A.Service by mail. Service of a summons shall be by mail unless the court directs that personal service be made.B.Issuance. on receipt of a complaint, the clerk shall docket the action, forthwith issue a summons and deliver it for service. on the request of the prosecution, separate or additional summons shall issue against any defendant. Any defendant may waive the issuance or service of summons.C.Execution; form. The summons shall be substantially in the form approved by the Supreme Court. The summons shall be signed by the judge or the clerk and be directed to the defendant, and must contain(1) the name of the court and municipality in which the complaint is filed, the docket number of the case and the name of the defendant to whom the summons is directed;(2) a direction that the defendant appear at the time and place set forth; and(3) the name and address of the prosecuting attorney, if any; otherwise the address of the law enforcement entity filing the complaint.D.Summons; time to appear. Service shall be made at least ten (10) days before the defendant is required to appear. If service is made by mail an additional three (3) days shall be added under Rule 8-104 NMRA. Service by mail is complete on mailing.E.Summons; service of copy. The summons and complaint shall be served together. The prosecution shall furnish the person making service with all copies as are necessary.F.Summons; by whom served. In criminal actions any process may be served by the chief of police or any authorized full-time law enforcement officer, or any other person who is over the age of eighteen (18) years and not a party to the action. Service may be made outside the municipal boundaries when provided by law. Service outside the municipal limits shall be made in the manner provided by law.G.Summons; service by mail. A summons and complaint may be served on any defendant by the clerk of the court, the judge, or the prosecutor mailing a copy of the summons and a copy of the complaint, by first-class mail, postage prepaid, to the person to be served. If a defendant fails to appear in person, or by counsel when permitted by these rules, at the time and place specified in the summons, the court, after review of the file to determine whether the summons was returned as not delivered, may (1) issue a warrant for the defendant's arrest, and thereafter the action shall be treated as if the warrant had been the first process in the action; or(2) direct that service of the summons and complaint may be made by a person authorized by Paragraph F of this rule in the manner prescribed by Paragraph I of this rule.H.Summons for initial appearance; returned mail.(1) For a defendant's initial appearance in court, if a mailed summons has been returned as not delivered and the defendant has failed to appear in person, or by counsel when permitted by these rules, at the time and place specified in the summons, the court may either (a) direct service to be made by a person authorized by Paragraph F of this rule in the manner prescribed by Paragraph I of this rule; or(b) issue a warrant for the defendant's arrest with the directive that the defendant be released on the defendant's own recognizance, unless the court makes a finding of fact that supports the imposition of an appropriate bond.(2) If the summons is returned as not delivered after a warrant has been issued under Subparagraph (G)(1) of this rule, the court may cancel or quash the warrant, waive or suspend the administrative bench warrant fee, and proceed under Subparagraph (H)(1) of this rule.I.Summons; how served. Service may be made as provided by law (1) on an individual, other than a minor or an incompetent person, by delivering a copy of the summons and a copy of the complaint to the defendant personally; or if the defendant refuses to receive the copies of the summons and complaint, by leaving the copies of the summons and complaint at the location where the defendant has been found; and if the defendant refuses to receive the copies or permit them to be left, that action shall constitute valid service. If the defendant 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 fifteen (15) years; and if there be no person who meets that criteria available or willing to accept delivery, then service may be made by posting a copy of the summons and a copy of the complaint in the most public part of the defendant's premises and by mailing to the defendant at the defendant's last known address copies of the process;(2) on a domestic or foreign corporation or on a partnership or other unincorporated association by delivering a copy of the summons and a copy of the complaint to an officer, a managing or general agent, or 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 if the statute requires, service shall be made by also mailing the copies to the defendant; on a partnership by delivering a copy of the summons and a copy of the complaint to any general partner; and on other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and a copy of the complaint to an officer, a managing or general agent, or 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 requires, by also mailing a copy to the unincorporated association. If the person refuses to receive the copies, that 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 the principal office or place of business during regular business hours to the person there in charge. 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.
