N.M. R. Civ. P. Dist. Ct. 1-016
The scheduling order shall also include:
The pretrial scheduling order shall be filed as soon as practicable but in no event more than one hundred twenty (120) days after filing of the complaint. A scheduling order shall not be modified except by order of the court upon a showing of good cause.
If a pretrial scheduling order is not entered, the court shall set the case for trial in a timely manner, but no later than eighteen (18) months after the filing of the complaint.
For good cause shown, the court may extend the time for commencement for trial beyond the time standards set forth in this paragraph or may modify the scheduling order.
At least one of the attorneys for each party participating in any conference before trial shall have authority to enter into stipulations and to make admissions regarding all matters that the participants reasonably anticipate may be discussed.
N.M. R. Civ. P. Dist. Ct. 1-016
Committee commentary for 2009 amendments. - See the 2009 committee commentary to Rule 1-026 NMRA for additional information.
[As amended by Supreme Court Order No. 09-8300-007, effective May 15, 2009.]
ANNOTATIONS The 2009 amendment, approved by Supreme Court Order 09-8300-007, effective May 15, 2009, in Paragraph B, added Subparagraphs (4) and (5) and relettered former Subparagraphs (4), (5) and (6) as Subparagraphs (6), (7) and (8) respectively. Generally. - Under this rule, a procedure is provided for a pretrial conference for the simplification of the issues to be tried. This task is accomplished through obtaining admissions of fact and documents which can be agreed upon, or which would not be relied upon at trial, and for the clarification of other questions looking toward a prompt and clear approach to the controverted issues. Benson v. Export Equip. Corp., 1945 -NMSC-044, 49 N.M. 356, 164 P.2d 380. Parties are expected to disclose at a pretrial hearing all the legal and factual issues which they intend to raise in the lawsuit. United Nuclear Corp. v. General Atomic Co., 1979-NMSC-036, 93 N.M. 105, 597 P.2d 290, cert. denied, 444 U.S. 911, 100 S. Ct. 222, 62 L. Ed. 2d 145 (1979). Rule was framed upon Federal Rule of Civil Procedure 16. Johnson v. Citizens Cas. Co., 1958 -NMSC-023, 63 N.M. 460, 321 P.2d 640. Purpose. - The justification behind this rule is to prevent surprise and to get away from the "sporting" theory of justice. State ex rel. State Hwy. Dep't v. Branchau, 1977-NMSC-048, 90 N.M. 496, 565 P.2d 1013; Martinez v. Rio Rancho Estates, Inc., 1979-NMCA-086, 93 N.M. 187, 598 P.2d 649. The purpose of the Federal Rules of Civil Procedure was to get away from a "sporting" theory of justice and to minimize the often fatal technicalities of common-law pleading. The pretrial conference and the resulting pretrial order must be examined in this light. Tobeck v. United Nuclear-Homestake Partners, 1973-NMCA-099, 85 N.M. 431, 512 P.2d 1267. Amendment of pretrial order to designate expert witnesses. - Where plaintiff filed a motion to amend a scheduling order to allow plaintiff to designate an expert witness ten months after it filed a claim against defendant, eight months after the original scheduling order deadline for designating witnesses, and seven months after the previously granted extension of the deadline had expired; plaintiff's motion did not specifically request an extension on the expert disclosure deadline; and plaintiff never identified any expert witness and did not say that it had actually retained an expert witness by the time the district court heard plaintiff's motion, even though plaintiff knew that it needed expert testimony to support its claim against defendant, the district court did not abuse its discretion in denying plaintiff's request to amend the scheduling order to allow it to designate an expert witness for its claim. Buke, LLC v. Cross Country Auto Sales, LLC, 2014-NMCA-078, cert. denied, 2014-NMCERT-007. Theory generally. - One of the chief purposes of pretrial procedure, and the principal usefulness of a pretrial