DEFENSE news - NMDLAnmdla.org/Resources/Documents/Newsletter_2012_Q3_Fall_FINAL.pdf · Modrall, Sperling, Roehl, Harris & Sisk, PA Page 4 What Suffices for Written Consent to

DEFENSE newsFall 2012

The Legal News Journal for New Mexico Civil Defense Lawyers

A Conversation with Second Judicial District Court Chief Judge

Ted Baca Regarding E-FilingInterviewed by Megan T. Muirhead, Esq.,Modrall, Sperling, Roehl, Harris & Sisk, PA

Page 4

What Suffices for Written Consent to Removal in the Electronic Age

By Mark D. Standridge, Esq.,Jarmie & Associates

Page 8

Medical Marijuana in the WorkplaceBy Alex Walker, Esq.,

Modrall, Sperling, Roehl, Harris & Sisk, PAPage 14

NMDLA Civil Case Summaries May - July 2012 State Court Opinions

By John S. Stiff, Esq., Ann L. Keith, Esq., & Nels D. Orell, Esq., Stiff, Keith & Garcia, LLC

Page 16

Service of Subpoenas on Insurance Companies in New Mexico

By Ann L. Keith, Esq., & Nels D. Orell, Esq., Stiff, Keith & Garcia, LLC

Page 21

EditionIN THIS

New Mexico Defense Lawyers AssociationPO Box 94116

Albuquerque, NM 87199-4116www.nmdla.org

tel: 505.797.6021

Message fromthe President

Page 3

Volunteers Needed for Law-La-Palooza

Page 13

NMDLA Contributors

Page 15

2012 Lawyer of the Year Award Winners

Page 19

Causation Test in Retaliatory Discharge

CasesPage 23

The New Mexico Defense Lawyers Association is the only New Mexico Organization of civil defense attorneys. We currently have over 400 members. A common misconception about NMDLA is that its membership is limited to civil defense attorneys specializing solely in insurance defense. However, membership in NMDLA is open to all attorneys duly licensed to practice law in New Mexico who devote the majority of their time to the defense of civil litigation. Our members include attorneys who specialize in commercial litigation, employment, civil rights, and products liability.

The purpose of NMDLA is to provide a forum where New Mexico civil defense lawyers can communicate, associate, and organize efforts of common interest. NMDLA provides a professional association of New Mexico civil defense lawyers dedicated to helping its members improve their legal skills and knowledge. NMDLA attempts to assist the courts to create reasonable and understandable standards for emerging areas of the law, so as to make New Mexico case law dependable, reliable, and a positive influence in promoting the growth of business and the economy in our State.

The services we provide our members include, but are not limited to:

• Exceptional continuing legal education opportunities, including online seminars, and self-study tapes, with significant discounts for DLA members;

• A newsletter, Defense News, the legal news journal for New Mexico Defense Trial Lawyers;

• Members‘ lunches that provide an opportunity to socialize with other civil defense lawyers, share ideas, and listen to speakers discuss a wide range of issues relevant to civil defense attorneys;

• An e-mail network and website, where members can obtain information on judges, lawyers, experts, jury verdicts, the latest developments in the law, and other issues; and

• An Amicus Brief program on issues of exceptional interest to the civil defense bar.

Nancy FranchiniInterim President

Bryan EvansPresident Elect

Richard PadillaSecretary/Treasurer

Board MembersWilliam R. Anderson Ann ConwayBryan GarciaSean E. GarrettRichard E. Hatch Trent Howell

Lorena Olmos Tony F. Ortiz

S. Carolyn Ramos Mark RileyCody R. RogersBrenda M. Saiz

Defense News

Co-Editors in Chief Courtenay L. Keller Harriett Hickman

Board of Editors

Sandra L. BeerleDenise ChanezNathan Cobb Andrew JohnsonAnn L. KeithCassandra R. Malone

Carlos G. Martinez

Megan T. MuirheadErica R. NeffNels D. Orell Agnes Fuentevilla PadillaLisa PullenJohn S. StiffAlex C. Walker

Executive Director

Jean F. Gibson

Defense News 2 Fall 2012

Board of directors

NMDL A

Dear NMDLA Members-

On October 5, 2012 at the Hotel Andaluz in Albuquerque, NMDLA will have its Annual Meeting. Bryan Evans, NMDLA President-Elect, has prepared an excellent program for us this year titled Friend or Foe: Addressing Ethical and Litigation Issues Facing the Modern Defense Attorney and the Judiciary in the Age of Social Media.

The program will start with a luncheon where the Outstanding Defense Lawyer and the Outstanding Young Defense Lawyer of the year awards will be given. The 2012 NMDLA Outstanding Defense Lawyer is Stephen M. Simone and the Outstanding Young Defense Lawyer is Tiffany L. Roach Martin. Congratulations Steve and Tiffany!

Following the luncheon will be a 2.5 hours of Ethics/Professionalism credits. The first speaker will be Larry J. Cohen, JD, PhD whose presentation is titled “What Hollywood Can Teach Us About Ethics.” Mr. Cohen is an adjunct faculty member at the Sandra Day O’Conner College of Law at Arizona State University, is a certified specialist in injury and wrongful death litigation and focuses his more than twenty-six years of practice on serious medical injury and emotional damage cases.

By NaNcy fraNchiNi, esq., GallaGher casados & MaNN Pc

A Me s s Ag e Fr o M t h e Pr e s i d e n t

The second hour will be a judges’ panel discussion on Social Media and Litigation. The panel will include Judge Gerard J. Lavelle and Judge Alan M. Malott from the Second Judicial District Court and Judge Freddie J. Romero and Judge William G. Shoobridge from the Fifth Judicial District Court. The Annual Meeting will conclude with a reception held at Hotel Andaluz’s Ibiza Patio Lounge.

On another note, NMDLA board member and amicus curiae brief writer, Sean E. Garrett of Montgomery & Andrews PA, has been working tirelessly. He has submitted one amicus brief to the New Mexico Supreme Court regarding what obligation an attorney has towards a third party beneficiary under the Wrongful Death Act. He is in the process of drafting another amicus brief to the New Mexico Court of Appeals regarding the use of a personal representative under the Wrongful Death Act to establish venue. NMDLA will report the outcomes in these two cases once they are handed down. Thank you, Sean, for all of your hard and dedicated work for the NMDLA.

Finally, I’d like to encourage all of you to volunteer for the Third Annual Law-La-Palooza in Albuquerque on October 25, 2012. The Law-La-Palooza is a community event targeted at providing free legal consultation to the district’s low-income population. Please volunteer for this event and increase meaningful access to justice to individuals, regardless of their means. Contact Erin Olson at New Mexico Legal Aid at [email protected] or 505-243-7871, ext 114 for more information.

On behalf of the NMDLA, have a terrific fall!

Nancy Franchini Gallagher, Casados & Mann PC NMDLA Interim President 2012

Over the last few years we have been able to enhance the value of membership in the NMDLA by way of electronic access to a variety of information — especially through the use of email inquiries for information and publication of peer accomplishments. As part of that continuing effort, we ask each of you to bring your accomplishments to the DLA‘s attention. Submissions might include a good result at trial, a favorable appellate decision, a successful motion at the trial court level, or a recommended expert or mediator.

When you submit your success, we will publish the information and case details to our website‘s library of defense verdicts, and send an email notification to all DLA members. Also, the NMDLA website‘s home page highlights our most recent submissions.