J.Return. If service is made by mail under Paragraph G of this rule, return shall be made by the defendant appearing as required by the summons. If service is by personal service under Paragraph I of this rule, 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 a full-time law enforcement officer, proof of service shall be by certificate; and when made by a person other than a full-time law enforcement officer, proof of service shall be made by affidavit. Where service within the state includes mailing, the return shall state the date and place of mailing. K.Construction of terms. Wherever the terms "summons," "process," "service of process," or similar terms are used, the terms shall include the summons, complaint, and any other papers required to be served.N.M. R. Mun. Ct. P. 8-204
As amended, effective 1/1/1990; as amended by Supreme Court Order No. 22-8300-026, effective for all cases pending or filed on or after December 31, 2022.Committee Commentary - Paragraph H was added in 2022 to address situations in which a defendant is mailed a summons for the defendant's first appearance in a criminal case and the summons is returned to the court as undelivered or undeliverable. In these instances, the defendant has not received notice to appear. Paragraph H applies only to the first appearance, i.e., bond arraignment, and not to subsequent appearances as the defendant is under an obligation to keep the court apprised of a current mailing address after the defendant's first appearance.
Courts should avoid issuing a warrant or leaving a warrant in place when facts indicate that the defendant did not receive proper notice. In deciding whether facts indicate that an appropriate bond should be imposed, the judge should consider factors such as the defendant's failure to appear history and whether there was contact between the defendant and law enforcement that indicates the defendant received notice.
Warrants issued under Paragraphs (G)(1) and (H)(1)(b) of this rule are not bench warrants for failure to appear. Rather, these warrants are arrest warrants issued on the underlying charge as prescribed in Rules 8-203 and 8-205 NMRA.
[Adopted by Supreme Court Order No. 22-8300-026, effective for all cases pending or filed on or after December 31, 2022.]
ANNOTATIONS The 1989 amendment, effective for cases filed in the municipal courts on or after January 1, 1990, redesignated the first two sentences of the introductory paragraph of former Paragraph B as present Paragraph E and rewrote the remaining language of former Paragraph B and redesignated it as present Paragraph H; deleted former Paragraph C, relating to proof of service; and added present Paragraphs B to G, I and J. Bracketed material. - The bracketed material in Paragraph F was inserted by the compiler. It was not approved by the Supreme Court and is not part of the rule.
For forms on criminal summons, certificate of mailing, and return, see Rule 9-208 NMRA. For form on motion for production, see Rule 9-409 NMRA. Am. Jur. 2d, A.L.R. and C.J.S. references. - 62B Am. Jur. 2d Process §§ 105 to 138 . Service of process upon actual agent of foreign corporation in action based on transactions outside of state, 30 A.L.R. 255, 96 A.L.R. 366. Foreign railway corporation as subject to service of process in state in which it merely solicits interstate business, 46 A.L.R. 570, 95 A.L.R. 1478. Constitutionality, construction, and applicability of statutes relating to service of process on unincorporated association, 79 A.L.R. 305. Constitutionality, construction and effect of statute providing for service of process upon statutory agent in action against foreign corporation as regards communication to corporation of facts of service, 89 A.L.R. 658. Power of state to provide for service, other than personal, of process upon nonresident individual doing business within the state so as to subject him to judgment in personam, 91 A.L.R. 1327. Who, other than public official, may be served with process in action against foreign corporation doing business in state, 113 A.L.R. 9 Substituted service, service by publication, or service out of the state, in action in personam against resident or domestic corporation, as contrary to due process of law, 126 A.L.R. 1474, 132 A.L.R. 1361. Delay in issuance or service of summons as requiring or justifying order discontinuing suit, 167 A.L.R. 1058. Leaving process or notice at residence as compliance with requirement that party be served "personally" or "in person," "personally served," etc., 172 A.L.R. 521. Cessation by foreign corporation of business within state as affecting designation of agent for service of process, 77 A.L.R.2d 676. Attorney representing foreign corporation in litigation as its agent for service of process in unconnected actions or proceedings, 9 A.L.R.3d 738. Who is "general" or "managing" agent of foreign corporation under statute authorizing service of process on such agent, 17 A.L.R.3d 625. Construction of phrase "usual place of abode," or similar terms referring to abode, residence, or domicil, as used in statutes relating to service of process, 32 A.L.R.3d 112. Stipulation extending time to answer or otherwise proceed as waiver of objection to jurisdiction for lack of personal service: state cases, 77 A.L.R.3d 841. 72 C.J.S. Process § 26 et seq.