Motion to Dismiss - New Mexico

STATE OF NEW MEXICO
COUNTY OF [____________________]
[____] JUDICIAL DISTRICT COURT

DEFENDANT'S MOTION TO DISMISS

[DEFENDANT'S FULL NAME] ("Defendant"), by and through undersigned counsel, respectfully moves this Court pursuant to N.M.R.A. 1-012(B) to dismiss the Complaint filed by [PLAINTIFF'S FULL NAME] ("Plaintiff"), with prejudice, on the grounds set forth below.

I. INTRODUCTION

Plaintiff filed this action on [__/__/____], asserting claims for [________________________________]. As set forth in the Memorandum of Law below, the Complaint is legally deficient and should be dismissed in its entirety because [________________________________].

II. PROCEDURAL HISTORY

1. Plaintiff filed the Complaint on [__/__/____].

2. Defendant was served with the Summons and Complaint on [__/__/____].

3. This Motion is timely filed. Pursuant to N.M.R.A. 1-012(A), a defendant must serve a responsive pleading within 30 days after service of the summons and complaint. Filing this pre-answer Motion under N.M.R.A. 1-012(B) tolls the time to answer.

4. Defendant has not previously filed any pre-answer motion in this action and raises all available N.M.R.A. 1-012(B) defenses herein. Under N.M.R.A. 1-012(G), a party who makes a motion under Rule 1-012 must include all defenses or objections then available. Failure to include an available defense results in waiver of that defense under N.M.R.A. 1-012(H)(1) (as to personal jurisdiction, venue, process, and service of process), subject to the separate, narrower preservation rules for failure to state a claim and failure to join an indispensable party (N.M.R.A. 1-012(H)(2)) and for lack of subject matter jurisdiction, which is never waived (N.M.R.A. 1-012(H)(3)).

III. GROUNDS FOR DISMISSAL

Defendant moves to dismiss the Complaint on the following grounds (check all that apply):

☐ Ground 1 — Lack of Subject Matter Jurisdiction [N.M.R.A. 1-012(B)(1)]
This Court lacks subject matter jurisdiction over the claims in the Complaint because [________________________________].

☐ Ground 2 — Lack of Personal Jurisdiction [N.M.R.A. 1-012(B)(2)]
This Court lacks personal jurisdiction over Defendant because Defendant lacks sufficient minimum contacts with New Mexico to satisfy due process. See NMSA 1978, § 38-1-16 (Long-Arm Statute).

☐ Ground 3 — Improper Venue [N.M.R.A. 1-012(B)(3)]
Venue is improper in the [____] Judicial District because [________________________________]. The proper venue is the [____] Judicial District, [____________________] County.

☐ Ground 4 — Insufficiency of Process [N.M.R.A. 1-012(B)(4)]
The process served upon Defendant was insufficient because [________________________________], in violation of N.M.R.A. 1-004.

☐ Ground 5 — Insufficiency of Service of Process [N.M.R.A. 1-012(B)(5)]
Service of process was insufficient because [________________________________], in violation of N.M.R.A. 1-004(F) et seq.

☐ Ground 6 — Failure to State a Claim Upon Which Relief Can Be Granted [N.M.R.A. 1-012(B)(6)]
The Complaint fails to state a claim upon which relief can be granted. Accepting all well-pleaded facts as true and construing all inferences in Plaintiff's favor, the Complaint does not state a valid claim for [________________________________] under New Mexico law.

☐ Ground 7 — Failure to Join an Indispensable Party [N.M.R.A. 1-012(B)(7)]
The Complaint fails to join an indispensable party under N.M.R.A. 1-019, specifically [________________________________], without whom complete relief cannot be accorded and/or whose interests may be prejudiced.

IV. STATEMENT OF FACTS

5. Plaintiff is [________________________________], a [resident/entity] of [____________________].

6. Defendant is [________________________________], a [resident/entity] of [____________________].

7. The Complaint alleges: [________________________________].

8. The Complaint further alleges: [________________________________].

9. [Continue with additional factual background, referencing Complaint paragraphs by number.]

