MEMORANDUM OPINION AND ORDER
JAMES O. BROWNING, District Judge.
THIS MATTER comes before the Court on: (i) Defendant Derica Dunn-Gross' Second Motion to Dismiss for Insufficient Process, filed April 18, 2017 (Doc. 12) ("Service of Process MTD"); and (ii) Defendant GEICO General Insurance Company's Motion to Dismiss with Prejudice Under Rule 12(b) and Memorandum in Support Thereof, filed April 21, 2017 (Doc. 13)("MTD"). The Court held a hearing on July 27, 2017. The primary issues are: (i) whether the Court should dismiss Plaintiff James Demente's claims against Defendant Derica Dunn-Gross, because Demente's summons on Dunn-Gross lacked the United States District Court of New Mexico's name, the time within which Dunn-Gross must appear and defend, the Clerk of the Court's signature, and the District of New Mexico's seal; and (ii) whether Demente's settlement with Defendants Victoria Dilucente and Anthony Dilucente precludes Demente's claims under the Unfair Insurance Practice Act ("UIPA"), N.M. Stat. Ann. §§ 59a-16-1 to 30, against GEICO Insurance. The Court concludes that Demente's summons on Dunn-Gross was defective under rule 4(a) of the Federal Rules of Civil Procedure. Nevertheless, the Court, in its discretion, may grant a party additional time to effect proper service and the Court does so here. The Court also concludes that, under Hovet v. Allstate Ins. Co., 2004-NMSC-010, ¶ 26, 89 P.3d 69, 76-77, Demente's UIPA claim is precluded. The Court, therefore, grants the MTD.
FACTUAL BACKGROUND
The Court takes the facts from the Complaint for Damages Resulting from Personal Injury, Insurance Bad Faith, Violations of the New Mexico Unfair Trade Practices Act and Punitive Damages, filed May 13, 2016, in Demente v. Dilucente, D-1329-CV-2016-00743, (Thirteenth Judicial District Court, County of Sandoval, State of New Mexico), filed in federal court on March 8, 2017 (Doc. 1)("Complaint"). As the Court must, it accepts the Complaint's factual allegations as true for the purposes of a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Court may also consider facts judicially noticed on a motion to dismiss without converting the motion into one for summary judgment. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 322 (2007)("[C]ourts must consider the complaint in its entirety, as well as . . . matters of which a court may take judicial notice."); S.E.C. v. Goldstone, 952 F.Supp.2d 1060, 1191 (D.N.M. 2013)(Browning, J.).
On August 7, 2014, Demente was driving his vehicle in Rio Rancho, New Mexico. See Complaint ¶ 6, at 2. As he approached NM 528 from Sara Road, the intersection's light changed from green to yellow. See Complaint ¶ 7, at 2. Demente attempted to clear the intersection before the light turned red, but, before he could, A. Dilucente turned his 1993 Ford vehicle in front of Demente. See Complaint ¶¶ 3, 8, at 1-2. The two cars collided. See Complaint ¶ 8, at 2. At the scene, A. Dilucente accepted responsibility for driver inattention and failure to yield the right of way. See Complaint ¶ 10, at 2.
Subsequently, Demente attempted several times to resolve an insurance claim against V. Dilucente — the 1993 Ford vehicle's owner. See Complaint ¶¶ 2, 12, at 1-2. GEICO Insurance — V. Dilucente's insurance provider — covers $100,000.00 per occurrence in property damage and bodily injury for an accident involving V. Dilucente's vehicle. See Complaint ¶ 22, at 4. GEICO Insurance made several different requests for Demente's medical records and for other information to evaluate Demente's claim. See Complaint ¶ 13, 23 at 3-4. Demente promptly and accurately responded to each GEICO Insurance request. See Complaint ¶ 13, at 3.
PROCEDURAL BACKGROUND
Demente filed his complaint in the Thirteenth Judicial District Court, County of Sandoval, State of New Mexico. See Complaint ¶ 1, at 1. Demente sued the Dilucentes for negligence, and he sued GEICO Insurance and its agent, Dunn-Gross, under the UIPA. See Complaint ¶¶ 17-24, at 3-5.1 GEICO Insurance moved to bifurcate the action and stay the suit as to it pursuant to Martinez v. Reid, 2002-NMSC-015, ¶ 29, 46 P.3d 1237, 1244. See Defendant Geico General Insurance Company's Unopposed Motion to Bifurcate and Stay, filed August 24, 2016, in Demente v. Dilucente, D-1329-CV-2016-00743 (Thirteenth Judicial District Court, County of Sandoval, State of New Mexico), filed in federal court on April 5, 2017 (Doc. 11)("Stay and Bifurcation Motion"). The state court granted the Stay and Bifurcation Motion which would remain in effect until the underlying negligence cause of action against the Dilucentes was resolved. See Order Granting Defendant Geico General Insurance Company's Unopposed Motion to Bifurcate and Stay, filed September 7, 2016, in Demente v. Dilucente, D-1329-CV-2016-00743 (Thirteenth Judicial District Court, County of Sandoval, State of New Mexico), filed in federal court on April 5, 2017 (Doc. 11).
Dunn-Gross subsequently moved to dismiss Demente's claim for insufficiency of service of process. See Defendant Derica Dunn-Gross's Motion to Dismiss for Insufficiency of Service of Process, filed November 14, 2016, in Demente v. Dilucente, D-1329-CV-2016-00743 (Thirteenth Judicial District Court, County of Sandoval, State of New Mexico), filed in federal court on April 5, 2017 (Doc. 11)("Dunn-Gross MTD"). Dunn-Gross argues that, under the New Mexico Rules of Civil Procedure, Demente failed to properly serve her, because: (i) Demente did not serve her at a location where she was found after she had refused to accept service personally; (ii) Demente did not serve her at her home; (iii) Demente did not mail her a copy of the summons and complaint via first class mail to her home or to her workplace; and (iv) Demente's attempt to serve her through an executive secretary at GEICO Insurance was insufficient, because GEICO Insurance's executive secretary was not authorized to accept service on Dunn-Gross' behalf. See Dunn-Gross MTD at 3.
