1-076(D)(1) NMRA (emphasis added). Neither the statute nor the rule defines

the key phrase “date of service.” However, Rule 1-005(B) provides that when

3
service is required or permitted to be made by mailing, “[s]ervice . . . is complete

upon mailing.” Rule 1-005(B) NMRA.

The nondetermination order Ms. Herrera appealed from was dated

September 2, 2015. In her complaint, she alleged that the order was mailed on

September 2, 2015, and that she received it on or about September 6, 2015. She filed

her complaint on Monday, December 7, 2015, which was ninety-six days after the

date it was mailed. Based on those dates and their view that “date of service” meant

“date of mailing,” defendants argued that her complaint was untimely and the two

NMHRA claims should be dismissed.

Ms. Herrera responded that the order was mailed to her attorney on Friday,

September 4, and probably received on Tuesday, September 8, given that

September 6 was a Sunday and the following day, September 7, was a federal holiday

(Labor Day) with no mail delivery. In support, she submitted the envelope in which

the order was mailed to her attorney bearing a postage-machine stamp dated

September 4, 2015. She concluded that if measured from either September 6, 7, or

8—all of which she claimed were possible dates of receipt—her December 7 filing of

the complaint was timely under Rule 1-006 NMRA, which adds three days to the end

of a time period when service is made by mail and further extends the time period

4
when the third day falls on a Saturday, Sunday, or legal holiday to “the next day that

is not a Saturday, Sunday, or legal holiday.” Rule 1-006(C).2

In resolving the dispute, the district court relied on Vigil v. City of Espanola,

No. CIV 08-0980 JB/RLP, 2009 WL 1300746, at *10–11 (D.N.M. Feb. 18, 2009)

(unpublished), which held that “service” in Rule 1-076(D) means “date of mailing”

within “the sense conveyed in rule 1-005,” under which “service by mail is complete

on the date of mailing,” Rule 1-005(B) NMRA. The district court determined that in

Ms. Herrera’s case, the date of service was either September 2 (the date on the order

and, presumably, the mailing date), September 3, or September 4 (the date stamped

on the envelope Ms. Herrera submitted), and when measured from those dates, the

complaint was due on December 1, 2, or 3. Aplt. App. at 40–41 & n.1. Hence,

Ms. Herrera’s December 7 complaint was untimely. The court also observed that

Rule 1-006’s time-computation rules do not apply when they are “expressly

supersede[d]” by “another Supreme Court rule of procedure,” Rule 1-006(A) NMRA,

and that Rule 1-076(D) expressly superseded Rule 1-006’s three-day time extension

for mail service by stating “[t]he three (3) day mailing period set forth in Rule 1-006

does not apply to the time limit for filing a notice of appeal,” Rule 1-076(D) NMRA.

2
In her response to the motion to dismiss, Ms. Herrera relied on a similar
extension of the last day of a time period found in Rule 1-006(A) but which is not
specifically tied to a three-day extension period. The district court’s discussion
reflects that reliance, but for analytical purposes, there is no material difference
between the last-day portions of Rule 1-006(A) and Rule 1-006(C).

5
 The court further found no equitable reason to toll the limitations period

because Ms. Herrera had not demonstrated any extraordinary circumstances that

prevented her from timely filing her complaint, there was no indication that the HRB

failed to notify her of the nondetermination order, and she had not asked the court “to

create some novel equitable basis to exempt her from [the] statute of limitations.”

Aplt. App. at 42. The court therefore concluded that her NMHRA “claims [were]

time barred.” Id. The court also entered a separate judgment dismissing “all claims

in [the] action . . . WITH PREJUDICE, thus disposing of [the] case in its entirety.”

Id. at 44.

Ms. Herrera filed a motion for relief from judgment under Federal Rule of

Civil Procedure 59(e) to which she attached two affidavits. In one, Ms. Herrera

attested that she had received the nondetermination order on September 10. In the

other, her attorney attested to receipt of her copy on September 8 in an envelope

postmarked September 4. In denying the Rule 59(e) motion, the district court

disagreed with Ms. Herrera that Rule 1-006’s last-day exclusion applied, explaining

that by the court’s calculations, the last day of the period did not fall on a Saturday,

Sunday, or legal holiday. The court also rejected her argument that it had improperly

relied on September 4 as a possible start date for calculating the complaint’s

timeliness.

