N.M. R. Civ. P. Magist. Ct. 2-104

As amended through August 23, 2024

Rule 2-104 - Time

A.Computing time. This rule applies in computing any time period specified in these rules, in any local rule or court order, or in any statute, unless another Supreme Court rule of procedure contains time computation provisions that expressly supersede this rule.

(1)Period stated in days or a longer unit; eleven (11) days or more. When the period is stated as eleven (11) days or a longer unit of time,

(a) exclude the day of the event that triggers the period;

(b) count every day, including intermediate Saturdays, Sundays, and legal holidays; and

(c) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.

(2)Period stated in days or a longer unit; ten (10) days or less.

(a) When the period is stated in days but the number of days is ten (10) days or less,

(i) exclude the day of the event that triggers the period;

(ii) exclude intermediate Saturdays, Sundays, and legal holidays; and

(iii) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.

(b) This subparagraph shall not apply to any statutory notice that is required to be given prior to the filing of an action.

(3)Period stated in hours. When the period is stated in hours,

(a) begin counting immediately on the occurrence of the event that triggers the period;

(b) count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays; and

(c) if the period would end on a Saturday, Sunday, or legal holiday, the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday.

(4)Unavailability of the court for filing. If the court is closed or is unavailable for filing at any time that the court is regularly open,

(a) on the last day for filing under Subparagraphs (A)(1) or (A)(2) of this rule, then the time for filing is extended to the first day that the court is open and available for filing that is not a Saturday, Sunday, or legal holiday; or

(b) during the last hour for filing under Subparagraph (A)(3) of this rule, then the time for filing is extended to the same time on the first day that the court is open and available for filing that is not a Saturday, Sunday, or legal holiday.

(5)"Last day" defined. Unless a different time is set by a court order, the last day ends

(a) for electronic filing, at midnight; and

(b) for filing by other means, when the court is scheduled to close.

(6)"Next day" defined. The "next day" is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.

(7)"Legal holiday" defined. "Legal holiday" means the day that the following are observed by the judiciary:

(a) New Year's Day, Martin Luther King Jr.'s Birthday, Presidents' Day (traditionally observed on the day after Thanksgiving), Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, or Christmas Day; and

(b) any other day observed as a holiday by the judiciary.

B.Extending time.

(1)In General. When an act may or must be done within a specified time, the court may, for cause shown, extend the time

(a) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or

(b) on motion made after the time has expired if the party failed to act because of excusable neglect.

(2)Exceptions. A court shall not extend the time for commencement of trial under Rule 2-305 NMRA or for taking an appeal under Rule 2-705 NMRA, except to the extent and under the conditions stated in those rules.

C.Additional time after certain kinds of service. When a party may or must act within a specified time after service and service is made by mail, facsimile, electronic transmission, or by deposit at a location designated for an attorney at a court facility under Rule 2-203(C)(1)(e) NMRA, three (3) days are added after the period would otherwise expire under Paragraph A. Intermediate Saturdays, Sundays, and legal holidays are included in counting these added three (3) days. If the third day is a Saturday, Sunday, or legal holiday, the last day to act is the next day that is not a Saturday, Sunday, or legal holiday.

D.Public posting of regular court hours. The court shall publicly post the hours that it is regularly open.

N.M. R. Civ. P. Magist. Ct. 2-104

As amended, effective 8/1/2004; as amended by Supreme Court Order No. 14-8300-016, effective for all cases pending or filed on or after12/31/2014.

Committee commentary. - In 2014, the Joint Committee on Rules of Procedure amended the time computation rules, including Rules 1-006, 2-104, 3-104, 5, 104, 6-104, 7-104, 8-104, 10-107, and 12-308 NMRA, and restyled the rules to more closely resemble the federal rules of procedure. See Fed. R. Civ. Pro. 6; Fed. R. Crim. Pro. 45.