After Dunn-Gross filed the Dunn-Gross MTD, Demente settled his negligence claims against the Dilucentes. See MTD ¶ 6, at 2. The state court dismissed those claims with prejudice, but left unresolved those "claims filed against Geico General Insurance Company in relation to . . . insurance bad faith, unfair trade practices, unfair insurance practices, and punitive damages." Stipulated Order of Partial Dismissal With Prejudice at 1, filed February 24, 2017, in Demente v. Dilucente, D-1329-CV-2016-00743 (Thirteenth Judicial District Court, County of Sandoval, State of New Mexico), filed in federal court on April 5, 2017 (Doc. 11)("State Order"). GEICO Insurance subsequently removed the case to federal court. See Notice of Removal at 1, filed March 8, 2017 (Doc. 1)("Notice of Removal").2
1. Service of Process MTD.
Dunn-Gross argues that Demente's attempt to serve her after removal is defective, so the Court lacks personal jurisdiction over her. See Service of Process MTD at 3. She contends that the summons is defective in five ways. See Service of Process MTD at 3-4. First, the summons did not contain the federal court's name. See Service of Process MTD at 3-4 (citing Fed. R. Civ. P. 4(a)(1)(A); Fed. R. Civ. P. 12(b)(4)). Second, the summons does not refer to the Federal Rules of Civil Procedure. See Service of Process MTD at 4. Third, it does not contain the time that Dunn-Gross needs to appear to defend herself. See Service of Process MTD at 4. Fourth, the summons does not bear the District of New Mexico's seal. See Service of Process MTD at 4. Fifth, and finally, the Clerk of the Court did not sign the summons. See Service of Process MTD at 4.
Dunn-Gross also argues that the Court should dismiss the Complaint, because Dunn-Gross was not served within ninety days of the Complaint's filing. See Service of Process MTD at 4 (citing Fed. R. Civ. P. 4(m)). According to Dunn-Gross, Demente first attempted to serve Dunn-Gross five months after he filed the Complaint — albeit, while the Complaint was pending in state court — and then attempted to serve Dunn-Gross once the case was removed to federal court — eleven months after he filed his Complaint. See Service of Process MTD at 4. Dunn-Gross concludes that Demente has not shown good cause for his delay in serving Dunn-Gross, so the Court should dismiss the Complaint. See Service of Process MTD at 4-5.
2. MTD.
GEICO Insurance argues that the Court should dismiss the UIPA claims, because, under Hovet v. Allstate, 2004-NMSC-010, ¶ 26, 89 P.3d 69, 76-77, a third party claimant does not have a cause of action under N.M. Stat. Ann. 59A-16-20 "unless and until there has been a judicial determination of the insured's fault." MTD at 4. According to GEICO Insurance, Hovet v. Allstate precludes Demente's claim, because "the parties settled." MTD at 4 (citing Hovet v. Allstate, 2004-NMSC-010, ¶ 26, 89 P.3d at 76-77). Moreover, according to GEICO Insurance, the claim is precluded, because Demente stipulated to dismissal of those claims before a judicial determination of A. Dilucente's fault. See MTD at 5.
3. MTD Response.
Demente responds to the MTD. See Plaintiff's Response to Defendant's Geico's Motion to Dismiss with Prejudice Under Rule 12(b) and Request that Defendant be Compelled to Comply with the Terms of the Order it Submitted on September 7, 2016 for Bifurcation and Stay in the Thirteenth Judicial District Court (Document No. 13) at 1, filed May 12, 2017 (Doc. 15)("MTD Response"). Demente argues that GEICO Insurance is liable under N.M. Stat. Ann. § 59A-16-20, which requires insurers to "attempt in good faith to effectuate prompt, fair and equitable settlements of an insured's claims in which liability has become reasonably clear." MTD Response at 5 (citing N.M. Stat. Ann. § 59A-16-20(E)). Demente contends that he has a statutory right to sue for damages if an insurer violates N.M. Stat. Ann. § 59A-16-20(E). See MTD Response at 5-6 (citing N.M. Stat. Ann. § 59A-16-30). Demente adds that these laws' purposes are to "protect[] innocent accident victims from financial hardship." MTD Response at 7-8 (citing Estep v. State Farm Mutual Automobile Insurance Co., 1985-NMSC-069, ¶ 17, 703 P.2d 882, 887).
Demente concedes that a "third-party claimant will not even have an action under Section 59A-16-20(E), unless and until there has been a judicial determination of the insured's fault and the amount of damages awarded in the underlying negligence action." MTD Response at 9. He argues, however, that the Court should enforce GEICO Insurance's Stay and Bifurcation motion. See MTD Response at 10. Demente argues that, by enforcing that Stay and Bifurcation motion, GEICO Insurance will remain liable under N.M. Stat. Ann. § 59A-16-20(E). See MTD Response at 10-12. Demente concludes that GEICO Insurance's attorney should be sanctioned or, at least, "chastised" for their "frivolous defense." MTD Response at 12.
4. Service of Process MTD Response.
Demente also responds to Dunn-Gross' Service of Process MTD. See Plaintiff's Response to Defendant Dunn-Gross' Motion to Dismiss for Insufficient Process (Document No. 12), filed May 16, 2017 (Doc. 17)("Service of Process MTD Response"). Demente argues that Dunn-Gross was aware of the lawsuit "as early as March, 2016," and was served not once, but four different times before GEICO Insurance removed the case to federal court. Service of Process MTD Response at 1. He argues that the process served on Dunn-Gross satisfies the New Mexico Rules of Civil Procedure. See Service of Process Response at 5 (citing N.M. Rules Ann. 1-004). First, he argues that process was proper, because it included the court's name, where he brought the action, the county, the docket number, the names of the parties, and the names of the person to whom process is directed. See Service of Process Response at 5 (citing N.M. Rules Ann. 1-004(A)-(B)). Second, he argues that service was made by mail and in person upon someone who was authorized to accept service. See Service of Process Response at 5. Third, Demente argues that he served Dunn-Gross several times "at her usual place of abode." Service of Process MTD Response at 6. He contends that, because Dunn-Gross has a "mobile lifestyle and can be found in multiple locations," serving her in many locations satisfies New Mexico's service of process rules. Service of Process MTD Response at 6. Demente concludes that Dunn-Gross "has been dodging service," and he asks the Court to deny the Service of Process MTD and award fees. Service of Process MTD Response at 6.
5. MTD Reply.
GEICO Insurance replies. See Reply in Support of Motion to Dismiss with Prejudice Under Rule 12(b)(6), filed May 23, 2017 (Doc. 18)("MTD Reply"). It reiterates its argument that Demente's UIPA claims fail, because there was no judicial determination of fault in the underlying negligence case against the Dilucentes. See Reply at 2-4. GEICO Insurance also argues that its payment of the entire available policy limit does not amount to a judicial fault determination. See Reply at 5. It concludes that Hovet v. Allstate Inc. Co., 2004-NMSC-010, ¶ 26 89 P.3d 69, 76-77 dictates that the Court should dismiss the Complaint. See Reply at 6.