order, is to formulate the issues to be litigated at the trial. The parties are bound by the pretrial order. They may not later inject an issue not raised at the pretrial conference. Otherwise, the primary objective of pretrial procedure would be defeated. Johnson v. Citizens Cas. Co., 1958 -NMSC-023, 63 N.M. 460, 321 P.2d 640. Purpose of pretrial conference is to simplify the issues, amend the pleadings where necessary and to avoid unnecessary proof of facts at the trial. Johnson v. Citizens Cas. Co., 1958 -NMSC-023, 63 N.M. 460, 321 P.2d 640. Difference of summary judgment motion. - It is the purpose of the pretrial conference to simplify the issues, shape up the testimonial and documentary evidence and generally clear the decks for the trial, while the function of the summary judgment motion is to sift the proofs pro and con as submitted in the various affidavits and exhibits attached thereto, so that a determination may be made, without the expense and delay of a trial, that there are or are not real, as distinct from mere fictitious or paper, issues which must be disposed of in the traditional manner by trial to the court or jury. Becker v. Hidalgo, 1976-NMSC-067, 89 N.M. 627, 556 P.2d 35. As to summary judgment, see Rule 1-056 NMRA. Mere listing of contested issues in pretrial order does not preclude summary judgment on defendant's motion after a hearing. Becker v. Hidalgo, 1976-NMSC-067, 89 N.M. 627, 556 P.2d 35. Since the trial court has some discretion at trial to modify the issues delimited in a pretrial order, its discretion exists at earlier stages as well, so that if issues of fact determined at the conference later dissolve into issues of law before trial, summary judgment is appropriate upon proper motion and hearing. Becker v. Hidalgo, 1976-NMSC-067, 89 N.M. 627, 556 P.2d 35. Trial court cannot decide disputed issues of material fact at a pretrial conference, or upon a motion for summary judgment, but must leave their decision to the fact trier. Buffington v. Continental Cas. Co., 1961 -NMSC-179, 69 N.M. 365, 367 P.2d 539. Rule confers no special power of dismissal not otherwise contained in the rules. Buffington v. Continental Cas. Co., 1961 -NMSC-179, 69 N.M. 365, 367 P.2d 539. Pretrial order should control subsequent cause of action, unless modified at the trial to prevent manifest injustice. Johnson v. Citizens Cas. Co., 1958 -NMSC-023, 63 N.M. 460, 321 P.2d 640. A pretrial order, made and entered without objection, and to which no motion to modify has been made, controls the subsequent course of the action. Ortega, Snead, Dixon & Hanna v. Gennitti, 1979-NMSC-056, 93 N.M. 135, 597 P.2d 745. Scope of order. - A pretrial order may properly limit the issues for trial to those not disposed of by admissions or stipulation of counsel. Berkstresser v. Voight, 1958-NMSC-017, 63 N.M. 470, 321 P.2d 1115. Effect thereof. - A pretrial order determines the issues and becomes the law of the case. State ex rel. State Hwy. Dep't v. Branchau, 1977-NMSC-048, 90 N.M. 496, 565 P.2d 1013. Where pretrial order is made and entered without any objections or exceptions thereto, and thereafter, no motion having been made to modify the same, the course of trial is controlled by the issues framed in the original order; it becomes the law of the case and the trial judge is bound thereby. Johnson v. Citizens Cas. Co., 1958 -NMSC-023, 63 N.M. 460, 321 P.2d 640; see also Transwestern Pipe Line Co. v. Yandell, 1961-NMSC-173, 69 N.M. 448, 367 P.2d 938. Discretion to modify such orders. - As set forth in this rule, the test for modification of pretrial orders is the prevention of manifest injustice, which determination is within the discretion of the trial court; but such decision is reviewable for an abuse of that discretion. State ex rel. State Hwy. Dep't v. Branchau, 1977-NMSC-048, 90 N.M. 496, 565 P.2d 1013. The trial court's decision to modify a pretrial order due to manifest injustice involves a number of factors: 1) whether trial is imminient, 2) whether the request is opposed, 3) whether