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New Mexico Motion to Dismiss

In New Mexico you move to dismiss under Rule 1-012(B) NMRA within 30 days in District Court.

Introduction

In New Mexico you challenge a complaint before answering by filing a motion to dismiss under Rule 1-012(B) NMRA in District Court. The rule tracks the federal Rule 12(b) scheme but enumerates only seven defenses, numbered (1) through (7): lack of jurisdiction over the subject matter, lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, failure to state a claim upon which relief can be granted, and failure to join a party under Rule 1-019 NMRA. A point that surprises practitioners who expect the federal frame: New Mexico lists no 1-012(B)(8), and failure to state a claim is 1-012(B)(6). The motion is filed in the same window as the answer, thirty days after the summons and complaint are served under Rule 1-012(A) NMRA, and it must be made before pleading. Motion practice runs through Rule 1-007.1 NMRA, which requires the movant to determine whether the motion will be opposed and to recite that concurrence was requested; a supporting brief is permitted, not required, and any response is due within fifteen days. Missing the response window risks a default judgment. DocDraft drafts a New Mexico-formatted motion to dismiss from your facts, with attorney review available before you file.

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Key Things to Know

  1. 1

    New Mexico's pre-answer challenge to a complaint is a motion to dismiss under Rule 1-012(B) NMRA. The rule allows the enumerated defenses to be made, at the pleader's option, by motion instead of asserting them in the responsive pleading, and the motion must be made before pleading where a further pleading is permitted.

  2. 2

    Rule 1-012(B) NMRA lists seven grounds, numbered (1) through (7): (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 1-019 NMRA. New Mexico tracks federal Rule 12(b) but lists only seven grounds, so there is no 1-012(B)(8).

  3. 3

    A 1-012(B) motion is filed in place of the answer within the same window: thirty days after the summons and complaint are served, under Rule 1-012(A) NMRA. Serving the motion alters that period, so the responsive pleading is not due on the original schedule once the motion is pending.

  4. 4

    If the court denies the motion to dismiss or postpones its disposition until trial on the merits, the responsive pleading is served within ten days after the court's action, under Rule 1-012(A) NMRA. If the court instead grants a motion for a more definite statement, the responsive pleading is served within ten days after the more definite statement is served.

  5. 5

    Rule 1-012(B) NMRA directs that a motion to dismiss be prepared and submitted in the manner required by Rule 1-007.1 NMRA. Under that rule the movant must determine whether the motion will be opposed and the motion must recite that the movant requested the concurrence of all parties or specify why no such request was made.

  6. 6

    The most common ground is failure to state a claim upon which relief can be granted, which New Mexico numbers as 1-012(B)(6). If matters outside the pleading are presented and not excluded by the court on a 1-012(B)(6) motion, the motion is treated as one for summary judgment under Rule 1-056 NMRA.

  7. 7

    You file the motion to dismiss with the clerk of the District Court named in the caption of the summons, the general-jurisdiction trial court where the civil complaint is filed. Rule 1-012 NMRA is part of the Rules of Civil Procedure for the District Courts.

Key Decisions

Choosing the Grounds for Dismissal

Timing and Strategy

Filing and Serving the Motion

Customize your Motion to Dismiss Template with DocDraft

STATE OF NEW MEXICO COUNTY OF [COUNTY] [NUMBER] JUDICIAL DISTRICT COURT

[PLAINTIFF NAME], Plaintiff,

v. No. [CASE NUMBER]

[DEFENDANT NAME], Defendant.

MOTION TO DISMISS UNDER RULE 1-012(B) NMRA

Defendant [DEFENDANT NAME], pursuant to Rule 1-012(B) NMRA, respectfully moves the Court to dismiss the Complaint and states as follows:

CONCURRENCE

Pursuant to Rule 1-007.1 NMRA, the movant has determined whether this motion will be opposed. [State that the movant requested the concurrence of all parties and the result, or specify why no such request was made.]

GROUNDS

  1. This motion is made before pleading, in place of an answer, within the time allowed under Rule 1-012(A) NMRA.

  2. The Complaint should be dismissed on the following ground(s) enumerated in Rule 1-012(B) NMRA:

    [Select the applicable ground(s):] ( ) (1) Lack of jurisdiction over the subject matter. ( ) (2) Lack of jurisdiction over the person. ( ) (3) Improper venue. ( ) (4) Insufficiency of process. ( ) (5) Insufficiency of service of process. ( ) (6) Failure to state a claim upon which relief can be granted. ( ) (7) Failure to join a party under Rule 1-019 NMRA.

SUPPORTING POINTS AND AUTHORITIES

Under Rule 1-007.1(C) NMRA, the movant may file a brief or supporting points with citations or authorities. The following is submitted in support of this motion.

I. INTRODUCTION This motion challenges the Complaint under Rule 1-012(B) NMRA. [State which ground(s) apply and why.]

II. STATEMENT OF RELEVANT FACTS [Summarize the allegations of the Complaint as relevant to the ground(s) raised.]

III. ARGUMENT [State the legal basis for each ground. For a motion under Rule 1-012(B)(6), explain why the Complaint fails to state a claim upon which relief can be granted. Note that if matters outside the pleading are presented and not excluded by the Court, a Rule 1-012(B)(6) motion is treated as one for summary judgment under Rule 1-056 NMRA.]

CONCLUSION AND REQUEST FOR RELIEF

WHEREFORE, Defendant respectfully requests that the Court dismiss the Complaint and grant such other relief as the Court deems just and proper.