10. Notwithstanding these allegations, the Complaint is legally deficient as set forth below.

V. MEMORANDUM OF LAW

A. New Mexico's Notice Pleading Standard

New Mexico is a notice pleading state. Under N.M.R.A. 1-008(A), a complaint need only set forth "a short and plain statement of the claim showing that the pleader is entitled to relief" and "a demand for judgment for the relief the pleader seeks." The purpose of notice pleading is to give the opposing party fair notice of the nature of the claim and the grounds upon which it rests.

On a motion to dismiss under N.M.R.A. 1-012(B)(6), the Court must:

1. Accept all well-pleaded facts in the Complaint as true;
2. Construe all reasonable inferences in favor of the plaintiff; and
3. Determine whether the plaintiff could prevail under any state of facts alleged in the Complaint.

See Derringer v. State, 2003-NMCA-073, ¶ 5, 133 N.M. 721, 68 P.3d 961; Torres v. State, 1995-NMSC-025, 119 N.M. 609, 894 P.2d 386; Zamora v. St. Vincent Hosp., 2014-NMSC-035, ¶ 1, 335 P.3d 1243 (reaffirming New Mexico's longstanding commitment to nontechnical, fair-notice pleading under Rule 1-008 NMRA).

Important Distinction: New Mexico has not adopted the federal Twombly/Iqbal "plausibility" standard. New Mexico courts apply the traditional notice pleading standard and do not require the plaintiff to plead facts sufficient to make the claim "plausible" in the federal sense. The standard remains: could the plaintiff prevail under any facts consistent with the allegations? Courts must liberally construe the complaint in the plaintiff's favor.

However, even under notice pleading, the Court need not accept as true:

• Legal conclusions couched as factual allegations;
• Allegations that are inherently incredible or implausible;
• Allegations clearly contradicted by documents attached to the Complaint; or
• Bare recitations of legal elements without supporting factual content.

B. Failure to State a Claim — N.M.R.A. 1-012(B)(6)

(Include if Ground 6 is checked)

1. Applicable Legal Standard

Even under New Mexico's liberal notice pleading standard, dismissal is appropriate where, accepting all well-pleaded facts as true and drawing all inferences in plaintiff's favor, no state of facts alleged could entitle plaintiff to relief. The question is not whether plaintiff will ultimately prevail, but whether there is any possibility of recovery on the facts alleged. Nonetheless, a complaint consisting only of conclusory statements without supporting factual allegations does not state a claim.

2. Count [____] — [Name of Claim]

Under New Mexico law, to state a claim for [________________________________], a plaintiff must allege:
(1) [________________________________];
(2) [________________________________];
(3) [________________________________]; and
(4) [________________________________].

See [New Mexico case citation or UJI [____]].

The Complaint fails to state this claim because:

a. The Complaint alleges (Complaint ¶ [____]): "[________________________________]." This allegation is insufficient because [________________________________].

b. The Complaint does not allege [________________________________], which is a required element of the claim.

c. Even under New Mexico's notice pleading standard, there is no state of facts consistent with these allegations that would entitle Plaintiff to relief because [________________________________].

3. Count [____] — [Name of Additional Claim]

[Repeat analysis for each additional count.]

C. Lack of Subject Matter Jurisdiction — N.M.R.A. 1-012(B)(1)

(Include if Ground 1 is checked)

New Mexico district courts are courts of general jurisdiction under N.M. Const. Art. VI, § 13 and NMSA 1978, § 34-6-1. However, subject matter jurisdiction is lacking here because [________________________________].

Subject matter jurisdiction is a threshold, non-waivable defect. Whenever it appears that the Court lacks subject matter jurisdiction, the Court must dismiss the action, regardless of the merits of the underlying claims. See N.M.R.A. 1-012(H)(3). (By contrast, the related defenses of failure to state a claim and failure to join a party indispensable under N.M.R.A. 1-019 are not waived by omission from a pre-answer motion, but must be raised in a pleading, by a motion for judgment on the pleadings, or at trial — they are not preserved indefinitely. See N.M.R.A. 1-012(H)(2).)

In this case, this Court lacks jurisdiction because [________________________________].