Successes may be submitted in the member-only section of NMDLA‘s website, www.nmdla.org. If you need password assistance, contact us at [email protected].

Share Your Successes!


Interviewed by Megan T. Muirhead, Esq.,Modrall, Sperling, Roehl, Harris & Sisk, PA

A Co n v e r s At i o n w i t h se Co n d Ju d i C i A l di s t r i C t Co u r t Ch i e F Ju d g e te d BAC A re g A r d i n g e-Fi l i n g


MM: From the Court’s perspective, how is the transition to e-filing going?

CJTB: Now that we’re a year into it, I think it is going very well. To some extent the transition is over, and we are just operating regularly by e-filing. We recognize that it was bumpy at the beginning. The judges and the clerks had to learn the whole system. The staff had to learn the system and the attorneys had to learn the system. We all had a learning curve; and I think everybody worked very hard to become informed with the new procedure. I think it is working really well now, and I can tell that by the fact that I don’t get nearly as many complaints as I used to get about a year ago.

MM: The turnaround on filings has improved tremendously. What happens after each document is submitted for e-filing?

CJTB: The clerks deal with over a thousand filings each week. Last year, there were 50,000 cases filed in the Second Judicial District. At the beginning of the transition, pleadings would come into the clerk’s office, and they go into a cue. For each filing, the clerks have to review it, check the case number, check the caption, and make sure the right codes are there. In the beginning, it was taking two weeks and lawyers didn’t find out if their pleading had been accepted or rejected. That was not acceptable but over time the clerks have become more skilled and better at it so they are doing it much faster now. There

are around fifteen clerks who are fully trained and pretty proficient now.

MM: What are the biggest benefits from your perspective for e-filing?

CJTB: I think the biggest benefit is to the entire legal community. Anybody who is connected to a case can pull up that case and look at the complete pleadings without having to come to the court, request the file and make copies. The benefit to the courts is that it has allowed us to become more efficient. We have not seen any pictures on the front page of the local newspaper showing long lines of people waiting to file documents. We are also saving money because we do not have to have people open up paper files, bind them and store them. That is all a thing of the past.

Another benefit is the ability to track communications electronically. Let me give you an example of what I mean. I walked into court

It has been a little over a year since the Second Judicial District made the move to the Odyssey e-filing system. Chief Judge Ted Baca sat down with DLA Editorial Board member Megan Muirhead to answer questions about how the transition has gone and about the future of e-filing.

The HonorableTed Baca

A Conversation with Chief Judge Ted BacaContinued from Page 4


one day and nobody showed up for the hearing. I knew the lawyers involved and they were good lawyers. My assistant pulled up the notice and through our system we can look to see when they were e-served, who opened the e-served document, and when they opened it. Well, in this case, the system had not served the lawyers for some reason, and they did not get notice of the hearing. We called in our I.T. Department and got everybody looking at it. The company that provides this whole system, Tyler Technologies, worked to fix the problem, and in the meantime they sent us a report every day of the documents that were not delivered.

MM: Besides the delay which seems to be resolved, do you see any big problems with e-filing?

CJTB: Not really. Probably the biggest problem is that it takes judges longer to approve orders. Before e-filing, the lawyers would bring us an order and motion and we could just sign it. Now, it takes longer to go through that whole process electronically. So while everybody else is working faster, it has slowed us down a little bit.

MM: Is there anything that attorneys can do to help with e-filing?

CJTB: One thing they can do is to make sure that documents don’t have macros or any special formatting embedded in them. Those cause problems especially on orders and documents that judges electronically sign. Another help would be to make sure that all necessary supporting documents are submitted, the case number is correct, that parties and captions are correct and that your signatures are there.

MM: What is on the horizon for e-filing?

CJTB: E-filing is still being rolled out to other judicial districts in the state. Metro courts may get rolled out early next year. Within the Second Judicial District, the next step for e-filing is looking into whether criminal matters should go to e-filing. It would make sense because there are always attorneys involved--there is a D.A. and a public defender. Criminal matters usually don’t have pro se individuals. Domestic relations, on the other hand, will take some discussion because 67% of our cases now have at least one party who is pro se.

MM: Do you know if there is a goal for e-filing to become similar to the federal system where you can search opinions by judge and topic?

CJTB: No, I do not think that’s been discussed.

MM: Where do we go if we are having problems or questions with e-filing in the Second Judicial District?

CJTB: The Second Judicial District Court’s website has links to the Odyssey File & Serve Quick Reference Guide as well as the 2nd District E-Filing Guide (www.nmcourts.com). In addition, you could call our clerk’s office at (505) 841-7451. You could also call the Judicial Information Division at (505) 476-6911.

DEFENSE news

The Legal News Journal forNew Mexico Civil Defense Lawyers

Market your products or services in the next

issue of Defense News. Contact NMDLA for more information at

[email protected].


Your structured se�lement provider

Susan M. Morrison, JD, CFP®

(505) 433-2255 o�ce

Planning

Close the Case Talk to a local certi�ed �nancial planner

before you se�le.

All at no fee to counsel or parties

Structured and tax-deferred se�lements can:

Q Services:

Close the Case

Hypothetical:

Plaintiff sues four Defendants in a state court action that, on its face, is removable to federal court under 28 U.S.C. § 1441(a). All four Defendants are served on the same day. Each Defendant is separately represented by attorneys Smith, Jones, Davidson and Roberts. Smith, whose office is in a city that is over two-hundred miles away from the other defense counsel, prepares a Notice of Removal to be electronically filed with the federal court. Smith contacts the other three defense counsel via e-mail, stating his intention to remove the case and requesting that each attorney send him some form of written consent to removal on behalf of their respective clients. Before hitting “Send,” Smith puts the case number in the subject line of his e-mail message.

Upon receipt of Smith’s e-mail, Jones immediately faxes Smith a signed letter on her firm’s letterhead, referencing the case number and indicating that her client consents to removal. Davidson sends a reply e-mail to Smith from his firm e-mail account and states his client’s consent. Davidson’s e-mail address is [email protected] (i.e. it includes his name and identifies his law firm), and his e-mail account is set up so that any outgoing messages include a signature block with his name, firm name, address, phone and fax numbers. Finally, Roberts does not send Smith any written consent—instead, he calls Smith and states his client’s consent to removal.

On the day of the removal deadline, Smith electronically files a Notice of Removal, stating that all Defendants were contacted and expressed their consent to removal. Smith scans and attaches the fax from Jones and a print-out of his e-mail exchange with Davidson as exhibits to the Notice of Removal. With respect to Roberts, Smith represents in the Notice of Removal that Roberts had given oral consent on behalf of his client. Before midnight that same day, Roberts electronically files a Notice of Consent to Removal with the federal court, confirming Smith’s representation to the Court and unequivocally stating his client’s consent

By Mark D. Standridge, Esq.,Jarmie & Associates

whAt suFFiCes For written Consent to reMovAl in the eleCtroniC Age

to removal. The following week, plaintiff files a Motion to Remand to state court, arguing that the removal was defective based upon insufficient written consent of all Defendants to removal. Will this motion be successful?