the non-moving party would be prejudiced, 4) whether the moving party was diligent in obtaining discovery within the guidelines established by the court, 5) the foreseeability of the need for additional discovery in light of the time allowed for discovery, and 6) the likelihood that the discovery will lead to relevant evidence. Lewis v. Samson, 2001-NMSC-035, 131 N.M. 317, 35 P.3d 972. Modification of scheduling order requires a showing of good. - The trial court did not abuse its discretion in refusing to modify its scheduling order only days before trial when plaintiff failed to make a showing of good cause as to why he waited until two months after the close of discovery and only fifteen days before the trial date to seek modification. Valerio v. San Mateo Enterprises, Inc., 2017-NMCA-059. Appellate review of the balancing of the factors is limited to deciding if the trial court committed a clear error in judgment and the reviewing court should not substitute its balance of the factors for that of the trial court. Lewis v. Samson, 2001-NMSC-035, 131 N.M. 317, 35 P.3d 972. To change mind about applicable law. - Where pleadings are superseded by a pretrial order, the pretrial order becomes the pattern governing the lawsuit and it becomes the law of the case, this fact does not prevent the trial judge from changing his mind about applicable law to prevent perpetuating error rather than facilitating the trial of the lawsuit on the genuine issues of fact and the law of the case. Mantz v. Follingstad, 1972-NMCA-164, 84 N.M. 473, 505 P.2d 68. Pretrial order amendable when no unfairness. - The trial court, in its discretion, may amend a pretrial order when no unfairness will result. El Paso Elec. Co. v. Real Estate Mart, Inc., 1982-NMCA-117, 98 N.M. 570, 651 P.2d 105. Movant bears burden to modify order. - The movant bears the burden of demonstrating a manifest injustice sufficient to warrant modification of a pretrial order. Lewis v. Samson, 2001-NMSC-035, 131 N.M. 317, 35 P.3d 972. Binding effect of stipulation. - Where parties reduce their respective rights and priorities to writing and stipulate that a judgment may be entered in conformity thereto, such contract, if lawful, has a binding effect on the judgment that may be entered. It has all the binding effect of findings of fact and conclusions of law made by the court upon evidence, and more. A court may modify its findings in apt time, but it cannot change or modify a contract of the parties. Freedman v. Perea, 1973-NMSC-124, 85 N.M. 745, 517 P.2d 67. Relief may be afforded from stipulation which has been entered into as the result of inadvertence, improvidence or excusable neglect, provided that the situation has not materially changed to the prejudice of the antagonist and that the one seeking relief has been reasonably diligent in doing so. Relief may also be had from a stipulation where there has been a change in conditions or unforeseen developments which would render its enforcement inequitable, provided there has been diligence in discovering the facts relative to the disputed matter, the application is timely and the opposing party has not so changed his position as to be prejudiced to a greater extent than the applicant. Ballard v. Miller, 1974-NMSC-091, 87 N.M. 86, 529 P.2d 752. Courts may set aside stipulations where a mistake of fact is clearly shown, on such terms as will meet the justice of the particular case; but in order to warrant relief, the mistake must be of a material character such as will change the legal rights of the parties and the mistake must be one which could not have been avoided by the exercise of ordinary care. Ballard v. Miller, 1974-NMSC-091, 87 N.M. 86, 529 P.2d 752. Construction of pretrial stipulation of facts. - Pretrial stipulation of facts must be given a fair and reasonable construction in order to effect the intent of the parties. To seek the intention of the parties, the language should not be so construed as to give it the effect of an admission of a fact obviously intended to be