New Mexico Rules of Civil Procedure
Because the rules of civil procedure
may change from time to time, please
check the
New Mexico Courts website
for updated and complete rules of civil procedure
in New Mexico.
Rules of Civil Procedure in New
Mexico:
1-004. Process.
Summons; issuance.
Upon the filing of the complaint,
the clerk shall forthwith issue a
summons and deliver it for service.
Upon the request of the plaintiff
separate or additional summons shall
issue against any defendants. Any
defendant may waive the issuance or
service of summons.
Summons; execution; form.
The summons shall be signed by
the clerk, issued under the seal of
the court, be directed to the
defendant, and must contain:
- 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;
- a direction that the
defendant serve a responsive
pleading or motion within thirty
(30) days after service of the
summons, and file the same, all
as provided by law, and a notice
that unless the defendant so
serves and files a responsive
pleading or motion, the
plaintiff will apply to the
court for the relief demanded in
the complaint;
- the name and address of the
plaintiff's attorney, if any,
shall be shown on every summons,
otherwise the plaintiff's
address;
- the summons may be in the
following form:
SUMMONS
(name of court)
(caption of case) THE
STATE OF NEW MEXICO
TO: _____________________,
defendant. GREETINGS:
You are hereby directed to serve
a pleading or motion in response
to the complaint within thirty
(30) days after service of this
summons, and file the same, all
as provided by law. You are
notified that, unless you so
serve and file a responsive
pleading or motion, the
plaintiff will apply to the
court for the relief demanded in
the complaint. Attorney or
attorneys for plaintiff:
_____________________________________________________
_____________________________________________________Address
of attorneys for plaintiff (or
of plaintiff, if no attorney):
_____________________________________________________
_____________________________________________________
WITNESS, the Honorable
__________________________,
district judge of the
_____________________ judicial
district court of the State of
New Mexico, and the seal of the
district court of
___________________ County, this
_____ day of _____________
A.D., 20__.
_________________________,
Clerk
By
_________________________,
Deputy
(The summons may also
include appropriate forms for
return of service.)
Summons; service of copy.
A copy of the summons with copy
of complaint attached shall be
i.served together. The plaintiff
shall furnish the person making
service with such copies as are
necessary.
Summons; by whom served.
In civil actions any process may
be served by the sheriff of the
county where the defendant may be
found, or by any other person who is
over the age of eighteen (18) years
and not a party to the action,
except for writs of attachment,
writs of replevin, and writs of
habeas corpus, which shall be served
by any person not a party to the
action over the age of eighteen (18)
years who may be especially
designated by the court to perform
such service, or by the sheriff of
the county where the property or
person may be found.
Summons; service by mail.
A summons and complaint may be
served upon a defendant of any class
referred to in Subparagraph (1) or
(2) of Paragraph F of this rule by
mailing a copy of the summons and of
the complaint (by first-class mail,
postage prepaid) to the person to be
served, together with two (2) copies
of a notice and acknowledgement
conforming with the form set out
below and a return envelope, postage
prepaid, addressed to the sender. If
no acknowledgement of service under
this subdivision of this rule is
received by the sender within twenty
(20) days after the date of mailing,
service of such summons and
complaint shall be made by a person
authorized by Paragraph D of this
rule, in the manner prescribed by
Subparagraph (1) or (2) of Paragraph
F of this rule. Unless good cause is
shown for not doing so, the court
shall order the payment of the costs
of personal service by the person
served if such person does not
complete and return within twenty
(20) days after mailing the notice
and acknowledgement of receipt of
summons. The form of the notice and
acknowledgement of receipt of
summons and complaint shall be
substantially as follows:
NOTICE AND RECEIPT OF SUMMONS
AND COMPLAINT (name of
court) (caption of case)
NOTICE TO:
_____________________________________________________
_____________________________________________________
(insert the name and address
of the person to be served)
The enclosed summons and
complaint are served pursuant to
Paragraph E of Rule 1-004 of the
New Mexico Rules of Civil
Procedure. You must sign and
date the receipt. If you are
served on behalf of a
corporation, unincorporated
association (including a
partnership) or other entity,
you must indicate under your
signature your relationship to
that entity. If you are served
on behalf of another person and
you are authorized to receive
process, you must indicate under
your signature your position or
title. If you do not
complete and return the form to
the sender within twenty (20)
days, you (or the party on whose
behalf you are being served) may
be required to pay any expenses
incurred in serving a summons
and complaint in any other
manner permitted by law. If
you do complete and return this
form, you (or the party on whose
behalf you are being served)
must answer the complaint within
thirty (30) days of the date
upon which this notice was
mailed, which appears below. If
you fail to do so, judgment by
default may be taken against you
for the relief demanded in the
complaint. I declare, under
penalty of perjury, that this
Notice and Receipt of Summons
and Complaint was mailed on
(insert date).
