N.M. R. Civ. P. Dist. Ct. 1-005

As amended through February 27, 2024

Rule 1-005 - 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 complaint unless the court otherwise orders because of numerous defendants, 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, offer of settlement, designation of record on appeal, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 1-004 NMRA.

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 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 1-005.1 NMRA or Rule 1-005.2 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.Service; numerous defendants. In any action in which there is an unusually large number of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.

E.Filing by a party; certificate of service. All papers after the complaint 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) interrogatories;

(5) answers or objections to interrogatories;

(6) requests for production of documents;

(7) responses to requests for production of documents;

(8) requests for admissions;

(9) responses to requests for admissions;

(10) depositions;

(11) briefs or memoranda of authorities on unopposed motions;

(12) offers of settlement when made; and

(13) mandatory and supplemental disclosures served under Rule 1-123 NMRA.

Except for the papers described in Subparagraphs (1), (10), and (11) of this paragraph, counsel shall file a certificate of service with the court within a reasonable time after service, indicating the date and method of service of any paper not filed with the court.

F.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 1-005.1 NMRA or Rule 1-005.2 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.

G.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 1-006(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.

H.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) The date of 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.

N.M. R. Civ. P. Dist. Ct. 1-005

As amended, effective 8/1/1988;1/1/1998;1/3/2005; as amended by Supreme Court Order 06-8300-20, effective 12/18/2006; as amended by Supreme Court Order No. 14-8300-016, effective for all cases pending or filed on or after12/31/2014.

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, in the first sentence, after "these 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), at the beginning of the sentence, deleted "delivery of" and added "Delivering"; in Paragraph C (1)(c), after "in a conspicuous place", deleted "therein" and added "in the office", and added Paragraph C (1)(e); in Paragraph E, in the title, after "Filing", added "by a party"; in Paragraph F, 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 G and H. The 2006 amendment, approved by Supreme Court Order 06-8300-20, effective December 18, 2006, added Subparagraph 13 of Paragraph E to provide that copies of mandatory and supplemental disclosures served pursuant to Rule 1-123 NMRA are not filed unless ordered by the court. The 2004 amendment, effective January 3, 2005, substituted "a copy" for "it" in the second sentence of Paragraph B, designated the undesignated former second paragraph of Paragraph B as present Paragraph C, designated the language therein as Subparagraph (1), deleted "within this rule" preceding "means" in the introductory language of that subparagraph and added Subparagraph (2), redesignated former Paragraphs C through E as present Paragraphs D through F, and, in Paragraph E, inserted "indicating the date and method of service" in the introductory language and "and method" in the second paragraph, substituted "settlement" for "judgment" in Subparagraph (12) and deleted "(2), (3)" preceding "(10)" in the second paragraph. The 1997 amendment, effective January 1, 1998, inserted "offer of judgment, designation of record on appeal" in Paragraph A, divided Paragraph B into subparagraphs and added Subparagraph B(2), added "certificate of service" in the paragraph heading of Paragraph D, inserted "together with a certificate of service" and deleted "either before service or" following "court" in the introductory language of Paragraph D, added "on unopposed motions" in Subparagraph D(11), added Subparagraph D(12), rewrote the last undesignated paragraph in Paragraph D, rewrote Paragraph E, deleted former Paragraphs F and G relating to proof of service and defining "move" and "made" within a specified time, and made stylistic changes and gender neutral changes throughout the rule.