The “Rule of Unanimity” and the Rule of Written Consent

28 U.S.C. § 1446(b)(2)(A) provides that, where a civil action is removed solely under 28 U.S.C. § 1441(a), “all defendants who have been properly joined and served must join in or consent to the removal of the action.” The federal courts have long enforced this “rule of unanimity,” requiring that all Defendants named in a civil suit must consent to the removal of the action. See, e.g., Farmland Nat’l Beef Packing Co. v. Stone Container Corp., 98 Fed. Appx. 752, 756 (10th Cir. 2004) (unpublished) (citing Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir. 1981). One of the purposes behind the rule is to keep one Defendant from imposing its choice of a federal forum on unwilling Defendants. See United States ex rel. Acoma & Laguna Indian Pueblo v. Bluewater-Toltec Irrigation Dist., 580 F. Supp. 1434, 1441 n.2 (D.N.M. 1984).

A great number of courts, including several within the Tenth Circuit, have required that each Defendant who has been served in the lawsuit must express its consent to removal in writing, via separate signatures or other independent written notices of consent filed with the Court. See, e.g., Roe v. Donohue, 38 F.3d 298, 301 (7th. Cir. 1994); Jarvis v. FHP of Utah, Inc., 874 F. Supp.1253, 1254 (D. Utah 1995); Wakefield v. Olcott, 983 F. Supp. 1018, 1021 (D. Kan. 1997); Henderson v. Homes, 920 F. Supp. 1184, 1186-87 (D. Kan. 1996); Landman v. Borough of Bristol, 896 F. Supp. 406, 408-09 (E.D. Pa. 1995); Smith v. Health Ctr. of Lake City, 252 F. Supp.2d 1336, 1339 (M.D. Fla. 2003); Nathe v. Pottenberg, 931 F. Supp. 822, 825 (M.D. Fla. 1995). On the contrary, other courts have held that neither Section 1446


nor Fed. R. Civ. P. Rule 11 require counsel for each Defendant to file a separate, independent document indicating the Defendant’s consent to removal. See, e.g., Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1224-1225 (9th Cir. 2009) (holding “that the filing of a notice of removal can be effective without individual consent documents on behalf of each defendant. One defendant’s timely removal notice containing an averment of the other defendants’ consent and signed by an attorney of record is sufficient”); Harper v. AutoAlliance Int’l, Inc., 392 F. 3d 195, 202 (6th Cir. 2004) (although neither Defendant nor his counsel directly expressed concurrence, statement of concurrence in other Defendants’ notice of removal satisfied unanimity requirement).

Within the District of New Mexico, there is a split of authority on this subject. Compare, e.g., Roybal v. City of Albuquerque, 2008 WL 5991063, at *7-8 (D.N.M Sep. 24, 2008) (unpublished) (finding simple attestation of consent in a removal pleading to be sufficient); Gonzales v. Goodyear Tire and Rubber Co., No. CV-05-0941 BB/LFG, Doc. No. 48, Mem. Op. and Order (D.N.M. Jan. 25, 2006) (unpublished), at 12-13 (“this Court…holds that 28 U.S.C. §1446 does not require signatures from each individual defendant or some other written expression of consent, as long as each defendant did in fact join in the removal notice”), with State Farm Fire and Cas. Co. v. Dunn-Edwards Corp., 728 F.Supp.2d 1273, 1277-78 (D.N.M. 2010) (each Defendant must either sign the removal pleading, file its own Notice of Removal or file its own written consent within thirty days of being served).

Perhaps foreshadowing his later thinking on this subject, Judge Bruce Black was quick to note in Gonzales that it is “better practice for counsel for each defendant to sign the removal notice or file the affidavit of counsel within thirty days.” Gonzales, at 13 n.7. Judge Black refined that admonition in 2010:

Our jurisprudence supports an almost foolproof directive, which follows the clear language of the rule and should satisfy every judge: If you represent a served, properly joined defendant who consents to a co-defendant’s removal, you must sign the notice of removal on behalf of your client, file your own notice of removal, or file a notice of consent to removal within the thirty-day removal period. Do not rely on phone calls or emails or handshakes. Do not rely on a co-defendant’s counsel to say something on your client’s behalf. File something with the Court. Anything less may be insufficient.

State Farm Fire and Cas. Co. v. Dunn-Edwards Corp., supra, 728 F.Supp.2d at 1277.

While it may be the “best practice” to have each attorney sign the removal notice, it is certainly not always the most practical solution, particularly where counsel are not in the same city or state (as in the hypothetical described above), or where they are under a time constraint with the removal deadline. Absent securing the signature of every Defendant’s attorney on the removal pleading itself, what suffices for “written consent” to the removal of a case, particularly in the age of electronic communication, filing and service? As discussed herein, the form of the written consent—whether communicated by letter, by e-mail or in a filing with the court itself—is not nearly as important as the timing of the consent. Under prevailing trends in case law, so long as some form of written consent from each Defendant is communicated to the Court within the 30-day removal period found in 28 U.S.C. § 1446(b), the “rule of unanimity” should be satisfied.

The Forms of Written Consent to Removal

1. Letters from Counsel

The federal courts have long held that letters from counsel can serve as the written consent needed to satisfy the rule of unanimity, so long as such letters are timely brought to the attention of the Court (either through attaching the letter as an exhibit to the removal pleading or by directing the letter directly to the Court itself ). See, e.g., Michaels v. New Jersey, 955 F.Supp. 315, 321 (D.N.J. 1996) (written consent to removal can include “a letter provid[ing] the court with a written entry that would unequivocally bind the allegedly consenting defendants”); Myer v. Nitetrain Coach Co., Inc., 459 F.Supp.2d 1074, 1078 (W.D.Wash. 2006) (Defendants met written consent requirement by submitting with the Notice of Removal a letter from counsel for the non-removing Defendant confirming consent to removal); Pietrangelo v. Alvas Corp., 664 F.Supp.2d 420, 431 (D. Vt. 2009) (“the consenting defendants notified the Court of their consents [to removal] in a timely manner. Doing so by letter did not strictly comply with this Court’s rule for filings, but has been recognized as acceptable in other jurisdictions”); cf. Martinez v. Crespin, No. CV-00-6 MV/WWD, Doc. No. 18, Mem. Order and Op. (D.N.M. June 1, 2000) (unpublished) (denying Motion to Remand and noting that the consent of the non-removing Defendant was shown in a letter attached to removing Defendant’s response to motion).

On the other hand, letters exchanged by counsel—but not filed with the Court prior to the expiration of the removal deadline—typically will not suffice, even where they are later brought to the Court’s attention. For example, in Berrios v. Our Lady of Mercy Med. Ctr., 1999 WL 92269

Written Consent to RemovalContinued from Page 8




(S.D.N.Y.1999), the Defendants agreed to remove the case prior to the petitioning Defendant’s filing of the Notice of Removal. However, the non-petitioning Defendant never filed a separate written consent with the Court, even though he wrote a letter to the petitioning Defendant expressing his consent. Berrios, 1999 WL 92269 at *2; see also Ogletree v. Barnes, 851 F.Supp. 184, 190 (E.D.Pa.1994) (“Without some sort of indication from each defendant that it either joins in or consents to the removal — perhaps even an informal indication such as a letter to the court — there is nothing on the record to bind that defendant to the removal”) (emphasis supplied). Thus, where a letter of consent is not promptly brought to the Court’s attention, it may not satisfy the rule of unanimity.