Respectfully submitted,

Dated: [DATE]

[ATTORNEY OR SELF-REPRESENTED PARTY NAME] [Address] [Telephone] [Email] Attorney for Defendant / Self-Represented Defendant

[If this motion is unopposed, an order approved by all parties must accompany the motion under Rule 1-007.1(B) NMRA. For an opposed motion, check your judicial district's local rules (LR NMRA) on whether a proposed order must accompany the motion.]

[Page limits and additional briefing format are set by individual judicial district local rules (LR NMRA), which vary by district. Check your court's local rules for filing and formatting requirements.]

CERTIFICATE OF SERVICE

I certify that on [DATE] I served a true and correct copy of the foregoing MOTION TO DISMISS on all parties of record by [method of service] in accordance with New Mexico law.

[NAME OF PERSON SERVING]

New Mexico Requirements for Motion to Dismiss

File within 30 days of service in District Court

A Rule 1-012(B) NMRA motion to dismiss is filed in place of the answer within the same window: thirty days after the summons and complaint are served, under Rule 1-012(A) NMRA. The motion must be made before pleading where a further pleading is permitted.

File the motion before pleading, in place of an answer

Rule 1-012(B) NMRA allows the enumerated defenses to be made, at the pleader's option, by motion instead of in the responsive pleading. A motion making any of these defenses must be made before pleading if a further pleading is permitted, so it is filed instead of an answer.

Identify the grounds under Rule 1-012(B) NMRA

Select from the seven grounds in Rule 1-012(B) NMRA: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; (6) failure to state a claim upon which relief can be granted; (7) failure to join a party under Rule 1-019 NMRA.

Use New Mexico's 1-012(B)(6) numbering for failure to state a claim

New Mexico tracks federal Rule 12(b) but enumerates only seven grounds, so there is no 1-012(B)(8), and failure to state a claim is 1-012(B)(6). If matters outside the pleading are presented and not excluded by the court on a 1-012(B)(6) motion, the motion is treated as one for summary judgment under Rule 1-056 NMRA.

Recite concurrence under Rule 1-007.1 NMRA

Rule 1-012(B) NMRA directs that the motion be prepared and submitted in the manner required by Rule 1-007.1 NMRA. The movant must determine whether the motion will be opposed, and the motion must recite that the movant requested the concurrence of all parties or specify why no such request was made.

Supporting brief permitted, not required; 15-day response

Under Rule 1-007.1(C) NMRA, the movant may file with any opposed motion a brief or supporting points with citations or authorities, but a brief is not mandatory. Any written response and supporting documentary evidence is due within fifteen days after service of the motion. No statewide page limit appears in Rule 1-007.1; page limits are set by individual judicial district local rules (LR NMRA) and vary by district, so check your court's local rules.

Track the answer clock if the motion is denied

Serving a Rule 1-012 motion alters the answer period under Rule 1-012(A) NMRA. If the court denies the motion or postpones its disposition until trial on the merits, the responsive pleading is served within ten days after the court's action. If the court grants a motion for a more definite statement, the responsive pleading is served within ten days after the more definite statement is served.

File in District Court and handle the order

File with the clerk of the District Court named in the caption of the summons, New Mexico's general-jurisdiction trial court for civil complaints. If the motion is unopposed, an order approved by all parties must accompany it under Rule 1-007.1(B) NMRA. For an opposed motion, whether a proposed order must accompany the motion is set by your judicial district's local rules (LR NMRA), so check your district. Serve the motion on all parties and file a certificate of service.

Frequently Asked Questions

In New Mexico you file a motion to dismiss under Rule 1-012(B) NMRA in place of an answer in District Court. You state the enumerated grounds and prepare the motion in the manner required by Rule 1-007.1 NMRA, which means determining whether the motion will be opposed and reciting that you requested concurrence of all parties or why no such request was made. A supporting brief is permitted but not required.

A Rule 1-012(B) motion to dismiss is filed in place of the answer within the same window: thirty days after the summons and complaint are served, under Rule 1-012(A) NMRA. The motion must be made before pleading where a further pleading is permitted. Serving the motion alters the answer period rather than letting it run on the original schedule.

New Mexico cites the rule as 1-012(B) NMRA, and its seven grounds map closely to the federal list: lack of jurisdiction over the subject matter, lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, failure to state a claim, and failure to join a party under Rule 1-019 NMRA. Failure to state a claim is 1-012(B)(6), and unlike the federal rule there is no (B)(8) residual ground.

Yes. Rule 1-012(B) NMRA directs that the motion be prepared under Rule 1-007.1 NMRA, which requires the movant to determine whether the motion will be opposed. The motion must recite that the movant requested the concurrence of all parties or specify why no such request was made. There is no separate statewide substantive meet-and-confer requirement for a motion to dismiss.

If the court denies the motion or postpones its disposition until trial on the merits, the responsive pleading is served within ten days after the court's action, under Rule 1-012(A) NMRA. On a failure-to-state-a-claim motion, if matters outside the pleading are presented and not excluded by the court, the motion is treated as one for summary judgment under Rule 1-056 NMRA instead.

You file with the clerk of the District Court named in the caption of the summons. The District Court is New Mexico's general-jurisdiction trial court where the civil complaint is filed. Rule 1-012 NMRA is part of the Rules of Civil Procedure for the District Courts, so the motion is brought in that court rather than in a lower court.