“In choosing Boulder, the plaintiffs may well have engaged in ‘forum shopping’ … But Rule 98 (c)(1) does not restrict the plaintiff’s choice of venue when the defendant is a nonresident…” Opinion. Relying on its opinion in Sampson v. District Court, 590 P2d 958 (1979), and approving an exemplar affidavit in Dep’t Highways v District Court, 635 P2d 889 (1981), the Supreme Court reversed three trial court orders transferring venue. It held that Boulder was a proper venue and that Defendant Farmers Insurance did not provide sufficient evidentiary support for its request to change venue. Defendant failed to 1) focus on the convenience of non-moving party witnesses and 2) submitted inadequate affidavits that did not contain in sufficient detail: a) witness identity, b) the nature, materiality and admissibility of testimony, and c) how the change would affect the witnesses.
Monthly Archives: January 2015
“[D]elay in service… cannot be found reasonable simply because the plaintiff made diligent efforts to locate the defendant.” Opinion. Malm filed her personal injury complaint in 2005, one month before the 3-year time limitation ended. In 2013, Malm found Villegas in Germany, and the District Court reopened the case noting the lack of a rule stating a reasonable time for service in a foreign country. Villegas opposed, arguing that the failure to serve her sooner was an unreasonable delay amounting to a failure to prosecute. The Court held that a delay between filing and service of a complaint beyond the statute of limitations is reasonable only if it is the product of either wrongful conduct by the defendant or some formal impediment to service. Without any facts that Villegas deliberately avoided service, the District Court should have dismissed the case for failure to prosecute.
DISCLAIMER: The Author was an attorney on the brief for Petitioner Malm. Andy Helm assisted in the writing of this post.