This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version file d by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 U.S. BANK NATIONAL ASSOCIATION 2 as trustee for the CMLTI ASSET-BACKED 3 PASS-THROUGH CERTIFICATES, 4 SERIES 2007-AMC3, 5 Plaintiff-Appellee, 6

v. NO. 31,261 7 DIANE GALLEGOS, 8 Defendant-Appellant. 9 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 10 Carl J. Butkus, District Judge 11 Little & Dranttel, P.C. 12 Elizabeth Dranttel 13 Peggy Whitmore 14 Albuquerque, NM 15 for Appellee 16 Joseph David Camacho 17 Albuquerque, NM 18 for Appellant 19 MEMORANDUM OPINION 202 WECHSLER, Judge. 1 Defendant, Diane Gallegos, appeals from th e district court’s order denying her 2 motion to reconsider the order striking her amended answer and counterclaims. This 3 Court initially issued a calendar notice proposing to reverse the district court order 4 denying Defendant’s motion for reconsideration to the extent it did not permit 5 Defendant to correct her pro cedural error of not seeking leave to file her amended 6 answer and counterclaim. Plaintiff, U.S. Bank, filed a memorandum in opposition to 7 this Court’s proposed calendar notice, calli ng into question this Court’s reliance on 8 what appeared to be a request by Defendant for leave to file an amended complaint at 9 the hearing on the motion for summary judgment. This Court ordered Plaintiff to file 10 a copy of the unofficial transcript of th e summary judgment hearing held on March 11 19, 2010. Plaintiff complied, and after reviewing the transcript, this Court issued a 12 second calendar notice proposing to affirm . Defendant has now filed a memorandum 13 in opposition, articulating four issues on appeal. We note that Defendant’s fourth 14 issue was not raised in the docketing statem ent, and we treat Defendant’s raising a 15 new issue in her memorandum in oppositi on as a motion to amend the docketing 16 statement. Having considered the arguments of counsel and the information before 17 this Court, we deny Defendant’s motion to amend, and we affirm. 18 Leave to File an Amended Answer 193 Defendant originally raised three issues in her docketing statement, which this 1 Court considered, collectively, to challengethe district court’s decision to strike 2 Defendant’s amended answer and the districtcourt’s refusal to grant Defendant leave 3 to correct the procedural error in filing her amended answer. In her memorandum in 4 opposition, Defendant articulates three separate issues: 5 (1) Did the [d]istrict [c]ourt abuse its discretion by treating as fatal 6 and irreversible the failure of Appellant to obtain permission before 7 filing her First Amended Answer and Counterclaim, or to allow 8 permission to be sought in the March [19], 2010, hearing? 9 (2) Was it reversible error for the [d]istrict [c]ourt as an abuse of 10 discretion to fail to grant reconsideration and to allow the submitted 11 material, already in the record, to beconsidered in reaching its decision? 12 (3) Was it reversible error for the [district c]ourt to immediately enter 13 judgment upon striking the First Amended Answer and Counterclaim, 14 without allowing Appellant any opportunity to be heard except by 15 [r]econsideration? 16 [MIO 3] More succinctly stated, Defendant’s argument in her memorandum in 17 opposition centers on whether the district court erred in not permitting Defendant 18 leave to amend when she requested leave inher motion for reconsideration. As we 19 pointed out in our notices of proposed dis position, where no leave had been requested, 20 the district court’s decision to grant Pl aintiff’s motion to strike was appropriate 21 pursuant to Rule 1-015 NMRA. [CN 4; 2dCN 4] With respect to the district court’s 22 denial of Defendant’s motion for reconsideration seeking leave to amend, we relied 234 on Lunn v. Times Insurance Co. , 110 N.M. 73, 792 P.2d 405 (1990), in proposing to 1 conclude that it was not an abuse of discretion for the di strict court to deny leave to 2 amend where a party waits until after summary judgment has been granted. [2d CN 3 5-6] We pointed out that “D efendant could have filed a motion for leave to amend her 4 answer and add counterclaims at any point after being made aware of the procedural 5 defect by Plaintiff’s motion to strike.” [2d CN 6] We further noted that “[i]nstead, 6 Defendant waited until the district court ha d issued a ruling on the motion to strike 7 and motion for summary judgment close to six months after the hearing before 8 seeking leave to amend the complaint, ev en though leave was clearly required by the 9 rules.” [2d CN 6] 10 Defendant contends that Lunn is “nowhere near the f acts” of this case. [MIO 11 7] Instead, Defendant contends that Lunn involves a “more explicit denial of an oral 12 request for amendment, followed by two (2) years of silence.” [MIO 7] Defendant 13 also contends that the delay in the present case was due to the district court’s failure 14 to promptly issue a decision and that the rules do not require “the filing of new 15 motions before rulings on related pending motions are decided and received by 16 counsel.” [MIO 7] We remain unpersuaded. 17 This Court may only reverse the district court if we conclude that it abused its 18 discretion in denying Defendant’s motion for reconsideration and request for leave to 195 amend her answer. See Deaton v. Gutierrez , 2004-NMCA-043, ¶ 9, 135 N.M. 423, 1 89 P.3d 672 (providing that an appellate c ourt reviews the denial of a motion for 2 reconsideration for an abuse of discretion); Schmitz v. Smentowski , 109 N.M. 386, 3 390, 785 P.2d 726, 730 (1990) (stating that mo tions to amend rest within the sound 4 discretion of the trial court and will be reversed on appeal only for an abuse of 5 discretion). “An abuse of disc retion occurs when a ruling is clearly contrary to the 6 logical conclusions demanded by the fact s and circumstances of the case.” Sims v. 7 Sims , 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 P.2d 153. 