Next, the court disagreed that delay in receipt warranted tolling of the

deadline. The court reiterated that the limitations period began to run on the date of

mailing, not receipt, and that even if Ms. Herrera’s receipt of the order was delayed

6
by eight days (from September 2 till September 10), she still had eighty-two days to

timely file her complaint. This distinguished her case from those she relied on,

which involved limitations periods that expired due to inevitable systemic

complications or an agency error that cause the plaintiff’s attorney to not receive

notice of the order until the limitations period had expired. The court also concluded

that she was not entitled to equitable tolling on the ground that the nondetermination

order informed her that her notice of appeal had to be filed in state court “WITHIN

NINETY (90) DAYS OF YOUR RECEIPT OF THIS ORDER,” Aplt. App. at 15.

The court noted that the order also referenced § 28-1-13(A)’s requirement that the

ninety-day period ran “from the date of service of this Order of Nondetermination,”

Aplt. App. at 14, and reasoned that, as in Vigil, 2009 WL 1300746, at *13, the law

was the statute, not the HRB’s warning, and it was up to Ms. Herrera and her attorney

to investigate further before relying on the warning. Finally, to the extent

Ms. Herrera sought equitable estoppel based on the HRB’s warning, the court

concluded that she had not met state-law criteria for such relief, in particular the

requirement to establish “affirmative misconduct on the part of the government.”

Aplt. App. at 60 (internal quotation marks omitted). This appeal followed.3

3
We note that, contrary to 10th Cir. R. 10.3(C)(7), 10.3(D)(2), and 30.1(B)(1),
Ms. Herrera’s appendix does not include her notice of appeal, which designated only
the district court’s order denying her Rule 59(e) motion as the order appealed, or any
of the other documents she was required to include: (1) defendants’ motion to
dismiss, her response to it, and defendants’ supporting reply; and (2) her Rule 59
motion and defendants’ response to it (she did not file a reply). We may, however,
take judicial notice of the omitted filings. See Guttman v. Khalsa, 669 F.3d 1101,
(continued)
7
 II. SUBJECT MATTER JURISDICTION

On appeal, Ms. Herrera first contends that the district court lacked federal

question jurisdiction because she did not plead any federal claims. Defendants

respond that an FMLA claim is evident in the complaint. We need not resolve this

dispute because, on de novo review, Knight v. Mooring Capital Fund, LLC, 749 F.3d

1180, 1183 (10th Cir. 2014), we conclude that the district court had diversity

jurisdiction under 28 U.S.C. § 1332(a).

A district court may exercise removal jurisdiction over “any civil action

brought in a State court of which the district courts of the United States have original

jurisdiction.” 28 U.S.C. § 1441(a). The parties do not dispute, nor is there any

question, whether the two requirements for diversity jurisdiction under § 1332(a)

were met here—complete diversity of citizenship between the parties and adequate

proof of jurisdictional facts suggesting that the amount in controversy exceeded

1127 n.5 (10th Cir. 2012) (stating that we can take judicial notice of filings in the
district court even when they are not included in the record on appeal). We elect to
do so here despite the discretion we have to decline to consider issues for which an
inadequate appendix is provided. See 10th Cir. R. 10.3(B) and 30.1(B)(3); see also
Burnett v. Sw. Bell Tel., L.P., 555 F.3d 906, 910 (10th Cir. 2009) (explaining that
“we regularly decline to hear claims predicated upon record evidence not included in
the appendix,” and summarily affirming on that basis). We do acknowledge that
Ms. Herrera submitted her Rule 59(e) motion and defendants’ response to it as part of
her docketing statement, but she also should have included them in the appendix.
Finally, many of the appendix citations in Ms. Herrera’s opening appellate brief
appear erroneous, which has made this court’s work more difficult and less efficient.

8
$75,000.4 But as Ms. Herrera points out, under what is commonly referred to as the

forum-defendant rule, “[a] civil action otherwise removable solely on the basis of

[diversity] jurisdiction . . . may not be removed if any of the parties in interest

properly joined and served as defendants is a citizen of the State in which such action

is brought.” Id. § 1441(b)(2).

