N.M. R. Civ. P. Magist. Ct. 2-305

As amended through November 1, 2024

Rule 2-305 - Dismissal of actions

A.Voluntary dismissal; effect thereof.

(1) An action may be dismissed by the plaintiff without order of the court

(a) by filing a notice of dismissal at any time before service by the adverse party of an answer or other responsive pleading; or

(b) by filing a stipulation of dismissal signed by all parties who have appeared generally in the action.

(2) Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed an action based on or including the same claim.

(3) Except as provided in Subparagraph (1) of this paragraph, an action shall not be dismissed on motion of the plaintiff except on order of the court and on such terms and conditions as the court deems proper. If a counterclaim, cross-claim, or third-party claim has been filed by a party prior to the service on such party of the plaintiff's motion to dismiss, the action shall not be dismissed against the party's objection unless the counterclaim, cross-claim, or third-party claim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

B.Involuntary dismissal; effect thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that on the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. Unless the court in its order for dismissal otherwise specifies, a dismissal under this paragraph and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication on the merits.

C.Dismissal of counterclaim, cross-claim, or third-party claim. The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone under Subparagraph (A)(1) of this rule shall be made before a responsive pleading is served, or if there is none, before the introduction of evidence at the trial or hearing.

D.Dismissal for failure to prosecute. If an action has been pending for six (6) months from the date the complaint is filed, and the plaintiff or defendant asserting a counterclaim has failed to take any available steps to have the claims resolved, the court shall file and serve on the parties a thirty (30)-day notice stating that the court intends to dismiss the claims without prejudice for failure to prosecute. If the plaintiff or defendant asserting a counterclaim fails to take any available steps to bring the case to trial or otherwise prosecute the claims within thirty (30) days after service of the notice, the court shall dismiss the claims without prejudice.

E.Costs of previously dismissed action. If a plaintiff who has once dismissed an action in any court commences an action based on or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.

N.M. R. Civ. P. Magist. Ct. 2-305

As amended, effective 11/1/1995;11/1/2000; as amended by Supreme Court Order No. 16-8300-021, effective for all cases pending or filed on or after12/31/2016.

ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-021, effective December 31, 2016, required the magistrate court to issue a thirty-day notice prior to dismissing a case for failure to prosecute and changed "upon" to "on" throughout the rule; in Paragraph A, inserted new subparagraph designation "(2)" and redesignated former Subparagraph A(2) as Subparagraph A(3); in Paragraph C, after "dismissal by the claimant alone", deleted "pursuant to Subparagraph (1) of Paragraph A" and added "under Subparagraph (A)(1); and in Paragraph D, after the heading, deleted "Any" and added "If an", after "action", added "has been", after "the complaint is filed", deleted "in which" and added "and", after "has failed to take", deleted "all" and added "any", after "available steps to", deleted "bring the matter to trial, shall be dismissed without prejudice" and added the remainder of the paragraph. The 2000 amendment, effective November 1, 2000, made stylistic changes in Paragraph A. The 1995 amendment, effective November 1, 1995, rewrote Paragraph A, added Paragraphs B and C, redesignated former Paragraph B as Paragraph D, and added Paragraph E.