controverted. Neither should it be so construed as to constitute a waiver of a right not plainly intended to be relinquished. Crabtree v. Measday, 1973-NMCA-017, 85 N.M. 20, 508 P.2d 1317, cert. denied, 85 N.M. 5, 508 P.2d 1302. Right to explain. - Plaintiff had a right to explain to the jury his recollection of the facts and circumstances surrounding the execution and initialing of an accident report, and where the sole fact stipulated was that either party, if he desired, could introduce plaintiff 's accident report in evidence without objection, then the trial court erred in its order in which it estopped plaintiff from the right of explanation of the accident report or its correctness. Crabtree v. Measday, 1973-NMCA-017, 85 N.M. 20, 508 P.2d 1317, cert. denied, 85 N.M. 5, 508 P.2d 1302. Trial court has authority to compel disclosure of witnesses at pretrial conference. Beverly v. Conquistadores, Inc., 1975-NMCA-070, 88 N.M. 119, 537 P.2d 1015, cert. denied, 88 N.M. 318, 540 P.2d 248. After pretrial order. - The trial court may permit a departure from the strict terms of a pretrial order, insofar as names of witnesses are concerned, at its discretion. Tobeck v. United Nuclear-Homestake Partners, 1973-NMCA-099, 85 N.M. 431, 512 P.2d 1267. Rebuttal witnesses are not usually required to be listed in pretrial orders because they cannot be anticipated to testify at the trial. Martinez v. Rio Rancho Estates, Inc., 1979-NMCA-086, 93 N.M. 187, 598 P.2d 649. Rebuttal witnesses need not be listed in the pretrial order; rebuttal witnesses are those witnesses whose testimony reasonably cannot be anticipated before the time of trial. El Paso Elec. Co. v. Real Estate Mart, Inc., 1982-NMCA-117, 98 N.M. 570, 651 P.2d 105. Trial court abuses its discretion in permitting witness not listed on pretrial order to testify when the opposing party is unaware of the additional witness until after trial starts and has no time to object to or discover the contents of the witness' testimony. State ex rel. State Hwy. Dep't v. Branchau, 1977-NMSC-048, 90 N.M. 496, 565 P.2d 1013. Where no discovery opportunity, unfair to allow unlisted witness' testimony. - Where there is no chance to pursue discovery, it is unfair to allow a witness not listed in the pretrial order to testify. El Paso Elec. Co. v. Real Estate Mart, Inc., 1982-NMCA-117, 98 N.M. 570, 651 P.2d 105. Discretion not abused when witness not in pretrial order not allowed to testify. - A trial court does not abuse its discretion when it refuses to allow the testimony of a witness not included in the pretrial order, when that witness is not presenting rebuttal evidence. Wirth v. Commercial Res., Inc., 1981-NMCA-057, 96 N.M. 340, 630 P.2d 292. It is not up to the party resisting a motion to modify a pretrial order to allow additional witnesses to seek discovery in order to fully develop and counter what the proponent hopes to prove. The proponent, when it becomes aware of the need for unnamed witnesses, should fully identify the witness or witnesses, provide the substance of what he or they will testify to, and then make him or them available for deposition without notice. Gallegos v. Yeargin W. Constructors, 1986-NMCA-087, 104 N.M. 623, 725 P.2d 599. Effect of pretrial order on testimony by expert. - Where the pretrial conference concluded with the trial judge imposing a 10-day limit on advising opposing counsel of expert witnesses to be called, and opposing counsel was notified four or five days before trial that an expert had been located, the pretrial order controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice, and because of the broad discretion given to the trial judge in deciding whether to allow modification of the pretrial order, the trial court judge's refusal to permit the testimony of the new expert did not constitute an abuse of discretion. Herrera v. Springer Corp., 1976-NMCA-015, 89 N.M. 45, 546 P.2d 1202, cert. denied, 89 N.M. 206, 549 P.2d 284. When a plaintiff admits that he learned of a witness' expertise several days before trial