Rule 1-007.1 - Motions; how presented
A.Requirement of written motion. All motions, except motions made during trial, or as may be permitted by the court, shall be in writing and shall state with particularity the grounds and the relief sought.
B.Unopposed motions. The movant shall determine whether a motion will be opposed. If the motion will not be opposed, an order approved by all parties shall accompany the motion.
C.Opposed motions. The motion shall recite that the movant requested the concurrence of all parties or shall specify why no such request was made. The movant shall not assume that the nature of the motion obviates the need for concurrence from all parties unless the motion is a:
(1) motion to dismiss;
(2) motion for new trial;
(3) motion for judgment as a matter of law;
(4) motion for summary judgment;
(5) motion for relief from a final judgment, order or proceeding pursuant to Paragraph B of Rule 1-060 NMRA.
Notwithstanding the provisions of any other rule, the movant may file with any opposed motion a brief or supporting points with citations or authorities. If the motion requires consideration of facts not of record, the movant shall file copies of all affidavits, depositions or other documentary evidence to be presented in support of the motion. Motions to amend pleadings shall have attached the proposed pleading. A motion for judgment on the pleadings presenting matters outside the pleading shall comply with Rule 1-056 NMRA. A motion for new trial shall comply with Rule 1-059 NMRA.
D.Response. Unless otherwise specifically provided in these rules, any written response and all affidavits, depositions or other documentary evidence in support of the response shall be filed within fifteen (15) days after service of the motion. If a party fails to file a response within the prescribed time period the court may rule with or without a hearing.
E.Separate counter-motions and cross-motions required. Responses to motions shall be made separately from any counter-motions or cross-motions.
F.Reply brief. Any reply brief shall be filed within fifteen (15) days after service of any written response.
G.Request for hearing. A request for hearing shall be filed at the time an opposed motion is filed. The request for hearing shall be substantially in the form approved by the Supreme Court.
H.Notice of completion of briefing. At the expiration of all response times under this rule, the movant shall file a notice of completion of briefing. The notice alerts the judge that the motion is ready for decision.
N.M. R. Civ. P. Dist. Ct. 1-007.1
As amended, effective 12/4/2000;3/15/2005; as amended by Supreme Court Order No. 08-8300-32, effective 11/17/2008.
Committee commentary. - If a party does not respond to a motion within fifteen days as required by Paragraph D of this rule, the moving party may submit a proposed order to the judge or the judge sua sponte may enter an appropriate order. Although the specific provisions of Rule 1-058(C) NMRA are not applicable, if a party submits a proposed order to the court, a copy of the proposed order must be served on all other parties. See Rule 1-005 NMRA of these rules, Rules 16-303 and 16-305 of the Rules of Professional Conduct and Rule 21-300 NMRA of the Code of Judicial Conduct. After assuring the non-responding party has received notice of the proposed order, the judge may enter an appropriate order.
The notice of completion of briefing required under Paragraph H of this rule shall be filed upon the expiration of the applicable deadline for filing responses and replies under Paragraphs D or F of the rule. The Judicial Districts may adopt local rules to incorporate additional filing requirements to coincide with the filing of the notice of completion of briefing. See, e.g., LR13-404(A) NMRA (adopting motion package procedure). The district court may defer ruling on the request for hearing until the court receives the notice of completion of briefing. After the court announces its decision, the court shall comply with the requirements of Rule 1-058 NMRA.
[As amended by Supreme Court Order No. 08-8300-32, effective November 17, 2008.]
ANNOTATIONS The 2008 amendment, approved by Supreme Court Order No. 08-8300-32, effective November 17, 2008, changed "opposing counsel" to "all parties" in Paragraphs B and C; in Paragraph D, deleted language which provided that failure to respond to a motion constitutes consent to grant the motion and a waiver of notice of presentment and that the court may enter an appropriate order and added the provision that the court may rule with or without a hearing; added new Paragraphs E and H; and relettered former Paragraph E as Paragraph F and former Paragraph F as Paragraph G. The 2005 amendment, effective March 1, 2005, substituted "matter of law" for "approved" for "initialed" in Paragraph B and added Paragraph F relating to the filing of a request for hearing with an opposed motion. The 2000 amendment, effective December 4, 2000, substituted "matter of law" for "notwithstanding the verdict" in Paragraph C(3) and added the last sentence in Paragraph D. Purpose of Paragraph D of this rule is to facilitate the court's efficient disposition of motions generally. Lujan v. City of Albuquerque, 2003-NMCA-104, 134 N.M. 207, 75 P.3d 423. Failure to respond to motion for summary judgment. - Dismissal with prejudice was too severe a sanction against a party who failed to respond to opponent's motion for summary judgment, failing a satisfactory explanation by the district court for ordering dismissal with prejudice. Lujan v. City of Albuquerque, 2003-NMCA-104, 134 N.M. 207, 75 P.3d 423. The proper manner in which to request entry of an order granting a motion for summary judgment and to request entry of judgment of dismissal with prejudice, when the order and judgment are sought based on failure to timely respond to a motion for summary judgment, is through a written motion as provided under Paragraph A and Subparagraph (1) of Paragraph B of this rule, providing fifteen days to respond after service of the motion pursuant to Paragraph D of this rule. Lujan v. City of Albuquerque, 2003-NMCA-104, 134 N.M. 207, 75 P.3d 423. Am. Jur. 2d, A.L.R. and C.J.S. references. - 56 Am. Jur. 2d Motions, Rules and Orders §1 et seq. 60 C.J.S. Motions and Orders §11.