D. Lack of Personal Jurisdiction — N.M.R.A. 1-012(B)(2)

(Include if Ground 2 is checked)

New Mexico's long-arm statute, NMSA 1978, § 38-1-16, extends personal jurisdiction over non-residents to the fullest extent permitted by the Due Process Clause of the United States Constitution. The statute requires that:

1. The defendant committed one of the enumerated acts in New Mexico (transacting business, contracting to supply services or goods, causing tortious injury, etc.); and
2. The cause of action arises from that act; and
3. Exercising jurisdiction does not offend due process.

See Tercero v. Roman Catholic Diocese, 2002-NMSC-018, ¶ 6, 132 N.M. 312, 48 P.3d 50.

In this case, personal jurisdiction over Defendant is lacking because [________________________________]. Defendant has not committed any of the enumerated acts within New Mexico, and/or the cause of action does not arise from any New Mexico activity, and/or exercising jurisdiction would be unreasonable given Defendant's [lack of contacts / minimal contacts] with New Mexico.

E. Improper Venue — N.M.R.A. 1-012(B)(3)

(Include if Ground 3 is checked)

Venue in New Mexico district-court civil actions is governed by NMSA 1978, § 38-3-1. For an ordinary transitory action under subsection (A), subject to subsection (F)'s special foreign-corporation rule, venue alternatives include the county where:

• A plaintiff or defendant resides;
• The contract sued on was made or is to be performed;
• The cause of action originated or the indebtedness sued on was incurred; or
• A defendant may be found in the judicial district where that defendant resides.

In this case, venue is improper in [____________________] County because [________________________________]. The action should be [dismissed / transferred] to [____________________] County.

F. Insufficiency of Service of Process — N.M.R.A. 1-012(B)(5)

(Include if Ground 5 is checked)

Service of process in New Mexico civil actions is governed by N.M.R.A. 1-004. For service upon a corporation or other legal entity, service must be made upon an officer, director, managing agent, or registered agent. See N.M.R.A. 1-004(G).

In this case, service was defective because [________________________________]. Specifically, [________________________________]. Because service was not accomplished in compliance with the rules, this Court has not acquired personal jurisdiction over Defendant and the Complaint must be dismissed.

G. Failure to Join an Indispensable Party — N.M.R.A. 1-012(B)(7)

(Include if Ground 7 is checked)

Under N.M.R.A. 1-019, a party must be joined if:
(1) In the party's absence, complete relief cannot be accorded among those already parties; or
(2) The party claims an interest in the subject of the action and disposing of it in the party's absence may impair the party's ability to protect that interest or leave existing parties at risk of inconsistent obligations.

In this case, [________________________________] is a required party whose joinder is necessary for a just adjudication. [________________________________]'s absence means that [________________________________]. The action should be dismissed without prejudice to allow Plaintiff to join [________________________________] and refile.

VI. NEW MEXICO PROCEDURAL REQUIREMENTS

Filing Deadlines and Answer

• Answer Deadline: Under N.M.R.A. 1-012(A), a defendant must serve a responsive pleading within 30 days after service of the summons and complaint. Filing a pre-answer motion under N.M.R.A. 1-012(B) alters this deadline — if the pre-answer motion is denied or its disposition is postponed until trial, the responsive pleading must be served within 10 days after the Court's action.

• Consolidation of Defenses: Under N.M.R.A. 1-012(G), all defenses available under the rule must be raised in a single pre-answer motion. Omitted defenses (except subject matter jurisdiction, failure to state a claim, and failure to join an indispensable party) are waived.

Electronic Filing — Odyssey File & Serve

This Motion is filed through Odyssey File & Serve (Tyler Technologies), New Mexico's statewide electronic filing and service system for district court civil, family, and probate cases. All attorneys practicing in New Mexico district courts must register for electronic filing. Technical requirements include PDF format, compliance with file size limits, and electronic service through the File & Serve system.

• NM Odyssey File & Serve — attorney e-filing information: https://nmcourts.gov/resources/e-filing-for-attorneys/
• NM Odyssey File & Serve — filing portal: https://ofs.tylerhost.net/nm/

Supporting Memorandum

Counsel should include a supporting memorandum of law with citations to applicable New Mexico statutes, rules, and case law. Oral argument may be requested. The court may rule on the motion without a hearing based on the submitted briefs.