________________________
Signature ______________
Date of Signature
RECEIPT OF SUMMONS AND COMPLAINT
I received a copy of the
summons and complaint in the
above-captioned matter at
(insert address).
______________
______________
____________________
Signature
____________________
Relationship to
entity/authority
to receive service of
process
_______________ Date of
Signature
Summons; how served.
Service shall be made as follows:
- upon an individual other
than a minor or an incapacitated
person by delivering a copy of
the summons and of the complaint
to the individual personally; or
if the individual refuses to
receive such, by leaving same 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.
If the individual is absent,
service may be made by
delivering a copy of the process
or other papers to be served to
some person residing at the
usual place of abode of the
defendant who is over the age of
fifteen (15) years; and if there
is no such person available or
willing to accept delivery, then
service may be made by posting
such copies in the most public
part of the defendant's
premises, and by mailing to the
defendant at defendant's last
known mailing address copies of
the process;
- upon domestic or foreign
corporation by delivering a copy
of the summons and of the
complaint to an officer, a
managing or a general agent, or
to any other agent authorized by
appointment or by law to receive
service of process and, if the
agent is one authorized by
statute to receive service and
the statute so requires, by also
mailing a copy to the defendant;
upon a partnership by delivering
a copy of the summons and of the
complaint to any general
partner; and upon other
unincorporated association which
is subject to suit under a
common name, by delivering a
copy of the summons and of the
complaint to an officer, a
managing or general agent, or to
any other agent authorized by
appointment or by law to receive
service of process and, 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. If
the person refuses to receive
such copies, such action 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 thereof;
- 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 mailed by
registered or certified mail
to the defendant employee;
- service of process on
the governor, attorney
general, agency, bureau,
department, commission or
institution or head thereof
may be made either by
delivering a copy of the
summons and of the complaint
to the head or to the head's
receptionist. Where an
executive secretary is
employed, the executive
secretary shall be
considered as the head;
- upon any county by
delivering a copy of the summons
and of the complaint to the
county clerk, who shall
forthwith notify the district
attorney of the judicial
district in which the county
sued is situated;
- upon a municipal corporation
by delivering a copy of the
summons and of the complaint to
the city clerk, town clerk or
village clerk, who in turn shall
forthwith notify the head of the
commission or other form of
governing body;
- 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;
- upon a minor, whenever there
shall be a conservator of the
estate or guardian of the person
of such minor, by delivering a
copy of the summons and of the
complaint to the conservator or
guardian. Service of process so
made shall be considered as
service upon the minor. In all
other cases process shall be
served by delivering a copy of
the summons and of the complaint
to the minor, and if the minor
is living with an adult a copy
of the summons and of the
complaint shall also be
delivered to the adult residing
in the same household. In all
cases where a guardian ad litem
has been appointed, a copy of
the summons and of the complaint
shall be delivered to such
representative, in addition to
serving the minor as herein
provided;
- upon an incapacitated
person, whenever there shall be
a conservator of the estate or
guardian of the person of such
incapacitated person, by
delivering a copy of the summons
and of the complaint to the
conservator or guardian. Service
of process so made shall be
considered as service upon the
ward. In all other cases process
shall be served upon the ward in
the same manner as upon
competent persons;
- upon a personal
representative, guardian,
conservator, trustee or other
fiduciary in the same manner as
provided in Subparagraph (1) or
(2) of this paragraph as may be
appropriate. Service shall be
made with reasonable diligence,
and the original summons with
proof of service shall be
returned to the clerk of the
court from which it was issued.
Return.
