N.M. R. Civ. P. Dist. Ct. 1-023

As amended through February 27, 2024
Rule 1-023 - Class actions
A.Prerequisites to a class action. One or more members of a class may sue or be sued as representative parties on behalf of all only if
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
B.Class actions maintainable. An action may be maintained as a class action if the prerequisites of Paragraph A of this rule are satisfied, and in addition
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(a) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or
(b) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests;
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include
(a) the interest of members of the class in individually controlling the prosecution or defense of separate actions;
(b) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum;
(d) the difficulties likely to be encountered in the management of a class action.
C.Determination by order whether class action to be maintained; notice; judgment; actions conducted partially as class actions.
(1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subparagraph may be conditional, and may be altered or amended before the decision on the merits.
(2) In any class action maintained under Paragraph (B)(3) of this rule, the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that
(a) the court will exclude the member from the class if the member so requests by a specified date;
(b) the judgment whether favorable or not, will include all members who do not request exclusion; and
(c) any member who does not request exclusion may, if the member desires, enter an appearance through counsel.
(3) The judgment in an action maintained as a class action under Paragraph (B)(1) or (B)(2) of this rule, whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under Paragraph (B)(3) of this rule, whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in Paragraph (C)(2) of this rule was directed, and who have not requested exclusion, and whom the court finds to be members of the class.
(4) When appropriate
(a) an action may be brought or maintained as a class action with respect to particular issues; or
(b) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.
D.Orders in conduct of actions. In the conduct of actions to which this rule applies, the court may make appropriate orders
(1) determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument;
(2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in the manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action;
(3) imposing conditions on the representative parties or on intervenors;
(4) requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly;
(5) dealing with similar procedural matters. The orders may be combined with an order under Rule 1-016 NMRA, and may be altered or amended as may be desirable from time to time.
E.Dismissal or compromise. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in the manner as the court directs.
F.Appeals. The Court of Appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within fifteen (15) days after entry of the order. An appeal does not stay proceedings in the district court unless the district judge or the Court of Appeals so orders.
G.Residual funds to named organization.
(1) For purposes of Paragraph (G)(2) of this rule, "residual funds" are
(a) unclaimed funds, including uncashed checks and other unclaimed payments, that remain after payment of all approved class member claims, expenses, litigation costs, attorneys' fees, and other court-approved disbursements or dispositions to implement the relief granted, whether the payments are drawn from a common fund or directly from the judgment debtor's own funds; or
(b) if it is impossible or economically impractical to distribute the common fund to the class at all, the entire common fund after payment of all approved expenses, litigation costs, attorneys' fees, and other court-approved disbursements or dispositions to implement the relief granted, whether the payments are drawn from a common fund or directly from the judgment debtor's own funds.
(2) Either in its order entering a judgment or approving a proposed settlement of a class action certified under this rule that establishes a process for identifying and compensating members of the class or by a subsequent order entered when residual funds are determined to exist, the court shall provide for the disbursement of residual funds, if any, to one or more of the following entities:
(a) nonprofit organizations that support projects that benefit the class or similarly situated persons consistent with the goals of the underlying causes of action on which relief was based;
(b) educational entities that provide training, teaching and legal services that further the goals of the underlying causes of action on which relief was based;
(c) nonprofit organizations that provide legal services to low income persons;
(d) the entity administering the IOLTA fund under Rule 24-109 NMRA, to support activities and programs that promote access to the civil justice system for low income residents of New Mexico; and
(e) the entity administering the pro hac vice fund under Rule 24-106 NMRA, to support activities and programs that promote access to the civil justice system for low income residents of New Mexico.
(3) Nothing in this paragraph is intended to prevent the parties to a class action from proposing, or the trial court from approving, a settlement that does not create residual funds.

N.M. R. Civ. P. Dist. Ct. 1-023

As amended, effective 7/1/1995;12/4/2000; as amended by Supreme Court Order No. 11-8300-016, effective 5/11/2011; as amended by Supreme Court Order No. 16-8300-012, effective for all cases pending or filed on or after12/31/2016.

ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-012, effective December 31, 2016, increased the time allowed to file an appeal following a district court order granting or denying class action certification under this rule, and made technical changes; in Subparagraph (C)(2), changed "Subparagraph (3) of Paragraph B" to "Paragraph (B)(3)"; in Subparagraph (C)(3), changed "Subparagraph (1) or (2) of Paragraph B" to "Paragraph (B)(1) or (B)(2)", changed "Subparagraph (3) of Paragraph B" to "Paragraph (B)(3)", and changed "Subparagraph (2) of Paragraph C" to "Paragraph (C)(2)"; in Subparagraph (D)(2), after "given in", deleted "such a" and added "the"; in Paragraph (E), after "the class in", deleted "such" and added "the"; in Paragraph (F), after "within", deleted "ten (10)" and added "fifteen (15)"; in Subparagraph (G)(1), after "For purposes of", deleted "Subparagraph (2) of this paragraph" and added "Paragraph (G)(2) of this rule", in Subparagraphs (G)(1)(a) and (G)(1)(b), after "whether", deleted "such" and added "the". The 2011 amendment, approved by Supreme Court Order No. 11-8300-016, effective May 11, 2011, added Paragraph G to define "residual funds", provide for the distribution of residual funds to specified organizations and entities, and to permit the parties to a class to propose settlements that do not create residual funds. The 2000 amendment, effective December 4, 2000, added Paragraph F. The 1995 amendment, effective July 1, 1995, added Subparagraph B(3) and made related changes, rewrote Subparagraphs C(1) and C(2), added the last sentence in Subparagraph C(3), and deleted former Paragraph F relating to assessment of costs and damages. Contract term implied by law or determined by the intent of the parties. - Where plaintiffs, who were royalty owners, brought a class action lawsuit claiming that defendant underpaid royalties by improperly deducting the costs and expenses associated with placing natural gas in a marketable condition, class certification depended upon whether the marketable condition rule was implied in the contracts as a matter of law or on the parties' intent. If the marketable condition rule was implied by law, certification was appropriate. If the marketable condition rule depended upon extrinsic evidence to demonstrate the parties' intent, individual contract issues might predominate over common questions and certification would be inappropriate. Ideal v. Burlington Res. Oil & Gas Co. LP, 2010-NMSC-022, 148 N.M. 228, 233 P.3d 362. Denial of class certification was not binding on absent class members. - Virtual representation is limited to absent class members only in situations where the class has been properly certified and conducted. Virtual representation does not apply to precertification decisions, including denial of class certification. Ideal v. Burlington Res. Oil & Gas Co. LP, 2010-NMSC-022, 148 N.M. 228, 233 P.3d 362. Absent class members are not precluded from relitigating decision not to certify a class. - Where plaintiffs were absent class members of a prior precertification decision not to certify a class, plaintiffs were not members of the prior class action and are not precluded from relitigating the issue of class certification. Ideal v. Burlington Res. Oil & Gas Co. LP, 2010-NMSC-022, 148 N.M. 228, 233 P.3d 362. Preclusion of absent class members by precertification decisions would deny due process. - Where plaintiffs were absent class members of a prior precertification decision not to certify a class; and prior to a case being certified, absent class members are not offered a right to be heard, are given no notice, and are given no opportunity to opt out, to hold that absent members are precluded from bringing their claims without affording them these rights would deny them due process. Ideal v. Burlington Res. Oil & Gas Co. LP, 2010-NMSC-022, 148 N.M. 228, 233 P.3d 362. Analysis of choice of law and conflict of law decisions. - The district court is not required to set forth the details of the court's analysis in resolving potential choice of law and conflict of law issues. Ideal v. Burlington Res. Oil & Gas Co. LP, 2010-NMSC-022, 148 N.M. 228, 233 P.3d 362. New Mexico law applied. - Where plaintiffs, who were royalty owners, brought a class action lawsuit claiming that defendant underpaid royalties by improperly deducting the costs and expenses associated with placing natural gas in a marketable condition; the land was located in New Mexico; the production occurred in New Mexico and the oil and gas leases conveyed an interest in real property in New Mexico, the district court properly held that New Mexico law applied because New Mexico had significant contacts that created a state interest. Ideal v. Burlington Res. Oil & Gas Co. LP, 2010-NMSC-022, 148 N.M. 228, 233 P.3d 362. Certification under Rule 1-023(B)(2) where monetary damages are sought. - When class certification prerequisites are satisfied and