New Mexico Administrative Code
Title 11 - LABOR AND WORKERS' COMPENSATION
Chapter 5 - OCCUPATIONAL HEALTH AND SAFETY
Part 5 - OCCUPATIONAL HEALTH AND SAFETY REVIEW COMMISSION PROCEDURES
Section 11.5.5.501 - MOTIONS

Universal Citation: 11 NM Admin Code 11.5.5.501

Current through Register Vol. 35, No. 18, September 24, 2024

A. General: All motions, except those made orally during a hearing, shall:

(1) be in writing;

(2) specify the grounds for the motion;

(3) state the relief or order sought; and

(4) if the motion requires consideration of facts not already in the record, have attached as exhibits all affidavits, certificates, depositions, or other documentary evidence relied upon.

B. Determination of opposition: The moving party shall determine whether the motion will be opposed, except that the moving party may assume that the motion will be opposed if:

(1) the motion seeks dismissal or other relief with the effect of ultimately disposing of the case; or

(2) the moving party has been unable, after reasonable effort, to contact the non-moving party to determine whether the motion will be opposed.

C. Unopposed motions: If the motion will not be opposed, the motion shall state that concurrence of all other parties was granted.

(1) With any unopposed motion, the moving party shall submit a proposed order.

(2) The proposed order shall be approved by all parties. Approval of the moving party shall be indicated by the signature of the moving party or that party's advocate. Approval of a non-moving party may be indicated by the signature of the non-moving party or that party's advocate, or by a statement on the proposed order indicating that concurrence of that party was obtained by telephone.

(3) The hearing officer shall grant any unopposed motion, unless the hearing officer finds that granting of the motion would not be consistent with the purpose of the Act. If the hearing officer denies an unopposed motion, any party may, within five (5) days after service of the hearing officer's order, request review of such action by the commission.

D. Opposed motions:

(1) Any opposed motion shall state either that concurrence was sought and denied, or why concurrence was not sought.
(a) Except as otherwise provided in Subparagraph b of this Paragraph, an opposed motion shall be accompanied by a written argument.

(b) The following motions, even if opposed, need not be accompanied by a written argument, but shall cite the applicable provisions of the Act and of this Part, or any other authority deemed necessary:
(i) a motion to dismiss a notice of contest or a petition for modification of abatement period as untimely;

(ii) a motion to require submission of an amended notice of contest or petition for modification of abatement period when the original notice or petition does not comply with the format required by this Part;

(iii) a motion to dismiss a notice of contest for the respondent's failure, or a petition for modification of abatement period for the petitioner's failure, to file:
(a) a timely affidavit of posting as proof of compliance with any applicable employee notification requirements; or

(b) a timely affidavit of explanation for non-posting in lieu of an affidavit of posting, when applicable;

(iv) a motion to vacate the citations for the department's failure to file a timely administrative complaint;

(v) a motion to dismiss a notice of contest for the respondent's failure to file a timely answer;

(vi) a motion to dismiss a petition for modification of abatement period for the petitioner's failure to file a timely request for hearing;

(vii) a motion seeking summary approval of a petition for modification of abatement period for the respondent's failure to file a timely response to the petition; or

(viii) any motion made orally during the course of a hearing.

(2) Any party upon whom an opposed motion is served shall have ten (10) days from the date of service to file a response and any documentary evidence in support of the response. A non-moving party who fails to file a response within that time, or any extension of the time granted by the commission chair, shall be deemed to have consented to the granting of the motion.

(3) The moving party may, but is not required to, submit a reply to the non-moving party's response within five (5) days after service of the response.

(4) When every party upon whom a motion has been served is deemed to have consented to granting of the motion pursuant to Paragraph 2 of this Subsection, the moving party shall submit a proposed order granting the motion. A copy of the proposed order shall be attached as an exhibit to a supplementary document filed by the moving party no later than five (5) days after the response was due.

(5) All opposed motions will be decided without a hearing, whether or not a hearing is requested by a party, unless otherwise ordered by the commission or the hearing officer, as applicable. Any request for hearing must be filed simultaneously with:
(a) the motion, if requested by the moving party; or

(b) the response to the motion, if requested by any non-moving party.

(6) The decision shall be implemented by written order, except that a decision on an oral motion made during a hearing on the merits may be incorporated into the commission's order on the merits.
(a) The commission or the hearing officer, as applicable, shall specify whether the order on an opposed motion, except one on which the decision will be incorporated into the order on the merits, will be drafted by:
(i) the commission counsel;

(ii) a commission member;

(iii) the hearing officer; or

(iv) the prevailing party or that party's advocate.

(b) The drafter of the proposed order shall attach a copy thereof to a cover document, which shall then be filed with the commission secretary and served upon each party or advocate except, if applicable, the party whose advocate drafted the proposed order.

(c) Any party may file an objection to the proposed order within five (5) days after service. A copy of the objection shall be served on each party and, if the drafter is anyone other than a party or a party's advocate, on the drafter. The objection:
(i) shall be directed to the form of the proposed order;

(ii) shall not raise any substantive issue unless the issue relates to a ground for the proposed order that was not raised by any party; and

(iii) shall include, as an exhibit, an alternative form of proposed order.

(d) If the order is issued by the commission, any member who dissented from the decision, or who differed with the grounds upon which the majority reached the decision, may write a dissenting or concurring opinion to be attached to the order.

E. Withdrawal of motion: The party filing a motion may voluntarily, and without the necessity of obtaining the consent of any other party, withdraw the motion at any time prior to entry of an order ruling on the motion.

F. Applicability to affirmative defenses: This Section shall be applicable to any affirmative defense based on the grounds listed in SCRA 1986, 1-012.B, except that a defense asserting a lack of subject matter jurisdiction shall not be denied solely for failure to comply with the procedural requirements of this Section.

Disclaimer: These regulations may not be the most recent version. New Mexico may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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