RULES OF CIVIL PROCEDURE
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>A. (1) Scope of rule. The provisions of this rule govern the issuance and service of process in all civil actions including special statutory proceedings.
(2) Summons; issuance. Upon the filing of the complaint, the clerk shall issue a summons and deliver it to the plaintiff for service. Upon the request of the plaintiff, the clerk shall issue separate or additional summons. Any defendant may waive the issuance or service of summons.
B. Summons; execution; form. The summons shall be signed by the clerk, issued under the seal of the court and be directed to the defendant. The summons shall be substantially in the form approved by the Supreme Court and must contain:
(1) the name of the court in which the action is brought, the name of the county in which the complaint is filed, the docket number of the case, the name of the first party on each side, with an appropriate indication of the other parties, and the name of each party to whom the summons is directed;
(2) a direction that the defendant serve a responsive pleading or motion within thirty (30) days after service of the summons and file a copy of the pleading or motion with the court as provided by Rule 1-005 NMRA;
(3) a notice that unless the defendant serves and files a responsive pleading or motion, the plaintiff may apply to the court for the relief demanded in the complaint; and
(4) the name, address and telephone number of the plaintiff’s attorney. If the plaintiff is not represented by an attorney, the name, address and telephone number of the plaintiff.
C. Service of process; return.
(1) If a summons is to be served, it shall be served together with any other pleading or paper required to be served by this rule. The plaintiff shall furnish the person making service with such copies as are necessary.
(2) Service of process shall be made with reasonable diligence, and the original summons with proof of service shall be filed with the court in accordance with the provisions of Paragraph L of this rule.
D. Process; by whom served. Process shall be served as follows:
(1) if the process to be served is a summons and complaint, petition or other paper, service may be made by any person who is over the age of eighteen (18) years and not a party to the action;
(2) if the process to be served is a writ of attachment, writ of replevin or writ of habeas corpus, service may be made by any person not a party to the action over the age of eighteen (18) years designated by the court to perform such service or by the sheriff of the county where the property or person may be found;
(3) if the process to be served is a writ other than a writ specified in Subparagraph (2) of this paragraph, service shall be made as provided by law or order of the court.
E. Process; how served; generally.
(1) Process shall be served in a manner reasonably calculated, under all the circumstances, to apprise the defendant of the existence and pendency of the action and to afford a reasonable opportunity to appear and defend.
(2) Service may be made, subject to the restrictions and requirements of this rule, by the methods authorized by this rule or in the manner provided for by any applicable statute, to the extent that the statute does not conflict with this rule.
(3) Service may be made by mail or commercial courier service provided that the envelope is addressed to the named defendant and further provided that the defendant or a person authorized by appointment, by law or by this rule to accept service of process upon the defendant signs a receipt for the envelope or package containing the summons and complaint, writ or other process. Service by mail or commercial courier service shall be complete on the date the receipt is signed as provided by this subparagraph. For purposes of this rule “signs” includes the electronic representation of a signature.
F. Process; personal service upon an individual. Personal service of process shall be made upon an individual by delivering a copy of a summons and complaint or other process:
(a) to the individual personally; or if the individual refuses to accept service, by leaving the process at the location where the individual has been found; and if the individual refuses to receive such copies or permit them to be left, such action shall constitute valid service; or
(b) by mail or commercial courier service as provided in Subparagraph (3) of Paragraph E of this rule.
(2) If, after the plaintiff attempts service of process by either of the methods of service provided by Subparagraph (1) of this paragraph, the defendant has not signed for or accepted service, service may be made by delivering a copy of the process to some person residing at the usual place of abode of the defendant who is over the age of fifteen (15) years and mailing by first class mail to the defendant at the defendant’s last known mailing address a copy of the process; or
(3) If service is not accomplished in accordance with Subparagraphs (1) and (2), then service of process may be made by delivering a copy of the process at the actual place of business or employment of the defendant to the person apparently in charge thereof and by mailing a copy of the summons and complaint by first-class mail to the defendant at the defendant’s last known mailing address and at the defendant’s actual place of business or employment.
G. Process; service on corporation or other business entity.
(1) Service may be made upon:
(a) a domestic or foreign corporation, a limited liability company or an equivalent business entity by serving a copy of the process to an officer, a managing or a general agent or to any other agent authorized by appointment, by law or by this rule to receive service of process. If the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant;
(b) a partnership by serving a copy of the process to any general partner;
(c) an unincorporated association which is subject to suit under a common name, by serving a copy of the process to an officer, a managing or general agent or to any other agent authorized by appointment, by law or by this rule to receive service of process. If the agent is one authorized by law to receive service and the statute so requires, by also mailing a copy to the unincorporated association.
(2) If a person described in Subparagraph (a), (b) or (c) of this subparagraph refuses to accept the process, tendering service as provided in this paragraph shall constitute valid service. If none of the persons mentioned is available, service may be made by delivering a copy of the process or other papers to be served at the principal office or place of business during regular business hours to the person in charge.
(3) Service may be made on a person or entity described in Subparagraph (1) of this paragraph by mail or commercial courier service in the manner provided in Subparagraph (3) of Paragraph E of this rule.