Facially, the forum-defendant rule might serve as a bar to removal in this case:

all three defendants were served. But Ms. Herrera did not contest removal on this (or

any other) basis before the district court. And as she concedes, the forum-defendant

rule is a procedural rule, not a jurisdictional one, and can therefore be waived if the

plaintiff does not raise a § 1441(b)(2) objection in the district court but instead

proceeds with the action. See Am. Oil Co. v. McMullin, 433 F.2d 1091, 1093–95

(10th Cir. 1970) (concluding that prior, substantially similar version of § 1441(b)(2)

was procedural, not jurisdictional, and therefore waivable); see also Brazell v. Waite,

4
In their notice of removal, defendants pointed out that Ms. Herrera sought a
variety of damages, including lost earnings and punitive damages, and posited that
“[a]n award of past and future earnings alone would satisfy the $75,000.00
requirement” given that her annual salary was approximately $56,000 and she had
last been employed with the school district more than four years ago. Aplt. App.
at 29–30. An “estimate of the potential damages [derived] from the allegations in the
complaint” is an acceptable means of “proving jurisdictional facts that [make] it
possible that $75,000 [is] in play.” McPhail v. Deere & Co., 529 F.3d 947, 955
(10th Cir. 2008).

9
525 F. App’x 878, 884 (10th Cir. 2013) (same regarding current version of

§ 1441(b)(2))5.6

Ms. Herrera admits that she did not seek remand on this basis but asserts that it

was because, by its terms, the forum-defendant rule applies only where a civil action

is “removable solely on the basis of [diversity] jurisdiction,” 28 U.S.C. § 1441(b)(2)

(emphasis added). She claims she took defendants at their word when they also

asserted federal-question jurisdiction, the existence of which foreclosed reliance on

the forum-defendant rule. This argument is not credible. Ms. Herrera well knew

whether she raised a federal claim under FMLA, and in fact she now disavows that

she had. If she wanted a remand, she surely could have argued in the district court

that there was no federal question jurisdiction and that, with diversity as the only

remaining basis for the district court’s jurisdiction, the forum-defendant could be

properly invoked. She did not do so and therefore waived the protections of the

forum-defendant rule.

5
Consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1, we cite to our
unpublished decision in Brazell and to other unpublished Tenth Circuit decisions
only for their persuasive value.
6
Most other circuits to consider the issue have reached the same conclusion.
See Lively v. Wild Oats Market, Inc., 456 F.3d 933, 940 (9th Cir. 2006) (collecting
cases). Further, some courts have held that a plaintiff waives the protections of the
forum-defendant rule if she fails to file a motion to remand based on any defects
other than subject matter jurisdiction within 30 days of removal, as required by
28 U.S.C. § 1447(c). See, e.g., Lively, 456 F.3d at 942; Handelsman v. Bedford Vill.
Assocs. Ltd. P’ship, 213 F.3d 48, 50 n.2 (2d Cir. 2000). We need not consider the
time limit because Ms. Herrera advanced no objections to removal in the district
court, within 30 days of removal or otherwise.

10
 III. MERITS

A. Dismissal of NMHRA claims

1. The jurisdictional nature of the limitations issue

At the outset, we must first address Ms. Herrera’s argument that the district

court erred in considering evidence outside of the complaint and making findings of

fact on a Rule 12(b)(6) motion. See Aplt. Opening Br. at 30–33. To be sure, a

statute of limitations can be raised as an affirmative defense under Rule 12(b)(6)

when the time bar is clear from the face of the complaint. Sierra Club v. Okla. Gas

& Elec. Co., 816 F.3d 666, 671 (10th Cir. 2016); Aldrich v. McCulloch Props., Inc.,

627 F.2d 1036, 1041 n.4 (10th Cir. 1980). But the New Mexico Supreme Court has

explained that “the timely filing of a notice of appeal from an NMHRA

administrative order is effective to give the district court jurisdiction to try the case

de novo under [N.M. Stat. Ann.] Section 28-1-13.” Mitchell-Carr v. McLendon,

980 P.2d 65, 70 (N.M. 1999) (emphasis added) (internal quotation marks omitted).

“[T]he district court must dismiss an NMHRA claim if the prerequisites of obtaining

an order from the Division and appealing that order within thirty days are not

satisfied.” Id. (considering prior version of statute with thirty-day limitations

period). Whether Ms. Herrera’s complaint was timely filed, therefore, is a

jurisdictional issue. And in that circumstance, Federal Rule of Civil Procedure

12(b)(1), which allows the “defense . . . [of] lack of subject-matter jurisdiction” to be

asserted “by motion,” is the proper procedural mechanism, not Rule 12(b)(6).

11
 This is an important distinction because, as it turned out, defendants’ challenge

to Ms. Herrera’s compliance with the limitations period was in the nature of a factual

attack rather than a facial attack. A “facial attack” is based “on the complaint’s

allegations as to subject matter jurisdiction [and] questions the sufficiency of the

complaint,” whereas a factual attack goes beyond the complaint’s allegations “and

challenge[s] the facts upon which subject matter jurisdiction depends.” Holt v.