declaratory or injunctive relief is sought as an integral part of the relief for the class, then Rule 1-023(B)(2) is applicable regardless of the presence or dominance of additional prayers for damages relief for class members. Davis v. Devon Energy Corp., 2009-NMSC-048, 147 N.M. 157, 218 P.3d 75. Class certification was not appropriate under Rule 1-023(B)(1)(a). - Where defendant increased its sewer rates for residential users to finance the construction of a new sewer treatment plant; plaintiff, who was the owner of an apartment complex, paid the increased rate under protest and filed a class action seeking monetary damages on the ground the rate increases were unreasonable; the district court denied class certification for monetary damages on the ground that the class action was not maintainable under Rule 1-023(B); and plaintiff argued that denial of class certification would allow individual suits to produce inconsistent damage awards based on the application of different defenses which would violate defendant's obligation to charge uniform rates for the same class of services, the district court properly denied class certification because the possibility of inconsistent damage awards was insufficient to show that individual adjudications would be unworkable and would not impair defendant's ability to impose uniform rates because damages do not provide prospective relief. Tierra Realty Trust, L.L.C. v. Village of Ruidoso, 2013-NMCA-030, 296 P.3d 500. Denial of class certification for unjust enrichment claim. - Where plaintiffs, five non-exempt employees of a non-profit, integrated acute care hospital, moved for class action certification alleging that their employer was unjustly enriched by failing to pay plaintiffs and other non-exempt employees for time they spent working during meal breaks, the district court did not abuse its discretion in denying plaintiffs' motion for class action certification, because plaintiffs failed to produce any methodology by which they intended to establish classwide liability, and thus failed to establish the requirement that the questions of fact or law common to members of the class predominate over any questions affecting only individual members. Sloane v. Rehoboth McKinley Christian Health Care Servs., 2018-NMCA-048. Class certification was appropriate under Rule 1-023(B)(3). - Where defendant increased its sewer rates for residential users to finance the construction of a new sewer treatment plant; plaintiff, who was the owner of an apartment complex, paid the increased rate under protest and filed a class action seeking monetary damages on the ground that the rate increases were unreasonable; and the district court denied class certification for monetary damages on the ground that individual issues predominated because of defendant's defenses of voluntary payment, estoppel, and latches and plaintiff's claim of duress, the district court erred in denying class certification because the class was a uniform group of customers who paid the same sewer rates after receiving uniform class-wide notices of the rate increases, the application of defendant's defenses would not require individual inquires, and the claim of duress and the opportunity to institute suit did not differ within the class. Tierra Realty Trust, L.L.C. v. Village of Ruidoso, 2013-NMCA-030, 296 P.3d 500. Defendants acted on grounds applicable to all class members. - In a class action, where plaintiff royalty owners alleged that defendant gas producers improperly deducted from plaintiffs' royalty payments the costs of making coalbed methane gas marketable; plaintiffs sought damages for breach of their individual royalty agreements; and the district court found that defendants deducted certain costs uniformly in all royalty agreements, regardless of the language of the agreements, the court properly certified the class under Rule 1-023(B)(2) because the district court was in a position to declare the rights of the parties on a class-wide basis with respect to the propriety of the deductions. Davis v. Devon Energy Corp., 2009-NMSC-048, 147 N.M. 157, 218 P.3d 75. Court ruling created common question of law with respect to damage claims under individualized contracts. - In a class action, where plaintiff royalty owners alleged that defendant gas producers improperly deducted from plaintiffs' royalty payments the costs of making coalbed methane gas marketable; plaintiffs sought damages for breach of their individual royalty agreements; and the district court ruled that, as a matter of law, the marketable condition rule, which incorporates the duty to put coalbed methane gas in a marketable condition, had been incorporated in the existing duty to market, the district court's ruling was sufficient to certify the class under Rule 1-023(B)(3) because the provisions of each royalty agreement were irrelevant under the marketable condition rule and the district court's ruling raised