H. Process; service upon state and political subdivisions.
(1) Service may be made upon the State of New Mexico or a political subdivision of the state:
(a) in any action in which the state is named a party defendant, by delivering a copy of the process to the governor and to the attorney general;
(b) in any action in which a branch, agency, bureau, department, commission or institution of the state is named a party defendant, by delivering a copy of the process to the head of the branch, agency, bureau, department, commission or institution and to the attorney general;
(c) in any action in which an officer, official, or employee of the state or one of its branches, agencies, bureaus, departments, commissions or institutions is named a party defendant, by delivering a copy of the process to the officer, official or employee and to the attorney general;
(d) in garnishment actions, service of writs of garnishment shall be made on the department of finance and administration, on the attorney general and on the head of the branch, agency, bureau, department, commission or institution. A copy of the writ of garnishment shall be delivered or served on the defendant employee in the manner and priority provided in Paragraph F of this rule;
(e) service of process on the governor, attorney general, agency, bureau, department, commission or institution may be made either by serving a copy of the process to the governor, attorney general or the chief operating officer of an entity listed in this subparagraph or to the receptionist of the state officer. A cabinet secretary, a department, bureau, agency or commission director or an executive secretary shall be considered as the chief operating officer;
(f) upon any county by serving a copy of the process to the county clerk;
(g) upon a municipal corporation by serving a copy of the process to the city clerk, town clerk or village clerk;
(h) upon a school district or school board by serving a copy of the process to the superintendent of the district;
(i) upon the board of trustees of any land grant referred to in Sections 49-1-1 through 49-10-6 NMSA 1978, process shall be served upon the president or in the president’s absence upon the secretary of such board.
(2) Service may be made on a person or entity described in Subparagraph (1) of this paragraph by mail or commercial courier service in the manner provided in Subparagraph (3) of Paragraph E of this rule.
I. Process; service upon minor, incompetent person, guardian or fiduciary.
(1) Service shall be made:
(a) upon a minor, if there is a conservator of the estate or guardian of the minor, by serving a copy of the process to the conservator or guardian in the manner and priority provided in Paragraph F, G or J of this rule as may be appropriate. If no conservator or guardian has been appointed for the minor, service shall be made on the minor by serving a copy of the process on each person who has legal authority over the minor. If no person has legal authority over the minor, process may be served on a person designated by the court.
(b) upon an incompetent person, if there is a conservator of the estate or guardian of the incompetent person, by serving a copy of the process to the conservator or guardian in the manner and priority provided by Paragraph F of this rule. If the incompetent person does not have a conservator or guardian, process may be served on a person designated by the court.
(2) Service upon a personal representative, guardian, conservator, trustee or other fiduciary in the same manner and priority for service as provided in Paragraphs F, G or J of this rule as may be appropriate.
J. Process; service in manner approved by court. Upon motion, without notice, and showing by affidavit that service cannot reasonably be made as provided by this rule, the court may order service by any method or combination of methods, including publication, that is reasonably calculated under all of the circumstances to apprise the defendant of the existence and pendency of the action and afford a reasonable opportunity to appear and defend.
K. Process; service by publication. Service by publication may be made only pursuant to Paragraph J of this rule. A motion for service by publication shall be substantially in the form approved by the Supreme Court. A copy of the proposed notice to be published shall be attached to the motion. Service by publication shall be made once each week for three consecutive weeks unless the court for good cause shown orders otherwise. Service by publication is complete on the date of the last publication.
(1) Service by publication pursuant to this rule shall be by giving a notice of the pendency of the action in a newspaper of general circulation in the county where the action is pending. Unless a newspaper of general circulation in the county where the action is pending is the newspaper most likely to give the defendant notice of the pendency of the action, the court shall also order that a notice of pendency of the action be published in a newspaper of general circulation in the county which reasonably appears is most likely to give the defendant notice of the action.
(2) The notice of pendency of action shall contain:
(a) the caption of the case, as provided in Rule 1-008.1 NMRA, including a statement which describes the action or relief requested;
(b) the name of the defendant or, if there is more than one defendant, the name of each of the defendants against whom service by publication is sought;
(c) the name, address and telephone number of plaintiff’s attorney; and
(d) a statement that a default judgment may be entered if a response is not filed.
(3) If the cause of action involves real property, the notice shall describe the property as follows:
(a) If the property has a street address, the name of the municipality or county address and the street address of the property.
(b) If the property is located in a Spanish or Mexican grant, the name of the grant.
(c) If the property has been subdivided, the subdivision description or if the property has not been subdivided the metes and bounds of the property.
(4) In actions to quiet title or in other proceedings where unknown heirs are parties, notice shall be given to the “unknown heirs of the following named deceased persons” followed by the names of the deceased persons whose unknown heirs are sought to be served. As to parties named in the alternative, the notice shall be given to “the following named defendants by name, if living; if deceased, their unknown heirs” followed by the names of the defendants. As to parties named as “unknown claimants”, notice shall be given to the “unknown persons who may claim a lien, interest or title adverse to the plaintiff” followed by the names of the deceased persons whose unknown claimants are sought to be served.
L. Proof of service of process. The party obtaining service of process or that party’s agent shall promptly file proof of service. When service is made by the sheriff or a deputy sheriff of the county in New Mexico, proof of service shall be by certificate; and when made by a person other than a sheriff or a deputy sheriff of a New Mexico county, proof of service shall be made by affidavit. Proof of service by mail or commercial courier service shall be established by filing with the court a certificate of service which shall include the date of delivery by the post office or commercial courier service and a copy of the defendant’s signature receipt. Proof of service by publication shall be by affidavit of publication signed by an officer or agent of the newspaper in which the notice of the pendency of the action was published. Failure to make proof of service shall not affect the validity of service.
M. Service of process in the United States, but outside of state. Whenever the jurisdiction of the court over the defendant is not dependent upon service of the process within the State of New Mexico, service may be made outside the State as provided by this rule.
N. Service of process in a foreign country. Service upon an individual, corporation, limited liability company, partnership, unincorporated association that is subject to suit under a common name, or equivalent legal entities may be effected in a place not within the United States:
(1) by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or
(2) if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice:
(a) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction;
(b) as directed by the foreign authority in response to a letter rogatory or letter of request; or
(c) unless prohibited by the laws of the United States or the law of the foreign country, in the same manner and priority as provided for in Paragraph F, G or J of this rule as may be appropriate.
[As amended, effective January 1, 1987; October 1, 1998; March 1, 2005; as amended by Supreme Court Order No. 11-8300-050, effective for cases filed on or after February 6, 2012.] Committee commentary.
