Reyes v. LCSO et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CHARLIE REYES,
Plaintiff,
v. 	No. 2:24-cv-831-KG-KRS
BRYCE BAILEY; TODD DANLEY;
DEANNA PRESTON; BRENDAN RODELLA;
GERALDINE MARTINEZ; LINCOLN COUNTY
MANAGER; and LINCOLN COUNTY BOARD
OF COMMISSIONERS,
Defendants.
ORDER GRANTING [39] MOTION TO QUASH FOR IMPROPER SERVICE
and
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on the Special Appearance and Motion to Quash For
Improper Service (“Motion”) (Doc. 39), filed by the New Mexico Association of Counties. The
Motion contests service of process on Defendants Todd Danley, Geraldine Martinez, Deanna Preston,
Brendan Rodella, and Bryce Bailey. For the following reasons, the Motion is granted, and the
undersigned recommends dismissal for failure to effect timely service.
Background
On June 16, 2025, the Court issued an Order to Show Cause noting that Plaintiff had far
exceeded the deadline for effecting service on Defendants Bailey, Danley, Preston, and Rodella. (Doc.
23). The Court ordered Plaintiff to show cause for his failure to effect timely service on Defendants
Bailey, Danley, Preston, and Rodella, or to provide an explanation for why the Court should grant a
permissive extension of time to serve those Defendants in lieu of dismissing his claims against those
Defendants for failure to prosecute. (Id.). If Plaintiff did not show either good cause or an adequate
reason for the Court to grant a permissive extension of time to serve Defendants Bailey, Danley,
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Preston, and Rodella, the Court stated that it might recommend that his claims against those
Defendants be dismissed without prejudice. (Id.).
Plaintiff responded to the Order To Show Cause on June 25, 2025 (Doc. 25). On July 8, 2025,
the Court issued an Order quashing the Order to Show Cause (Doc. 27). The Court’s July 8, 2025
Order found that Plaintiff had failed to provide support for his assertion that Defendants Bailey,
Danley, Preston, and Rodella had been served while the case was pending in state court. The Court
further found that the deadline for service on those Defendants in federal court expired on November
29, 2024, but that those Defendants would not be prejudiced by the Court extending the service
deadline to August 28, 2025, with proof of service due by September 10, 2025. The Court also noted
that the deadline for Plaintiff to serve Defendant Martinez was due to expire on August 28, 2025, and
ordered Plaintiff to also file proof of service on Defendant Martinez by September 10, 2025. Absent
proof of service as stated in the Order, the Court cautioned Plaintiff that it could recommend that
Plaintiff’s claims against those Defendants be dismissed without prejudice. (Id. at 7).
On August 18, 2025, Plaintiff filed affidavits of service purporting to show that summonses
and the amended complaint were served on Defendants Danley, Martinez, Preston, Rodella, and
Bailey on August 12, 2025. (Docs. 37, 38). On September 2, 2025, said Defendants filed the present
Motion seeking an order quashing the improper service that Plaintiff claims to have effected on them.
According to the Motion, the summonses and amended complaint were served upon unauthorized
individuals at those Defendants’ places of employment rather than upon them personally or at their
residences. (Doc. 39 at 1). Although affidavits of service were later completed for each, there is no
indication that any Defendants actually received service, or that Plaintiff attempted to comply with
the requirements of F ED. R. C IV. P. 4(e) or Rule 1-004(F), NMRA. Defendants argue that “[b]oth
federal and state rules make clear that service at a defendant’s place of employment is only
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permissible after reasonable efforts to effect personal service or service at the individual’s residence
have been undertaken,” and that “no such efforts were undertaken” here. (Id. at 1-2).
Order Granting Doc. 39
The Motion (Doc. 39) was filed September 2, 2025. Plaintiff’s response to the Motion,
therefore, was due September 16, 2025. See D.N.M. LR-C IV. 7.4(a) (responses due fourteen days after
motion filed). To date, no response to the Motion has been filed. “The failure of a party to file and
serve a response in opposition to a motion within the time prescribed for doing so constitutes consent
to grant the motion.” D.N.M. LR-C IV. 7.1(b). Accordingly, Plaintiff is deemed by LOCAL R ULE 7.1(b)
to have consented to the Court granting the Motion.
In addition to the above, Plaintiff’s amended proofs of service filed August 18, 2025 (Docs.
