N.M. R. Child. Ct. 10-104

As amended through November 1, 2024

Rule 10-104 - Service and filing of pleadings and other papers

A.Service; when required. Except as otherwise provided in these rules, every written order, every pleading subsequent to the original petition, every paper relating to discovery required to be served upon a party, unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, designation of record on appeal, and similar paper shall be served upon each of the parties.

B.Service; how made. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney, or if the party is a child under the age of fourteen in an abuse or neglect proceeding, the child's guardian ad litem, unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or party, or by mailing a copy to the attorney or party at the attorney's or party's last known address. Service by mail is complete upon mailing.

C.Definitions. As used in this rule:

(1) "Delivering a copy" means:

(a) handing it to the attorney or to the party;

(b) sending a copy by facsimile or electronic transmission when permitted by Rule 10-105 NMRA or Rule 10-106 NMRA;

(c) leaving it at the attorney's or party's office with a clerk or other person in charge thereof, or, if there is no one in charge, leaving it in a conspicuous place in the office;

(d) if the attorney's or party's office is closed or the person to be served has no office, leaving it at the person's dwelling house or usual place of abode with some person of suitable age and discretion then residing there; or

(e) leaving it at a location designated by the court for serving papers on attorneys, if the following requirements are met:

(i) the court, in its discretion, chooses to provide such a location; and

(ii) service by this method has been authorized by the attorney, or by the attorney's firm, organization, or agency on behalf of the attorney.

(2) "Mailing a copy" means sending a copy by first class mail with proper postage.

D.Filing; certificate of service. All papers after the petition required to be served upon a party, together with a certificate of service indicating the date and method of service, shall be filed with the court within a reasonable time after service, except that the following papers shall not be filed unless on order of the court or for use in the proceeding:

(1) summonses without completed returns;

(2) subpoenas;

(3) returns of subpoenas;

(4) depositions; and

(5) briefs or memoranda of authorities on unopposed motions.

E.Filing with the court defined. The filing of papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. "Filing" shall include filing a facsimile copy or filing an electronic copy as may be permitted under Rule 10-105 NMRA or Rule 10-106 NMRA. If a party has filed a paper using electronic or facsimile transmission, that party shall not subsequently submit a duplicate paper copy to the court. The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices.

F.Filing and service by the court. Unless otherwise ordered by the court, the court shall serve all written court orders and notices of hearing on the parties. The court may file papers before serving them on the parties. For papers served by the court, the certificate of service need not indicate the method of service. For purposes of Rule 10-107(C) NMRA, papers served by the court shall be deemed served by mail, regardless of the actual manner of service, unless the court's certificate of service unambiguously states otherwise. The court may, in its discretion, serve papers in accordance with the method described in Subparagraph (C)(1)(e) of this rule.

G.Filing and service by an inmate. The following provisions apply to documents filed and served by an inmate confined to an institution:

(1) If an institution has a system designed for legal mail, the inmate shall use that internal mail system to receive the benefit of this rule.

(2) The document is timely filed if deposited in the institution's internal mail system within the time permitted for filing.

(3) Whenever service of a document on a party is permitted by mail, the document is deemed mailed when deposited in the institution's internal mail system addressed to the parties on whom the document is served.

(4) Timely filing or mailing may be shown by a written statement, made under penalty of perjury, showing the date when the document was deposited in the institution's internal mail system.

(5) A written statement under Subparagraph (4) of this paragraph establishes a presumption that the document was filed or mailed on the date indicated in the written statement. The presumption may be rebutted by documentary or other evidence.

(6) Whenever an act must be done within a prescribed period after a document has been filed or served under this paragraph, that period shall begin to run on the date the document is received by the party.

[Children's Court Rule 5 NMSA 1953; Children's Court Rule 5 NMSA 1978; Rule 10-104 SCRA 1986; as recompiled as Rule 10-105 SCRA 1986 effective September 1, 1995; Rule 10-105 NMRA; as amended effective April 1, 1997; November 1, 2000; Rule 10-105 NMRA recompiled and amended as Rule 10-104 NMRA by Supreme Court Order No. 08-8300-042, effective January 15, 2009; as amended by Supreme Court Order No. 14-8300-016, effective for all cases pending or filed on or after December 31, 2014.]

N.M. R. Child. Ct. 10-104

Adopted by Supreme Court Order No. 14-8300-016, effective for all cases pending or filed on or after12/31/2014.