New Mexico Rule 1-004 has its origins in an act of the first Legislature of the State of New Mexico. 1912 N.M. Laws Ch. 26. When the New Mexico Supreme Court revamped the rules of civil procedure in 1942, 46 N.M. xix-lxxxiv (1942), largely using the 1938 Federal Rules as a model, the provisions of New Mexico Rule 4 continued to reflect some aspects of the service of process provisions of the former New Mexico provisions. Since then piecemeal amendments have occurred but there has been no previous attempt to restructure Rule 1-004 NMRA in light of evolving principles of due process and modern means of communication. The 2004 amendment to Rule 1-004 seeks to accomplish this goal.
Scope of Rule; Rule 1-004(A)(1)
Generally, statutory provisions are inapplicable if those provisions purport to set procedural requirements that contradict the Rules of Civil Procedure. Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976). Rule 1-001(A) creates an exception to Ammerman, extending deference to the procedural requirements set by the legislature in special proceedings that would not exist but for creation by the legislature. The root of the Rule 1-001(A) exception for special statutory proceedings is the provision in the New Mexico Constitution giving the district courts “such jurisdiction of special cases and proceedings as may be conferred by law.” N.M. Const., art. VI, § 13. The Rule 1-001(A) exception for special statutory proceedings is a prudential exception generally applied to statutory provisions that affect procedural rules even though the statutory provisions do not deal with jurisdictional matters. The Supreme Court, though, has ultimate authority over all procedural rules and thus can supersede by rule a non-jurisdictional statutory procedure in special statutory and summary proceedings. Rule 1-004(A)(1) is an exercise of that authority.
Rule 1-004 was amended in 2005 to bring New Mexico’s service of process procedure in line with evolving principles of due process. Questions have arisen whether the 2005 amendments to Rule 1-004 apply in special statutory proceedings where the statute provides lesser notice requirements than Rule 1-004. See, e.g., NMSA 1978, § 45-1-401 (provision of the Probate Code permitting notice by publication without a court order and only requiring two weekly notices); and NMSA 1978, § 42A-1-14 (Eminent Domain Code provision providing for service by mail and by publication in manners inconsistent with Rule 1-004).
The committee is of the view that, since Rule 1-004 requirements derive from constitutional due process requirements, new subparagraph (A)(1) clarifies that the requirements of Rule 1-004 must be satisfied to validly serve a person or give them notice of the pendency of special statutory proceedings as well as civil actions.
Summons; issuance; Rule 1-004(A)(2)
“Plaintiff” includes “Petitioner” and “Defendant” includes “Respondent”. See Rule 1-001(B)(1) and (2). The “Complaint” referred to in Rule 1-004(A) includes “Petition”. See Rule 1-001(B)(3).
Rule 1-004(A) previously provided that the clerk shall “forthwith” issue a summons upon filing of the complaint. The word is omitted from the 2004 Amendment because it was redundant; the rule already provides that the clerk “shall” issue a summons “[u]pon the filing of the complaint”.
Rule 1-004(A) previously provided that separate or additional summons may be issued “against any defendants”. Because it may be necessary to serve a summons on persons not formally denominated as a defendant, for example, upon a third-party defendant under Rule 1-014 NMRA, the rule has been modified to eliminate the implication that additional summonses may issue only against defendants.
The committee considered but did not provide that a person other than the plaintiff or petitioner could request issuance of a summons.
Summons; execution; form; Rule 1-004(B)
Rule 1-011 NMRA requires that all “paper” shall contain the telephone number of the attorney or the pro-se litigant. Except for the provision requiring that the summons include the telephone number as well as the name and address of the plaintiff’s attorney or the pro se plaintiff, only technical changes have been made in this section.
A form summons approved by the New Mexico Supreme Court may be found at 4-206 NMRA.
Service of Process; return; Rule 1-004(C)
“Process” is defined in Rule 1-001(B)(3) NMRA.
Sometimes a summons is not served in conjunction with the pleading instituting an action. For example, writs, warrants and mandates are not accompanied by a summons. See Rule 1-001(B)(3)(c) and (d) NMRA. Rule 1-004(C)(1) acknowledges that service of process sometimes does not include the service of a summons.
Rule 1-004(C)(2) is new. Unlike Federal Rule 4(m), which contains a specific time limit within which service of the summons and complaint ordinarily must be made, Rule 1-004(C)(2) provides only that service shall be made “with reasonable diligence”. This reflects the standard established in New Mexico case law. E.g., Romero v. Bachicha, 2001 NMCA-048 Par. 23-25, 130 N.M. 610, 616, 28 P.3d 1151, 1157.
Process; by whom served; Rule 1-004(D)
Rule 1-004(D) formerly provided that process could be served by a sheriff of the county where the defendant could be found, or by any person over the age of eighteen and not a party to the action. Because the latter category necessarily includes the sheriff of a county, the reference to service by the sheriff has been omitted.
Rule 1-004(D)(2) carries over, unchanged, former Rule 1-004(D)(2).
Rule 1-004(D)(3) is new. It provides a means for determining who shall serve process when the process is a writ other than those mentioned in Rule 1-004(D)(2).
Process; how served; generally; Rule 1-004(E)
Rule 1-004(E)(1) makes explicit in the rule the general test for constitutionally-adequate service of process established in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”.).
Rule 1-004(E)(2) accepts the premise that matters of procedure are for the judiciary to determine but that legislation affecting procedure is valid unless and until contradicted by a rule of procedure promulgated by the Supreme Court. Rule 1-091 NMRA; Section 38-1-2 NMSA 1978. The section thus provides that service of process shall be made in accordance with Rule 1-004 NMRA, or in accordance with applicable statutes but shall not be accomplished by a means authorized by a statute that conflicts with Rule 1-004.
