MEMORANDUM
TO: ASSOCIATE
FROM: PARTNER
DATE: FEBRUARY 5
We have had the opportunity to review Plaintiff’s complaint and would like you to draft a Motion to Dismiss Plaintiff’s Claims for Negligence Per Se. Please include the motion and memorandum in one document. There is no need for this to be very long at all. This is a very straightforward issue and should not require too much argument. If you wish, you can simply number your paragraphs with the relevant information. Include the caption, title of our motion, an opening paragraph, a short introduction telling the court the deficiencies in the complaint, an argument/law section and a conclusion. Make sure you sign the motion as well. Remember to look closely at Rules 1-012(b)(6), 1-007, and 1-007.1.
Below are the relevant procedural rules and case law that you will need to use in support of this motion. There is no need to do any additional research.
Heath v. La Mariana Apartments, 2008-NMSC-17, 180 P.3d 664.
In Heath v. La Mariana Apartments, 2008-NMSC-17, ¶8, 180 P.3d 664, the New Mexico Supreme Court reaffirmed that a statute or regulation may only support a negligence per se claim where it defines the duty with specificity. The Court further stated that “where duties are undefined, or defined only in abstract or general terms, leaving to the jury the ascertainment and determination of reasonableness and correctness of acts and conduct under the proven conditions and circumstances, the phrase ‘negligence per se’ has no application.” Id. (quoting Swoboda v. Brown, 196 N.E. 274, 278-79 (Ohio 1935)). Additionally, Plaintiff must establish that they are within the class of persons sought to be protected by the regulations and that the harm that occurred was generally of the type the statute sought to protect. Heath, ¶7.
The purpose of a motion to dismiss is to challenge the legal sufficiency of the claim. Duran v. New Mexico Monitored Treatment Program, 2000-NMCA-023 128 N.M. 659, 664, 996 P.2d 922
Rule 1-012. Defenses and objections; when and how presented; by pleading or motion; motion for judgment on the pleadings.
A. When presented. A defendant shall serve his answer within thirty (30) days after the service of the summons and complaint upon him. A party served with a pleading stating a cross-claim against him shall serve an answer thereto within thirty (30) days after the service upon him. The plaintiff shall serve his reply to a counterclaim in the answer within thirty (30) days after service of the answer, or, if a reply is ordered by the court, within thirty (30) days after service of the order, unless the order otherwise directs. The service of a motion permitted under this rule alters these periods of time as follows, unless a different time is fixed by order of the court:
(1) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within ten (10) days after the court's action;
(2) if the court grants a motion for a more definite statement, the responsive pleading shall be served within ten (10) days after the service of the more definite statement.
B. How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
(1) lack of jurisdiction over the subject matter;
(2) lack of jurisdiction over the person;
(3) improper venue;
(4) insufficiency of process;
(5) insufficiency of service of process;
(6) failure to state a claim upon which relief can be granted;
(7) failure to join a party under Rule 1-019 NMRA.
A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense in Subparagraph (6) of this paragraph to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 1-056 NMRA, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 1-056 NMRA. Motions shall be prepared and submitted in the manner required by Rule 1-007.1 NMRA.
C. Motion for judgment on the pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 1-056 NMRA, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 1-056 NMRA.
D. Preliminary hearings. The defenses specifically enumerated in Subparagraphs (1) to (7) in Paragraph B of this rule, whether made in a pleading or by motion, and the motion for judgment mentioned in Paragraph C of this rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.
E. Motion for more definite statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within ten (10) days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.
F. Motion to strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within thirty (30) days after the service of the pleading upon him or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent or scandalous matter.
G. Consolidation of defenses in motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to him. If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in Subparagraph (2) of Paragraph H of this rule on any of the grounds there stated.
H. Waiver or preservation of certain defenses.
(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process or insufficiency of service of process is waived:
(a) if omitted from a motion in the circumstances described in Paragraph G of this rule; or
(b) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 1-015 NMRA to be made as a matter of course.
(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 1-019 NMRA and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 1-007 NMRA, or by motion for judgment on the pleadings, or at the trial on the merits.
(3) Whenever it appears by suggestions of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.
[As amended, effective August 1, 1989.]
Rule 1-007. Pleadings allowed; form of motions.
A. Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim denominated as such; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 1-014 NMRA; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.
B. Motions and other papers.
(1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.
(2) The rules applicable to captions, signing and other matters of form of pleadings apply to all motions and other papers provided for by these rules.
C. Demurrers, pleas, etc., abolished. Demurrers, pleas and exceptions for insufficiency of a pleading shall not be used.
Rule 1-007.1. Motions; how presented.
A. Requirement of written motion. All motions, except motions made during trial, or as may be permitted by the court, shall be in writing and shall state with particularity the grounds and the relief sought.
B. Unopposed motions. The movant shall determine whether a motion will be opposed. If the motion will not be opposed, an order approved by all parties shall accompany the motion.
C. Opposed motions. The motion shall recite that the movant requested the concurrence of all parties or shall specify why no such request was made. The movant shall not assume that the nature of the motion obviates the need for concurrence from all parties unless the motion is a:
(1) motion to dismiss;
(2) motion for new trial;
(3) motion for judgment as a matter of law;
(4) motion for summary judgment;
(5) motion for relief from a final judgment, order or proceeding pursuant to Paragraph B of Rule 1-060 NMRA.
Notwithstanding the provisions of any other rule, the movant may file with any opposed motion a brief or supporting points with citations or authorities. If the motion requires consideration of facts not of record, the movant shall file copies of all affidavits, depositions or other documentary evidence to be presented in support of the motion. Motions to amend pleadings shall have attached the proposed pleading. A motion for judgment on the pleadings presenting matters outside the pleading shall comply with Rule 1-056 NMRA. A motion for new trial shall comply with Rule 1-059 NMRA.
D. Response. Unless otherwise specifically provided in these rules, any written response and all affidavits, depositions or other documentary evidence in support of the response shall be filed within fifteen (15) days after service of the motion. If a party fails to file a response within the prescribed time period the court may rule with or without a hearing.
E. Separate counter-motions and cross-motions required. Responses to motions shall be made separately from any counter-motions or cross-motions.
F. Reply brief. Any reply brief shall be filed within fifteen (15) days after service of any written response.
G. Request for hearing. A request for hearing shall be filed at the time an opposed motion is filed. The request for hearing shall be substantially in the form approved by the Supreme Court.
H. Notice of completion of briefing. At the expiration of all response times under this rule, the movant shall file a notice of completion of briefing. The notice alerts the judge that the motion is ready for decision.
[Approved, effective August 1, 1989; as amended, effective December 4, 2000; March 15, 2005; November 17, 2008.]