6. Service of Process Reply.
Dunn-Gross replies. See Defendant Derica Dunn-Gross' Reply in Support of Her Second Motion to Dismiss for Insufficient Process, filed June 9, 2017 (Doc. 20)("Service of Process Reply"). Dunn-Gross argues that Demente did not respond to any of her arguments. See Service of Process Reply at 1. She contends that there is no dispute that Demente attempted to serve her on March 31, 2017, but that the summons did not comply with the Federal Rules of Civil Procedure. See Service of Process Reply at 1-2. She adds that Demente did not argue that there was good cause for an extension under rule 4(m), so the Court should not allow Demente to amend his summons. See Service of Process Reply at 2-3. Dunn-Gross concludes that, for the foregoing reasons, the Court should dismiss Demente's Complaint. See Service of Process Reply at 3.
7. The Hearing.
The Court held a hearing. See Draft Transcript of Motion Proceedings (taken July 27, 2017)("Tr.").3 Dunn-Gross first argued that service on her was improper. See Tr. at 3:5-12 (Lewis). She argued that, while the case was still pending in state court, service "was attempted at [Dunn-Gross'] place of employment in Richardson, Texas," Tr. at 3:10-11 (Lewis), and, in response to that service, Dunn-Gross filed a motion "point[ing] out the defects" in service, Tr. at 3:18-19 (Lewis). According to Dunn-Gross, the New Mexico rules allow for service of process on a person's place of employment, "but only after two other attempts or kinds of service have been attempted." Tr. at 3:24-4:3 (Lewis). Dunn-Gross then argues that the service attempted at her place of employment was also defective, because it was served on a Laura Hernandez — a GEICO Insurance executive secretary — who was not authorized to accept service for Dunn-Gross; according to Dunn-Gross, Hernandez told the process server that she was not authorized to accept for Dunn-Gross. See Tr. at 4:11-24 (Lewis).
Dunn-Gross also argued that the attempt to serve her after the case was removed to federal court is also defective. See Tr. at 5:11-13 (Lewis). Dunn-Gross conceded that she was served the second time at her home, see Tr. at 5:10-11 (Lewis), but contended that this service was defective, because the summons did not "put her on notice in any way, shape, or form that the matter is pending in this court," Tr. at 6:1-3 (Lewis). Dunn-Gross pressed, however, that "notice is not simply the test. Because that's essentially what plaintiff argues in the response." Tr. at 6:5-7 (Lewis). Instead, Dunn-Gross argued, "technical compliance with rule 4 is required." Tr. at 6:8-9 (Lewis). Dunn-Gross also contended that the service of process' timing is defective, see Tr. at 7:11-13 (Lewis), but she conceded that "maybe the removal complicates that somewhat," Tr. at 7:13-14 (Lewis).
Despite those arguments, Dunn-Gross conceded that "the court[] has discretion to give plaintiff a time period in which to effect proper service," Tr. at 10:5-7 (Lewis), and agreed that she did not have an issue with the Court setting a time for Demente to serve Dunn-Gross, see Tr. at 10:16-11:1 (Lewis)("[If] the court in its discretion wants to give a reasonable time period for them to effect proper service, . . . that's certainly allowable and I wouldn't object to that."). Dunn-Gross suggested twenty or twenty-one days as a reasonable time frame. See Tr. at 11:5-7 (Lewis).
Demente asserted that service of process was properly executed, but did not see "any reason to waste more time on this." Tr. at 11:21-22 (Lyle). Demente proposed a sixty day window to re-execute proper service. See Tr. at 11:25-12:1 (Lyle). The Court, accordingly gave the "plaintiff 60 days" to properly serve Dunn-Gross. Tr. at 13:15-17 (Court).
GEICO Insurance then argued the MTD. See Tr. at 14:5 (Singer). It reiterated its argument that the Court should dismiss Demente's UIPA claim, because "plaintiff has failed to obtain a judicial determination of liability." Tr. at 14:8-10 (Singer). GEICO Insurance contends that the State Order dismissing Demente's negligence claims against the Dilucentes did not "indicate[] that a determination of liability or fault had been reached." Tr. at 15:12-15 (Singer). According to GEICO Insurance, Demente's "claim did not become ripe nor will they ever do so because plaintiff chose to settle rather than litigate his claims." Tr. at 16:1-3 (Singer). Dunn-Gross added that, although she had not yet been served, "as a practical effect, your ruling on this would have the same [ef]fect on her." Tr. at 18:25-19:3 (Lewis).
The Court asked whether there was "any way to settle with a judicial determination or do you have to go to a jury trial." Tr. at 22:8-10 (Court). Dunn-Gross mused that it was "conceivable," but expressed that she is not sure why an "insurance company would agree to do that." Tr. at 22:13-16 (Lewis). She argued that an insurance company's motivation for settling would be to "avoid this very kind of claim." Tr. at 22:16-20 (Lewis). She argued that, for the Stay and Bifurcation Motion to have the effect of keeping the UIPA claims alive, the State Order dismissing the negligence claims would need explicit language to that effect. See Tr. at 23:16-24:1(Lewis).
Demente rejoined that "[w]hat makes this situation unique is that GEICO . . . set the rules as to how things would happen. GEICO . . . drafted the orders that were approved in the state district court." Tr. at 26:4-9 (Lyle). He contended that this situation is "not addressed in any New Mexico case law," and, therefore, that New Mexico precedent does not bind the Court. Tr. at 26:10-13. According to Demente, GEICO Insurance's low settlement offer is exactly why the "Insurance Practices Act" exists. Tr. at 29:7-8 (Lyle). Demente also argued that the Court could hold an evidentiary hearing on whether there was fault, so that the claims could proceed against GEICO Insurance. See Tr. at 29:21-30:8 (Lyle). Demente conceded again, as he did in his MTD Response, see MTD Response at 9, that there must be a judicial determination of fault before a plaintiff may proceed on an UIPA claim, see Tr. at 30:18 (Lyle), but reiterated that GEICO Insurance's control over the State Order dismissing Demente's claims allows Demente to proceed with his UIPA claim, see Tr. at 30:21-31:5 (Lyle). Demente also argued that New Mexico caselaw does not bind the Court, because GEICO Insurance had settled for the policy limits. See Tr. 33:13-18 (Lyle). Responding to whether the Court should dismiss Dunn-Gross on the same grounds if the Court dismisses GEICO Insurance, Demente noted that "it would seem to make se[nse], but there may be some other considerations." Tr. at 41:15-16 (Lyle). The Court concluded by signaling its inclination to dismiss the UIPA claims. See Tr. at 43:2-4 (Court).
LAW REGARDING RULE 12(B)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a court to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). The Complaint's sufficiency is a question of law, and, when considering a rule 12(b)(6) motion, a court must accept as true all well-pled factual allegations in the complaint, view those allegations in the light most favorable to the nonmoving party, and draw all reasonable inferences in the plaintiff's favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)("[O]nly if a reasonable person could not draw . . . an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss."); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)("[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.")(citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006)).
A complaint need not set forth detailed factual allegations, yet a "pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action" is insufficient. Ashcroft v. Iqbal, 556 U.S. at 678 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. at 678. "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. at 555.