Rule 1-004(E)(3) provides a much simplified method of service by mail. It is no longer necessary that the defendant open the mailed packet containing the summons and complaint and then voluntarily choose to accept service by returning a signed Receipt of Service of Summons and Complaint as formerly was required. Instead, service is accomplished when the summons and complaint are mailed to the named defendant in a manner that calls for the recipient to sign a receipt upon receiving the envelope containing the summons and complaint and the defendant-recipient or a person authorized by appointment or by law to accept service of process on behalf of the defendant signs the receipt upon receiving the mailed envelope or package.
Service by mail need not be at the home address or usual place of abode of the defendant. Service is complete when the receipt is signed.
This section also provides the same mechanism for service of the summons and complaint when a “commercial courier service” is utilized instead of the mails. The phrase, though not entirely self-explanatory, has been used in this context by other states without apparent problems. See, e.g., Kansas Rules of Civil Procedure, KSA 60-303 (c)(1); Utah Rules of Civil Procedure 4(d)(2)(A)and (B). The Advisory Committee Note to Utah Rule 4 provides that “[t]he term ‘commercial courier service’ refers to businesses that provide for the delivery of documents. Examples of ‘commercial courier service’ include Federal Express and United Parcel Service”. The committee endorses the definition provided in the Utah Advisory Committee Note.
In this context, “signs” and “signed” is equivalent to “signature” which “means an original signature, a copy of an original signature, a computer generated signature or any other signature otherwise authorized by law”. Rule 1-011 NMRA.
Process; personal service upon an individual; Rule 1-004(F)
In General. The 2004 Amendment makes substantial changes in Rule 1-004(F). The “post and mail” method found in the former rule has been eliminated. A provision for service at the place of work of the defendant has been added. The provision for mail service has been simplified and the rule now authorizes the use of commercial courier services as well as mail for service of process. A hierarchy of methods of service has been established. In some cases, a listed method of service cannot be used until other methods of service are attempted unsuccessfully.
Rule 1-004(F)(1)(a). This subparagraph remains the same as in the former Rule.
Rule 1-004(F)(1(b). This subparagraph authorizes service by mail or commercial courier service as provided in Rule 1-004(E)(3).
Rule 1-004(F)(2). The means of service provided in this section may only be used if there first was an attempt to serve process “by either of the methods of service provided by Subparagraph (1) of this paragraph”. This means that the person serving process need only attempt one of the two methods-personal service or mail/commercial courier service before using the alternative provided in this subparagraph.
This provision allows service to a person over the age of 15 who resides at the usual place of abode of the defendant. This is the same procedure as that formerly provided in Rule 1-004(F)(1) before the 2004 amendment. The former rule, however, required only delivery of the summons and complaint to such a person for service to be valid. The 2004 amendment provides that service is not accomplished until, in addition, the person serving the summons and complaint mails a copy of the summons and complaint to the defendant at the defendant’s last known mailing address. This provision allows service to a person over the age of 15 who resides at the usual place of abode of the defendant. This is the same procedure as that formerly provided in Rule 1-004(F)(1) before the 2004 amendment. The former rule, however, required only delivery of the summons and complaint to such a person for service to be valid. The 2004 amendment provides that service is not accomplished until, in addition, the person serving the summons and complaint mails a copy of the summons and complaint to the defendant at the defendant’s last known mailing address. This mailing address will often, but not always, be the usual place of abode of the defendant. The cost of mailing is minimal and increases the likelihood that the defendant will get actual, timely notice of the institution of the action.
Rule 1-004(F)(1) formerly provided that if no qualified person was at the usual place of abode to accept service of process, service could be made by posting process at the abode and then mailing a copy of the process to the last known mailing address. This alternative method of service has been omitted in the 2004 amendment.
Rule 1-004(F)(3) is new. It may be used only when service of process has been attempted, unsuccessfully, in accordance with Rule 1-004(F)(1) and Rule 1-004(F)(2). Rule 1-004(F)(3) provides that service may be made by delivering a copy of the summons and complaint to the person apparently in charge of the actual place of business of the defendant and mailing a copy of the summons and complaint to the defendant both at the defendant’s last known mailing address and also the defendant’s actual place of business.
Colorado, R.C.P. 4(e)(2), Oregon, R.C.P. 7(d)(2)(c) and New York, N.Y. CPLR Sec. 308(2), also provide for work place service of process. The Fair Debt and Collection Practices Act, 15 U.S.C. Sec. 1692 ff, contains a provision allowing service of process at the workplace of the defendant by “any person while serving or attempting to serve legal process in connection with judicial enforcement of any debt”. 15 U.S.C. Sec. 1692(a)(6)(D).
Process; Service on corporation or other business entity; Rule 1-004(G)
In addition to providing for service of process on corporations, Rule 1-004(G)(1) now includes limited liability companies as well as any “equivalent business entity” to a corporation or limited liability company. Courts should construe that phrase to assure that Rule 1-004 provides appropriate guidance about proper service of process upon legislatively-created variations on the traditional corporation.
The substance of the former provisions concerning service of process on partnerships and unincorporated associations have been carried over unchanged in Rule 1-004(G)(1)(b) and (c) of the 2004 amendment.
Process; Service upon state and political subdivisions; Rule 1-004(H)
Subparagraphs (a), (b), (c), (d) and (e) or Rule 1-004(H)(1) are substantively the same as former Rule 1-004(F) (3) and (4). They are derived from and do not vary materially from Section 38-1-7 NMSA 1978.
Subparagraphs (f), (g) and (i) are substantively the same as former Rule 1-004(F)(4), (5) and (6).
Subparagraph (h), dealing with service of process on a school district or school board is new. Former Rule 1-004 provided no guidance on the proper manner of service to such entities.
Rule 1-004(H)(2) allows service of process to the persons designated in Rule 1-004(H)(1) by means of mail or commercial courier service as provided in Rule 1-004(E)(3).