the common issue of whether the costs deducted by defendants were necessary to make the coalbed methane gas marketable. Davis v. Devon Energy Corp., 2009-NMSC-048, 147 N.M. 157, 218 P.3d 75. Entering findings of fact and conclusions of law is not a prerequisite to appellate review of class certification orders. Davis v. Devon Energy Corp., 2009-NMSC-048, 147 N.M. 157, 218 P.3d 75. Approval of a class action settlement. - Where, after the Court of Appeals reversed and remanded the district court's final order, which confirmed certification of the class for settlement purposes and approved the settlement, for further findings on whether the settlement was fair and reasonable and whether the class should be certified for settlement purposes, the parties sought to implement the final order in the interest of achieving a class-wide settlement, the Court of Appeals' decision will be set aside and the district court's final order will be affirmed. Platte v. First Colony Life Ins. Co., 2008 -NMSC-058, 145 N.M. 77, 194 P.3d 108. Standard to determine actual conflicts between states' laws. - The standard for determining when an actual conflict exists between states' laws such that application of the forum state's law is inappropriate for a class action is more than a mere hypothetical conflict or uncertainty based on the lack of foreign appellate precedent; rather, proof of an actual conflict is required. Ferrell v. Allstate Ins. Co., 2008 -NMSC-042, 144 N.M. 405, rev'g 2007-NMCA-017, 141 N.M. 72, 150 P.3d 1022. Standard to determine applicable law. - After determining that an actual conflict of laws exists, the court should apply the principles of the Restatement (Second) of Conflicts of Laws (1971) to determine what law applies to the disputed issue. Ferrell v. Allstate Ins. Co., 2008 -NMSC-042, 144 N.M. 405, rev'g 2007-NMCA-017, 141 N.M. 72, 150 P.3d 1022. Contractual prohibition of class actions. - Contractual prohibition of class relief, as applied to claims that would be economically inefficient to bring on an individual basis, is contrary to the fundamental public policy of New Mexico to provide a forum for the resolution of all consumer claims and is unenforceable in New Mexico. Fiser v. Dell Computer Corp., 2008-NMSC-046, 144 N.M. 464, 188 P.3d 1215, rev'g 2007-NMCA-087, 142 N.M. 331, 165 P.3d 328. Unnamed class members in op-out class actions have a right to appeal the approval of a settlement. Rivera-Platte v. First Colony Life Ins. Co., 2007 -NMCA-158, 143 N.M. 158, 173 P.3d 765, cert. granted, 2007-NMCERT-011. Certification of settlement-only class. - In settlement-only classes, the district court must consider the certification requirements and make finds that certification was proper. Rivera-Platte v. First Colony Life Ins. Co., 2007 -NMCA-158, 143 N.M. 158, 173 P.3d 765, cert. granted, 2007-NMCERT-011. Factors for determining fairness of settlement. - Before approving a settlement, the court should examine the settlement process, including the adequacy of discovery, the fairness of the process afforded objectors, and the fairness and honesty of the negotiation; the risks of litigation, including the merits and complexities of the parties' claims and the potential duration and cost of trial; the reasonableness of the settlement in light of the risks of litigation and the possible recovery at trial; and the class members' reaction to the settlement. Rivera-Platte v. First Colony Life Ins. Co., 2007 -NMCA-158, 143 N.M. 158, 173 P.3d 765, cert. granted, 2007-NMCERT-011. In determining whether class certification is appropriate, the court must avoid examining the merits of the moving party's case at the time class certification is sought. Armijo v. Wal-Mart Stores, Inc., 2007-NMCA-120, 142 N.M. 557, 168 P.3d 129, cert. denied, 2007-NMCERT-009. Class definition. - A class definition that presents a question based on the merits of plaintiff's case is improper. Armijo v. Wal-Mart Stores, Inc., 2007-NMCA-120, 142 N.M. 557, 168 P.3d 129, cert. denied, 2007-NMCERT-009. Paragraph B(3) is essentially identical to its federal counterpart, Rule 23(b) of the Federal Rules of Civil Procedure. Romero v. Philip Morris, Inc., 2005-NMCA-035, 137 N.M. 229, 109 P.3d 768. Purpose of rule. - This rule is a device to save court and party resources and promote litigation economy by litigating common questions of law and fact at one time. Romero v. Philip Morris, Inc., 2005-NMCA-035, 137 N.M. 229, 109 P.3d 768. A beneficial and primary purpose of the procedure under this rule is to address class members' claims in one proceeding where joinder outside of the class action setting is impracticable. Romero v. Philip Morris, Inc., 2005-NMCA-035, 137 N.M. 229, 109 P.3d 768. This rule is a remedial procedural device, which will be interpreted liberally. Romero v. Philip Morris, Inc., 2005-NMCA-035, 137 N.M. 229, 109 P.3d 768. Court may not simply assume conformance with this rule. Romero v. Philip