To survive a motion to dismiss, a plaintiff's complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). "Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(emphasis omitted). The United States Court of Appeals for the Tenth Circuit has stated:
"[P]lausibility" in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs "have not nudged their claims across the line from conceivable to plausible." The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(citations omitted)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570). See Gallegos v. Bernalillo Cty. Board of Cty. Comm'rs, ___ F. Supp. 3d ____, 2017 WL 4402422, at *9 (D.N.M. 2017)(Browning, J.).
"When a party presents matters outside of the pleadings for consideration, as a general rule `the court must either exclude the material or treat the motion as one for summary judgment.'" Brokers' Choice of America, Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir. 2017)(quoting Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir. 2004)). There are three limited exceptions to this general principle: (i) documents that the complaint incorporates by reference, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); (ii) "documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity," Jacobsen v. Deseret Book Co., 287 F.3d at 941; and (iii) "matters of which a court may take judicial notice," Tellabs, Inc. v. Makor Issues & Rights, Ltd. 551 U.S. at 322. See also Brokers' Choice of America, Inc. v. NBC Universal, Inc., 861 F.3d at 1103 (holding that the district court did not err by reviewing a seminar recording and a TV episode on a rule 12(b)(6) motion, which were "attached to or referenced in the amended complaint," central to the plaintiff's claim, and "undisputed as to their accuracy and authenticity"). "[T]he court is permitted to take judicial notice of its own files and records, as well as facts which are a matter of public record." Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001).
In Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010), the defendants "supported their motion with numerous documents, and the district court cited portions of those motions in granting the [motion to dismiss]." 627 F.3d at 1186. The Tenth Circuit held that "[s]uch reliance was improper" and that, even if "the district court did not err initially in reviewing the materials, the court improperly relied on them to refute Mr. Gee's factual assertions and effectively convert the motion to one for summary judgment." 627 F.3d at 1186-87. In other cases, the Tenth Circuit has emphasized that, "[b]ecause the district court considered facts outside of the complaint, however, it is clear that the district court dismissed the claim under Rule 56(c) and not Rule 12(b)(6)." Nard v. City of Okla. City, 153 F. App'x 529, 534 n.4 (10th Cir. 2005)(unpublished).4 In Douglas v. Norton, 167 F. App'x 698 (10th Cir. 2006)(unpublished), the Tenth Circuit addressed an untimely filed charge with the Equal Employment Opportunity Commission — which the Tenth Circuit analogized to a statute of limitations — and concluded that, because the requirement was not jurisdictional, the district court should have analyzed the question under rule 12(b)(6), and "because the district court considered evidentiary materials outside of Douglas' complaint, it should have treated Norton's motion as a motion for summary judgment." 167 F. App'x at 704-05.
The Court has previously ruled that, when a plaintiff references and summarizes statements from defendants in a complaint for the purpose of refuting the statements the Court cannot rely on documents the defendants attach to a motion to dismiss which contain their un-redacted statements. See Mocek v. City of Albuquerque, No. Civ. 11-1009, 2013 WL 312881, at *50-51 (D.N.M. Jan. 14, 2013)(Browning, J.). The Court reasoned that the statements were neither incorporated by reference nor central to the plaintiff's allegations in the complaint, because the plaintiff cited the statements only to attack their reliability and truthfulness. See 2013 WL 312881, at *50-51. The Court has also previously ruled that, when determining whether to toll a statute of limitations in an action alleging fraud and seeking subrogation from a defendant, the Court may not use interviews and letters attached to a motion to dismiss, which show that a plaintiff was aware of the defendant's alleged fraud before the statutory period expired. See Great Am. Co. v. Crabtree, No. 11-1129, 2012 WL 3656500, at *3, *22-23 (D.N.M. Aug. 23, 2012)(Browning, J.). The Court determined that the documents did not fall within any of the Tenth Circuit's exceptions to the general rule that a complaint must rest on the sufficiency of its contents alone, as the complaint did not incorporate the documents by reference or refer to the documents. See 2012 WL 3656500, at *22-23; Mocek v. City of Albuquerque, 2013 WL 312881, at *50 (refusing to consider statements that were not "central to [the plaintiff's] claims").
On the other hand, in a securities class action, the Court has ruled that a defendant's operating certification, to which plaintiffs refer in their complaint, and which is central to whether the plaintiffs' adequately alleged a loss, falls within an exception to the general rule, so the Court may consider the operating certification when ruling on the defendant's motion to dismiss without converting the motion into one for summary judgment. See Genesee Cty. Emps.' Retirement Sys. v. Thornburg Mortg. Secs. Trust 2006-3, 825 F.Supp.2d 1082, 1150-51 (D.N.M. 2011)(Browning, J.); Mata v. Anderson, 760 F.Supp.2d 1068, 1101 (D.N.M. 2009)(Browning, J.)(relying on documents outside of the complaint because they were "documents that a court can appropriately view as either part of the public record, or as documents upon which the Complaint relies, and the authenticity of which is not in dispute"); S.E.C. v. Goldstone, 952 F.Supp.2d 1060, 1217-18 (D.N.M. 2013)(Browning, J.)(considering, on a motion to dismiss, electronic mail transmissions referenced in the complaint as "documents referred to in the complaint," which are "central to the plaintiff's claim" and whose authenticity the plaintiff did not challenge).
LAW REGARDING JUDICIAL NOTICE OF DOCUMENTS WHEN RULING ON A MOTION TO DISMISS
Rule 201 of the Federal Rules of Evidence allows a court to, at any stage of the proceeding, take notice of "adjudicative" facts that fall into one of two categories: (i) facts that are "generally known within the territorial jurisdiction of the trial court"; or (ii) facts that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b), (f). "Adjudicative facts are simply the facts of the particular case." United States v. Wolny, 133 F.3d 758, 764 (10th Cir. 1998)(quoting Advisory Committee Notes to rule 201). A court has discretion to take judicial notice of such facts, regardless whether requested. See Fed. R. Evid. 201(c). On the other hand, if a party requests that the court take judicial notice of certain facts, and supplies the necessary information to the court, judicial notice is mandatory. See Fed. R. Evid. 201(d). Also, if the parties timely request an opportunity to be heard, the Court must grant such an opportunity "as to the propriety of taking judicial notice and the tenor of the matter noticed." Fed. R. Evid. 201(e). That judicial notice may be taken during any stage of the judicial proceeding includes the motion to dismiss stage. See 21 B C. Wright & K. Graham, Jr., Fed. Prac. & Proc. Evid. § 5110, at 294 & n.17 (2d ed. 2005). Moreover, while ordinarily a motion to dismiss must be converted to a motion for summary judgment when the court considers matters outside the complaint, see Fed. R. Civ. P. 12(d), matters that are judicially noticeable do not have that effect, see Duprey v. Twelfth Judicial Dist. Court, No. 08-0756, 2009 WL 2482171, at *7 (D.N.M. July 27, 2009)(Browning, J.)(citing Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1279 n.1 (10th Cir. 2004)). Also, when considering a motion to dismiss, "the court is permitted to take judicial notice of its own files and records, as well as facts which are a matter of public record." Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000), abrogated on other grounds by, McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001). The documents judicially noticed, however, should not be considered for the truth of the matters asserted therein. See Tal v. Hogan, 453 F.3d 1244, 1265 n.24 (10th Cir. 2006). The Court has previously judicially noticed news publications and public filings with the Securities and Exchange Commission. See S.E.C. v. Goldstone, 952 F. Supp. 2d at 1219-20; In re Thornburg Mortg., Inc. Securities Litig., 2009 WL 5851089, at *3-4. See also Gallegos v. Bernalillo Cty. Bd. of Cty. Comm'rs, ___ F. Supp. 3d ____, 2017 WL 4402422, at *18-19 (D.N.M. 2017)(Browning, J.)(ruling that the Court may take judicial notice of state court orders); A.M ex rel. Youngers v. New Mexico Dep't of Health, 117 F.Supp.3d 1220, 1232 n.6 (D.N.M. 2015)(Browning, J.).