For service on an attorney after withdrawal, see Rule 1-089 NMRA. For service of notice in proceedings prior to summons, see Section 38-1-13 NMSA 1978. I. GENERAL CONSIDERATION. Compiler's notes. - Paragraph B and Rule 1-011 NMRA are deemed to have superseded 105-705, C.S. 1929, which was substantially the same. Paragraph E and Rule 1-011 NMRA are deemed to have superseded 105-510, C.S. 1929, which was substantially the same. When lack of diligence in service inconsequential. - Regardless of any lack of diligence in service on defendants, failure to file suit within one year from the filing of a lien is fatal. Daughtrey v. Carpenter, 1970-NMSC-151, 82 N.M. 173, 477 P.2d 807. When due process requirements met, lien foreclosed though no service. - Where an owner has both notice and an opportunity to be heard so that the requirements of due process have been met, a materialman may foreclose his lien even though he has failed to establish jurisdiction by either personal service on the owner, or in rem by publication. First Nat'l Bank v. Julian, 1981-NMSC-049, 96 N.M. 38, 627 P.2d 880. Notice in foreclosure sales. - With respect to the kind of notice to be employed in cases of sales under execution and foreclosure, 39-5-1 NMSA 1978, rather than this rule, governs. Production Credit Ass'n v. Williamson, 1988-NMSC-041, 107 N.M. 212, 755 P.2d 56. This rule is applicable only after the court has acquired in personam jurisdiction over the person to be served. Jones v. Montgomery Ward & Co., 1985-NMCA-094, 104 N.M. 636, 725 P.2d 836. Notice of suggestion of death. - Where the plaintiff died before the case went to trial, his attorney was not the proper party, either under Rule 4 (now Rule 1-004 NMRA) or under this rule, to receive notice of suggestion of death so as to trigger the 90-day period for substitution of parties provided under Rule 25 (now Rule 1-025 NMRA). Jones v. Montgomery Ward & Co., 1985-NMCA-094, 104 N.M. 636, 725 P.2d 836. II. SERVICE; WHEN REQUIRED. Service of summons with cross-claim required when parties in default. - Subdivisions (a) and (b) (see now Paragraphs A and B) do not require service of a summons with a cross-claim except on parties in default. Fitzgerald v. Blueher Lumber Co., 1971-NMSC-021, 82 N.M. 312, 481 P.2d 100; Daughtrey v. Carpenter, 1970-NMSC-151, 82 N.M. 173, 477 P.2d 807. When party not entitled to notice that pleadings amended. - Neither Rule 54(c) (see now Rule 1-054 NMRA), pertaining to default judgments, nor Subdivision (a) (see now Paragraph A) pertaining to service of pleadings, entitles defendant to notice that pleadings have been amended to allege gross negligence rather than negligence against defendant where there was no showing that the damages rested upon this charge and no relief was sought from the damages. Gurule v. Larson, 1967-NMSC-249, 78 N.M. 496, 433 P.2d 81. Failure to serve all parties. - The consequences of a failure to abide by this rule's requirement that motions be served on all parties to a lawsuit depend upon the nature of the paper involved. Western Bank v. Fluid Assets Dev. Corp., 1991 -NMSC-020, 111 N.M. 458, 806 P.2d 1048. Mortgagee first lienholder could not use the judicial system to enforce its rights in a foreclosure proceeding after deliberately failing to serve notice upon junior lienholders of record of its intention to hold the foreclosure sale, even though the junior lienholders were parties to a lawsuit brought by the mortgagee and were entitled to actual notice of the sale. Western Bank v. Fluid Assets Dev. Corp., 1991 -NMSC-020, 111 N.M. 458, 806 P.2d 1048. III. SAME; HOW MADE. Service of pleadings and show cause order on attorney sufficient. - Service of pleadings and order to show cause made on defendant's attorney is sufficient service. Sunshine Valley Irrigation Co. v. Sunshine Valley Conservancy Dist., 1932-NMSC-083, 37 N.M. 77, 18 P.2d 251 (decided under former law). Service of summons with cross-claim required when parties in default. - Subdivisions (a) and (b) (see now Paragraphs A and B) do not require service of a summons with a cross-claim except on parties in default. Fitzgerald v. Blueher Lumber Co., 1971-NMSC-021, 82 N.M. 312, 481 P.2d 100; Daughtrey v. Carpenter, 1970-NMSC-151, 