Morris, Inc., 2005-NMCA-035, 137 N.M. 229, 109 P.3d 768. Party seeking certification has burden of showing that each prerequisite of this rule is met. Romero v. Philip Morris, Inc., 2005-NMCA-035, 137 N.M. 229, 109 P.3d 768. Antitrust Act. - This rule does not, as written, abridge a defendant's substantive rights under the Antitrust Act. Romero v. Philip Morris, Inc., 2005-NMCA-035, 137 N.M. 229, 109 P.3d 768. Application of rule to filing date of cases. - While it is true that the Supreme Court could have indicated that Paragraph F of this rule applies to cases filed after a specific date, its failure to do so is of no significance. Starko, Inc. v. Cimarron Health Plan, Inc., 2005-NMCA-040, 137 N.M. 310, 110 P.3d 526, cert. denied, 2005-NMCERT-004. Omission of the language "effective date", or language in the rule that says the rule applies to cases filed after a certain date, cannot be given a particular meaning. Starko, Inc. v. Cimarron Health Plan, Inc., 2005-NMCA-040, 137 N.M. 310, 110 P.3d 526, cert. denied, 2005-NMCERT-004. Appeal unavailable. - Where case was pending within the meaning of N.M. Const., art. IV,' 34, at the time Paragraph F of this rule became effective, an appeal under the rule is not available. Starko, Inc. v. Cimarron Health Plan, Inc., 2005-NMCA-040, 137 N.M. 310, 110 P.3d 526, cert. denied, 2005-NMCERT-004. An appeal of a grant or denial of class certification under Paragraph F of this rule is not available in a class action where the rule became effective after the original suit was filed, but before the appealing defendants became parties in the case. Starko, Inc. v. Cimarron Health Plan, Inc., 2005-NMCA-040, 137 N.M. 310, 110 P.3d 526, cert. denied, 2005-NMCERT-004. This rule is identical to its federal counterpart. Berry v. Federal Kemper Life Assurance Co., 2004-NMCA-116, 136 N.M. 454, 99 P.3d 1164, cert. denied, 136 N.M. 515, 100 P.3d 672. Because Paragraph A of this rule and, in particular, Paragraph B(3) of this rule, are essentially identical to their federal counterparts, federal law is looked for guidance in determining the appropriate legal standards to apply to the rule. Brooks v. Norwest Corp., 2004-NMCA-134, 136 N.M. 599, 103 P.3d 39, cert. denied, 2004-NMCERT-012, 136 N.M. 665, 103 P.3d 1097. Class actions aggregate many claims into single proceeding, potentially saving the courts from dealing with large numbers of individual claims involving similar factual and legal patterns. Berry v. Federal Kemper Life Assurance Co., 2004-NMCA-116, 136 N.M. 454, 99 P.3d 1164, cert. denied, 136 N.M. 515, 100 P.3d 672. All class actions must meet the minimum requirements of Paragraph A of this rule, commonly referred to as numerosity, commonality, typicality, and adequacy of representation. Berry v. Federal Kemper Life Assurance Co., 2004-NMCA-116, 136 N.M. 454, 99 P.3d 1164, cert. denied, 136 N.M. 515, 100 P.3d 672. Burden of proof. - Plaintiffs bear the burden to show that all four prerequisites of Paragraph A of this rule and at least one of the requirements of Paragraph B of this rule are met. Brooks v. Norwest Corp., 2004-NMCA-134, 136 N.M. 599, 103 P.3d 39, cert. denied, 2004-NMCERT-012, 136 N.M. 665, 103 P.3d 1097. An implicit primary requirement of this rule, often referred to as the "definiteness" requirement, is that plaintiffs bear the burden to demonstrate the existence of an identifiable class that is capable of ascertainment under some objective standard. Brooks v. Norwest Corp., 2004-NMCA-134, 136 N.M. 599, 103 P.3d 39, cert. denied, 2004-NMCERT-012, 136 N.M. 665, 103 P.3d 1097. Imprecise, vague, or broad class definitions that include persons with little connection to the claims will fail to meet the definiteness requirement. Brooks v. Norwest Corp., 2004-NMCA-134, 136 N.M. 599, 103 P.3d 39, cert. denied, 2004-NMCERT-012, 136 N.M. 665, 103 P.3d 1097. Dismissal of action. - Although the dismissal of a class action because of management difficulties is generally disfavored, dismissal is warranted where individual issues predominate to make the class action unmanageable, even if no alternative remedy exists. Brooks v. Norwest Corp., 2004-NMCA-134, 136 N.M. 599, 103 P.3d 39, cert. denied, 2004-NMCERT-012, 136 N.M. 665, 103 P.3d 1097. If complaint fails to meet requirements of this rule, termination of the action would be proper only insofar as it seeks relief on behalf of the class. Balizer v. Shaver, 1971-NMCA-010, 82 N.M. 347, 481 P.2d 709. Due process requires notice to persons affected by class action. - Due process under both state and federal constitutions requires that a person affected by a class action be given notice of the action, and the absence of such notice requires a dismissal of the complaint. Eastham v. Public Employees' Retirement Ass'n Bd., 1976-NMSC-046, 89 N.M. 399, 553 P.2d 679. Due process not violated by adding defendants. - Where, in a class action, pharmacists sued HSD to enforce their rights to