Process; Service upon minor, incapacitated person or conservator; Rule 1-004(I)
Subparagraph 1; Service on minors. The provision for service on a guardian or conservator is carried over from former Rule 1-004(F)(7) except that such service now may be in any manner provided in Paragraph F, G, or L as appropriate, rather than, as formerly, only “by delivering a copy — to the conservator or guardian”.
The provision for service upon person or persons having legal authority over a minor who does not have a guardian or conservator is new as is the provision requiring resort to the court to formulate a method of service where the minor has no guardian, conservator or person with legal authority over the minor.
Subparagraph 2; Service on incompetent persons. Rule 1-004(F)(7) formerly used the phrase “incapacitated person” to describe the party for whom a special means of service of process was appropriate. Rule 1-017(C) uses the phrase “incompetent persons” and this subparagraph adopts the language of Rule 1-017 NMRA for consistency. See Rule 10-104(L) NMRA (defining an “incompetent” person).
The provision for service on a guardian or conservator is carried over from former Rule 1-004(F)(7) except that such service now may be in any manner provided in Paragraph F, G or L as appropriate, rather than, as formerly, only “by delivering a copy . . . to the conservator or guardian”.
The provision requiring resort to the court to formulate a method of service where the incompetent person has no guardian or conservator is new. Former Rule 1-004(F)(8) provided that if no conservator or guardian had been appointed for an incapacitated person, service upon the incapacitated person would suffice. This provided inadequate assurance that the incapacitated person would have a meaningful opportunity to defend the action. To remedy this, this subparagraph requires the court to fashion a constitutionally-adequate means of service upon the incapacitated person not represented by a guardian or conservator.
Subparagraph 3; Service on fiduciaries. This provision is carried over from former Rule 1-004(F)(9). Fiduciaries may be served in the same manner as individuals and business entities who are defendants.
Service in manner approved by court; Rule 1-004(J)
This provision is carried over, unchanged, from former Rule 1-004(L). The goal of service of process is to achieve actual notice by means that are reasonable under the circumstances. Rule 1-004(E)(1). The specific methods of service authorized in Rule 1-004 provide standard methods by which this can be accomplished, but there are myriad specific circumstances in which ad-hoc determination of the most appropriate means for serving process is called for. This rule provides broad authority for the court to fashion a constitutionally-adequate method of service under any circumstances.
Where service can be accomplished pursuant to Rule 1-004(F)(G)(H) or (I), there will seldom be need for resort to Rule 1-004(K). Where the court orders service by publication, the court should consider, pursuant to this Paragraph, whether supplemental means of service should accompany notice by publication. Where no method of service specifically provided for by Rule 1-004 is likely to satisfy or achieve the goal of actual notice, this Paragraph authorizes the court to create a method of service suited to the circumstances of the particular facts presented.
Service by publication; Rule 1-004(K)
This paragraph requires that no service by publication take place without a prior court order authorizing service by publication. This is a significant modification of prior practice in situations where statutes authorized publication without prior court approval. See, e.g., Section 42-2-7(B) NMSA 1978 (authorizing service by publication in condemnation proceeding “[i]f the name or residence of any owner be unknown”); Section 45-1-401 NMSA 1978 (authorizing service by publication in probate proceedings under some circumstances and providing that the court for good cause can provide a different manner of service). Publication notice is seldom likely to achieve actual notice and thus its use should be monitored carefully by the courts. The Supreme Court is authorized to modify statutes providing for notice by publication by requiring prior court approval for service by publication. Legislation affecting procedure is valid unless and until contradicted by a rule of procedure promulgated by the Supreme Court. Rule 1-091 NMRA; Section 38-1-2 NMSA 1978. This paragraph also provides the required content of the notice to be published, the frequency of publication and the place of publication. Omitted from the 2004 amendment is the former provision (Rule 1-004(H)(3)) requiring that publication be “in some newspaper published in the county where the cause is pending” and providing for publication in a newspaper of general circulation in the county only when “no newspaper [was] published in the county”. Publication now always will include publication in a paper of general circulation in the county where the action is pending whether or not the newspaper is published in that county. Where appropriate to the goal of achieving actual notice, the court is free to require, in addition, that publication also be in a newspaper not of general circulation that is published in the county where the cause is pending.
Where the court determines that actual notice by publication is more likely to be achieved by publishing the notice elsewhere, the court must provide for additional published notice in the county that the court deems such notice is most likely to achieve the goal of actual notice to the defendant.
Former Rule 1-004(H)(7), dealing with the required content of repeated publications due to misnomers in the initial publication, has been omitted. The court that orders additional publication will craft an appropriate order concerning its content.
Former Rule 1-004(I) calling for publication to be accompanied by mail notice to persons whose residence is known has been omitted. The court that orders publication has the obligation to fashion means of service reasonably calculated to provide actual notice, Rule 1-004(E)(1), and thus can provide for mailed notice to accompany service of process by publication where reasonable. See Rule 1-004(J).
Proof of service; Rule 1-004(L)
The person obtaining service of process rather than the person serving process is now responsible for filing proof of service.
The means of proof of service when service is accomplished by mail or commercial courier service pursuant to Rule 1-004(F)(1)(b) and when service is made by publication pursuant to Rule 1-004(J) or (K) are provided in those paragraphs.
Service outside the state but in the United States; Rule 1-004(M)
This provision replaces former Rule 1-004(J) (Service of summons outside of state equivalent to publication). Where, as in the case of long arm jurisdiction pursuant to Section 38-1-16 NMSA 1978, service of process can be made outside of New Mexico, this rule requires that service be accomplished in the manner and priority provided in this rule. The Committee considered but rejected a proposal that the method of service need not meet the requirements of this rule so long as it met the requirements for service of process in the place where service occurred.
Service in a foreign country; Rule 1-004(N)
Service in foreign countries is sometimes subject to treaties or other international agreements. This rule, adopted from Federal Rule 4(f) and Rule 4(h)(2) takes into account the special considerations required by international law.