LAW REGARDING SERVICE OF PROCESS
Under rule 4(a) the contents of a summons must include:
(A) name the court and the parties;
(B) be directed to the defendant;
(C) state the name and address of the plaintiff's attorney or — if unrepresented — of the plaintiff;
(D) state the time within which the defendant must appear and defend;
(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;
(F) be signed by the clerk; and
(G) bear the court's seal.
Fed. R. Civ. P. 4(a)(1)(A)-(G)
Rule 4(m) provides:
If a defendant is not served within 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 or order that service be made within a specific time. But, if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). The burden of establishing service's validity is on the plaintiff. See F.D.I.C. v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir. 1992). In 1993, Congress amended former rule 4(m) and "broaden[ed] the district court's discretion [to permit untimely service of process] by allowing it to extend the time for service even when the plaintiff has not shown good cause." Espinoza v. United States, 52 F.3d 838, 840-41 (10th Cir. 1995).
"A district court abuses its discretion [in deciding whether to dismiss a case for untimely service of process] if its decision is arbitrary, capricious, or whimsical." Smyers v. County of Atchison, Kan., 336 F. App'x 819, 820-21 (10th Cir. 2009)(unpublished). Further, "[a] district court that does not exercise its discretion, or makes a decision without providing reasons, abuses that discretion." ARW Exploration Corp. v. Aguirre, 45 F.3d 1455, 1459 (10th Cir. 1995).
Thus, Tenth Circuit district courts now employs a two-step analysis for determining whether an extension of time should be granted when a summons and complaint has not been timely served. First, the plaintiff is entitled to a mandatory extension of time if the plaintiff can demonstrate good cause for failing to timely effect service. See Espinoza v. United States, 52 F.3d at 841. "The good cause provision of Rule 4[(m)] should be read narrowly to protect only those plaintiffs who have been meticulous in their efforts to comply with the Rule." Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436, 1438 (10th Cir. 1994). "[I]nadvertence or negligence alone do not constitute `good cause' for failure of timely service. Mistake of counsel or ignorance of the rules also usually do not suffice." In re Kirkland, 86 F.3d 172, 176 (10th Cir. 1996). Avoiding or evading service of process, however, may constitute "good cause," requiring a mandatory extension of time in which to serve. Hendry v. Schneider, 116 F.3d 446, 449 (10th Cir. 1997).
Second, if the plaintiff fails to show good cause, the court still must exercise its discretion, and either dismiss the case without prejudice or extend the time for service. See Espinoza v. United States, 52 F.3d at 842. In making its determination whether to grant a permissive extension, the Court may consider several factors, including whether the applicable statute of limitations would bar the re-filed action and other policy considerations. See Espinoza v. United States, 52 F.3d at 841-42.
The new subdivision explicitly provides that the court shall allow additional time if there is good cause for the plaintiff's failure to effect service in the prescribed [90] days, and authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown. Such relief formerly was afforded in some cases, partly in reliance on Rule 6(b). Relief may be justified, for example, if the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or conceals a defect in attempted service.
Fed. R. Civ. P. 4(m) Advisory Committee's note (1993 Amendment). The Court has previously granted a permissive extension of time to effect service of process when the party to be served had a copy of the complaint, had actual notice of the lawsuit, had attempted to avoid proper service, and was not prejudiced by late service of the original complaint. See Salazar v. City of Albuquerque, 278 F.R.D. 623, 628 (D.N.M. 2011)(Browning, J.). See also Mata v. Anderson, 760 F.Supp.2d 1068, 1098 (D.N.M. 2009)(Browning, J.)(ruling that it would extend the time for service of process, because "[t]he delay was not inordinate, prejudicial, or intentional, and the First Amended Complaint has been served.").
LAW REGARDING THE UIPA
The New Mexico Legislature passed the UIPA, N.M. Stat. Ann. § 59A-16-20, "to regulate trade practices in the insurance business and related businesses," including "practices in this state which constitute unfair methods of competition or unfair or deceptive acts or practices." N.M. Stat. Ann. § 59A-16-2. N.M. Stat. Ann. § 59A-16-4 proscribes certain misrepresentations that relate to insurance transactions, including "misrepresent[ing] the benefits, advantages, conditions or terms of any policy." N.M. Stat. Ann. § 59A-16-4. N.M. Stat. Ann. § 59A-16-5 forbids "untrue, deceptive or misleading" advertisements that relate to insurance. N.M. Stat. Ann. § 59A-16-5. N.M. Stat. Ann. § 59A-16-8 makes actionable certain falsifications of insurance records and the circulation of "any false statement of the financial condition of an insurer." Various provisions in the UIPA proscribe discrimination in relation to insurance transactions. See, e.g., N.M. Stat. Ann. §§ 59A-16-11 to - 13.2. N.M. Stat. Ann. § 59A-16-19 prohibits anti-competitive insurance practices "resulting or tending to result in unreasonable restraint of, or monopoly in, the business of insurance." N.M. Stat. Ann. § 59A-16-19.