2. Affidavits or Notices Confirming Oral Consent

It should be an obvious proposition that oral consent, by itself, does not typically suffice to satisfy the rule of unanimity required for the removal of a multi-

Defendant case. Indeed, oral consent alone—without any accompanying written confirmation directed to the Court—has repeatedly been found to constitute a defect in removal proceedings. See, e.g., Amteco, Inc. v. Bway Corp., 241 F.Supp.2d 1028 (E.D. Mo. 2003) (where corporate Defendant’s president provided oral consent to the removing co-Defendant’s lawyer, but the corporation did not provide any form of consent directly to the court within thirty days, “removal was not proper because the consent was not communicated directly to the court”); Carter v. Ingersoll-Rand Co., Inc., No. 00-6438, 2001 WL 238540, at *8 (E.D. Pa. March 12, 2001) (unpublished) (finding that a letter and voice mail expressing consent to removal, communicated exclusively between the Defendants and not to the Court, could not establish the non-petition Defendant’s joinder in or consent to removal). Where counsel has merely provided oral consent to removal, it is indeed the better practice for counsel to file his or her own affidavit or notice of joinder in the removal.

3. Electronic Mail

Electronic mail as evidence of written consent to removal comes with its own share of issues; in other

Medical Expert Services

Offering my services as a reviewer of medical records, to help deter-

mine validity of claims, strengths & weaknesses of a potential case,

and any other aspects of a case that may fall under my specialty

and expertise backed by the following:

• Diplomate of the American Board of Surgery

• 35 years experience in the practice of general, acute-care &

trauma surgery

• Fellow of both the American & International College of Surgeons

• Member of the American Association for the Surgery of Trauma &

Retired Combat Veteran

• Served as commander of a Forward Surgical Team in Afghanistan

I adhere strictly to the “Statement on the Physician Acting as an Ex-

pert Witness” approved by the American College of Surgeons Board

of Regents.

J. D. Wassner, MD, FACS, FICS

[email protected]

CV available upon request



contexts, e-mail has emerged as a potentially problematic source of written evidence, particularly with respect to authentication. The argument has been made that e-mails and text messages are inherently unreliable because of their relative anonymity and the fact that while an electronic message can be traced to a particular computer, it can rarely be connected to a specific author with any certainty—unless the purported author is actually witnessed sending the e-mail, there is always the possibility it is not from whom it claims. Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 543 (D.Md. 2007) (quoting In re F.P., 878 A.2d 91, 95-96 (Pa.Super.Ct. 2005). Anyone with the right password can gain access to another’s e-mail account and send a message ostensibly from that person. However, the same uncertainties exist with traditional written documents: a signature can be forged, a letter can be typed on another’s computer, and distinct letterhead stationary can be copied or stolen. See id.

Indeed, as noted in United States v. Safavian, 435 F.Supp.2d 36 (D.D.C. 2006), e-mails can “have many distinctive characteristics, including the actual e-mail addresses containing the ‘@’ symbol, widely known to be part of an email address, and certainly a distinctive mark that identifies the document in question as an e-mail.” Safavian, 435 F.Supp.2d at 40 (citing United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000)). E-mail addresses—particularly those from law firms, companies and government agencies—often contain the name of the person connected to the address, and frequently, “these e-mails contain the name of the sender or recipient in the bodies of the e-mail, in the signature blocks at the end of the e-mail, in the ‘To:’ and ‘From:’ headings, and by signature of the sender.” Safavian, 435 F.Supp.2d at 40. Additionally, it can readily be determined whether an e-mail came from the computer of the reported sender or not, just as there are ways to determine whether a signature is forged—therefore, the fact that the e-mail header with the name of the sender can be electronically “forged” should not render it an insufficient signature as a matter of law. Int’l Casings Group v. Premium Standard Farms, 358 F.Supp.2d 863, 873 n.13 (W.D. Mo. 2005).

Given these principles, an attorney’s e-mail—sent from a firm or business account and referencing the subject of removal—should readily suffice as the type of written consent needed to satisfy the rule of unanimity. Of course, as with any other form of written consent, the e-mail message should be directed to the attention of the Court within the removal period. As shown herein, in most (but not all) cases, failure to attach the e-mails discussing and confirming all Defendants’ consent proved to be fatal to removal.

In Edelman v. Page, 535 F.Supp.2d 290 (D.Conn. 2008), only one of the named Defendants filed the removal petition. After the notice of removal was challenged, the non-removing Defendants submitted e-mails to demonstrate that within the 30-day period, they had consented to the removal, planned for it, and agreed that one Defendant’s attorney would file the notice of removal on behalf of all defendants. However, prior to the filing of plaintiff ’s motion to remand, these e-mails had only been directed to Defendants’ attorneys and “not to the court.” Edelman, 535 F.Supp.2d at 295. In remanding the case, the court in Edelman noted that the e-mails were “insufficient to support the Defendants’ position” that they had provided the court with the requisite written consent. Id.

Similarly, in Beard v. Lehman Bros. Holdings, Inc., 458 F.Supp.2d 1314 (M.D. Ala. 2006), certain Defendants filed a Notice of Removal, in which they alleged that all Defendants consented to removal. In response to the plaintiff ’s motion to remand, the Defendants argued that their attorneys worked together to produce the Notice of Removal and that one attorney was authorized to sign the petition for removal on behalf of the other Defendants. Beard, 458 F.Supp.2d at 1320. The Defendants presented evidence of such cooperation, including e-mails “showing that the lawyers were working together to get the case removed by all Defendants.” Id. at 1320 n.2. Nonetheless, no representations were made to the Court regarding this concerted effort until after the plaintiff filed this Motion to Remand. Id. at 1320. Thus, in the eyes of the Court, the original Notice of Removal provided nothing more than a blanket assertion by some Defendants that all Defendants had consented—as such, the Court found that remand was appropriate. Id. at 1320-21.

Additionally, in McGuigan v. Darden, Civ. Action No. 11-6563, Mem. and Order (E.D. Pa. Mar. 13, 2012) (unpublished), three distinct groups of Defendants—the “Cardinal Defendant,” the “ARC Defendants” and the “Darden Defendants”—were sued in state court. The Cardinal Defendants filed a Notice of Removal under 28 U.S.C. § 1332(a)(1). McGuigan, at 2. While the removal notice asserted that no Defendants objected to remand, neither the Darden nor ARC Defendants filed a written consent to removal with the court, nor did they file their own notices of removal within 30 days of service of the last-served Defendant. Id. Counsel for the Cardinal Defendants (the removing Defendants) also represented the ARC Defendants, and represented to the Court that the ARC Defendants consented to the removal of the action. Id. The day before the removal petition was filed, counsel for the Darden Defendants sent an e-mail to counsel for the Cardinal and ARC Defendants consenting to the removal—however, this correspondence was neither filed with the notice of removal, nor separately. Id. at 2-3. The Court granted the plaintiff ’s motion to remand,

In times like these, the question is certainly one to explore. As individuals stare at their bank accounts with more questions than answers, the security and guaranteed tax-free benefits of a structured settlement are more attractive than ever. In as much, the opportunity to settle claims in a more efficient and cost effective manner are greater than ever. With all the moving parts involved in the development of a claim, finding a trusted business partner - who truly has your best interests in mind - is invaluable! Atlas Settlement Group proudly stands behind each of our clients as such a partner.

Jim Garrison has loyally served the settlement needs of New Mexico for more than 20 years, settling thousands of claims during that time. More importantly, Jim and his staff have ensured that the unique needs of every claim are met and that everything was put into place correctly, all at no cost.

Many companies claim to be there for their clients, but Atlas Settlement Group truly delivers. Now more than ever, structured settlements make sense. Who’s in your corner?

