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Dirks v. Jimenez

Supreme Court of Wyoming

March 6, 2015

JESSICA DIRKS, Appellant (Plaintiff),
v.
KEN JIMENEZ, Appellee (Defendant)

Appeal from the District Court of Laramie County. The Honorable Steven K. Sharpe, Judge.

Representing Appellant: Bernard Q. Phelan of The Phelan Law Firm, Cheyenne, Wyoming.

Representing Appellee: George E. Powers, Jr. and Jane M. France of Sundahl, Powers, Kapp & Martin LLC, Cheyenne, Wyoming. Argument by Ms. France.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

OPINION

Page 263

FOX, Justice.

[¶1] Jessica Dirks filed a complaint against Ken Jimenez, alleging she was injured when she was a passenger in a vehicle driven by Mr. Jimenez that left the road and rolled several times. Ms. Dirks served Mr. Jimenez under Wyoming's nonresident motorist statute by serving the Secretary of State and sending a copy by certified mail to the Rock Springs, Wyoming, address for Mr. Jimenez in the accident report, although she had obtained a more current address in discovery

Page 264

in a prior proceeding. She also notified the attorneys who had represented Mr. Jimenez in the prior proceeding. The district court found that Ms. Dirks failed to demonstrate due diligence in locating Mr. Jimenez and did not comply with the nonresident motorist statute, and it therefore quashed the attempted service and dismissed the case as untimely. We affirm.

ISSUES

[¶2] 1. Ms. Dirks mailed notice of service to an address which she knew or should have known was no longer valid. Was the notice sufficient to satisfy the requirements of Wyoming's nonresident motorist statute?

2. Was notice of service on Mr. Jimenez's former attorney actual notice, sufficient to satisfy the requirements of Wyoming's nonresident motorist statute?

FACTS

[¶3] Ms. Dirks filed her first complaint on April 25, 2012, alleging that she had been injured on April 26, 2008, when the vehicle driven by Mr. Jimenez, in which she was a passenger, left the road and rolled several times, causing her injury. In the course of that proceeding, Mr. Jimenez provided his Defendant's Rule 26 Disclosures which gave his address in Duluth, Minnesota. The action was dismissed without prejudice on October 11, 2012, by stipulation of the parties, " subject to potential refiling within one (1) year from the dismissal of this action pursuant to W.S. § 1-3-118."

[¶4] Ms. Dirks filed a new complaint seeking recovery for injuries she sustained in the 2008 accident on October 3, 2013. Her attorney filed an Affidavit Regarding Service Upon Secretary of State for a Person Outside the State of Wyoming; Mailing to the Last Known Address of the Defendant by Certified Mail, pursuant to Wyo. Stat. Ann. § 1-6-301 (LexisNexis 2013), in which he stated that he filed the complaint and summons with the Secretary of State, and sent a copy by certified mail to Mr. Jimenez at his last known address. That address, in Rock Springs, Wyoming, was the address for Mr. Jimenez on the 2008 Investigator's Traffic Crash Report. The attorney's ...


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