but took no action to advise the opposing counsel or to have the name included in the list of witnesses contained in the pretrial order, the court acts well within its discretionary powers in refusing to disregard the limitations of the pretrial order each time the witness is called. Martinez v. Rio Rancho Estates, Inc., 1979-NMCA-086, 93 N.M. 187, 598 P.2d 649. Substantial compliance. - There was substantial compliance with Rule 8(c) (see now Rule 1-008 NMRA) where plaintiff's answer specifically stated that "said contract was terminated by mutual agreement of the parties" and the pretrial order contained a statement that the plaintiff was contending that the written contract had been terminated by mutual agreement of the parties. Plateau, Inc. v. Warren, 1969-NMSC-070, 80 N.M. 318, 455 P.2d 184. Where counterclaim not properly pleaded. - Under this rule relating to pretrial procedure, it is expressly provided that the court may make an order, which, when entered, shall control subsequent course of the action; so that where appellants were aware that appellee's claimed right to set off a repair bill was an issue in the case and matters pertaining to the repair bill were litigated without objection on appellants' part, and likewise the issue was a subject of findings and conclusions requested by appellants, appellee's failure to plead this counterclaim under Rule 13 (see now Rule 1-013 NMRA) did not bar their recovery of this counterclaim. Charley v. Rico Motor Co., 1971-NMCA-004, 82 N.M. 290, 480 P.2d 404. Failure to incorporate a previously filed counterclaim into an amended answer as required by Rule 15(e) (see now Rule 1-015 NMRA) is not a sound basis for its dismissal where there is neither surprise nor prejudice, or where the pretrial order regularly entered states the issues of a counterclaim to be pending for trial pursuant to this rule or where such issues are actually tried without objection under Rule 15(b) (see now Rule 1-015 NMRA). Biebelle v. Norero, 1973-NMSC-052, 85 N.M. 182, 510 P.2d 506. Failure to file order under rule does not constitute reversible error, particularly where no prejudice is asserted or established. State ex rel. State Hwy. Comm'n v. Chavez, 1969-NMSC-072, 80 N.M. 394, 456 P.2d 868. Law reviews. - For note, "Civil Procedure - New Mexico's Recognition of the Motion In Limine," see 8 N.M.L. Rev. 211 (1978). For article, "The Impact of Non-Mutual Collateral Estoppel on Tort Litigation Involving Several Liability," see 18 N.M.L. Rev. 559 (1988). Am. Jur. 2d, A.L.R. and C.J.S. references. - 62A Am. Jur. 2d Pretrial Conference and Procedure §§12 to 49. Pretrial conference procedure as affecting right to discovery, 161 A.L.R. 1151. Suppression before indictment or trial of confession unlawfully obtained, 1 A.L.R.2d 1012. Power of court to adopt general rule requiring pretrial conference, 2 A.L.R.2d 1061. Disclosure, in pretrial proceedings, of trade secret, formula or the like, 17 A.L.R.2d 383. Binding effect of court's order entered after pretrial conference, 22 A.L.R.2d 599. Appealability of order entered in connection with pretrial conference, 95 A.L.R.2d 1361. Failure of party or his attorney to appear at pretrial conference, 55 A.L.R.3d 303. Propriety of allowing state court civil litigant to call expert witness whose name or address was not disclosed during pretrial discovery proceedings, 58 A.L.R.4th 653. Propriety of allowing state court civil litigant to call nonexpert witness whose name or address was not disclosed during pretrial discovery proceedings, 63 A.L.R.4th 712. Validity and effect of local district court rules providing for use of alternative dispute resolution procedures as pretrial settlement mechanisms, 86 A.L.R. Fed. 211. Imposition of sanctions under Rule 16(f), Federal Rules of Civil Procedure, for failing to obey scheduling or pretrial order, 90 A.L.R. Fed. 157. Consideration at trial, under Rule 16 of Federal Rules of Civil Procedure, of issues not fixed for trial in pretrial order, 117 A.L.R. Fed. 515. 88 C.J.S. Trial § 17(2).