Call Atlas Settlement Group today to assist you with your pending negotiations.

Who’s In Your Corner?

Jim [email protected](480) 785-6850 Cellular(800) 661-7075 Office (480) 222-7075 Facsimile

Ryan [email protected]

(480) 385-8844 Cellular (800) 661-7075 Office

Atlas Settlement Group, Inc.10105 E. Via Linda

Suite 103Scottsdale, Arizona 85258




noting that counsel for the Cardinal Defendants did not attach the e-mail as an exhibit to the notice of removal, nor was Darden Defendants’ consent to removal otherwise manifested by a filing with the Court. Id. at 7;1 see also Estate of Dean v. New Jersey, Civ. Action No. 12-00505 (JAP), Mem. Op. (D.N.J. May 24, 2012) (unpublished), at 5 (holding that a February 2012 e-mail exchange between counsel, confirming conversation regarding consent to removal in January of 2012, was inadequate to communicate non-removing Defendant’s consent).

By contrast, in Anaya v. Ramirez, No. CV-04-693 JEC/WDS, Doc. No. 47, Mem. Op. and Order (D.N.M. Jan. 20, 2005) (unpublished), Judge John Conway of the District of New Mexico ruled that one Defendant in a multi-defendant case could represent to the Court that the co-defendants had stated their concurrence to removal via e-mail.2 As in Edelman, the plaintiff in Anaya sought remand for failure

1 The Court in McGuigan also noted that, even where the non-removing ARC Defendants were represented by the same coun-sel as the Cardinal Defendants, the removal was defective because “the ARC Defendants failed to manifest their consent to removal by filing anything with the court.” McGuigan, at 8.

2 In the removal petition, the removing Defendant stated that the other Defendants, “through counsel, concur[red] in the removal of [the] action to the United States District Court for the District of New Mexico,” and that the other Defendants’ counsel ap-proved the removal pleading via e-mail. See Anaya v. Ramirez, No. CV-04-693 JEC/WDS, Doc. No. 1, Notice of Removal (D.N.M. June 18, 2004), at 7-8.

of all Defendants to sign the removal petition. Two of the Defendants had transmitted their consent to removal via e-mail. Anaya, supra, at 6. Judge Conway found that all of the Defendants, with the exception of one who had not been served at the time the removal petition was filed, had sufficiently consented to the removal, and thus declined to remand the case based upon a defect in the removal proceedings. Id.

Conclusion:

In our hypothetical, the plaintiff ’s Motion to Remand for lack of written consent to removal would likely be denied. First, Jones’ signed letter to Smith—written on firm letterhead and faxed to Smith in response to his e-mail regarding removal—suffices as proof of Jones’ written consent to removal. Davidson’s e-mail reply, sent from his unique firm account and referencing the subject of removal, should also meet the requirements of the rule of unanimity. While his oral consent to removal is, by itself, inadequate to satisfy the rule, the Notice of Consent that Roberts electronically filed within the removal period cures this defect. While the best practice would be for all of the Defendants’ counsel to e-file their own separate notices or affidavits of consent to removal (even after exchanging correspondence signifying consent to removal), the written consents provided by each attorney should, under the prevailing law, constitute the proper written consent required for removal. The key concept underlying the body of case law on this subject is that, no matter what form the written consent takes, it should be directed to the Court’s attention before the removal deadline expires.

presented by the 2nd Judicial Pro Bono Committee

Thursday, October 25th, 10 a.m. - 7 p.m., ABQ Convention Center

This event provides attorney consultations to low-income New Mexicans. Attorneysneeded for family law, consumer law, landlord/tenant, immigration, and estate planning

or to do client intakes. Volunteering for a three-hour shift is a great way to serve.

To register, go to:https://adobeformscentral.com/?f=LU6q5vIrmILo*nQeAjl6Pw#

or contact Erin Olson at [email protected] or 243-7871, ext. 114

V o l u n t e e r s n e e d e d f o r t h e 3 r d A n n u A l l Aw -l A -P A l o o z A

It’s an intriguing legal scenario: one of your client’s employees, Jim, suffers from multiple sclerosis, an often debilitating autoimmune disease that affects the brain and spinal cord. Your client informs you that Jim tested positive for marijuana use, which would normally result in termination due to your client’s zero tolerance policy. However, Jim reported after the failed test that in order to address some of his symptoms, Jim’s doctor recommended medical marijuana use under New Mexico’s medical cannabis program, which is verified by Jim’s enrollment card. Jim further requested that his MS, as well as his marijuana use, be accommodated under the Americans with Disabilities Act (ADA). The client turns to you for advice.

Ever since the passage of New Mexico’s “Lynn and Erin Compassionate Use Act,” employers have been wondering about the impact on the workplace. Today, many employers still misunderstand the relationship between medical marijuana and the workplace. While Jim is correct that the ADA requires an employer to offer reasonable accommodation to the known disability of a qualified employee, it seems highly unlikely that your client would be required to accommodate his use of marijuana.

As a preliminary matter, it should be noted that New Mexico’s medical marijuana laws have not completely legalized marijuana use – even for program participants like Jim. Marijuana is still classified by the federal government as a Schedule I controlled substance and is still illegal under federal law. It is for this reason that marijuana is not actually prescribed by any health care professional or available from retail pharmacies. Rather, New Mexico law simply allows doctors to recommend medical cannabis use. This is important since the ADA, at 42 U.S.C. § 12210, excludes persons currently engaged in the “illegal use of drugs” from the definition of an “individual with a disability.” Accordingly, Jim’s ADA claim is likely dependent on whether his medical marijuana use constitutes “illegal use of drugs” within the Section 12210.

Me d i C A l MA r i J uA n A i n t h e wo r k P l AC e

The ADA defines “illegal use of drugs” as:

the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act. Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law.

Id. § 12210(d)(1).

Proponents of ADA protection for medical marijuana uses, such as Jim, would naturally argue that this section specifically excludes the use of drugs “taken under the supervision” of a licensed health care professional, such that Jim’s medical marijuana use is not considered “illegal use of drugs” under the ADA. Proponents of ADA exclusion, on the other hand, would argue that this section excludes only “uses authorized by the Controlled Substances Act or other provisions of Federal law.” The scope of the exclusion is unclear – a dangerous proposition for an employer looking to terminate an otherwise qualified individual with


By Alex Walker, Esq.,Modrall, Sperling, Roehl, Harris & Sisk, PA

a disability based on illegal drug use – as both positions could be supported from the text of Section 12210(d)(1).

In May of this year, the Ninth Circuit Court of Appeals decided James v. City of Costa Mesa, 684 F.3d 825 (9th Cir. 2012) and addressed which interpretation of Section 12210(d)(1) was correct. After extensive examination of both the statutory language and its legislative history, the 9th Circuit ultimately concluded that medical marijuana use does not fall within the ADA’s supervised use exception because doctor-recommended marijuana use permitted by state law, but prohibited by federal law, is an illegal use of drugs for purposes of the ADA, and that the plaintiffs’ federally proscribed medical marijuana use, therefore, brings them within the ADA’s illegal drug exclusion. Thus, at least according to the James court, Jim’s doctor-recommended marijuana use, though permitted by New

Mexico law, is prohibited by federal law and is an illegal use of drugs for purposes of the ADA.1

Of course, the James decision is not binding on New Mexico courts. But, if nothing else, the decision provides detailed insight into the interplay between medical marijuana use and the accommodation obligations of employers under the ADA.