The UIPA imposes liability for a laundry list of unfair insurance claims practices, including the following:
A. misrepresenting to insureds pertinent facts or policy provisions relating to coverages at issue;
B. failing to acknowledge and act reasonably promptly upon communications with respect to claims from insureds arising under policies;
C. failing to adopt and implement reasonable standards for the prompt investigation and processing of insureds' claims arising under policies;
D. failing to affirm or deny coverage of claims of insureds within a reasonable time after proof of loss requirements under the policy have been completed and submitted by the insured;
E. not attempting in good faith to effectuate prompt, fair and equitable settlements of an insured's claims in which liability has become reasonably clear;
F. failing to settle all catastrophic claims within a ninety-day period after the assignment of a catastrophic claim number when a catastrophic loss has been declared;
G. compelling insureds to institute litigation to recover amounts due under policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds when such insureds have made claims for amounts reasonably similar to amounts ultimately recovered;
H. attempting to settle a claim by an insured for less than the amount to which a reasonable person would have believed he was entitled by reference to written or printed advertising material accompanying or made part of an application;
I. attempting to settle claims on the basis of an application that was altered without notice to, or knowledge or consent of, the insured, his representative, agent or broker;
J. failing, after payment of a claim, to inform insureds or beneficiaries, upon request by them, of the coverage under which payment has been made;
K. making known to insureds or claimants a practice of insurer of appealing from arbitration awards in favor of insureds or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration;
L. delaying the investigation or payment of claims by requiring an insured, claimant or the physician of either to submit a preliminary claim report and then requiring the subsequent submission of formal proof of loss forms, both of which submissions contain substantially the same information;
M. failing to settle an insured's claims promptly where liability has become apparent under one portion of the policy coverage in order to influence settlement under other portions of the policy coverage;
N. failing to promptly provide an insured a reasonable explanation of the basis relied on in the policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement; or
O. violating a provision of the Domestic Abuse Insurance Protection Act.
N.M. Stat. Ann. § 59A-16-20. N.M. Stat. Ann. § 59A-16-30 provides a cause of action for UIPA violations and allows attorney's fees for prevailing parties. See N.M. Stat. Ann. § 59A-16-30. The Honorable Bruce D. Black, United States District Judge for the District of New Mexico, has concluded that a plaintiff failed to plausibly plead a UIPA claim:
Dr. Yumukoglu alleges generally that Provident's conduct "violates one or more of the provisions of Section 59A-16-20 NMSA 1978 (1984)," the section of the New Mexico Unfair Insurance Practices Act that prohibits unfair claims practices. Dr. Yumukoglu does not specify which of the fifteen provisions of this section he feels Provident has violated, and after a review of the statute, the Court cannot perceive which subsection could have been violated under the fact alleged. At the very least, Dr. Yumukoglu has failed to comply with the pleading requirements of Federal Rule of Civil Procedure 8(a)(2). Rule 8(a)(2) requires that a civil complaint set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Here, it is not clear either what Dr. Yumukoglu is claiming or to what relief he is entitled under § 56A-16-20. Dr. Yumukoglu's claim appears, like his claim for breach of the duty of good faith and fair dealing, to be based on Provident's alleged bad faith in terminating his disability benefits. As discussed above, the Court finds that Provident's decision to terminate Dr. Yumukoglu's benefits did not amount to bad faith. Provident's motion for summary judgment on Plaintiff's claim for statutory violation is granted.
Yumukoglu v. Provident Life & Accident Ins. Co., 131 F.Supp.2d 1215, 1227 (D.N.M. 2001)(Black, J.)(footnote omitted)(citations omitted). The Court has previously found that a plaintiff failed to state a claim under rule 12(b)(6) when the complaint did not contain even "a formulaic recitation of the elements of a cause of action" under the UIPA. Estate of Gonzales v. AAA Life Ins. Co., No. CIV 11-0486, 2012 WL 1132332, at *7 (D.N.M. March 28, 2012)(Browning, J.)(citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555).
LAW REGARDING DIVERSITY JURISDICTION AND ERIE
Under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1983)("Erie"), a federal district court sitting in diversity applies "state law with the objective of obtaining the result that would be reached in state court." Butt v. Bank of Am., N.A., 477 F.3d 1171, 1179 (10th Cir. 2007). Accord Mem. Hosp. v. Healthcare Realty Trust Inc., 509 F.3d 1225, 1229 (10th Cir. 2007). The Court has held that if a district court exercising diversity jurisdiction cannot find a Supreme Court of New Mexico "opinion that [governs] a particular area of substantive law . . . [the district court] must . . . predict how the Supreme Court of New Mexico would [rule]." Guidance Endodontics, LLC v. Dentsply Int'l., Inc., 708 F.Supp.2d 1209, 1224-25 (D.N.M. 2010)(Browning, J.). "Just as a court engaging in statutory interpretation must always begin with the statute's text, a court formulating an Erie prediction should look first to the words of the state supreme court." Peña v. Greffet, 110 F.Supp.3d 1103, 1132 (D.N.M. 2015)(Browning, J.).5 If the Court finds only an opinion from the Court of Appeals of New Mexico, while "certainly [the Court] may and will consider the Court of Appeal[s'] decision in making its determination, the Court is not bound by the Court of Appeal[s'] decision in the same way that it would be bound by a Supreme Court decision." Mosley v. Titus, 762 F.Supp.2d 1298, 1332 (D.N.M. 2010)(Browning, J.)(noting that, where the only opinion on point is "from the Court of Appeals, [] the Court's task, as a federal district court sitting in this district, is to predict what the Supreme Court of New Mexico would do if the case were presented to it")(citing Wade v. EMCASCO Ins. Co., 483 F.3d 657, 666 (10th Cir. 2007)(explaining that, "[w]here no controlling state decision exists, the federal court must attempt to predict what the state's highest court would do," and that, "[i]n doing so, it may seek guidance from decisions rendered by lower courts in the relevant state")).6 The Court may also rely on Tenth Circuit decisions interpreting New Mexico law. See Anderson Living Trust v. WPX Energy Prod., LLC, 27 F. Supp. 3d at 1243 & n.30.7 Ultimately, "the Court's task is to predict what the state supreme court would do." Wade v. EMCASCO Ins. Co., 483 F.3d at 666. Accord Mosley v. Titus, 762 F. Supp. 2d at 1332 (citation omitted); Rimbert v. Eli Lilly & Co., 577 F.Supp.2d 1174, 1188-89 (D.N.M. 2008)(Browning, J.)(quoting Wade v. EMCASCO Ins. Co., 483 F.3d at 665-66).
ANALYSIS
The Court concludes that Demente's summons to Dunn-Gross is defective, because it does not bear the district court's name and seal, the Clerk of Court's signature, and the time within which Dunn-Gross must appear and defend herself. Although the summons is defective, the Court, in its discretion and pursuant to the parties' agreement, grants Demente sixty days to properly serve Dunn-Gross. The Court also concludes that, because Demente settled his negligence claims against the Dilucentes with no judicial fault determination, Demente has no UIPA cause of action against GEICO Insurance or Dunn-Gross.8 The Court therefore dismisses his UIPA claim.