The method for computing time periods of ten days or less set forth in Subparagraph (A)(2) of this rule does not apply to any statutory notice that must be given prior to the filing of an action. For example, several provisions of the Uniform Owner-Resident Relations Act require such notice. See, e.g., NMSA 1978, § 47-8-33(D) (requiring the landlord to give the tenant three days notice prior to terminating a rental agreement for failure to pay rent).

Subparagraph (A)(4) of this rule contemplates that the court may be closed or unavailable for filing due to weather, technological problems, or other circumstances. A person relying on Subparagraph (A)(4) to extend the time for filing a paper should be prepared to demonstrate or affirm that the court was closed or unavailable for filing at the time that the paper was due to be filed under Subparagraph (A)(1), (A)(2), or (A)(3).

[Adopted by Supreme Court Order No. 14-8300-016, effective for all cases pending or filed on or after December 31, 2014.]

.

ANNOTATIONS The 2014 amendment, approved by Supreme Court Order No. 14-8300-016, effective December 31, 2014, completely rewrote the rule; deleted former Paragraph A which provided rules for computation of time by excluding the day of the event from which the period of time began to run, including the last day of the period of time, excluding Saturdays, Sundays, legal holidays and days of severe inclement weather, and defined legal holidays; deleted former Paragraph B which provided for the enlargement of the period of time by the court; deleted former Paragraph C which provided for the service of motions for the enlargement of the period of time and for ex parte applications; deleted former Paragraph D, which provided for a three day enlargement of the period of time when a party was served by mail; deleted former Paragraph F which provided that the rule did not apply to any statutory notice that was required to be given prior to the filing of an action; and added current Paragraphs A through D. The 2004 amendment, effective August 1, 2004, amended Paragraph A to delete "by local rules of any magistrate court", to add after "legal holiday" in the second sentence "or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the court inaccessible" and to add the last sentence of the paragraph relating to how time is computed and defining "legal holiday"; amended Subparagraph (2) of Paragraph B to add "where the failure to act was the result of excusable neglect"; and to add the exception at the end of the subparagraph; amended Paragraph C to delete the last sentence; and added Paragraph E.

For examples of statutory notices that are required to be given prior to the filing of an action, see Sections 47-8-33, 47-8-27.1 and 47-8-37 NMSA 1978. See also Civil Forms 4-901 (three-day notice of nonpayment of rent); 4-901A (three-day notice of substantial violation of rental agreement); Civil Forms 4-902 (seven-day notice of noncompliance with rental agreement); and Civil Forms 4-902A (resident's seven-day notice of abatement of rent or termination of agreement. Am. Jur. 2d, A.L.R. and C.J.S. references. - 56 Am. Jur. 2d Motions, Rules, and Orders § 10; 62B Am. Jur. 2d Process §§ 114 to 125. Difference between date of affidavit for service by publication and date of filing or of order for publication as affecting validity of service, 46 A.L.R.2d 1364. Inclusion or exclusion of first and last day in computing the time for performance of an act or event which must take place a certain number of days before future date, 98 A.L.R.2d 1331. Vacating judgment or granting new trial in civil case, consent as ground of after expiration of term or time prescribed by statute or rules of court, 3 A.L.R.3d 1191. Attorney's inaction as excuse for failure to timely prosecute action, 15 A.L.R.3d 674. What circumstances excuse failure to submit will for probate within time limit set by statute, 17 A.L.R.3d 1361. Construction and effect of contractual or statutory provisions fixing time within which arbitration award must be made, 56 A.L.R.3d 815. Validity of service of summons or complaint on Sunday or holiday, 63 A.L.R.3d 423. Amendment, after expiration of time for filing motion for new trial, in civil case, or motion made in due time, 69 A.L.R.3d 845. 60 C.J.S. Motions and Orders § 8; 66 C.J.S. Notice §§ 26 to 32; 71 C.J.S. Pleading §§ 98, 114, 219; 72 C.J.S. Process §§ 41, 55.