United States, 46 F.3d 1000, 1002–03 (10th Cir. 1995).

Here, defendants sought dismissal based only on the allegations in the

complaint and the nondetermination order, which was referenced in the complaint

and attached to their dismissal motion. This gives the appearance of a facial attack.

But the motion ultimately turned on varying factual allegations regarding the date the

nondetermination order was mailed to and received by Ms. Herrera and her attorney

and the legal significance of those dates. In fact, in her response to the motion,

Ms. Herrera offered another document for the district court’s consideration—the

envelope in which a copy of the nondetermination order was mailed to her attorney—

and made additional factual allegations regarding possible mailing and receipt dates

that were later than the dates she alleged in her complaint (and more favorable to

her). Hence, we construe defendants’ motion as a factual attack on the court’s

subject matter jurisdiction.

When considering a factual attack on subject matter jurisdiction mounted in a

motion to dismiss, “a district court may not presume the truthfulness of the

complaint’s factual allegations,” and it “has wide discretion to allow affidavits, other

12
documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.”

Id. at 1003. Unless the jurisdictional issue is intertwined with the merits of the case,

considering evidence outside the complaint does not convert the dismissal motion

into one for summary judgment under Federal Rule of Civil Procedure 56. Id. The

jurisdictional issue here was not intertwined with the merits of the case.

Accordingly, we reject Ms. Herrera’s argument that the district court erred in

considering documents outside of her complaint and making factual findings.

2. Standard of review

Our review of a Rule 12(b)(1) dismissal is de novo. Colo. Envtl. Coal. v.

Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004).

3. Meaning of “date of service”

Our first task on the merits of this appeal is to determine the meaning of the

term “date of service” as used in N.M. Stat. Ann. § 28-1-13(A) and Rule 1-076(D)(1)

NMRA. Despite measuring the ninety-day time limit from the service date, neither

the statute nor the rule defines “date of service.” Plaintiff claims “date of service”

means “date of receipt.” Defendants claim it means “date of mailing.” As noted, the

district court sided with defendants, and so do we, bearing in mind that our task is not

to reach our own judgment about New Mexico law but to “follow the most recent

decisions of the state’s highest court.” Wade v. EMCASCO Ins. Co., 483 F.3d 657,

665-66 (10th Cir. 2007). If the state’s highest court has not provided a controlling

decision, we must “predict what the state supreme court would do” by “seek[ing]

guidance from decisions rendered by lower courts in the relevant state, appellate

13
decisions in other states with similar legal principles, district court decisions

interpreting the law of the state in question, and the general weight and trend of

authority in the relevant area of law.” Id. at 666 (citations and internal quotation

marks omitted). Neither party has asked us to certify any question of law to the New

Mexico Supreme Court, nor are we inclined to.

Defendants contend that two New Mexico Supreme Court decisions hold “that

the time for filing an appeal from an agency decision runs from the date the decision

is entered or the date of service on the complainant’s attorney and that service is

complete upon mailing.” Aplee. Response Br. at 20. We do not read those cases the

same way. One of those cases, Maples v. State, 791 P.2d 788 (N.M. 1990),

concerned the conflict between a New Mexico Supreme Court rule requiring an

appeal to the judiciary from a ruling by the state Workers Compensation Hearing

Officer to be filed “within thirty days from the filing of the order,” id. at 788

(emphasis omitted), and a state statute that “allow[ed] filing thirty days after the

order [was] mailed,” id. at 789. The court held that in “procedural matters such as

time limitations for appeals, a rule adopted by the Supreme Court governs over an

inconsistent statute,” and that the Supreme Court has “the power to set the time for

all appeals from final orders, including appeals from final orders of administrative

agencies.” Id. at 790 (internal quotation marks omitted).7 The Maples court did not

7
We do not have such a conflict here; the statute and the rule are materially
identical.

14
touch on whether the time for appeal runs from the “date of service,” whether “on the

complainant’s attorney,” as defendants suggest, Aplee. Response Br. at 20, or

otherwise. Nor did Maples say anything about service being “complete upon

mailing,” id. It merely identified the controlling rule, which measured the time for

appeal from the date an order is filed, not from the “date of service.”