1 To be clear, however, the James court was careful not to suggest that medical marijuana users are never protected by the ADA. Rather, the Court’s holding was simply that the ADA does not protect medical marijuana users who claim to face discrimination because of their marijuana use. See 42 U.S.C. § 12210(a) (the illegal drug use exclusion applies only “when the covered entity acts on the basis of such use”). Further, because the Court concluded that the plaintiffs are not qualified individuals with a disability protected by the ADA, it did not reach the City’s alternative argument that the ADA does not require accommodation of a qualified individual’s “misconduct.”

Medical MarijuanaContinued from Page 16


Thank You Firm ConTribuTors

Allen, Shepherd, Lewis & Syra, P.A. Bannerman & Johnson, P.A. Butt Thornton & Baehr P.C. Civerolo, Gralow, Hill & Curtis, P.A. Gallagher, Casados and Mann, P.C. Keleher & McLeod, P.A. Rodey, Dickason, Sloan, Akin & Robb, P.A. Sandenaw Law Firm, P.C.

To be recognized for annual contributions, contact [email protected]


By John S. Stiff, Esq., Ann L. Keith, Esq., and Nels D. Orell, Esq.Stiff, Keith & Garcia, LLC

nMdlA Civil CAse suMMAries MAy - Ju ly 2012 stAt e Co u r t oP i n i o n s

Appealable Order

NM Bar Bulletin – May 9, 2012Vol. 51, No. 19

Kysar v. BP America Production Co.No. 29,756 (N.M. Ct. App., filed January 19, 2012)

As an issue of first impression, the Court of Appeals held that a plaintiff may appeal from a stipulated directed verdict when the parties have stipulated that the plaintiff cannot make a prima facie case due to in limine rulings made by the district court, the plaintiff reserved the right to appeal the in limine rulings, and the district court approved the stipulations. The Court of Appeals characterized the appealable order as a “stipulated conditional directed verdict.” The directed verdict was conditionally stipulated to, with each party expressly reserving the right to challenge rulings of the district court on appeal, with success on appeal resulting in a reversal of the directed verdict.

The Court held that an appeal will lie from a stipulated conditional directed verdict under the following conditions: 1) rulings are made by the district court, which the parties agree are dispositive; 2) a reservation of the right to challenge those rulings on appeal; 3) a stipulation to entry of judgment; and 4) approval of the stipulation by the district court.

Termination of Employment


Sais v. NM Department of CorrectionsNo. 32,776 (N.M. S.Ct. filed March 22, 2012)

The New Mexico Supreme Court re-addressed the holding In re Termination of Kibbe, 2000-NMSC-006, 128 N.M. 629, 996 P.2d 419, where the Court established the principle that when an employer disciplines two public employees, arrested or convicted of driving while intoxicated (DWI) in a significantly different manner yet based on substantially similar conduct, the employer owes a legal duty to explain that difference satisfactorily with evidence in the record. If

not, the court will reverse the action taken as arbitrary and capricious.

In this case, the Court found that unlike the employer in Kibbe, the employer did place substantial evidence in the record to justify the action taken and to explain any alleged differences in the treatment of other employees, upholding the State Personnel Board. The record showed that the respondent was treated the same as all but one similarly-situated officer. Furthermore, the record in this case demonstrated a consistent pattern in the enforcement of the Employee DWI Policy.

Directed Verdict NM Bar Bulletin – May 16, 2012Vol. 51, No. 20

Perez v. City of AlbuquerqueNo. 30,263 (N.M. Ct. App. filed March 5, 2012)

The plaintiff was arrested by three City of Albuquerque police officers. Plaintiff filed suit claiming that the officers used excessive force while he was handcuffed and lying on the ground. A verdict was entered in favor of the defendants, and Plaintiff appealed the denial of his motion for directed verdict and motion for judgment notwithstanding the verdict.

The officers had responded to a domestic disturbance and the officers tackled the plaintiff to the floor inside the home. His girlfriend videotaped the latter part of the arrest. Although he did not immediately complain of injuries, two months later he sought treatment for a sore neck and back, dizziness, and a bruised ankle. The video was shown in court numerous times and each witness gave a different account of what was depicted in the tape, sometimes offering conflicting interpretations of the images. After a jury verdict in favor of the defendants, Plaintiff moved for judgment notwithstanding the verdict against one of the officers, which was denied. After reviewing the evidence in a light most favorable to the prevailing party, the Court of Appeals concluded that it was sufficient to support the jury’s verdict and affirmed the district court.

Civil Case SummariesContinued from Page 14


Defamation


Smith v. DurdenNo. 32,594 (N.M. S.Ct., filed March 5, 2012)

A former priest brought a defamation action against members of the parish. The issue before the Supreme Court was whether New Mexico requires a showing of injury to one’s reputation to establish liability for defamation. The Court held that injury to reputation is the very essence of the tort of defamation, thereby reversing the Court of Appeals. Evidence of humiliation and mental anguish, without evidence of actual injury to reputation, is insufficient to establish a cause of action for defamation. The Court concluded that a plaintiff must first establish the prima facie case for defamation, which includes proof of actual injury to reputation, before a jury can award damages for mental anguish, humiliation, or any of the other recoverable harms listed in UJI 13-10010. In this case, examples of events indicating an injury to reputation may have included a decline in membership at the church, unwillingness for parishioners to allow children to participate in parish-related activities, or decline in general social invitations from fellow parishioners.

Sovereign Immunity

NM Bar Bulletin – June 6, 2012Vol. 51, No. 23

Zuni Public School District, #89 v. N.M. Public Education DepartmentNo. 30,861 (N.M. Ct. App., filed February 6, 2012)

The question for appeal in this case was whether sovereign immunity barred a school district from bringing suit against the New Mexico Public Education Department and its secretary for reimbursement of funds that Zuni claims were wrongfully deducted from its portion of state funding for public schools. The Court decided that the cause of action did not violate the doctrine of sovereign immunity and affirmed the district court’s denial of the State’s motion to dismiss on the basis of sovereign immunity.

The school district claimed that its petition was based on the state funding statute, while the State argued that the petition was grounded in the federal Impact aid. “This distinction is key to resolving whether the State is shielded from this action by sovereign immunity.” The Court of Appeals disagreed with the State that the district’s right

to relief depended on the Federal Impact Aid statute and that the resolution of the case involved a substantial question of federal law. Although federal certification is an element of the complaint, it is the State’s adherence to the Legislature’s directives and the formula set out in Section 22-8-25 that provided the basis for deciding the issue. The Court concluded that the district’s petition was based on state law, with only a tangential connection to federal law, and is not subject to the Eleventh Amendment bar of sovereign immunity.

Medicare and Medicaid

NM Bar Bulletin – July 4, 2012Vol. 51, No. 27

Starko, Inc., v. Presbyterian Health Plan, Inc.No. 27,992/29,016 (N.M. Ct. App., filed December 15, 2011)

The Court of Appeals updated the Medicaid-related litigation by holding that Section 27-2-16(B) confers upon participating Medicaid pharmacists an implied cause of action to enforce the statute directly against the MCOs. The Court held 1) the district court properly dismissed Plaintiffs’ claim concerning the New Mexico Human Services Department’s reduction of reimbursement without federal approval for a six-month period; 2) Plaintiffs’ breach of contract claim, third-party beneficiary contract, and unjust enrichment claims may proceed; 3) the district court properly concluded that Section 27-2-16(B) conferred non-waivable rights; 4) the district court did not abuse its discretion in denying Plaintiffs’ demands for injunctive and declaratory relief; and 5) the district court properly certified Plaintiffs’ class in the consolidated cases.