[Approved, March 1, 2005; as amended by Supreme Court Order No. 11-8300-050, effective for cases filed on or after February 6, 2012.]
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;
(3) returns of subpoenas;
(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;
(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.
[As amended, effective August 1, 1988; January 1, 1998; January 3, 2005; as amended by Supreme Court Order 06-8300-20, effective December 18, 2006; as amended by Supreme Court Order No. 14-8300-016, effective for all cases pending or filed on or after December 31, 2014.]
1-005.1. Service and filing of pleadings and other papers by facsimile.
A. Facsimile copies permitted to be filed. Subject to the provisions of this rule, a party may file a facsimile copy of any pleading or paper by faxing a copy directly to the court or by faxing a copy to an intermediary agent who files it in person with the court. A facsimile copy of a pleading or paper has the same effect as any other filing for all procedural and statutory purposes. The filing of pleadings and other papers with the court by facsimile copy shall be made by faxing them to the clerk of the court at a number designated by the clerk, except if the paper or pleading is to be filed directly with the judge, the judge may permit the papers to be faxed to a number designated by the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. Each judicial district shall designate one or more telephone numbers to receive fax filings.
B. Facsimile service by court of notices, orders or writs. Facsimile service may be used by the court for issuance of any notice, order or writ. The clerk shall note the date and time of successful transmission on the file copy of the notice, order or writ.
C. Paper size and quality. No facsimile copy shall be filed with the court unless it is on plain paper and substantially satisfies all of the requirements of Rule 1-100 NMRA.
D. Filing pleadings or papers by facsimile. A pleading or paper may be filed with the court by facsimile transmission if:
(1) a fee is not required to file the pleading or paper;
(2) only one copy of the pleading or paper is required to be filed;
(3) unless otherwise approved by the court, the pleading or paper is not more than ten (10) pages in length excluding the facsimile cover page; and
(4) the pleading or paper to be filed is preceded by a cover sheet with the names of the sender and the intended recipient, any applicable instructions, the voice and facsimile telephone numbers of the sender, an identification of the case, the docket number and the number of pages transmitted.
E. Facsimile copy filed by an intermediary agent. Facsimile copies of pleadings or papers filed in person by an intermediary agent are not subject to the restrictions of Paragraph D of this rule.
F. Time of filing. If facsimile transmission of a pleading or paper is begun before the close of the business day of the court in which it is being filed, it will be considered filed on that date. If facsimile transmission is begun after the close of business, the pleading or paper will be considered filed on the next court business day. For any questions of timeliness, the time and date affixed on the cover page by the court’s facsimile machine will be determinative.
G. Service by facsimile. Any document required to be served by Paragraph A of Rule 1-005 NMRA may be served on a party or attorney by facsimile transmission if the party or attorney has:
(1) listed a facsimile telephone number on a pleading or paper filed with the court in the action;
(2) a letterhead with a facsimile telephone number; or
(3) agreed to be served with a copy of the pleading or paper by facsimile transmission.
Service by facsimile is accomplished when the transmission of the pleading or paper is completed.
H. Demand for original. A party shall have the right to inspect and copy any pleading or paper that has been filed or served by facsimile transmission if the pleading or paper has a statement signed under oath or affirmation or penalty of perjury.
I. Conformed copies. Upon request of a party, the clerk shall stamp additional copies provided by the party of any pleading filed by facsimile transmission.
[Approved, effective January 1, 1999; as amended, effective August 1, 2000; January 3, 2005.]
1-005.2. Electronic service and filing of pleadings and other papers.
A. Definitions. As used in these rules
(1) “electronic transmission” means the transfer of data from computer to computer other than by facsimile transmission;
(2) “document” includes the electronic representation of pleadings and other papers; and
(3) “EFS” means the electronic filing system approved by the Supreme Court for use by the district courts to file and serve documents by electronic transmission in civil actions.
B. Electronic filing authorized; registration by attorneys required.
(1) A district court may, by local rule approved by the Supreme Court, implement the mandatory filing of documents by electronic transmission in accordance with this rule through the EFS by parties represented by attorneys. Self-represented parties are prohibited from electronically filing documents and shall continue to file documents through traditional methods. Parties represented by attorneys shall file documents by electronic transmission even if another party to the action is self-represented or is exempt from electronic filing under Paragraph M of this rule. For purposes of this rule, unless a local rule approved by the Supreme Court provides otherwise, “civil actions” does not include domestic relations actions in which the New Mexico Child Support Enforcement Division is a party or participant, domestic violence actions, actions sealed under Rule 1-079 NMRA, habeas corpus actions, or any proceeding filed under the Children’s Court Rules.
(2) Unless exempted under Paragraph M of this rule, attorneys required to file documents by electronic transmission shall register with the EFS through the district court’s website. Every registered attorney shall provide a valid, working, and regularly checked email address for the EFS. The court shall not be responsible for inoperable email addresses or unread email sent from the EFS.
C. Service by electronic transmission. Any document required to be served by Paragraph A of Rule 1-005 NMRA may be served on a party or attorney by electronic transmission of the document if the party or attorney has agreed to be served with pleadings or papers by electronic mail or if the attorney for the party to be served has registered with the court’s EFS. Documents filed by electronic transmission under Paragraph A of this rule may be served by an attorney through the court’s EFS, or an attorney may elect to serve documents through other methods authorized by this rule, Rule 1-005 NMRA, or Rule 1-005.1 NMRA. Electronic service is accomplished when the transmission of the pleading or paper is completed. If within two (2) days after service by electronic transmission, a party served by electronic transmission notifies the sender of the electronic transmission that the pleading or paper cannot be read, the pleading or paper shall be served by any other method authorized by Rule 1-005 NMRA designated by the party to be served. The court may serve any document by electronic transmission to an attorney who has registered with the EFS under this rule and to any other person who has agreed to receive documents by electronic transmission.