Defendants’ contention that service is complete upon mailing to a claimant’s

attorney finds even less support in the other New Mexico Supreme Court case they

rely on, American Automobile Ass’n v. State Corp. Commission, 697 P.2d 946 (N.M.

1985) (AAA). In AAA, the court held only that a state rule of appellate procedure

governed the time for an appeal from a state district court decision, and that a state

rule of civil procedure governing the time for appealing an action by a state

administrative body to a state district court was inapplicable. Id. at 947–48. AAA did

not concern “date of service,” whether service is “complete upon mailing,” or even

an appeal from a decision by a state administrative body.8

For her interpretation that “date of service” equals “date of receipt,”

Ms. Herrera leans heavily on two decisions. The first is from the New Mexico Court

8
Defendants also point to James v. New Mexico Human Services Department,
742 P.2d 530, 532 (N.M. Ct. App. 1987), for its rejection of an argument that the
time for appealing an agency’s decision ran from the date the plaintiff received the
decision because “it is virtually impossible to calculate appeal time when it runs from
receipt of the decision rather than the date of the decision itself.” However, the
controlling court rule at issue in James specifically provided that the time limit for an
appeal is measured from “the date of the order, decision or action appealed.” Id.
at 531 (quotation omitted). James is, therefore, materially distinguishable from this
case.

15
of Appeals, Downer v. New Mexico Corrections Department, No. 30,602 (N.M. Ct.

App. Dec. 29, 2010) (unpublished). In Downer, the district court determined that the

plaintiff’s notice of appeal was untimely under Rule 1-076(D) and § 28-1-13(A).

Downer, slip op. at 2. The court of appeals issued a calendar notice proposing

summary reversal. In its memorandum opinion, the court found that the

administrative decision informing the plaintiff that he had “ninety days from receipt

of the letter to appeal to the district court . . . was sufficient to preclude summary

judgment on the issue of the timeliness of the appeal.” Id. at 3.

In support of that conclusion, the appeals court cited to Ocana v. American

Furniture Co., 91 P.3d 58 (N.M. 2004). In Ocana, the New Mexico Supreme Court

reversed a grant of summary judgment based on a late notice of appeal under

§ 28-1-13(A) and Rule 1-076(D) because the plaintiff’s attorney did not receive a

copy of a no-probable-cause decision until after the limitations period had run.

Id. at 67. The Court held that “[u]nder these facts, a fact-finder could find that the

Division’s actions tolled the time limits.” Id. Ocana explicitly declined to “discuss

whether the [limitations] period begins to run on the date the complainant actually

receives notice of the no-probable-cause decision from the Division.” Id.

Neither Downer nor Ocana sheds any light on the meaning of the term “date of

service.” Ocana is explicitly a tolling case, and Downer is most properly viewed the

same; the dispositions in both turned on the representation in the communication to

the plaintiff or her attorney that receipt of the decision triggered the ninety-day

period. And while Downer rejected the defendant’s contention “that the date of

16
service is the date the decision is mailed,” it did so “for the reasons stated in [the

court’s] calendar notice.” Downer, slip op. at 3–4.

In the calendar notice, the court of appeals reasoned that “the appeal procedure

is not now clear” because both the nondetermination letter and an agency regulation

indicated that the ninety-day period begins to run from the date the decision is

received, not when it is mailed, as could be gleaned from applying Rule 1-005(B) to

“date of service” in Rule 1-076(D). Downer, Notice Proposed Summary Disposition,

at 3–5 (undated) (emphasis added).9 Because of the lack of clarity, and because

Downer had appealed within ninety days of receiving the decision, the court of

appeals proposed to reverse the district court’s ruling that the appeal was untimely,

citing New Mexico authority for the proposition that “only the most unusual

circumstances beyond the control of the parties – such as error on the part of the

court – will warrant overlooking procedural defects.” Id. at 5 (brackets and internal

quotation marks omitted). It is therefore clear that the memorandum opinion in

Downer did not decide whether “date of service” is the date of mailing or the date of

receipt but elected to reverse on equitable grounds.10

9
We have obtained a copy of the calendar notice from the New Mexico Court
of Appeals.
10
Downer and all other unpublished New Mexico cases we cite in this
decision are not precedential, but they “may be cited for any persuasive value.” Rule
12-405(A) NMRA.