reimbursement under Subsection B of Section 27-2-16 NMSA 1978; the court certified the class before managed care organizations were added as defendants; the organizations challenged the class certification; and the court granted discovery on the issue of whether the organizations were subject to the previous class certification, held a hearing where the parties argued the issue, and more than two years after plaintiffs moved to add the organizations, the court held that class certification was proper as to the organizations, no violation of the organizations' due process rights occurred. Starko, Inc. v. Presbyterian Health Plan, Inc., 2012-NMCA-053, 276 P.3d 252, cert. granted, 2012-NMCERT-003. Class certification was proper. - Where, in a class action, pharmacists sued HSD and managed care organizations to enforce pharmacists' rights to reimbursement under Subsection B of Section 27-2-16 NMSA 1978; the department entered into provider contracts with the organizations to provide medical care and pharmacy services; the organizations entered into contracts with pharmacists to provide pharmacy services; the number of pharmacists who were class members was between two and three hundred; the pharmacists were widely dispersed across the state; the relationship of each pharmacist to the department and the organizations and the facts necessary to decide the case as to each class member were essentially the same; each class member sought an interpretation of Subsection B that required either the department or the organizations to pay; there was no evidence that the interests of any individual class member were contrary to those of the entire class; to prevail, each class member needed a holding on all critical issues common to all class members; judicial resources would be saved by certification; the number of class members was manageable; and the damages of each class member could be calculated in a similar manner, the court did not abuse its discretion in finding that the requirements of Paragraph A of Rule 1-023 NMRA were met. Starko, Inc. v. Presbyterian Health Plan, Inc., 2012-NMCA-053, 276 P.3d 252, cert. granted, 2012-NMCERT-003. Primary considerations regarding numerosity are whether there are so many potential plaintiffs that they cannot be joined as a practical matter, and whether there are other obstacles, such as personal jurisdiction issues, to individual joinder. Berry v. Federal Kemper Life Assurance Co., 2004-NMCA-116, 136 N.M. 454, 99 P.3d 1164, cert. denied, 136 N.M. 515, 100 P.3d 672. Numerosity should not depend on number of class members who may ultimately seek a recovery. Berry v. Federal Kemper Life Assurance Co., 2004-NMCA-116, 136 N.M. 454, 99 P.3d 1164, cert. denied, 136 N.M. 515, 100 P.3d 672. Commonality requirement of Paragraph A(2) is relatively easily met because it is deemed to require only that a single issue be common to the class. Berry v. Federal Kemper Life Assurance Co., 2004-NMCA-116, 136 N.M. 454, 99 P.3d 1164, cert. denied, 136 N.M. 515, 100 P.3d 672. Commonality. - Where defendant increased its sewer rates for residential users to finance the construction of a new sewer treatment plant; plaintiff, who was the owner of an apartment complex, paid the increased rate under protest and filed a class action seeking monetary damages on the ground that the rate increases were unreasonable; and although the court found that commonality was present, the district court denied class certification for monetary damages on the ground that plaintiff failed to meet the commonality prerequisite because the ramifications of defendant's defense of voluntary payment and plaintiff's claim of duress rendered the damage claim difficult to manage, the court erred by interjecting the management and predominance criteria of Rule 1-023(B)(3) NMRA into the commonality prerequisite of Rule 1-023(A) NMRA 1978 and should have found that the commonality prerequisite had been satisfied because the central issue of the class was whether defendant's rates were unreasonable. Tierra Realty Trust, L.L.C. v. Village of Ruidoso, 2013-NMCA-030, 296 P.3d 500. Typicality requirement of Paragraph A(3) is used to gauge in general how well the proposed class representative's case matches the class factual allegations and legal theories. Berry v. Federal Kemper Life Assurance Co., 2004-NMCA-116, 136 N.M. 454, 99 P.3d 1164, cert. denied, 136 N.M. 515, 100 P.3d 672. Typicality. - Where defendant increased its sewer rates for residential users to finance the construction of a new sewer treatment plant; plaintiff, who was the owner of an apartment complex, paid the increased rate under protest and filed a class action seeking monetary damages on the ground that the rate increases were unreasonable; plaintiff sought class certification; and although the district court found that typicality was present, the district court denied class certification for monetary damages on the ground that plaintiff