Summary Judgment/Breach of Employment Contract


Lucero v. Board of Regents of the University of New MexicoNo. 30,535 (N.M. Ct. App., filed March 1, 2012)

The University appeals a bench trial denial of its Motion for summary judgment on plaintiff ’s breach of contract claim, because it argued that the plaintiff did not exhaust the grievance procedures contained in the employee handbook. The Court of Appeals held that the plaintiff must substantially comply with the mandatory internal grievance procedures contained in the employee handbook before filing suit for breach of contract based on an alleged failure of defendants to follow the employee handbook, and reversed the district court. Although the plaintiff


also argued that the permissive language in the grievance procedure permits an employee to bypass the grievance process and pursue a direct court action, the Court read the plain language of Section 6.1.1 of the employee handbook, using the term “may,” to be permissive only to the extent that it provides a potential grievant with two options: 1) file a grievance, thereby exhausting the remedies under the employee handbook and allowing the grievant to then file an action in district court for an alleged breach of the employee handbook or 2) forego the grievance process and accept the disciplinary decision of Defendants.

Sex and Age Discrimination


Rodriguez v. N.M. Department of Workforce SolutionsNo. 30,726 (N.M. Ct. App., filed April 19, 2012)

The Court considered whether the New Mexico Personnel Act or the New Mexico Human Rights Act was controlling when a discharged probationary state employee with no property interest in continuing employment seeks relief under the Human Rights Act for sex and age discrimination. The district court dismissed the employee’s Human Rights Act claim on the ground that, under the Personnel Act, the State agency was permitted to terminate the probationary employee’s employment without cause even if the termination was based on sex or age discrimination. The Court of Appeals reversed and held that the employee can pursue a claim under the Human Rights Act.

The plaintiff was hired by the Department of Workforce Solutions first as a temporary employee and then as a probationary employee. While a probationary employee, she was given a notice of dismissal under the New Mexico Personnel Act. She then filed a claim with the New Mexico Department of Labor, Human Rights Division and the Equal Employment Opportunity Commission against the Department alleging discrimination and retaliation based on her sex and age. The Department filed a motion for summary judgment, asserting that because she was a probationary employee and therefore had no property interest in continuing employment, the court lacked jurisdiction to consider plaintiff ’s constitutional claims. The Court held that the district court erred in concluding that, owing to plaintiff ’s status as a probationary employee under the personnel Act, her claim under the Human Rights Act could not stand because the Department, “was permitted to terminate her employment without cause.” On remand,

Civil Case SummariesContinued from Page 14

the district court was ordered to determine whether the plaintiff can establish a prima facie case of discrimination and retaliation pursuant to the Human Rights Act.

Disciplinary Action/Workers’ Compensation


Chavez v. N.M. Workers’ Compensation AdministrationNo. 30,405 (N.M. Ct. App., filed April 26, 2012)

The Court determined whether the Workers’ Compensation Administration (WCA) has authority to suspend an attorney from practicing before it. The Director of the WCA filed a pleading in the WCA seeking administrative penalties against an attorney for 17 separate violations of the Workers’ Compensation Act and Rules. The Director ruled that Chavez willfully refused to participate in the mediation process in three different instances; that Chavez willfully disregarded the rights of parties in eight different instances; that Chavez advocated meritless claims in four separate instances; and that Chavez behaved in a non-courteous and disrespectful manner in two separate instances, all in violation of applicable Rules of the WCA. The parties entered into a Settlement Agreement and Stipulated Order. As part of the Stipulated Order, Chavez entered into a Professional Services Agreement with Judge Dal Santo, agreeing that she would monitor his professional conduct before the WCA for a period of three months. During the observation period, three complaints were filed against Chavez with the WCA, and the WCA forwarded them to Judge Dal Santo. After investigating the complaints, Judge Dal Santo submitted two reports to the WCA setting forth her conclusions that Chavez had committed numerous violations of the Rules of Professional Conduct. Upon receipt of the reports, the WCA filed the Stipulated Order suspending Chavez from practicing before the WCA. Chavez filed a petition for writ of certiorari and petition for stay in the district court. The district court determined that the WCA did not have authority to suspend Chavez and ordered that the Stipulated Order be reversed on grounds that the Settlement Agreement was ultra vires and void ab initio. The Court affirmed the district court’s order reversing the Stipulated Order suspending Chavez from “generating any fees associated with workers’ compensation matters,” but reversed the district court’s order is all other respects.

Ultimately, the Court held that the WCA has authority to suspend an attorney from practicing before it. This authority arises out of the power of the WCA to control the proceedings before it, and an attorney who violates its rules of practice and procedure may properly be sanctioned by the WCA. Furthermore, the power to suspend the attorney is separate and apart from, and does not infringe upon, the Supreme Court’s exclusive authority to discipline attorneys.

Co n g r at u l at i o n s 2012 nMDl a

law y e r o f t h e ye a r awa r D wi n n e r s

Stephen M. Simone, Esq.Simone, Roberts & Weiss, PA

Outstanding Civil Defense LawyerThis award is given to one or more attorneys who have, by their ethical, personal, and professional conduct, exemplified for their fellow attorneys the epitome of professionalism and ability.


Join us at the 2012 New Mexico Defense Lawyers Association Annual Luncheon for the Lawyer of the Year Awards ceremony. The awards will be presented on

October 5, 2012, in Albuquerque at the Hotel Andaluz. Register online at our website: www.nmdla.org

Or contact us by e-mail [email protected] or phone 505.797.6021

To learn about the 2012 Award Winners please visit our website at:http://www.nmdla.org/Default.aspx?pageId=1125194

Tiffany Roach Martin, Esq.Modrall Sperling

Young Lawyer of the YearThis award is given to one or more attorneys who have not practiced more than five years or are under the age of 36 and have, by their ethical, personal, and professional conduct, shown exemplary achievement in the legal profession and/or who have contributed time and expertise to NMDLA.

Outstanding Civil Defense Lawyer

Young Lawyer of the Year

Official New Mexico Criminal and Traffic Law Manual™The authoritative publication relied on by law enforcement, public defenders, district attorneys, judges and lawyers in New Mexico. It contains all relevant laws and rules, featuring all significant NMSA 1978™ criminal, traffic and related provisions. Detailed Subject Index and DVD included.

Official New Mexico Selected Taxation and Revenue Laws and Regulations™Statutes and associated regulations for taxes, fees and tax credits administered by the Taxation and Revenue Department. DVD included contains prior year tax laws as well as current laws.

Official New Mexico Statutes Annotated 1978®

Published in a cost-effective binder format, this Official 17-volume set plus annual index includes research tables, history and compiler notes, annotations, cross references plus binders. Full set with Replacement Pamphlets, updated annually.

Official New Mexico Rules AnnotatedAuthoritative 3 volume set of New Mexico Rules of Court (NMRA). This official set contains all official rules of the state of New Mexico as well as official annotations, forms and official commentary, along with local rules, Jury Instructions, and Code of Professional Conduct. Replaced and supplemented annually.

New Mexico Official Reports

New Mexico Official Forms on CD-ROMOver 1,345 Official Forms in Word®, WordPerfect® and PDF Formats on 2 CDs. Covers Judicial and Statutory forms and Uniform Jury Instructions.