17
 Finally, in a case decided after Downer, Haynes v. Presbyterian Healthcare

Services, No. 34,489, 2015 WL 4366698 (N.M. Ct. App. June 30, 2015)

(unpublished), cert. quashed, No. S-1-SC-35456 (N.M. Apr. 14, 2016), the New

Mexico Court of Appeals suggested that Rule 1-076’s phrase “date of service” means

date of mailing. In Haynes, the appeals court had issued a calendar notice proposing

to affirm the district court’s dismissal of the plaintiff’s NMHRA claims for failure to

file a timely appeal. Id. at *1. In its decision, the court described its calendar notice

as “noting that Appellant’s complaint was filed in the district court ninety-one days

after the New Mexico Human Rights Commission . . . issued its waiver[11] and that

. . . § 28-1-13 . . . and Rule 1-076(D) . . . require the complaint be filed within ninety

days.” Id. (emphasis added). And in the calendar notice, the court stated that the

waiver was “issued and mailed” on the same day. Haynes, No. 34,489, Notice

Proposed Summary Disposition, at 2 (N.M. Ct. App. May 28, 2015).12 Hence, by

referring to the date of issue, which the calendar notice makes clear was the same as

the mailing date, Haynes clearly stands for the proposition that service under both the

statute and the rule is complete upon mailing.13

11
The date of service of “the director’s or complainant’s notice of waiver of
the complainant’s rights to hearing before the Commission” is another event that
triggers the ninety-day appeal period. Rule 1-076(D)(2) NMRA.
12
As with Downer, we have obtained a copy of the calendar notice from the
New Mexico Court of Appeals.
13
Haynes also concluded that Rule 1-006’s three-day extension of the
ninety-day period when service is made by mail was inapplicable under the express
(continued)
18
 The other case Ms. Herrera relies on for her view that “date of service” means

“date of receipt” is DePaula v. Easter Seals El Mirador, No. 14-CV-252 MCA/SCY,

2015 WL 12751708 (D.N.M. Jan. 27, 2015) (unpublished). In DePaula, the federal

district court noted that Downer was decided after Vigil v. City of Espinosa, the case

the district court had relied on in Ms. Herrera’s case, and found Downer persuasive

for its tolling discussion, quoting from it at length and concluding that the plaintiff’s

appeal was timely because it was filed exactly ninety days after he received the

agency’s decision. Id. at *4. Hence DePaula is a tolling case. It does not assist us

in determining the meaning of the term “date of service.”

In addition to Haynes, we find Vigil helpful in predicting how the New Mexico

Supreme Court would rule on the meaning of “date of service” in Rule 1-076(D)

because it contains a considered and on-point analysis of the issue. In Vigil, the court

reasoned that “rule 1-076 uses ‘service’ as that term is defined elsewhere in the

[NMRA]” specifically in Rule 1-005 (“Service [by mail] is complete upon mailing”),

and that “there is nothing in rule 1-076 that would command a different definition of

‘service’ within its context.” Vigil, 2009 WL 1300746, at *10. The court found

additional support for its view in the fact that deadlines for other types of appeals set

out in the NMRA “always depend[] on the action of the agency or court,” not “on

receipt or any other action by the parties.” Id. at *11. The court also relied on

authority from other jurisdictions that in the service-of-process context, the burden of

terms of Rule 1-076(D). As noted, the district court in Ms. Herrera’s case reached
the same conclusion, which she has not challenged on appeal.

19
proving service is on the party invoking a court’s jurisdiction, but a rebuttable

presumption of valid service “arises upon a showing that the statutes or rules

prescribing the manner of service have been followed.” Id. at *12. This system

“provides an effective way for [a] party to prove jurisdiction” and “prevents the

injustice of allowing parties to thwart a court’s proper jurisdiction by making

unsubstantiated allegations that they did not receive notice of an action.” Id. The

court concluded that the plaintiff had not rebutted the presumption that proper service

was made on the date the nondetermination order was mailed to her. Id.14

Based largely on Vigil and to a somewhat lesser extent on Haynes, we

conclude that “date of service” in both Rule 1-076(D) and § 28-1-13(A) means “date

of mailing” when service is effected by mailing. Here, the district court determined

that the latest mailing date was September 4, and measured from that date, the

ninety-day period ended on December 3. Because Ms. Herrera did not file her

complaint until December 7, it was untimely.

4. Ms. Herrera’s counterarguments

Ms. Herrera offers a number of arguments why it is improper to follow Vigil’s

interpretation of “date of service.” She first points out that the NMRA “govern the

procedure in the district courts of New Mexico in all suits of a civil nature,” and

14
We note that in Montano v. Public Service Co. of New Mexico,
No. 1:14-cv-00079 WJ/SCY, 2015 WL 12861177, at *2 (D.N.M. Aug. 3, 2015)
(unpublished), the same district judge who later decided Ms. Herrera’s case followed
Vigil’s holding that “date of service” means “the date the Order [of]
Non-Determination was mailed.”