37, 38), are inadequate to prove that service was effected. “In cases removed from state court in which
one or more defendants has not been served prior to removal, service may be completed or new
process issued in the same manner as in cases originally filed in such district court.” 28 U.S.C. § 1448;
see also Wallace v. Microsoft Corp., 596 F.3d 703, 706 (10th Cir. 2010) (the Federal Rules of Civil
Procedure apply to removed cases after the date of removal); FED. R. C IV. P. 81(c) (same). The
methods of service of process on an individual for cases in federal court are set out in F EDERAL R ULE
OF C IVIL P ROCEDURE 4(e). Pursuant to R ULE 4(e), an individual may be served by: (1) following state
law for serving a summons in an action brought in courts of general jurisdiction in the state where the
district court is located or where service is made; (2) delivering a copy of the summons and of the
complaint to the individual personally; (3) leaving a copy of each at the individual’s dwelling or usual
place of abode with someone of suitable age and discretion who resides there; or (4) delivering a copy
of each to an agent authorized by appointment or by law to receive service of process. See FED. R.
C IV. P. 4(e).
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It appears that Plaintiff may be relying on subparagraph (2)(C) of R ULE 4(e), for service,
which provides for service on “an agent authorized by appointment or by law to receive service of
process.” FED. R. C IV. P. 4(e)(2)(C). Doc. 37 represents that an individual named Alfred Barela was
authorized to accept service on behalf of Defendant Martinez, and that Barela was served on August
11, 2025. Doc. 38 represents that Sam Chavez is authorized to accept service on behalf of Defendants
Bailey, Danley, Preston, Rodella, and that Chavez was served on August 12, 2025. But Plaintiff has
provided no proof or explanation to establish that Barela is “authorized by appointment or by law” to
accept service on behalf of Defendant Martinez, or that Chavez is “authorized by appointment or by
law” to accept service on behalf of Defendants Bailey, Danley, Preston, Rodella.
To the extent that Plaintiff seeks to rely on state law instead, the amended proofs of service
are similarly deficient. Under New Mexico law, service on an individual must be accomplished
through personal delivery to the named defendant, or by mail or commercial courier, as set forth in
NMRA, R ULE 1004(F)(1)-(2). Only if service cannot be accomplished through attempts to serve in
accordance with subparagraphs (1) and (2) of R ULE 1004(F) is service of process allowed “by
delivering a copy of the process at the actual place of business or employment of the defendant to the
person apparently in charge thereof.” NMRA, R ULE 1004(F)(3). Plaintiff has not shown that he
attempted service under subparagraphs (1) and (2) of R ULE 1004(F), before attempting to serve at
Defendants’ places of employment. Nor has he shown that the individuals served at Defendants’
places of employment (Barela and Chavez) are the persons “apparently in charge” of the places of
employment. Nor has he shown that he complied with the additional requirement of R ULE 1004(F)(3)
that, at the same time as service is made at the places of employment, a copy of the summons and
complaint also be sent “by first class mail to the defendant at the defendant’s last known mailing
address and at the defendant's actual place of business or employment.” Id.
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For all of the above reasons, the Court finds that the amended proofs of service fail to establish
service was effected. Accordingly, the Motion (Doc. 39) is GRANTED. Plaintiff’s Amended
Affidavits of Service (Docs. 37 and 38) are insufficient under the law, and the Court finds that
Defendants Todd Danley, Geraldine Martinez, Deanna Preston, Brendan Rodella, and Bryce Bailey
have not been served with process.
Recommended Findings and Proposed Disposition
As previously discussed, the Court forewarned Plaintiff that if service was not effected on
Defendants Danley, Preston, Rodella, and Bailey by August 25, 2025, and on Defendant Martinez by
August 28, 2025, with adequate proof of service filed by September 10, 2025, the undersigned could
recommend dismissal of his claims against those Defendants.
The undersigned RECOMMENDS that the findings in the previous section regarding
Plaintiff’s failure to effect service of process be adopted.
In addition, Plaintiff already has been granted a lengthy extension of the service deadline as
to Defendants Danley, Preston, Rodella, and Bailey, and he has not sought an extension of the
deadline for service on Defendant Martinez. Instead, Plaintiff continues to stand on affidavits of
service that do not establish proper service—despite the undersigned having pointed to the methods
for proper service in its previous orders. Accordingly, the undersigned further RECOMMENDS that
no additional extensions of the service deadline be granted.
Finally, because service has not been effected and the undersigned recommends that no further
extensions of the service deadline be granted, the undersigned further RECOMMENDS that
Plaintiff’s claims against Defendants Todd Danley, Deanna Preston, Brendan Rodella, and Bryce
Bailey be dismissed without prejudice. See FED. R. C IV. P. 4(m) (“If a defendant is not served within
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90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—
must dismiss the action without prejudice against that defendant ….”).
IT IS SO ORDERED this 17th day of November, 2025.
__________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
THE 	PARTIES 	ARE 	NOTIFIED 	THAT 	WITHIN 	14 	DAYS 	OF
SERVICE of a copy of these Proposed Findings and Recommended
Disposition they may file written objections with the Clerk of the District
Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any objections
with the Clerk of the District Court within the fourteen day period if that
party wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no appellate review
will be allowed.
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