failed to meet the typicality prerequisite because the class contained sewer customers who had city water and those who did not and customers who had city water paid a slightly different rate than customer who did not, and because defendant's defense of voluntary payment might affect class members differently, the court erred by applying an overly strict typicality standard and should have found that the typicality prerequisite had been satisfied because all class members had the same or similar injury caused by the payment of unreasonable rates to defendant. Tierra Realty Trust, L.L.C. v. Village of Ruidoso, 2013-NMCA-030, 296 P.3d 500. "Typicality" refers to claims of class representatives. - Even assuming that the class representatives did not perform all of the same functions performed by all members of the class, the defendants failed to demonstrate how differences in job duties would make the claims or defenses of the class representatives with regard to overtime compensation significantly different from the claims and defenses of any class members. Salcido v. Farmers Ins. Exchange, 2004-NMCA-006, 134 N.M. 797, 82 P.3d 968. What constitutes adequate representation under Paragraph A(4) is question of fact that depends on the circumstances of each case. Berry v. Federal Kemper Life Assurance Co., 2004-NMCA-116, 136 N.M. 454, 99 P.3d 1164, cert. denied, 136 N.M. 515, 100 P.3d 672. Weighing of matters pertinent to findings. - Paragraph B(3) of this rule does provide a list of "matters pertinent to the findings" but it does not explain how they are to be weighed in individual cases. Berry v. Federal Kemper Life Assurance Co., 2004-NMCA-116, 136 N.M. 454, 99 P.3d 1164, cert. denied, 136 N.M. 515, 100 P.3d 672. Predominance is not determined by simple quantitative measure of time that may be spent on common rather than individual issues, though that calculation can be a factor properly taken into account. Berry v. Federal Kemper Life Assurance Co., 2004-NMCA-116, 136 N.M. 454, 99 P.3d 1164, cert. denied, 136 N.M. 515, 100 P.3d 672. Hearing on class action certification. - District court is not required to hold an evidentiary hearing prior to certifying a class. Murken v. Solv-Ex Corp., 2006-NMCA-064, 139 N.M. 625, 136 P.3d 1035. Although this rule does not require that class certification order contain findings of fact, courts are encouraged to request and enter factual findings to facilitate meaningful review. Salcido v. Farmers Ins. Exchange, 2004-NMCA-006, 134 N.M. 797, 82 P.3d 968. All parties on one side of lawsuit not necessarily one party. - These rules, as well as the common understanding of what is meant by a party to a lawsuit, are inconsistent with the position that all parties on one side of a lawsuit are but one party. Romero v. Felter, 1972-NMSC-032, 83 N.M. 736, 497 P.2d 738. No abuse of discretion. - District court did not abuse discretion in certifying class for settlement purposes where district court considered the possibility that individual class members might have large claims that would not be well suited to class adjudication and nevertheless determined that a class action was the superior method of adjudication, there was no other pending litigation brought by shareholders, New Mexico was a desirable forum because the corporate defendant was a New Mexico corporation and one individual defendant was a New Mexico citizen. Murken v. Solv-Ex Corp., 2006-NMCA-064, 139 N.M. 625, 136 P.3d 1035. Standing to object to settlement. - A non-settling defendant in a class action does not have standing to object to a court-approved settlement entered into by the class plaintiffs and another defendant unless the non-settling defendant can show legal prejudice caused by the settlement. Murken v. Solv-Ex Corp., 2006-NMCA-065, 139 N.M. 625, 136 P.3d 1035. Notice of appeal not untimely when filed on thirty-first day following the entry of an order, as the time for its entry was extended by virtue of the fact that the thirtieth day was a Sunday. James v. Brumlop, 1980-NMCA-043, 94 N.M. 291, 609 P.2d 1247. Guidelines for appellate review of class certification decisions. - New Mexico courts will ordinarily grant review of class certification decisions: (1) when there is a death-knell situation for either the plaintiff or defendant that is independent of the merits of the underlying claims, coupled with a class certification decision by the district court that is questionable, taking into account the district court's discretion over class certification; (2) when the certification decision presents an unsettled and fundamental issue of law relating to class actions, important both to the specific litigation and generally, that is likely to evade end-of-the-case review; and (3) when the district court's class certification decision is manifestly erroneous. Salcido v. Farmers Ins. Exchange, 2004-NMCA-006, 134 N.M. 797, 82 P.3d 968. There was no indication that the district