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filing date. 

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 U.S. BANK NATIONAL ASSOCIATION

3 as trustee for the CMLTI ASSET-BACKED

4 PASS-THROUGH CERTIFICATES,

5 SERIES 2007-AMC3,

6 Plaintiff-Appellee,

7 v. NO. 31,261

8 DIANE GALLEGOS,

9 Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

11 Carl J. Butkus, District Judge

12 Little & Dranttel, P.C.

13 Elizabeth Dranttel

14 Peggy Whitmore

15 Albuquerque, NM

16 for Appellee

17 Joseph David Camacho

18 Albuquerque, NM

19 for Appellant

20 MEMORANDUM OPINION
2

1 WECHSLER, Judge.

2 Defendant, Diane Gallegos, appeals from the district court’s order denying her

3 motion to reconsider the order striking her amended answer and counterclaims. This

4 Court initially issued a calendar notice proposing to reverse the district court order

5 denying Defendant’s motion for reconsideration to the extent it did not permit

6 Defendant to correct her procedural error of not seeking leave to file her amended

7 answer and counterclaim. Plaintiff, U.S. Bank, filed a memorandum in opposition to

8 this Court’s proposed calendar notice, calling into question this Court’s reliance on

9 what appeared to be a request by Defendant for leave to file an amended complaint at

10 the hearing on the motion for summary judgment. This Court ordered Plaintiff to file

11 a copy of the unofficial transcript of the summary judgment hearing held on March

12 19, 2010. Plaintiff complied, and after reviewing the transcript, this Court issued a

13 second calendar notice proposing to affirm. Defendant has now filed a memorandum

14 in opposition, articulating four issues on appeal. We note that Defendant’s fourth

15 issue was not raised in the docketing statement, and we treat Defendant’s raising a

16 new issue in her memorandum in opposition as a motion to amend the docketing

17 statement. Having considered the arguments of counsel and the information before

18 this Court, we deny Defendant’s motion to amend, and we affirm.

19 Leave to File an Amended Answer
3

1 Defendant originally raised three issues in her docketing statement, which this

2 Court considered, collectively, to challenge the district court’s decision to strike

3 Defendant’s amended answer and the district court’s refusal to grant Defendant leave

4 to correct the procedural error in filing her amended answer. In her memorandum in

5 opposition, Defendant articulates three separate issues:

6 (1) Did the [d]istrict [c]ourt abuse its discretion by treating as fatal

7 and irreversible the failure of Appellant to obtain permission before

8 filing her First Amended Answer and Counterclaim, or to allow

9 permission to be sought in the March [19], 2010, hearing?

10 (2) Was it reversible error for the [d]istrict [c]ourt as an abuse of

11 discretion to fail to grant reconsideration and to allow the submitted

12 material, already in the record, to be considered in reaching its decision?

13 (3) Was it reversible error for the [district c]ourt to immediately enter

14 judgment upon striking the First Amended Answer and Counterclaim,

15 without allowing Appellant any opportunity to be heard except by

16 [r]econsideration?

17 [MIO 3] More succinctly stated, Defendant’s argument in her memorandum in

18 opposition centers on whether the district court erred in not permitting Defendant

19 leave to amend when she requested leave in her motion for reconsideration. As we

20 pointed out in our notices of proposed disposition, where no leave had been requested,

21 the district court’s decision to grant Plaintiff’s motion to strike was appropriate

22 pursuant to Rule 1-015 NMRA. [CN 4; 2dCN 4] With respect to the district court’s

23 denial of Defendant’s motion for reconsideration seeking leave to amend, we relied
4

1 on Lunn v. Times Insurance Co., 110 N.M. 73, 792 P.2d 405 (1990), in proposing to

2 conclude that it was not an abuse of discretion for the district court to deny leave to

3 amend where a party waits until after summary judgment has been granted. [2d CN

4 5-6] We pointed out that “Defendant could have filed a motion for leave to amend her

5 answer and add counterclaims at any point after being made aware of the procedural

6 defect by Plaintiff’s motion to strike.” [2d CN 6] We further noted that “[i]nstead,

7 Defendant waited until the district court had issued a ruling on the motion to strike

8 and motion for summary judgment close to six months after the hearing before

9 seeking leave to amend the complaint, even though leave was clearly required by the

10 rules.” [2d CN 6]

11 Defendant contends that Lunn is “nowhere near the facts” of this case. [MIO

12 7] Instead, Defendant contends that Lunn involves a “more explicit denial of an oral

13 request for amendment, followed by two (2) years of silence.” [MIO 7] Defendant

14 also contends that the delay in the present case was due to the district court’s failure

15 to promptly issue a decision and that the rules do not require “the filing of new

16 motions before rulings on related pending motions are decided and received by

17 counsel.” [MIO 7] We remain unpersuaded. 

18 This Court may only reverse the district court if we conclude that it abused its

19 discretion in denying Defendant’s motion for reconsideration and request for leave to
5

1 amend her answer. See Deaton v. Gutierrez, 2004-NMCA-043, ¶ 9, 135 N.M. 423,

2 89 P.3d 672 (providing that an appellate court reviews the denial of a motion for

3 reconsideration for an abuse of discretion); Schmitz v. Smentowski, 109 N.M. 386,

4 390, 785 P.2d 726, 730 (1990) (stating that motions to amend rest within the sound

5 discretion of the trial court and will be reversed on appeal only for an abuse of

6 discretion). “An abuse of discretion occurs when a ruling is clearly contrary to the

7 logical conclusions demanded by the facts and circumstances of the case.” Sims v.