8 To the extent Defendant attempts to distinguish our Supreme Court’s decision 9 in Lunn , her argument is unavailing. Although f actual differences exist between the 10 two cases, we understand Lunn to stand for the proposition that it is not an abuse of 11 discretion for the district court to deny leave to amend a pleading where the party 12 seeking to amend waits until the merits of the case have beendecided. Although 13 Defendant attempts to place the blame for th e delay on the district court’s failure to 14 promptly issue a decision on Plaintiff’s moti on to strike, Defendant chose to wait for 15 an order on the motion to strike and rely on her argument that leave to amend was not 16 required, rather than remedying the proce dural defect by seeking leave to amend. 17 While Defendant is correct that she is not required to file a new motion before a ruling 18 on the pending motion is entered, we cannot say that it was an abuse of discretion for 196 the district court to deny her motion for reconsideration where Defendant chose to do 1 nothing to remedy her procedural defect, wh ile she waited for the district court’s 2 ruling, and when she knew a motion for summary judgment was also pending. We 3 therefore conclude that the district court did not err in denying Defendant’s request 4 to correct the procedural defect six months after Plaintiff’s motion to strike was filed 5 and after a letter decision on the merits had been issued. See Macias v. Jaramillo , 6 2000-NMCA-086, ¶ 23, 129 N.M. 578, 11 P.3d 153 (stating that the district court may 7 consider “factors such as whether there ha s been undue delay, ba d faith or dilatory 8 motive on the part of the movant, repeated failure to cure defi ciencies by amendments 9 previously allowed, undue prejudice to th e opposing party, and futility of amendment” 10 (internal quotation marks and citation omitted)). 11 Motion to Amend the Docketing Statement 12 This Court construes Defendant’s inclus ion of an issue in her memorandum in 13 opposition that was not raised in her docke ting statement as a motion to amend her 14 docketing statement. Defendant seeks to raise the following issue: Was it an abuse 15 of discretion for summary judgment to be granted before any discovery was 16 conducted? [MIO 3, 15-17] The essential requirements to show good cause for our 17 allowance of an amendment to an appellant ’s docketing statement are: (1) that the 18 motion be timely, (2) that the new issue s ought to be raised was either (a) properly 197 preserved below or (b) allowed to be rais ed for the first time on appeal, and (3) that 1 the issues raised are viable. See State v. Moore , 109 N.M. 119, 129, 782 P.2d 91, 101 2 (Ct. App. 1989), superseded by rule on ot her grounds as stated in State v. Salgado , 3 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991). Defendant contends that this issue was 4 preserved below [MIO 3; see RP 78]; therefore, we determine whether the issue is 5 viable. 6 Defendant asserts that “[ t]he practice of granting summary judgment before 7 discovery has been done is disfavored.” [M IO 16] In opposing Plaintiff’s motion for 8 summary judgment below, Defendant asserted that “discovery could enable [her] the 9 opportunity of raising genuine issues of f act” [RP 80]; “discovery by both parties must 10 be allowed before a motion for summary j udgment is decided” [RP 81]; “[s]ufficient 11 discovery needs to be conducted by both Plaintiff and Defendant . . . prior to [the 12 district court] deciding on the merits of a motion for summary judgment” [RP 82]; 13 and, “Defendant . . . has had insufficient opportunity to prepare a proper response 14 and/or affidavits in opposition to Plaintiff’s Motion” [Id.]. 15 “Rule 1-056(F) allows a party faced with a motion for summary judgment to 16 ask the district court to stay its determination so that the non-movant can conduct 17 discovery needed to rebut the motion.” Butler v. Deutsche Morgan Grenfell, Inc ., 18 2006-NMCA-084, ¶ 38, 140 N.M. 111, 140 P.3d 532; see also Rule 1-056(F) NMRA. 198 However, this Court has pr eviously held that, under Rule 1-056(F), “a party must 1 submit an affidavit explaining why additional time and discovery are needed.” Butler , 2 2006-NMCA-084, ¶ 38. Conclusory statem ents about the need for discovery are 3 insufficient. Id. Instead, the party seeking time for discovery pursuant to Rule 1- 4 056(F) “may not simply rely on vague a ssertions that additional discovery will 5 produce needed, but unspecified, facts, but rather he must specifically demonstrate 6 how postponement of a ruling on the motion will enable him . . . to rebut the movant’s 7 showing of the absence of a genuine issue of fact.” Butler , 2006-NMCA-084, ¶ 38 8 (internal quotation marks and citation omitted). 9 Defendant did no more than make vagueassertions that additional time for 10 discovery was needed. [RP 80-82] Defendant filed no affidavit. Furthermore, 11 although Defendant asserted that she need ed time to develop her defenses, such 12 “vague assertions that additional disc overy would produce needed, but unspecified 13 facts” is insufficient. See id. ¶ 39 (alteration, internal quot ation marks, and citation 14 omitted). As a result, we conclude that De fendant’s contention that the district court 15 abused its discretion by granting summary judgment without providing additional time 16 for discovery is not viable. Accordingly, we deny Defendant’s motion to amend the 17 docketing statement. 18 For the reasons stated above, we affirm. 199 IT IS SO ORDERED. 1 2

_____________________ ___________ 3 JAMES J. WECHSLER, Judge 4 WE CONCUR: 5

__________________________________ 6 MICHAEL D. BUSTAMANTE, Judge 7

__________________________________ 8 TIMOTHY L. GARCIA, Judge 9