20
“[e]xcept where [the NMRA] explicitly provide otherwise, the [NMRA] do not apply

where there are contrary statutory provisions concerning special statutory or

summary proceedings.” Rule 1-001(A) NMRA. Ms. Herrera posits that NMHRA

proceedings appear to fit under Rule 1-001(A)’s “special statutory proceedings”

exception, and that there is a contrary agency regulation that would override

Rule 1-005(B)’s provision that service by mail is complete upon mailing. We

disagree because, even assuming the truth of her premise (that NMHRA proceedings

are “special statutory proceedings”), Ms. Herrera’s conclusion rests on a faulty

reading of Rule 1-001, which renders the NMRAs inapplicable in the face of

“contrary statutory provisions,” Rule 1-001(A) NMRA (emphasis added), not

contrary agency regulations.

Next, Ms. Herrera contends that Rule 1-076(D) does not govern determination

of “date of service” because Rule 1-076(H) provides that the NMRAs “apply to and

govern the procedure in the district court for de novo appeals from the Human Rights

Commission” only “[a]fter service of the complaint,” whereas service of the agency

decision that triggers the ninety-day appeal period occurs prior to service of the

complaint. We reject this argument. In Maples, the New Mexico Supreme Court

stated in no uncertain terms that it has “the power to set the time for appeals from

final orders, including appeals from final orders of administrative agencies.”

791 P.2d at 790. In promulgating Rule 1-076(D), the Supreme Court did just that,

and it can decide when the date of service occurs for purposes of “set[ting] its own

time limitations for appeals.” Maples, 791 P.2d at 790. Part of deciding when the

21
date of service occurs is deciding whether to define “‘service . . . in the sense

conveyed in rule 1-005.” Vigil, 2009 WL 1300746, at *11 (emphasis added). That

occurs during the pendency of a case, not before the court acquires jurisdiction, as

Ms. Herrera suggests. In other words, although a state court does not acquire

jurisdiction over an NMHRA matter until a complaint is filed appealing the agency

decision, it is empowered to look back at service of the decision and apply its

ninety-day rule in the manner it sees fit, which, we have concluded, is accomplished

by determining the date the decision was mailed. Thus, we are unpersuaded that

when attempting to define “date of service” as used in Rule 1-076(D), Rule 1-076(H)

precludes reference to Rule 1-005(B)’s directive that “[s]ervice . . . is complete upon

mailing.”

Ms. Herrera also argues that the time for appeal should be based on

§ 9.1.1.10(C) of the New Mexico Administrative Code (NMAC), which provides that

when the agency’s “director determines that no probable cause exists, . . . the director

will advise the complainant of his or her right to appeal the determination in district

court within 30 days [the former statutory deadline] after receipt of the

determination” (emphasis added). She observes that by regulation, the agency “may

look [to the NMRA] for guidance” when there is no “specific provision governing an

action in the [NMHRA] or in [the NMAC],” N.M. Code § 9.1.1.2(B), and she

therefore proposes that when an NMAC provision is on point, the NMRA do not

“override . . . procedures during the agency process prior to the filing of the de

novo appeal.” Aplt. Opening Br. at 27.

22
 We are unconvinced. First, as Ms. Herrera points out, the regulation’s

reference to a 30-day period is erroneous—either a “remnant[] of an older version of

the statute or a typo.” Id. at 27 n.6. But that is not why we find her argument

unconvincing. Instead, just as she concedes that the ninety-day period of

§ 28-1-13(A) “trumps the [erroneous] regulation[],” id. (emphasis added), so too,

under the plain terms of N.M. Code § 9.1.1.2(B), does § 28-1-13(A)’s “date of

service” trigger trump the regulation’s reference to “receipt” as the event that starts

the ninety-day appeal period. A fortiori, the regulation is also trumped by the use of

“date of service” in Rule 1-076(D) because, as reasoned in Maples, 791 P.2d at 790,

the New Mexico Supreme Court, not the state legislature, has the power to fix the

time for “appeals from final orders of administrative agencies,” and therefore a court

rule “controls over conflicting law.” Accordingly, Maples leads us to the NMRA, not

the NMAC, in determining when the “date of service” occurs, which is a

determination to be made by the judiciary, whether through an NMRA or case law

interpreting the NMRA.