The person serving the process
shall make proof of service thereof
to the court promptly and in any
event within the time during which
the person served must respond to
the process. When service is made by
the sheriff (or a deputy) of the
county in New Mexico, proof thereof
shall be by certificate; and when
made by a person other than a
sheriff (or a deputy) of a New
Mexico county, proof thereof shall
be made by affidavit. If service is
made under Paragraph E of this rule,
return shall be made by the sender's
filing with the court the
acknowledgement received pursuant to
such paragraph. Where service within
the state includes mailing, the
return shall state the date and
place of mailing. Failure to make
proof of service shall not affect
the validity of service.
Service by publication.
In actions where the relief
sought does not require personal
service and the party to be served
is so situated that process cannot
be personally served upon the party
within the state, or in situations
where the party to be served is a
New Mexico resident who, by
deliberate concealment to avoid
service of process, has effectively
prevented service on the party in
the manner provided in Paragraph F
of this rule, service by publication
shall be as follows:
- In any such action or
proceeding, the clerk of the
court shall cause to be issued a
notice of the pendency of the
action or proceeding upon the
filing by plaintiff, the
plaintiff's agent or attorney,
of a sworn pleading or affidavit
stating that any defendant
(whether an individual,
corporation, partnership or
association): resides or has
gone out of the state; or is
concealed within the state; or,
in appropriate cases, is
deliberately concealed to avoid
service of process and thereby
has effectively prevented
service on the party; or the
party's whereabouts cannot be
discovered after due inquiry and
search has been made; or is in
any manner situated so that the
process cannot be served upon
the party in the State of New
Mexico.
- The notice of pendency of
action shall contain the names
of the plaintiff and the
defendant to the cause, or if
there is more than one defendant
to the cause, the notice shall
contain the name of the
plaintiff and the names of the
defendants against whom
constructive service is sought
to be obtained; except as
hereinafter provided, the notice
shall contain also the name of
the court in which the cause is
pending and a statement of the
general objects of the action;
shall show the name of
plaintiff's attorney, with the
plaintiff's attorney's office or
post office address; and shall
notify each defendant that
unless the defendant files a
responsive pleading or motion
within the time required,
judgment or other appropriate
relief will be rendered in the
cause against the defendant by
default. The notice shall be
signed by the clerk under the
seal of the court.
- The notice shall be
published in some newspaper
published in the county where
the cause is pending; or, if
there be no newspaper published
in the county, then in some
newspaper in general circulation
in said county.
- The publication of said
notice shall be proved by the
affidavit of the publisher,
manager or agent of the
newspaper, and the same shall be
taken and considered as
sufficient service of process
and valid in law, and the
plaintiff thereupon may
prosecute the cause to a final
judgment.
- It shall not be necessary in
stating the general object of
the action in any such notice
specifically to describe any
real property which may be
involved in such action, but in
all such notices it shall be
sufficient to refer to such
property merely as "the property
described in the complaint in
the cause", and to specify the
county in which the land is
situate and the sections,
township and range in which it
is situate, if it is on land
which has been officially
surveyed by section, or the land
granted in which it is located
if in a Spanish or Mexican
grant, or the name of the city,
town or village in which it is
located, if it is in a
municipality.
- In suits to quiet title or
in other proceedings where
unknown heirs are parties, or
where the defendants are
designated by name, if living,
or if deceased, are designated
as the unknown heirs of such
named party, it shall be
sufficient to use the following
form in the complaint and in the
notice of pendency of action:
"Unknown heirs of the following
named deceased persons"; then
following with the names of the
various deceased persons whose
unknown heirs are sought to be
served; and as to parties named
in the alternative: "The
following named defendants by
name, if living; if deceased,
their unknown heirs". Then name
such persons.
- In case it may be necessary
to make a further publication by
reason of omission or misnaming
of parties, such further
publication shall conform to the
first publication, except that
in addition to the first named
defendant to the cause only such
omitted or misnamed parties need
be named against whom
substituted service is sought to
be obtained.
Affidavit of residence; copy
of process to be mailed.
