N.M. R. App. P. 12-309

As amended through May 8, 2024

Rule 12-309 - Motions

A.Use of motion. Unless otherwise prescribed by these rules, all applications for an order or other relief shall be made by filing a motion.

B.Content and filing. Motions shall be filed, together with any supporting affidavits or other papers, with proof of service on all parties as provided in Rule 12-307 NMRA. A motion shall state concisely and with particularity the relief sought and the ground on which it is based. If the case has not been previously docketed in the appellate court, subject to the provisions of Rule 12-304 NMRA and Rule 23-114 NMRA, the docket fee shall accompany the motion.

C.Opposition or concurrence. Prior to filing a motion, the moving party shall attempt to ascertain whether the motion will be opposed by any other party. The motion shall recite whether, on inquiry by counsel for the movant, any other party has expressed an intention to oppose or not oppose the motion or why the position of another party was not obtained after reasonable effort.

D.Briefs. Motions directed to the appellate court's discretion in procedural matters, such as motions seeking extensions of time and motions for leave to exceed length limitations, need not be accompanied by briefs. Such motions shall state with particularity the reasons for the request. Other motions may be accompanied by a separate brief.

E.Responses. An adverse party may file and serve a response within fifteen (15) days after service of movant's motion.

F.Replies. A reply is not permitted without leave of the appellate court, which may be granted on a showing of good cause. A motion seeking leave to file a reply must be filed and served within seven (7) days after service of the response and must include the proposed reply.

N.M. R. App. P. 12-309

As amended, effective 10/1/1995;1/1/2000; as amended by Supreme Court Order No. 10-8300-045, effective 2/9/2011; by Supreme Court Order No. 12-8300-005, effective for requests to file replies under Rule 12-309 NMRA on or after4/20/2012; as amended by Supreme Court Order No. 16-8300-011, effective for all cases pending or filed on or after12/31/2016.

ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-011, effective December 31, 2016, revised the procedure for filing a reply to an adverse party's response to a motion, and made stylistic and technical changes; in Paragraph (C), after "whether", deleted "upon" and added "on"; in Paragraph (D), in the heading, deleted "responses; replies"; after the third sentence of Paragraph (D), added a new paragraph designation and heading "E. Responses."; in new Paragraph (E), after the heading, deleted "Adverse parties" and added "An adverse party", and after the first sentence, added a new paragraph designation and heading "F. Replies"; and in new Paragraph (F), after "may be granted", deleted "upon" and added "on", and added the second sentence. The 2012 amendment, approved by Supreme Court Order No. 12-8300-005, effective April 20, 2012, prohibited replies without leave of the court; in Paragraph D, in the title, deleted "Procedure motions" and added "Briefs; responses; replies"; combined former Paragraph E and Paragraph D by deleting the paragraph designation and title for former Paragraph E; and added the last sentence in Paragraph D. The 2010 amendment, approved by Supreme Court Order No. 10-8300-045, effective February 9, 2011, in Paragraph B, in the third sentence, added "If the case has not been previously docketed in the appellate court, subject to the provisions of Rule 12-304 NMRA and Rule 23-114 NMRA", after "docket fee" deleted "has not already been paid, it must" and added "shall", and after "accompany the motion" deleted "unless free process has been granted in which case the free process order shall accompany the motion"; and in Paragraph D, in the first sentence, after "Motions" deleted "seeking extensions of time, leave to exceed the length of brief permitted by these rules and similar motions", and after "procedural matters" added "such as motions seeking extensions of time and motions for leave to exceed length limitations". The 1999 amendment, effective for cases filed on and after January 1, 2000, substituted "fifteen (15)" for "ten (10)" in the last sentence of Paragraph E. The 1995 amendment, effective October 1, 1995, added Paragraph C and redesignated the remaining paragraphs accordingly.

For federal rule, see Fed. R. App. P. Rule 27. Requirements for motion to dismiss appeal, etc. - Motion to dismiss an appeal or writ of error, strike a bill of exceptions or otherwise dispose of any cause except upon its merits, based upon other than jurisdictional grounds, would not be granted except upon a showing of prejudice to the moving party, or that the ends of justice required the granting thereof, under former Supreme Court Rules. Barelas Cmty. Ditch Corp. v. City of Albuquerque, 1956-NMSC-057, 61 N.M. 222, 297 P.2d 1051. Party filing motion for rehearing without supporting brief was not entitled to reconsideration as of right under former Supreme Court Rules. Dunne v. Petterman, 1948-NMSC-035, 52 N.M. 284, 197 P.2d 618. Reviewable questions on rehearing were limited to those presented by the points originally relied upon for reversal, matters authorized by supreme court rules and errors asserted in the motion for rehearing under former Supreme Court Rules. Sanchez v. Dale Bellamah Homes of N.M., Inc., 1966-NMSC-040, 76 N.M. 526, 417 P.2d 25. Am. Jur. 2d, A.L.R. and C.J.S. references. - 5 C.J.S. Appeal and Error § 641 et seq.