Relatedly, Ms. Herrera notes that the regulation requires the director to notify

a complainant of the right to appeal “by certified mail, return receipt requested.”

N.M. Code § 9.1.1.10(C). Because that procedure was not followed in her case, she

contends that “any uncertainties about the date of service should be resolved in [her]

favor.” Aplt. Opening Br. at 30. But Ms. Herrera argued to the district court that a

copy of the nondetermination letter was mailed to her attorney on September 4, and

on appeal she contends that it is the date of service on her attorney that counts.

23
Hence, there is no uncertainty about the latest possible date the copy was mailed to

her attorney, and as the district court properly concluded, even when measured from

that date (September 4), the complaint was untimely.15

Finally, Ms. Herrera would have us note that Rule 1-005(B) is not the only

NMRA defining service by mail—she claims that Rule 1-004 defines service of

process by mail “as occurring upon receipt – when the summons and complaint are

served, even if service is by mail.” Id. at 28. We construe this argument as founded

on Rule 1-004(E)(3), as we can locate no other relevant subparagraph of the rule.

However, subparagraph (E)(3) does not say that service by mail is complete upon

receipt but that it is “complete on the date the receipt [for the envelope or package

containing the summons and complaint, writ, or other process] is signed as provided

by this subparagraph.” Rule 1-004(E)(3) NMRA. Nothing in Rule 1-076, which

specifically applies to “appeals from the Human Rights Commission,” suggests that a

nondetermination order must be served in this manner for purposes of determining

the “date of service.” Nor do we see any compelling reason why the additional

precautions used in serving process on a defendant in a civil case, which is “the

means by which jurisdiction is obtained over a person to compel the person to appear

in a judicial proceeding,” Rule 1-001(B)(3) NMRA, should apply to the service of a

15
Ms. Herrera now complains that the date on the envelope used to mail her
attorney’s copy is not a postmark but a postage-meter stamp and therefore not proof
of mailing on September 2. Given the district court’s conclusion that the complaint
was untimely even when measuring the limitations period from September 4, we fail
to see the point in this argument.

24
nondetermination order to a potential plaintiff/appellant, which does not establish

jurisdiction at all. We therefore reject this argument.

5. Equitable tolling and equitable estoppel

The district court rejected Ms. Herrera’s arguments for equitable tolling and

equitable estoppel. Ms. Herrera has not argued that the district court erred in doing

so. Accordingly, she has waived appellate review of the issue. See State Farm Fire

& Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (explaining that issue

not raised in opening brief is waived).

6. Conclusion on NMHRA claims

A dismissal for lack of subject matter jurisdiction generally is without

prejudice under both federal law and New Mexico law. Brown v. Buhman, 822 F.3d

1151, 1179 (10th Cir. 2016), cert. denied, 137 S. Ct. 828 (2017); Mitchell-Carr v.

McLendon, 980 P.2d 65, 71 (N.M. 1999). Consequently, although we affirm the

district court’s dismissal of the first and second claims, which arose under the

NMHRA, based on the untimeliness of the complaint, we must remand for the court

to enter its dismissal without prejudice.

B. Dismissal of third claim

Ms. Herrera argues that the district court erred in dismissing her third claim

because that claim was not subject to the NMHRA’s ninety-day statute of limitations.

Defendants argue that she failed to preserve this issue because she raises it for the

first time on appeal even though she recognized in her Rule 59(e) motion that the

court had dismissed the case in its entirety.

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 We agree that Ms. Herrera has waived appellate review of the dismissal of her

third claim. Where, as here, “a post-judgment motion serves as the only means of

bringing an issue to the district court’s attention, a party may not forgo that

procedure and raise the issue for the first time on appeal.” See Acheff v. United

States, 595 F. App’x 741, 743 (10th Cir. 2014). Further, absent an argument for

plain-error review, we do not consider theories or contentions for reversal raised for

the first time on appeal. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131

(10th Cir. 2011) (“[T]he failure to argue for plain error and its application on appeal

. . . surely marks the end of the road for an argument for reversal not first presented

to the district court.”). Ms. Herrera has not argued for plain-error review.

Accordingly, she has waived the district court’s dismissal of her third claim.

IV. CONCLUSION

The district court’s judgment is affirmed but we remand with instructions that

the court enter the dismissal of claims one and two without prejudice.

Entered for the Court

Mary Beck Briscoe
Circuit Judge

26