When the residence of the
defendant in the cases mentioned in
Paragraph H of this rule is known to
the affiant, it shall be stated in
the affidavit, and if the residence
is not known, that fact shall be
stated. When the residence of any
defendant is known, the plaintiff,
the plaintiff's agent or attorney,
shall, not less than thirty-five
(35) days before rendition of final
judgment or decree in the cause,
deposit a copy of the summons and
complaint in the post office,
postage prepaid, directed to the
defendant at the defendant's place
of residence as stated in the
affidavit or pleading. Proof of
mailing shall be made by affidavit
of the person mailing such copies,
filed in the cause.
Service of summons outside of
state equivalent to publication.
Personal service of a copy of the
summons and of the complaint out of
the state shall be equivalent to
service by publication and mailing
as provided for by Paragraphs H and
I of this rule. The defendant so
served shall be required to respond
as required by law on or before
thirty (30) days from the date of
service. Return of such service
shall be made by affidavit of the
person making same.
Alias process.
When any process has not been
returned, or has been returned
without service, or has been
improperly served, it shall be the
duty of the clerk, upon the
application of any party to the
suit, to issue other process as the
party applying may direct.
Service in manner approved by
court.
Upon motion, without notice, and
showing by affidavit that service
cannot reasonably be made as
otherwise provided by this rule, the
court may order service by any
method or combination of methods,
including publication, that is
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.
Service; applicable statute.
Where no provision is made in
these rules for service of process,
process shall be served as provided
for by any applicable statute.
Definitions.
Wherever the terms "summons",
"process", "service of process" or
similar terms are used, such shall
include the summons, complaint and
any other papers i.required to be
served.
[As amended, effective January 1,
1987; October 1, 1998.]
1-045.
Subpoena.
Form; issuance.
- Every subpoena shall:
- state the name of the
court from which it is
issued;
- state the title of the
action and its civil action
number;
- command each person to
whom it is directed to
attend and give testimony or
to produce and permit
inspection and copying of
designated books, documents
or tangible things in the
possession, custody or
control of that person, or
to permit inspection of
premises, at a time and
place therein specified; and
- be substantially in the
form approved by the Supreme
Court. A command to produce
evidence or to permit
inspection may be joined
with a command to appear at
trial or hearing or at
deposition, or may be issued
separately.
- All subpoenas shall issue
from the court for the district
in which the matter is pending.
- The clerk shall issue a
subpoena, signed but otherwise
in blank, to a party requesting
it, who shall complete it before
service. An attorney authorized
to practice law in New Mexico
and who represents a party, as
an officer of the court, may
also issue and sign a subpoena
on behalf of the court.
Service; place of
examination.
- A subpoena may be served any
place within the state;
- A subpoena may be served by
any person who is not a party
and is not less than eighteen
(18) years of age. Service of a
subpoena upon a person named
therein shall be made by
delivering a copy thereof to
such person and, if that
person's attendance is
commanded:
- if the witness is to be
paid from funds appropriated
by the legislature to the
administrative office of the
courts for payment of state
witnesses or for the payment
of witnesses in indigency
cases, by processing for
payment to such witness the
fee and mileage prescribed
by regulation of the
administrative office of the
courts;
- for all persons not
described in Subparagraph
(2) (a) of this paragraph,
by tendering to that person
the full fee for one day's
expenses provided by
Subsection A of Section
10-8-4 NMSA 1978 as per diem
for nonsalaried public
officers attending a board
or committee meeting and the
mileage provided by
Subsection D of Section
10-8-4 NMSA 1978. The fee
for per diem expenses shall
not be prorated. If
attendance is required for
more than one day, a full
day's expenses shall be paid
prior to commencement of
each day attendance is
required. When the subpoena
is issued on behalf of the
state or an officer or
agency thereof, fees and
mileage need not be
tendered. Prior to or at the
same time as service of any
subpoena commanding
production of documents and
things or inspection of
premises before trial,
notice shall be served on
each party in the manner
prescribed by Rule 1-005;
- A person may be required to
attend a deposition within one
hundred (100) miles of where
that person resides, is employed
or transacts business in person,
or at such other place as is
fixed by an order of the court.
- A person may be required to
attend a hearing or trial at any
place within the state.
- Proof of service when
necessary shall be made by
filing with the clerk of the
court a return substantially in
the form approved by the Supreme
Court.