I. DEMENTE'S SERVICE OF PROCESS ON DUNN-GROSS IS DEFECTIVE, BUT THE COURT GRANTS HIM AN ADDITIONAL SIXTY DAYS TO PERFECT IT.
Demente's service of process on Dunn-Gross was not perfected before removal, nor was it proper after removal. "Where service is effected prior to removal to federal court, we look to state law to determine if service was perfected." Palzer v. Cox Okla. Telecom, LLC, 671 F. App'x 1026, 1028 (10th Cir. 2016)(unpublished). Under the New Mexico rules, service of process on an individual's place of business is proper only if service of process has first been attempted on the individual personally and on the person's usual place of abode. See N.M. Rules Ann. § 1-004(F)(3). On information that Dunn-Gross could be served through the New Mexico State Superintendent of Insurance, Demente first attempted to serve Dunn-Gross through the Superintendent. See Service of Process Response at 3. After the Superintendent rejected service on Dunn-Gross' behalf, Demente next attempted to serve Dunn-Gross at two different GEICO Insurance offices. See Service of Process Response at 3. Demente did not serve Dunn-Gross personally, but another GEICO Insurance employee instead. See Service of Process Response at 3; Return of Service at 1 (dated October 12, 2016), filed May 16, 2017 (Doc. 17-5). Because Demente did not first attempt to serve Dunn-Gross at her usual place of abode before serving Dunn-Gross at her work through another GEICO Insurance employee, Demente did not properly perfect service of process under the New Mexico rules. See N.M. Rules Ann. § 1-004(F)(3).
After the case had been removed to federal court, Demente attempted, one more time, to serve Dunn-Gross — this time at her home. See Service of Process Response at 4. Because the case had been removed, Demente received a fresh chance at properly serving Dunn-Gross. See 28 U.S.C. § 1448.
In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or 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. Dunn-Gross contends that Demente's attempt to serve her after removal fails under rule 4(m), because Demente attempted service eleven months after he filed the original complaint. See Service of Process MTD at 4; Fed. R. Civ. P. 4(m) (requiring service to occur within ninety days of the complaint). Under 28 U.S.C. § 1448, however, Demente receives another ninety days to serve Dunn-Gross starting from the removal date. See 28 U.S.C. § 1448; Wallace v. Microsoft Corp., 596 F.3d 703, 706 (10th Cir. 2010)("Taken together, Mr. Wallace argues that, once his case was removed, he then had 120 days in which to effect service. We agree.").9 Demente thus served Dunn-Gross within rule 4(m)'s time frame, because he served her on April 3, 2017, which is within ninety days of March 8, 2017 — the removal date. See Removal Notice at 1; MTD Response at 4; Service of Process Return at 2 (dated April 3, 2017), filed May 16, 2017 (Doc. 17-8)("Service of Process Return").10
Although Demente served Dunn-Gross within rule 4(m)'s time frame, his summons is defective under rule 4(a). See Fed. R. Civ. P. 4(a). Rule 4(a) requires the summons to have the Court's name, the Clerk of the Court's signature, the Court's seal, and the time within which the defendant must appear and defend. See Fed. R. Civ. P. 4(a)(1)(A), (D), (F)-(G). Demente's summons does not satisfy those requirements. See Summons at 1, filed April 18, 2017 (Doc. 12-1) ("Summons"). Instead, it appears as if Demente used the state-court summons as the federal-court summons. See Summons at 1-2. The Summons has the state court's name and seal, the state Clerk of Court's signature, and it does not state the time within which the Dunn-Gross must appear and defend. See Summons at 1-2. Such defects are not technical deficiencies that the Court may overlook, but instead render service of process defective. See Cloyd v. Arthur Anderson & Co., 151 F.R.D. 407, 409 (D. Utah 1993)(Winder, C.J.)(concluding that a summons lacking the Court's seal and the Clerk of Court's signature rendered the summons "void" and collecting cases). Thus, although Demente served Dunn-Gross within ninety days of removal, the service of process is defective, and Demente did not attempt to serve Dunn-Gross again before rule 4(m)'s ninety days elapsed. See Service of Process Response at 4.
Although service of process is defective, the Court, in its discretion, may grant a party additional time to perfect that process, even without the party showing good cause. See Espinoza v. United States, 52 F.3d at 840-41. In making its determination whether to grant a permissive extension, the Court may consider several factors, including whether the applicable statute of limitations would bar the re-filed action and other policy considerations, and whether the party effecting service is representing herself pro se. See Espinoza v. United States, 52 F.3d at 841-42.
The Court has previously granted a permissive extension of time to effect service of process when the party to be served had a copy of the complaint, had actual notice of the lawsuit, had attempted to avoid proper service, and was not prejudiced by late service of the original complaint. See Salazar v. City of Albuquerque, 278 F.R.D. 623, 628 (D.N.M. 2011)(Browning, J.). See also Mata v. Anderson, 760 F.Supp.2d 1068, 1098 (D.N.M. 2009)(Browning, J.)(ruling that it would extend the time for service of process, because "[t]he delay was not inordinate, prejudicial, or intentional, and the First Amended Complaint has been served.").
Here, the Court grants Demente sixty days from July 27, 2017 — the hearing date — to properly effect service. Dunn-Gross agreed that extending the time frame to effect service was appropriate, see Tr. at 10:16-11:1 (Lewis), and also agreed to a sixty day extension, see Tr. at 12:15 (Lewis). The Court independently concludes that a permissive extension is appropriate for four reasons. First, Dunn-Gross had notice of the lawsuit within rule 4(m)'s time limit. Second, the sixty-day extension ultimately extends the time in which Demente had to effect service by only 120 days total. Third, and finally, Demente attempted service of process several times, but had some difficulty locating Dunn-Gross. Fourth, Dunn-Gross does not oppose an extension. Accordingly, Demente has until September 25, 2017 to effect service of process.
II. THE COURT DISMISSES THE UIPA CLAIM, BECAUSE THE CASE SETTLED WITHOUT A JUDICIAL FAULT DETERMINATION.
The Court dismisses Demente's UIPA claims against GEICO Insurance and Dunn-Gross. In relevant part, an insurer is liable under the UIPA for:
B. failing to acknowledge and act reasonably promptly upon communications with respect to claims from insureds arising under policies;
C. failing to adopt and implement reasonable standards for the prompt investigation and processing of insureds' claims arising under policies;
. . . .
E. not attempting in good faith to effectuate prompt, fair and equitable settlements of an insured's claims in which liability has become reasonably clear;
. . . .
M. failing to settle an insured's claims promptly where liability has become apparent under one portion of the policy coverage in order to influence settlement under other portions of the policy coverage;
N. failing to promptly provide an insured a reasonable explanation of the basis relied on in the policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement.