D. Format of documents; protected personal identifier information; EFS user guide. All documents filed by electronic transmission shall be formatted in accordance with the Rules of Civil Procedure for the District Courts and shall comply with all procedures for protected personal identifier information under Rule 1-079 NMRA. The district court may make available a user guide to provide guidance with the technical operation of the EFS. In the event of any conflicts between these rules and the user guide, the rules shall control.
E. Electronic services fee.
(1) In addition to any other filing fees required by law, parties required to file electronically shall pay an electronic services fee of six dollars ($6.00) per electronic transmission of one or more documents filed in any single case.
(2) Parties electing to serve a document previously filed through the EFS shall pay an electronic services fee of four dollars ($4.00) per electronic transmission of one or more documents served on one or more persons or entities in any single case.
(3) Parties electing to both file and serve documents through the EFS shall pay an electronic services fee of ten dollars ($10.00) per electronic transmission of one or more documents simultaneously filed and served on one or more persons or entities in any single case.
(4) The provisions of this paragraph shall not apply to those entities listed in Subsection C of Section 34-6-40 NMSA 1978 and to civil legal service providers as defined by Subparagraph (4) of Paragraph A of Rule 15-301.2 NMRA.
F. Single transmission. Whenever a rule requires multiple copies of a document to be filed only a single electronic transmission of the document is necessary. If an attorney files or serves multiple documents in a case by a single electronic transmission, the applicable electronic services fee under Paragraph E of this rule shall be charged only once regardless of the number of documents filed or parties served.
G. Time of filing. For purposes of filing by electronic transmission, a “day” begins at 12:01 a.m. and ends at midnight. If electronic transmission of a document is received before midnight on the day preceding the next business day of the court it will be considered filed on the immediately preceding business day of the court. For any questions of timeliness, the time and date registered by the court’s computer will be determinative. For purposes of electronic filing only, the date and time that the filer submits the electronic filing envelope will serve as the filing date and time for purposes of meeting statute of limitations or any other filing deadlines, notwithstanding rejection of the attempted filing or its placement into an error queue for additional processing.
(1) All electronically filed documents shall be deemed to contain the filing attorney’s signature pursuant to Rule 1-011 NMRA. Attorneys filing electronically thereby certify that required signatures or approvals have been obtained before filing the document. The full, printed name of each person signing a paper document shall appear in the electronic version of the document.
(2) If a document filed by electronic transmission contains a signature block from an original paper document containing a signature, the signature in the electronic document may represent the original signature in the following ways:
(a) by scanning or other electronic reproduction of the signature; or
(b) by typing in the signature line the notation “/s/” followed by the name of the person who signed the original document.
(3) All electronically filed documents signed by the court shall be scanned or otherwise electronically produced so that the judge’s original signature is shown.
I. Demand for original; electronic conversion of paper documents.
(1) Original paper documents filed or served electronically, including original signatures, shall be maintained by the attorney filing the document and shall be made available, upon reasonable notice, for inspection by other parties or the court. If an original paper document is filed by electronic transmission, the electronic version of the document shall conform to the original paper document. Attorneys shall retain original paper documents until final disposition of the case and the conclusion of all appeals.
(2) For cases in which electronic filing is mandatory, if an attorney who is exempt under Paragraph M of this rule or a self-represented party files a paper document with the court, the clerk shall convert such document into electronic format for filing. The filing date shall be the date on which the paper document was filed even if the document is electronically converted and filed at a later date. The clerk shall retain such paper documents as long as required by applicable statutes and court rules.
J. Electronic file stamp and confirmation receipt; effect. The clerk of the court’s endorsement of an electronically filed document shall have the same force and effect as a manually affixed file stamp. When a document is filed through the EFS, it shall have the same force and effect as a paper document and a confirmation receipt shall be issued by the system that includes the following information:
(1) the case name and docket number;
(2) the date and time of filing as defined under Paragraph G of this rule;
(3) the document title;
(4) the name of the EFS service provider;
(5) the email address of the person or entity filing the document; and
(6) the page count of the filed document.
K. Conformed copies. Upon request of a party, the clerk shall stamp additional paper copies provided by the party of any pleading filed by electronic transmission. A file-stamped copy of a document filed by electronic transmission can be obtained through the court’s EFS. Certified copies of a document may be obtained from the clerk’s office.
L. Proposed documents submitted to the court. Unless a local rule approved by the Supreme Court provides otherwise, this paragraph governs the submission of proposed documents to the court.
(1) Except for documents listed in Subparagraph (4) of this paragraph, a document that a party proposes for issuance by the court shall be transmitted by electronic mail to an email address designated by the court for that purpose. A judge may direct the party to submit a hard copy of the proposed document in addition to, or in lieu of, the electronic copy. The court’s user guide shall give notice of the email addresses to be used for purposes of this paragraph. The user guide also may set forth the text to be included in the subject line and body of the email.
(2) Except for documents listed in Subparagraph (4) of this paragraph, proposed documents shall not be electronically filed by the party’s attorney in the EFS. Any party who submits proposed documents by email under this paragraph shall not engage in ex parte communications in the email and shall serve a copy of the email and attached proposed documents on all other parties to the action.
(3) Documents issued by the clerk under this rule shall be sent to the requesting party by email or through the EFS as appropriate, and the requesting party is responsible for electronically filing the document in the EFS if necessary and serving it on the parties as appropriate. Any document issued by a judge under this rule will be electronically filed by the court in the EFS and served on the parties as required by these rules.
(4) The following proposed documents that a party submits for issuance by the court, known as “issuance documents”, shall be submitted through the court’s EFS:
(a) certificate as to the state of the record;
(b) issuance of summons;
(c) letters of guardianship or conservatorship;
(d) letters of testamentary or administration;
(e) notice of pendency;
(f) notice of suit;
(h) transcript of judgment;
(i) writ of execution; and
(j) writ of garnishment.