court's certification of the class would sound the death knell for overtime pay litigation resulting from irresistible pressure on the defendant to settle the matter where the defendant had been defending multiple class action suits throughout the country and had voluntarily stipulated to consolidation of similar claims in a multi-district litigation. Salcido v. Farmers Ins. Exchange, 2004-NMCA-006, 134 N.M. 797, 82 P.3d 968. Review of class certification on grounds of adequacy of representation is disfavored where further discovery may change the scope and contour of the putative class, because the district court is empowered to amend a class certification order at any time prior to reaching a decision on the merits under Subparagraph (1) of Paragraph C of this rule. Salcido v. Farmers Ins. Exchange, 2004-NMCA-006, 134 N.M. 797, 82 P.3d 968. Doctrine of vicarious or virtual exhaustion of remedies does not apply. - The Tax Administration Act provides the exclusive remedies for tax refunds and requires taxpayers to individually seek a refund. Each member of the class of taxpayers challenging the constitutionality of a tax must individually exhaust their administrative remedies and only after individual exhaustion by each class member can the district court have jurisdiction over the class. The doctrine of vicarious or virtual exhaustion of remedies that allows a class action for tax refunds to proceed when only a few members of the proposed class have exhausted their administrative remedies does not apply to proceedings under the Tax Administration Act. U.S. Xpress, Inc. v. New Mexico Taxation & Revenue Dep't, 2006-NMSC-017, 139 N.M. 589, 136 P.3d 999. Law reviews. - For article, "1975 Amendments to the New Mexico Business Corporations Act," see 6 N.M.L. Rev. 57 (1975). For survey, "Civil Procedure in New Mexico in 1975," see 6 N.M.L. Rev. 367 (1976). For note, "The Future of Class Actions in New Mexico," see 7 N.M.L. Rev. 225 (1977). For note, "State Securities Law: A Valuable Tool for Regulating Investment Land Sales," see 7 N.M.L. Rev. 265 (1977). For article, "The Impact of the Revised New Mexico Class Action Rules Upon Consumers," see 9 N.M.L. Rev. 263 (1979). For annual survey of New Mexico law relating to civil procedure, see 12 N.M.L. Rev. 97 (1982). Am. Jur. 2d, A.L.R. and C.J.S. references. - 59 Am. Jur. 2d Parties §§43 to 91. Specific performance of compromise and settlement agreement, 48 A.L.R.2d 1211. Propriety and prejudicial effect of suggestion or comments by judge as to compromise or settlement of civil case, 6 A.L.R.3d 1457. Attorneys' fees in class actions, 38 A.L.R.3d 1384. Amount of attorney's compensation in absence of contract or statute fixing amount, 57 A.L.R.3d 475. Construction of provision in compromise and settlement agreement for payment of costs as part of settlement, 71 A.L.R.3d 909. Propriety of class action in state courts to recover taxes, 10 A.L.R.4th 655. Absent or unnamed class members in class action in state court as subject to discovery, 28 A.L.R.4th 986. Propriety of attorney acting as both counsel and class member or representative, 37 A.L.R.4th 751. Inverse condemnation state court class actions, 49 A.L.R.4th 618. Class actions in state mass tort suits, 53 A.L.R.4th 1220. Timeliness of application to intervene made under Rule 24 of Federal Rules of Civil Procedure after denial of class certification for intervenors, 46 A.L.R. Fed. 864. Propriety of notice of voluntary dismissal or compromise of class action, pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, 52 A.L.R. Fed. 457. Jurisdiction of district court to entertain class actions by consumers pursuant to provisions of Magnuson-Moss Federal Warranty Act (15 USCS §2301 et seq.), 54 A.L.R. Fed. 919. Propriety, under Rule 23 of the Federal Rules of Civil Procedure, of class action for violation of Truth in Lending Act (15 USCS §1601 et seq.), 61 A.L.R. Fed. 603. Association of persons as proper representative of class under Rule 23 of Federal Rules of Civil Procedure governing maintenance of class actions, 63 A.L.R. Fed. 361. Notice to potential class members of right to "opt-in" to class action, under §16(b) of Fair Labor Standards Act (29 USCS §216(b) ), 67 A.L.R. Fed. 282. Notice of proposed dismissal or compromise of class action to absent putative class members in uncertified class action under Rule 23(e) of Federal Rules of Civil Procedure, 68 A.L.R. Fed. 290. Typicality requirement of Rule 23(a)(3) of Federal Rules of Civil Procedure as to class representative in class action based on unlawful discrimination, 74 A.L.R. Fed. 42. Permissibility of action against a class of defendants under Rule 23(b)(2) of Federal Rules of Civil Procedure, 85 A.L.R. Fed. 263. Propriety of allowing class member to opt out in class action certified under subsections (b)(1) or (b)(2) of Rule 23 of Federal Rules of Civil Procedure, 146 A.L.R. Fed. 563. 67A C.J.S. Parties §§ 21 to 32.