Committee commentary. - Paragraph G governs the filing and service of documents by an inmate confined to an institution. A court generally will not consider pro se pleadings filed by an inmate who is represented by counsel. See, e.g., State v. Martinez, 1981-NMSC-016, & 3, 95 N.M. 421, 622 P.2d 1041 (providing that no constitutional right permits a defendant to act as co-counsel in conjunction with the defendant's appointed counsel); State v. Boyer, 1985-NMCA-029, & 15, 103 N.M. 655, 712 P.2d 1 (explaining that "once a defendant has sought and been provided the assistance of appellate counsel, that choice binds the defendant, absent unusual circumstances" (citation omitted)).

ANNOTATIONS The 2014 amendment, approved by Supreme Court Order No. 14-8300-016, effective December 31, 2014, authorized the court to designate a place of service on attorneys; provided for the filing and service of orders and notices by the court; provided for the filing and service of documents by an inmate; in Paragraph A, after "rules, every", added "written" and after "written order", deleted "required by its terms to be served"; in Paragraph B, in the second sentence, after "last known address", deleted "or, if no address is known, by leaving it with the clerk of the court"; in Paragraph C (1), changed "delivery of" to "Delivering"; in Paragraph C (1)(c), after "a conspicuous place", deleted "therein" and added "in the office"; added Paragraph C (1)(e); in Paragraph E, in the first sentence, after "The filing of", deleted "pleadings and other", deleted the former third sentence which provided that a paper filed by electronic means constituted a written paper, and added the current third sentence; and added Paragraphs F and G. The 2008 amendment, approved by Supreme Court Order No. 08-8300-042, effective January 15, 2009, deleted "Notice of hearings" in the title; in Paragraph A, changed "Except as provided" to "Except as otherwise provided"; changed "every pleading subsequent to the original petition unless the court otherwise orders because of numerous respondents" to "every pleading subsequent to the original petition" and deleted the last sentence which provided that service was not required on parties in default for failure to appear except pleadings asserting new or additional claims; in Paragraph B, changed "if the party is a child" to "if the child is a party under the age of fourteen"; divided former Paragraph B into Paragraphs B, C and D; relettered Subparagraphs (1) through (4) of Paragraph B as Items (a) through (d) of Subparagraph (1) of Paragraph C; added letter designation and title for Paragraph C; added Subparagraph (1) of Paragraph C; in Item (b) of Subparagraph (1) of Paragraph C, changed the reference from Rule 10-105.1 NMRA to Rule 10-105 NMRA and from Rule 10-105.2 NMRA to Rule 10-106 NMRA; in Item (c) of Subparagraph (1) of Paragraph C, added "or party's"; in Item (d) of Subparagraph (1) of Paragraph C, added "attorney's or party's"; added Subparagraph (2) of Paragraph C; added the letter designation for Paragraph D; in Paragraph D, changed "certificate of service" to "certificate of service indicating the date and method of service"; in Paragraph D, deleted former Subparagraphs (4) through (9) of former Paragraph B which listed interrogatories, answers or objections to interrogatories, requests for production of documents, responses to requests for production of documents, requests for admission and responses to requests for admissions; relettered former Subparagraph (10) of former Paragraph B as Subparagraph (4) of Paragraph D; added Subparagraph (5) of Paragraph D; deleted language in Paragraph B which provided that except for papers described in Subparagraphs (1), (2), (3) and (10) of Paragraph B, counsel was required to file a certificate with the court indicating the date of service of any paper not filed with the court; relettered former Paragraph D as Paragraph E; and in Paragraph E, changed "Rule 1-005.1 or 1005.2 of these rules. A paper filed by electronic means in compliance with Rule 10-105.1" to "Rule 10-105 NMRA or Rule 10-106 NMRA. A paper filed by electronic means in compliance with Rule 10-106 NMRA". The 2000 amendment, effective November 1, 2000, added the designations in the second paragraph in Subsection B inserting the provisions of Paragraph (2) therein, and added the last three sentences in Subsection D. This conforms the rule to Rules 1-005, 10-105.1 and 10-105.2 NMRA. The 1997 amendment, effective April 1, 1997, added "and other papers" in the rule heading, and rewrote the rule. Recompilations. - Pursuant to Supreme Court Order No. 08-8300-042, former Rule 105 NMRA was recompiled as Rule 10-104 NMRA effective January 15, 2009. Law reviews. - For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. - 47 Am. Jur. 2d Juvenile Courts §62 et seq. Authority of court, upon entering default judgment, to make orders for child custody or support which were not specifically requested in pleadings of prevailing party, 5 A.L.R.5th 863. 43 C.J.S. Infants § 99.