82 N.M. 173, 477 P.2d 807. Failure to serve party or his attorney warrants dismissal. - Laws 1891, ch. 66, §4, relating to the delivery of a copy of the declaration, filing of succession pleadings, etc., sustained the court in dismissing a cause on defendant's motion for failure of plaintiff to serve defendant or his attorney with copy of declaration within 10 days after his appearance. German-American Ins. Co. v. Etheridge, 1895-NMSC-008, 8 N.M. 18, 41 P. 535 (decided under former law). Rule inapplicable where court takes case under advisement. - Where the court has taken the case under advisement before rendition of judgment, and the court has not directed the manner of serving notice upon attorneys where judgment is about to be rendered, statute regarding notice of hearing is applicable rather than service of pleadings and papers. R.V. Smith Supply Co. v. Black, 1939-NMSC-016, 43 N.M. 177, 88 P.2d 269 (decided under former law). Waiver of notice by attorney of record. - An attorney of record may waive notice of intention to apply for order authorizing taking of deposition by oral examination out of court. Davis v. Tarbutton, 1931-NMSC-019, 35 N.M. 393, 298 P. 941 (decided under former law). Service by mail is accomplished by depositing in post office, and the time for further pleading is to be computed from that act. Miera v. Sammons, 1926-NMSC-020, 31 N.M. 599, 248 P. 1096 (decided under former law). Party relying on service by mail has burden of proving mailing. Myers v. Kapnison, 1979-NMCA-085, 93 N.M. 215, 598 P.2d 1175. Unchallenged, an attorney's certificate is sufficient proof of mailing. Myers v. Kapnison, 1979-NMCA-085, 93 N.M. 215, 598 P.2d 1175. Service at last known address proper where no designation of permanent address change. - Service upon the defendant is properly made by mailing the notice to the defendant's last known address where there is no designation of a permanent change of address sufficient to alert the district court and the plaintiff that the defendant's mail should be sent elsewhere than to his last known address. Thompson v. Thompson, 1983-NMSC-025, 99 N.M. 473, 660 P.2d 115. IV. FILING. A court clerk lacks the discretion to reject pleadings for technical violations, and a pleading will be considered filed when delivered to the clerk. It is then up to the trial court to decide whether to allow a party to correct any deficiencies or to strike the pleadings. Ennis v. Kmart Corp., 2001-NMCA-068, 131 N.M. 32, 33 P.3d 32, cert denied, 130 N.M. 722, 31 P.3d 380. Where court clerk refused to accept pleading due to incorrect caption, trial court had discretion to allow the pleading party to correct the deficiencies, and to have the pleading considered timely filed. Ennis v. Kmart Corp., 2001-NMCA-068, 131 N.M. 32, 33 P.3d 32, cert denied, 130 N.M. 722, 31 P.3d 380. Signed motion deemed "regularly filed" paper. - A motion signed by a party or his attorney is a paper "regularly filed in a cause with the clerk of the district court". Vosburg v. Carter, 1927-NMSC-095, 33 N.M. 86, 262 P. 175; Pershing v. Ward, 1927-NMSC-096, 33 N.M. 91, 262 P. 177 (decided under former law). Law reviews. - For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962). For annual survey of New Mexico law relating to administrative law, see 13 N.M.L. Rev. 235 (1983). Am. Jur. 2d, A.L.R. and C.J.S. references. - 4 Am. Jur. 2d Appearance §1 et seq.; 9 Am. Jur. 2d Bankruptcy §§752 to 759; 23 Am. Jur. 2d Depositions and Discovery §143; 56 Am. Jur. 2d Motions, Rules, and Orders §§8, 10, 12, 16, 17, 36; 61B Am. Jur. 2d Pleading §§899, 901, 902. Withdrawal of pleading after delivering to proper officer as affecting question whether it is filed, 37 A.L.R. 670. Appearance for purpose of making application for removal of cause to federal court as a general appearance, 81 A.L.R. 1219. Affidavit of substantial defense to merits in an attachment or garnishment proceeding as general appearance, 116 A.L.R. 1215. Construction of phrase "usual place of abode," or similar terms referring to abode, residence, or domicil, as used in statutes relating to service of process, 32 A.L.R.3d 112. 60 C.J.S. Motions and Orders §§11, 13 to 19; 71 C.J.S. Pleading §§ 407 to 409, 411 to 413, 416.