8 Sims, 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 P.2d 153. 

9 To the extent Defendant attempts to distinguish our Supreme Court’s decision

10 in Lunn, her argument is unavailing. Although factual differences exist between the

11 two cases, we understand Lunn to stand for the proposition that it is not an abuse of

12 discretion for the district court to deny leave to amend a pleading where the party

13 seeking to amend waits until the merits of the case have been decided. Although

14 Defendant attempts to place the blame for the delay on the district court’s failure to

15 promptly issue a decision on Plaintiff’s motion to strike, Defendant chose to wait for

16 an order on the motion to strike and rely on her argument that leave to amend was not

17 required, rather than remedying the procedural defect by seeking leave to amend.

18 While Defendant is correct that she is not required to file a new motion before a ruling

19 on the pending motion is entered, we cannot say that it was an abuse of discretion for
6

1 the district court to deny her motion for reconsideration where Defendant chose to do

2 nothing to remedy her procedural defect, while she waited for the district court’s

3 ruling, and when she knew a motion for summary judgment was also pending. We

4 therefore conclude that the district court did not err in denying Defendant’s request

5 to correct the procedural defect six months after Plaintiff’s motion to strike was filed

6 and after a letter decision on the merits had been issued. See Macias v. Jaramillo,

7 2000-NMCA-086, ¶ 23, 129 N.M. 578, 11 P.3d 153 (stating that the district court may

8 consider “factors such as whether there has been undue delay, bad faith or dilatory

9 motive on the part of the movant, repeated failure to cure deficiencies by amendments

10 previously allowed, undue prejudice to the opposing party, and futility of amendment”

11 (internal quotation marks and citation omitted)). 

12 Motion to Amend the Docketing Statement

13 This Court construes Defendant’s inclusion of an issue in her memorandum in

14 opposition that was not raised in her docketing statement as a motion to amend her

15 docketing statement. Defendant seeks to raise the following issue: Was it an abuse

16 of discretion for summary judgment to be granted before any discovery was

17 conducted? [MIO 3, 15-17] The essential requirements to show good cause for our

18 allowance of an amendment to an appellant’s docketing statement are: (1) that the

19 motion be timely, (2) that the new issue sought to be raised was either (a) properly
7

1 preserved below or (b) allowed to be raised for the first time on appeal, and (3) that

2 the issues raised are viable. See State v. Moore, 109 N.M. 119, 129, 782 P.2d 91, 101

3 (Ct. App. 1989), superseded by rule on other grounds as stated in State v. Salgado,

4 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991). Defendant contends that this issue was

5 preserved below [MIO 3; see RP 78]; therefore, we determine whether the issue is

6 viable.

7 Defendant asserts that “[t]he practice of granting summary judgment before

8 discovery has been done is disfavored.” [MIO 16] In opposing Plaintiff’s motion for

9 summary judgment below, Defendant asserted that “discovery could enable [her] the

10 opportunity of raising genuine issues of fact” [RP 80]; “discovery by both parties must

11 be allowed before a motion for summary judgment is decided” [RP 81]; “[s]ufficient

12 discovery needs to be conducted by both Plaintiff and Defendant . . . prior to [the

13 district court] deciding on the merits of a motion for summary judgment” [RP 82];

14 and, “Defendant . . . has had insufficient opportunity to prepare a proper response

15 and/or affidavits in opposition to Plaintiff’s Motion” [Id.]. 

16 “Rule 1-056(F) allows a party faced with a motion for summary judgment to

17 ask the district court to stay its determination so that the non-movant can conduct

18 discovery needed to rebut the motion.” Butler v. Deutsche Morgan Grenfell, Inc.,

19 2006-NMCA-084, ¶ 38, 140 N.M. 111, 140 P.3d 532; see also Rule 1-056(F) NMRA.
8

1 However, this Court has previously held that, under Rule 1-056(F), “a party must

2 submit an affidavit explaining why additional time and discovery are needed.” Butler,

3 2006-NMCA-084, ¶ 38. Conclusory statements about the need for discovery are

4 insufficient. Id. Instead, the party seeking time for discovery pursuant to Rule 1-

5 056(F) “may not simply rely on vague assertions that additional discovery will

6 produce needed, but unspecified, facts, but rather he must specifically demonstrate

7 how postponement of a ruling on the motion will enable him . . . to rebut the movant’s

8 showing of the absence of a genuine issue of fact.” Butler, 2006-NMCA-084, ¶ 38

9 (internal quotation marks and citation omitted). 

10 Defendant did no more than make vague assertions that additional time for

11 discovery was needed. [RP 80-82] Defendant filed no affidavit. Furthermore,

12 although Defendant asserted that she needed time to develop her defenses, such

13 “vague assertions that additional discovery would produce needed, but unspecified

14 facts” is insufficient. See id. ¶ 39 (alteration, internal quotation marks, and citation

15 omitted). As a result, we conclude that Defendant’s contention that the district court

16 abused its discretion by granting summary judgment without providing additional time

17 for discovery is not viable. Accordingly, we deny Defendant’s motion to amend the

18 docketing statement.

19 For the reasons stated above, we affirm.
9

1 IT IS SO ORDERED.

2

3 ________________________________

4 JAMES J. WECHSLER, Judge

5 WE CONCUR:

6 __________________________________

7 MICHAEL D. BUSTAMANTE, Judge

8 __________________________________

9 TIMOTHY L. GARCIA, Judge