For form on stipulation of dismissal, see Rule 4-304 NMRA. For form on notice of dismissal of complaint, see Rule 4-305 NMRA. For form on order dismissing action for failure to prosecute, see Rule 4-306 NMRA. Am. Jur. 2d, A.L.R. and C.J.S. references. - 24 Am. Jur. 2d Dismissal, Discontinuance, and Nonsuit §§ 10, 11, 55 to 106. Mandamus to compel a court to take jurisdiction of a cause that it has erroneously dismissed for supposed insufficiency or lack of service, 4 A.L.R. 610. Right of plaintiff to dismiss an action brought in behalf of himself and other persons, 8 A.L.R. 950, 91 A.L.R. 587. Waiver of right to dismissal because of plaintiff's failure to furnish security for costs by applying for continuance, 8 A.L.R. 1528. Forcing party or prosecuting witness to withdraw or not institute action or proceeding as contempt of court, 23 A.L.R. 187. Dismissal of suit as affecting election of remedies as between damages and specific performance, 26 A.L.R. 111. Constitutionality of statute forbidding direction of verdict or nonsuit, 29 A.L.R. 1287. Arbitration agreement made pending action, 42 A.L.R. 727. Joint tort-feasors, dismissal or nolle prosequi as to part, 66 A.L.R. 206, 104 A.L.R. 846, 124 A.L.R. 1298, 148 A.L.R. 1270. Right of voluntary dismissal of suit without prejudice before trial as affected by filing counterclaim after motion for dismissal, 71 A.L.R. 1001. Dismissal of action or proceeding to enforce mechanic's lien because of delay in prosecuting, 79 A.L.R. 847. Judgment or order dismissing action as against one defendant as subject of appeal or error before disposition of case against codefendant, 80 A.L.R. 1186, 114 A.L.R. 759. Power of attorney general to settle and compromise or dismiss suit or proceeding, 81 A.L.R. 124. May or must claim for damages from wrongful seizure of property be interposed in action or proceeding in which seizure is made, 85 A.L.R. 644. Dismissal of action against resident defendant, or failure to get decision against him, as ground of removal to federal court of action in which resident defendant is joined with nonresident, 85 A.L.R. 799. Constitutionality, construction and effect of statutes relating to exceptions to rule denying contribution or indemnity between joint tort-feasors, 85 A.L.R. 1091, 122 A.L.R. 520, 141 A.L.R. 1207. What amounts to nonsuit within contemplation of statute extending time for new action in case of nonsuit, 86 A.L.R. 1048. Nonsuit within contemplation of statute extending time for new action in case of nonsuit, dismissal as to one of several defendants, 86 A.L.R. 1049. Stage of trial at which plaintiff may take voluntary dismissal, 89 A.L.R. 13, 126 A.L.R. 284. Right to dismissal as affected by filing of, or as affecting, cross-complaint, counterclaim, intervention and the like, 90 A.L.R. 387. May question as to qualification or competency of witness be raised by or upon motion for nonsuit or for directed verdict, absent objection on that ground when testimony was given, 93 A.L.R. 788. Conclusiveness of judgment sustaining demurrer where plaintiff procured dismissal of the suit, 106 A.L.R. 437. Right to revive by amendment an action dismissed by judgment entered upon plea of abatement or demurrer, 106 A.L.R. 570. Reinstatement, after expiration of term, of case which has been voluntarily withdrawn, dismissed or nonsuited, 111 A.L.R. 767. Raising question of estoppel by prior adjudication by motion to dismiss, 120 A.L.R. 8 Objectionable evidence, admitted without objection, as entitled to consideration on demurrer to evidence or motion for nonsuit or directed verdict, 120 A.L.R. 205. Construction and application of rules of court which permit dismissing suit because of disobedience of order, summons or subpoena duces tecum requiring production of documents, 144 A.L.R. 372. Provision that judgment is "without prejudice" or "with prejudice" as affecting its operation as res judicata, 149 A.L.R. 553. Relief from stipulations, 161 A.L.R. 1161. Failure of complaint to state cause of action for unliquidated damages as ground for dismissal of action at hearing to determine amount of damages following defendant's default, 163 A.L.R. 496. Original notice of lis pendens, as effective upon renewal of litigation after dismissal, reversal or nonsuit, reserving right to bring another proceeding, 164 A.L.R. 515. Delay in issuance or service of summons as requiring or justifying order discontinuing suit, 167 A.L.R. 1058. Voluntary dismissal or withdrawal of proceedings to probate or contest will, 173 A.L.R. 959. Dismissal of action for failure or refusal of plaintiff to obey court order, 4 A.L.R.2d 348, 56 A.L.R.3d 1109, 27 A.L.R.4th 61, 32 A.L.R.4th 212, 3 A.L.R.5th 237. Effect of discontinuance of action on previous orders, 11 A.L.R.2d 1407. Necessity of notice of application or intention to correct error in judgment entry, 14 A.L.R.2d 224. Appellate review at instance of plaintiff who has requested, induced or consented to dismissal or nonsuit, 23 A.L.R.2d 664. Res judicata effect of judgment dismissing action, or otherwise denying relief, for lack of jurisdiction or venue, 49 A.L.R.2d 1036. Dismissal of civil action for want of prosecution as res judicata, 54 A.L.R.2d 473. Authority of attorney to dismiss or otherwise terminate action, 56 A.L.R.2d 1290. What dismissals preclude a further suit, under federal and state rules regarding two dismissals, 65 A.L.R.2d 642. Maintenance of second or successive stockholder's derivative action, 70 A.L.R.2d 1305. Dismissal of injunction action or bill without prejudice as breach of injunction bond, 91 A.L.R.2d 1312. Attack on personal service as having been obtained by fraud or trickery, 98 A.L.R.2d 551. Time when voluntary nonsuit or dismissal may be taken as of right under statute so authorizing at any time before "trial," "commencement of trial," "trial of the facts" or the like, 1 A.L.R.3d 711. Dismissing action or striking testimony where party to civil action asserts privilege against self-incrimination as to pertinent question, 4 A.L.R.3d 545. Dismissal, nonsuit, judgment or direction of verdict on open statement of counsel in civil action, 5 A.L.R.3d 1405. Dismissal of action because of party's perjury or suppression of evidence, 11 A.L.R.3d 1153. Attorney's inaction as excuse for failure to timely prosecute action, 15 A.L.R.3d 674. Application to period of limitations fixed by contract, of statute permitting new action to be brought within specified time after failure of prior action for cause other than on the merits, 16 A.L.R.3d 452. Voluntary dismissal of replevin action by plaintiff as affecting defendant's right to judgment for the return or value of the property, 24 A.L.R.3d 768. What amounts to "final submission" or "retirement of jury" within statute permitting plaintiff to take voluntary dismissal or nonsuit without prejudice before submission or retirement of jury, 31 A.L.R.3d 449. Right to voluntary dismissal of civil action as affected by opponent's motion for summary judgment, judgment on the pleadings or directed verdict, 36 A.L.R.3d 1113. Dismissal of state court action for failure or refusal of plaintiff to answer written interrogatories, 56 A.L.R.3d 1109. Dismissal of plaintiff's action as entitling defendant to recover attorneys' fees or costs as "prevailing party" or "successful party", 66 A.L.R.3d 1087. 27 C.J.S. Dismissal and Nonsuit §§ 7, 11, 42 to 91.