- A subpoena may be issued for
taking of a deposition within
this state in an action pending
outside the state pursuant to
Section 38-8-1 NMSA 1978 upon
the filing of a miscellaneous
proceeding in the judicial
district in which the subpoena
is to be served. Upon the
docketing of the miscellaneous
proceeding, the subpoena may be
issued and shall be served as
provided by this rule.
- A subpoena may be served in
an action pending in this state
on a person in another state or
country in the manner provided
by law or rule of the other
state or country.
Protection of persons subject
to subpoenas.
- A party or an attorney
responsible for the issuance and
service of a subpoena shall take
reasonable steps to avoid
imposing undue burden or expense
on a person subject to that
subpoena. The court on behalf of
which the subpoena was issued
shall enforce this duty and
impose upon the party or
attorney in breach of this duty
an appropriate sanction, which
may include, but is not limited
to, lost earnings and a
reasonable attorney's fee.
- (a) A person commanded to
produce and permit inspection
and copying of designated books,
papers, documents or tangible
things, or inspection of
premises need not appear in
person at the place of
production or inspection unless
commanded to appear for
deposition, hearing or trial.
(b) Subject to Subparagraph (2)
of Paragraph D of this rule, a
person commanded to produce and
permit inspection and copying
may, within fourteen (14) days
after service of the subpoena or
before the time specified for
compliance if such time is less
than fourteen (14) days after
service, serve upon all parties
written objection to inspection
or copying of any or all of the
designated materials or of the
premises. If objection is made,
the party serving the subpoena
shall not be entitled to inspect
and copy the materials or
inspect the premises except
pursuant to an order of the
court by which the subpoena was
issued. If objection has been
made, the party serving the
subpoena may, upon notice to the
person commanded to produce,
move at any time for an order to
compel the production. Such an
order to compel production shall
protect any person who is not a
party or an officer of a party
from significant expense
resulting from the inspection
and copying commanded.
- On timely motion, the court
by which a subpoena was issued
shall quash or modify the
subpoena if it:
- fails to allow
reasonable time for
compliance,
- requires a person who is
not a party or an officer of
a party to travel to a place
more than one hundred (100)
miles from the place where
that person resides, is
employed or regularly
transacts business in
person, except that, subject
to the provisions of
Subparagraph (3) (b) (iii)
of this paragraph, such a
person may in order to
attend trial be commanded to
travel from any such place
within the state in which
the trial is held, or
- requires disclosure of
privileged or other
protected matter and no
exception or waiver applies,
or
- subjects a person to
undue burden.
- If a subpoena:
- requires disclosure of a
trade secret or other
confidential research,
development or commercial
information,
- requires disclosure of
an unretained expert's
opinion or information not
describing specific events
or occurrences in dispute
and resulting from the
expert's study made not at
the request of any party, or
- requires a person who is
not a party or an officer of
a party to incur substantial
expense to travel more than
one hundred (100) miles to
attend trial, the court may,
to protect a person subject
to or affected by the
subpoena, quash or modify
the subpoena or, if the
party in whose behalf the
subpoena is issued shows a
substantial need for the
testimony or material that
cannot be otherwise met
without undue hardship and
assures that the person to
whom the subpoena is
addressed will be reasonably
compensated, the court may
order appearance or
production only upon
specified conditions.
Duties in responding to
subpoena.
- A person responding to a
subpoena to produce documents
shall produce them as they are
kept in the usual course of
business or shall organize and
label them to correspond with
the categories in the demand.
- When information subject to
a subpoena is withheld on a
claim that it is privileged or
subject to protection as trial
preparation materials, the claim
shall be made expressly and
shall be supported by a
description of the nature of the
documents, communications, or
things not produced that is
sufficient to enable the
demanding party to contest the
claim.
Contempt.
Failure by any person without
adequate excuse to obey a subpoena
served upon that person may be
deemed a contempt of the court from
which the subpoena issued. An
adequate cause for failure to obey
exists when a subpoena purports to
require a non-party to attend or
produce at a place not within the
limits provided in Subparagraph (3)
(a) (ii) i.of Paragraph C of this
rule.
[As amended, effective January 1,
1987; August 1, 1989; January 1,
1998.]
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