N.M. Stat. Ann. § 59A-16-20(B)-(C), (E), (M)-(N). An automobile accident victim does not have a cause of action against a tortfeasor's insurer "unless and until there has been a judicial determination of the insured's fault and the amount of damages awarded in the underlying negligence action." Hovet v. Allstate Ins. Co., 2004-NMSC-010, ¶ 26, 89 P.3d at 76-77. Moreover, "[t]hose electing to settle their claims without a judicial determination of liability waive any claims under the Insurance Code for unfair settlement practices." Hovet v. Allstate Ins. Co., 2004-NMSC-010, ¶ 26, 89 P.3d at 77. The Supreme Court of New Mexico reasoned: "If we were to allow a third-party claimant who settles to later bring a claim against the insurance company for not settling, we would needlessly encourage serial litigation and frustrate the policy reasons, like finality, that encourage settlement." Hovet v. Allstate Ins. Co., 2004-NMSC-010, ¶ 26, 89 P.3d at 77.11 Since Hovet v. Allstate Ins. Co., the Supreme Court of New Mexico has tacitly re-approved its holding. See Jolley v. Assoc. Electric & Gas Ins., 2010-NMSC-029, ¶¶ 18-19, 237 P.3d 738, 742-43.
In this case, there was no judicial fault determination; the parties stipulated to dismissal of the negligence claims with prejudice. See State Order at 1 (dismissing with prejudice all claims against the Dilucentes "on the grounds that all matters in controversy by and between the parties have been resolved.").12 Under Hovet v. Allstate Ins. Co., a victim of an automobile accident may not sue, under the UIPA, the tortfeasor's insurance company without a judicial fault determination. See 2004-NMSC-010, ¶ 26, 89 P.3d at 76-77. Demente is an automobile-accident victim, so he may not sue the Dilucente's insurance company — GEICO Insurance — because there has been no judicial fault determination.
Demente also has no UIPA cause of action against Dunn-Gross. The statute provides a cause of action against only insurers and their agents, see N.M. Stat. Ann. § 59A-16-30, and, thus, Dunn-Gross may be liable only as GEICO Insurance's agent. Hovet v. Allstate Ins. Co.'s fault-determination requirement applies equally to insurers as it does to their agents. Hovet v. Allstate Ins. Co, 2004-NMSC-010, ¶ 26, 89 P.3d at 404-05 ("Those electing to settle their claims without a judicial determination of liability waive any claims under the Insurance Code for unfair settlement practices.")(emphasis added). See also Tr. at 41:15-16 (Lyle)(conceding that the UIPA analysis is likely the same for GEICO Insurance and Dunn-Gross). Indeed, to hold insurance agents liable, but not the insurer, makes no sense in light of the Supreme Court of New Mexico's rationale that allowing such UIPA claims after settlement "would needlessly encourage serial litigation and frustrate the policy reasons, like finality, that encourage settlement." Hovet v. Allstate Ins. Co, 2004-NMSC-010, ¶ 26, 89 P.3d at 405. Although barred from suing the insurer, victims would be encouraged to pursue "serial litigation" against the insurer's agent, which, ultimately, targets the insurer's funds. Hovet v. Allstate Ins. Co, 2004-NMSC-010, ¶ 26, 89 P.3d at 405.
Demente attempts to distinguish Hovet v. Allstate Ins. Co.'s fail. First, he contends that, because GEICO Insurance exercised a great deal of control over drafting the motion staying and bifurcating the state proceedings, Hovet v. Allstate Ins. Co. does not bind the Court. See Tr. at 26:4-5 (Lyle). The Court notes that, although GEICO Insurance may have drafted the Stay and Bifurcation Motion, see Tr. at 26:6-9 (Lyle), Demente did not oppose that motion, see Stay and Bifurcation Motion at 1. Notwithstanding that fact, the Court concludes that GEICO Insurance's control over that motion is immaterial. The Supreme Court of New Mexico's language is unequivocal: "Those electing to settle their claims without a judicial determination of liability waive any claims under the Insurance Code for unfair settlement practices." Hovet v. Allstate Ins. Co., 2004-NMSC-010, ¶ 26, 89 P.3d at 77. Whether GEICO Insurance sought to stay the bad-faith claims until the underlying negligence claims were resolved does not bear on whether a settlement or a judicial determination of liability occurred.13
Second, Demente contends that the State Order lifting the stay and stating that the UIPA claims "remain" means just what it says — the UIPA claims remain. Tr. at 27:9-10 (Lyle). See Tr. at 31:4-6 (Lyle)(arguing that the State Order "clearly contemplates continuation of the unfair trade practices claims, and says okay, now we can move forward with those"). The Court disagrees. That a claim "remains" does not mean that all defenses or arguments against that claim are invalid. Such a sweeping interpretation equates remain with meritorious. The State Order's entire text, moreover, suggests that the term "remains" does not even have the limited meaning that the settlement shall have no effect on the UIPA claim moving forward. Read in its entirety, the State Order dismisses "all claims" against the Dilucentes and GEICO insurance, except the UIPA claim. State Order at 1. Thus, the most plausible reading of "remains" is that the parties have stipulated to the dismissal of some claims, but not the UIPA claim.
Third, he argues that Hovet v. Allstate Ins. Co. is inapplicable, because the parties settled for the full policy limit amount. See MTD Response at 10. Again, such a factual distinction does not surmount Hovet v. Allstate Ins. Co.'s clear language that a judicial determination of fault is required. Nevertheless, Demente persists that settling for the full policy amount is the legal equivalent to a judicial determination of fault. See Tr. at 33:9-12 (Lyle). Demente's settlement cannot be a judicial determination of fault, however, because no judge was involved in the settlement. Moreover, an insurance company can settle for the maximum policy amount for reasons unrelated to fault. For example, settling for the full policy amount might be less expensive than litigating the case to its completion; lawyers and other costs related to litigation are expensive.14 The Court concludes, accordingly, that it should dismiss Demente's UIPA claim against GEICO Insurance and Dunn-Gross.15
IT IS ORDERED that: (i) Defendant Derica Dunn-Gross' Second Motion to Dismiss for Insufficient Process, filed April 18, 2017 (Doc. 12), is denied; and (ii) Defendant GEICO General Insurance Company's Motion to Dismiss with Prejudice Under Rule 12(b) and Memorandum in Support Thereof, filed April 21, 2017 (Doc. 13), is granted. Plaintiff James Demente has until September 25, 2017 to perfect service of process on Defendant Derica Dunn-Gross. Demente's Unfair Insurance Practice Claims, N.M. Stat. Ann. §§ 59a-16-1 to 30, against GEICO Insurance and Dunn-Gross are dismissed with prejudice. GEICO Insurance shall also, within ten days of the date of this Memorandum Opinion and Order, show cause why the Court should not dismiss this case for lack of subject-matter jurisdiction. See supra, at 5 n.2.