District-Specific Rules

Each judicial district in New Mexico may have local rules governing motion practice, page limits, and oral argument procedures. Counsel should consult the local rules for the applicable judicial district prior to filing.

VII. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that this Court:

1. Grant Defendant's Motion to Dismiss and dismiss Plaintiff's Complaint in its entirety, with prejudice;

2. In the alternative, dismiss the specified claims identified above;

3. Award Defendant its costs and reasonable attorneys' fees to the extent authorized by law or the Court's equitable powers;

4. Grant such other and further relief as the Court deems just and proper.

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]
    [Attorney's Full Name]
    New Mexico Bar No. [____________________]
    [Firm Address]
    [City], New Mexico [____]
    Telephone: ([____]) [____]-[________]
    Facsimile: ([____]) [____]-[________]
    Email: [________________________________]

Attorney for Defendant [____________________]

Dated: [__/__/____]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I served a true and correct copy of the foregoing Defendant's Motion to Dismiss and Memorandum of Law upon the following counsel of record through New Mexico's Odyssey File & Serve system, which provides electronic notice to all registered users:

Plaintiff's Counsel:
[Attorney's Full Name]
[Firm Name]
[Address]
[City], New Mexico [____]
Email: [________________________________]

☐ Via New Mexico Odyssey File & Serve (electronic service)
☐ Via United States Mail, First-Class, postage prepaid
☐ Via Email (with consent)
☐ Via Hand Delivery

[________________________________]
[Attorney's Name]
Dated: [__/__/____]

EXHIBIT LIST

NEW MEXICO-SPECIFIC NOTES FOR COUNSEL

1. Notice Pleading — Not Plausibility: New Mexico has not adopted Twombly/Iqbal. The standard remains whether plaintiff could prevail under any state of facts consistent with the allegations. Cite New Mexico Supreme Court and Court of Appeals decisions for the notice pleading standard.

2. Uniform Jury Instructions (UJIs): New Mexico uses Civil UJIs (N.M.R.A. 13-XXX series) for most common claims. When arguing failure to state a claim, cross-reference the applicable UJI to identify required elements.

3. Consolidated Defense Requirement: All available R. 1-012(B) defenses must be raised in a single pre-answer motion. Plan accordingly.

4. Post-Denial Answer Timeline: If the motion is denied, the answer is due within 10 days of the Court's action — not 30 days from original service.

5. New Mexico Judicial Districts: New Mexico has 13 judicial districts. The template above uses the format for a general district court action. Verify the correct judicial district number, county, and judge assignment.

6. Magistrate Court: For smaller claims, the action may be in New Mexico Magistrate Court. Magistrate Court procedures differ significantly. This template is designed for district court.

7. Statute of Limitations Commonly at Issue: New Mexico's catch-all/general limitations period is 4 years (NMSA 1978, § 37-1-4, covering unwritten contracts, injury to property, conversion, fraud, and other unspecified actions). Personal injury and injury to reputation claims carry a 3-year period (NMSA 1978, § 37-1-8); wrongful death claims carry their own separate 3-year period measured from the date of death (NMSA 1978, § 41-2-2). Specific claims may have shorter periods.

8. Long-Arm Statute: New Mexico's long-arm statute (§ 38-1-16) requires both a qualifying act AND that the cause of action arises from that act. This is a two-step analysis — both must be satisfied.

SOURCES AND REFERENCES

• N.M.R.A. 1-012: https://nmonesource.com/nmos/nmra/en/item/17736/index.do
• NM Courts Odyssey File & Serve — attorney e-filing information: https://nmcourts.gov/resources/e-filing-for-attorneys/
• NMSA 1978, § 38-1-16 (Long-Arm Statute): https://nmonesource.com/nmos/nmsa/en/item/2906/index.do
• NM Courts Official Site: https://www.nmcourts.gov
• Civil Procedure Update 2022 — NM State Bar: https://www.sbnm.org/Portals/NMBAR/DIL4_02_Civil%20Procedure%20Update%202022.pdf