1-004. Process.
A. 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.
B. 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:
(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 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;
(3) the name and address of the plaintiff's attorney, if any, shall be shown on every summons, otherwise the plaintiff's address;
(4) 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.)
C. Summons; service of copy. A copy of the summons with copy of complaint attached shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary.
D. 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.
E. 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
F. Summons; how served. Service shall be made as follows:
(1) 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;
(2) 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;
(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 mailed by registered or certified mail to the defendant employee;
(e) 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;
(4) 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;
(5) 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;
(6) 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;
(7) 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;
(8) 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;
(9) 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.
G. 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.
H. 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:
(1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
I. 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.
J. 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.
K. 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.
L. 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.
M. 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.
N. Definitions. Wherever the terms "summons", "process", "service of process" or similar terms are used, such shall include the summons, complaint and any other papers required to be served.
[As amended, effective January 1, 1987; October 1, 1998.]