M. Requests for exemptions from local rules establishing mandatory electronic filing systems.
(1) An attorney may file a petition with the Supreme Court requesting an exemption, for good cause shown, from any mandatory electronic filing system that may be established by this rule and any district court local rules. The petition shall set forth the specific facts offered to establish good cause for an exemption. No docket fee shall be charged for filing a petition with the Supreme Court under this subparagraph.
(2) Upon a showing of good cause, the Supreme Court may issue an order granting an exemption from the mandatory electronic filing requirements of this rule and any local rules. An exemption granted under this subparagraph remains in effect statewide for one (1) year from the date of the order and may be renewed by filing another petition in accordance with Subparagraph (1) of this paragraph.
(3) An attorney granted an exemption under this paragraph may file documents in paper format with the district court and shall not be charged an electronic filing fee under this rule or local rule for doing so. When filing paper documents under an exemption granted under this paragraph, the attorney shall attach to the document a copy of the Supreme Court exemption order. The district court clerk shall scan the attorney’s paper document into the electronic filing system including the attached Supreme Court exemption order. No fee shall be charged for scanning the document. The attorney remains responsible for serving the document in accordance with these rules and shall include a copy of the Supreme Court exemption order with the document that is served.
(4) An attorney who receives an exemption under this paragraph may nevertheless file documents electronically in any district court that accepts such filings without seeking leave of the Supreme Court provided that the attorney complies with all requirements under this rule, complies with all applicable local rules for the district court’s electronic filing system, and pays any applicable electronic filing fees. By doing so, the attorney does not waive the right to exercise any exemption granted under this paragraph for future filings.
N. Technical difficulties. Substantive rights of the parties shall not be affected when the EFS is not operating through no fault of the filing attorney.
[Approved, effective July 1, 1997; as amended, effective March 8, 1999; August 1, 2000; January 3, 2005; as amended by Supreme Court Order No. 06-8300-027, effective January 15, 2007; by Supreme Court Order No. 11-8300-035, effective for all cases filed or pending on or after September 1, 2011; by Supreme Court Order No. 11-8300-046, effective for all documents electronically filed on, after, or before November 21, 2011; by Supreme Court Order No. 13-8300-001, effective January 29, 2013; as amended by Supreme Court Order No. 14-8300-024, effective for all cases pending or filed on or after December 31, 2014; as amended by Supreme Court Order No. 15-8300-002, effective for all cases pending or filed on or after July 1, 2015.]
A. Computing time. This rule applies in computing any time period specified in these rules, in any local rule or court order, or in any statute, unless another Supreme Court rule of procedure contains time computation provisions that expressly supersede this rule.
(1) Period stated in days or a longer unit; eleven (11) days or more. When the period is stated as eleven (11) days or a longer unit of time,
(a) exclude the day of the event that triggers the period;
(b) count every day, including intermediate Saturdays, Sundays, and legal holidays; and
(c) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.
(2) Period stated in days or a longer unit; ten (10) days or less.
(a) When the period is stated in days but the number of days is ten (10) days or less,
(i) exclude the day of the event that triggers the period;
(ii) exclude intermediate Saturdays, Sundays, and legal holidays; and
(iii) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.
(b) This subparagraph shall not apply to any statutory notice that is required to be given prior to the filing of an action.
(3) Period stated in hours. When the period is stated in hours,
(a) begin counting immediately on the occurrence of the event that triggers the period;
(b) count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays; and
(c) if the period would end on a Saturday, Sunday, or legal holiday, the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday.
(4) Unavailability of the court for filing. If the court is closed or is unavailable for filing at any time that the court is regularly open,
(a) on the last day for filing under Subparagraphs (A)(1) or (A)(2) of this rule, then the time for filing is extended to the first day that the court is open and available for filing that is not a Saturday, Sunday, or legal holiday; or
(b) during the last hour for filing under Subparagraph (A)(3) of this rule, then the time for filing is extended to the same time on the first day that the court is open and available for filing that is not a Saturday, Sunday, or legal holiday.
(5) “Last day” defined. Unless a different time is set by a court order, the last day ends
(a) for electronic filing, at midnight; and
(b) for filing by other means, when the court is scheduled to close.
(6) “Next day” defined. The “next day” is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.
(7) “Legal holiday” defined. “Legal holiday” means the day that the following are observed by the judiciary:
(a) New Year’s Day, Martin Luther King Jr.’s Birthday, Presidents’ Day (traditionally observed on the day after Thanksgiving), Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, or Christmas Day; and
(b) any other day observed as a holiday by the judiciary.
B. Extending time.
(1) In General. When an act may or must be done within a specified time, the court may, for cause shown, extend the time
(a) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or
(b) on motion made after the time has expired if the party failed to act because of excusable neglect.
(2) Exceptions. A court shall not extend the time to act under Rules 1-050, 1-052, 1-059, 1-060, 1-062, or 12-201 NMRA, except to the extent and under the conditions stated in those rules.
C. Additional time after certain kinds of service. When a party may or must act within a specified time after service and service is made by mail, facsimile, electronic transmission, or by deposit at a location designated for an attorney at a court facility under Rule 1-005(C)(1)(e) NMRA, three (3) days are added after the period would otherwise expire under Paragraph A. Intermediate Saturdays, Sundays, and legal holidays are included in counting these added three (3) days. If the third day is a Saturday, Sunday, or legal holiday, the last day to act is the next day that is not a Saturday, Sunday, or legal holiday.
D. Public posting of regular court hours. The court shall publicly post the hours that it is regularly open.
[As amended, effective January 1, 1987; August 1, 1989; January 1, 1995; as amended by Supreme Court Order No. 14-8300-016, effective for all cases pending or filed on or after December 31, 2014.]