Brenda Castello, Executive Director 4355 Center Place, Santa Fe, NM 87507

505-827-4821 www.nmcompcomm.us

Toll-free technical support: 1-866-240-6550

New Mexico Compilation CommissionThe Only Official, Authoritative Source of New Mexico Law

New Mexico One Source of Law®

Three formats: DVD, ■■

jump drive, and online.

Exclusive content:■■

Official XX NMSA 1978 and NMRACompilation and annotations by New Mexico XX

lawyer editor teamHistorical XX NMSA 1978 and NMRA from 1989 and parallel tables

Extensive New Mexico state and federal library:■■

Supreme Court, 1852 – currentXX

Court of Appeals, 1966 – currentXX

Unreported decisions, 2009 – currentXX

Federal opinions and rules:XX

US District Court ■✦

(Federal Rules of Civil Procedure & Evidence plus local rules)10■✦ th Circuit, arising in New Mexico, from 1932 –1994 10th Circuit complete library, 1994 – current ■✦

(Federal Rules of Appellate Procedure)US Supreme Court, arising in New Mexico ■✦

from 1887–1984US Supreme Court complete library, 1984 – current■✦

Session laws, 1993 – 2011XX

New Mexico Administrative CodeXX

1,345 Court-approved formsXX

Modest monthly or annual fee. No hidden charges.■■

For product information and training, call Brad Terry at 505-363-3116


The manner in which to properly serve a subpoena on an insurance company has not been addressed by New Mexico appellate courts. Generally, service on an insurance company is addressed by statute. See NMSA 1978, Section 59A-5-31 to -32. However, aside from Section 59A-5-32 itself, there is no guidance regarding service of subpoenas on insurers because, “[n]o New Mexico court, be it state or federal, has analyzed § 59A-5-32.” Sawyer v. USAA, 839 F.Supp.2d 1189, 1224 (D.N.M. 2012) (determining whether service of process occurred when Superintendent of Insurance did not serve process on insurer and had no record of receiving summons and complaint despite plaintiff ’s production of certified mail receipt indicating someone at the Superintendent’s office signed for it).

Pursuant to Section 59A-5-31, the Superintendent of Insurance is authorized to, “receive service of legal process issued against the insurer in this state.” Additionally, “[s]ervice of process against an insurer for whom the superintendent is attorney shall be made by delivering to and leaving with the superintendent, his deputy or a person in apparent charge of the office,” two copies of the process and the specified fee. Section 59A-5-32(A). The unanswered question is whether the referenced statutes apply to service of subpoenas or solely to a summons and complaint.

According to the Insurance Division of the Public Regulatory Commission that handles the subpoenas filed with the Superintendent’s office, summonses and subpoenas must be filed with the superintendent’s office for any insurance company doing business in New Mexico. An insurer not doing business in New Mexico would need to be served through the superintendent of insurance of a state in which they are doing business. The steps for serving a subpoena on an insurance company are available online at: http://www.nmprc.state.nm.us/insurance/service-of-process.html. However, a subpoena served on an insurance agent is different than a subpoena directed at “the insurance company” and outside the applicable rules.

serviCe oF suBPoenAs on insurAnCe CoMPAnies in new MexiCo

The language of Section 59A-5-31(A) indicates the superintendent is only to handle service of process “against the insurer,” implying that the statute does not apply to service of a subpoena on an insurer that is not a party to the lawsuit in which the subpoena was filed. However, Section 59-5-32(C) provides, “[p]rocess served as provided in this section shall for all purposes constitute valid and binding personal service within this state upon the insurer. If summons is served under this section, the time within which the insurer is required to appear” shall be extended. The legislature’s insertion of specific language addressing a “summons” indicates that service of other materials through the superintendent was intended, but does not result in an extension of time as occurs when a summons is served. On the other hand, the statutes are directed at “serving process,” which traditionally refers to a summons and complaint, as opposed to a subpoena, meaning subpoenas may simply be governed by the Rules of Civil Procedure.

Rules regarding service of a subpoena are provided in Rule 1-045(B) NMRA, which expressly provides that a “subpoena may be served any place within the state.” What is not addressed by Rule 1-045 is the means by which a corporation or insurance company is to be served with a subpoena. In the event a subpoena is served in connection with an action pending in New Mexico on a person in another state or country, it is to be done “in the manner provided by law or rule of the other state or country.” Rule 1-045(B)(7) NMRA. It may be appropriate to rely on 45(B)(7) in objecting to a subpoena served on an insurer not doing business in the state; however, in the event an insurer has an office located, or is doing business in New Mexico, it is likely a court would apply the rule applicable to service on one within the state, Rule 1-045(B).

Section 59A-5-31 provides that before an insurer will be authorized to transact insurance in this state, “each insurer shall appoint the superintendent and his successors in office as its attorney to receive service of legal process issued against the insurer in this state.” NMSA 1978,


By Ann L. Keith, Esq., and Nels D. Orell, Esq.,Stiff, Keith & Garcia, LLC


Section 59A-5-31(A)(as amended). This “appointment” is irrevocable and binding on the insurer and its successors in interest “as long as there exists any contract of the insurer in this state or any obligation of the insurer arising out of its transactions in this state.” NMSA 1978, Section 59A-5-31(B)(as amended). The insurer must also designate “the person to whom the superintendent shall forward process against the insurer served upon the superintendent.” NMSA 1978, Section 59A-5-31(C)(as amended).

Service of SubpoenasContinued from Page 19

2 0 1 2 Continuing

Legal Educ ation S chedule

For more information please visit: www.nmdla.org

N E W M E x I CO D E F E N S E L AW YE R S A S S O C I AT I O N

Friday, October 5 NMDLA Annual MeetingLocation: Hotel AndaluzTime: 11:30 am – 6 pm

Thursday, November 29Advanced Trial PracticeLocation: State Bar Center AuditoriumTime: 8 am – 5 pm

Friday, December 7Annual Civil Rights SeminarLocation: Jewish Community CenterTime: 8 am – 5 pm


On May 26, 2012, the New Mexico Supreme Court approved an amendment to the Committee Commentary to Uniform Jury Instruction 13-2304 (Retaliatory Discharge) and an amendment to the related Special Verdict Form for Wrongful Discharge cases (13-2320). This article discusses the amendments and their likely impact in retaliatory discharge cases.

Amendment to UJI 13-2304. Retaliatory Discharge

Uniform Jury Instruction 13-2304 is to be given in all wrongful discharge cases involving a claim of discharge in violation of public policy. Before this instruction is given, the court must determine as a matter of law that a public policy exists and was violated if plaintiff was discharged for the reason alleged. UJI 13-2304. Retaliatory Discharge provides:

In this case you must [also] determine whether __________ (employee) was discharged because [he][she] __________ (insert conduct court has determined is protected by public policy). If __________ (employee) was discharged because [he] [she] __________ (insert conduct court has determined is protected by public policy) [and if __________ (employee’s) conduct which triggered the discharge was taken in furtherance primarily of a public interest rather than primarily a private interest], then the discharge was retaliatory and was wrongful.

In determining whether __________ (employee) was discharged because [he] [she] (insert conduct court has determined is protected by public policy), you must determine whether that conduct was a motivating factor in the decision to discharge [him] [her]. A motivating factor is a factor

By Agnes Fuentevilla-Padilla, Esq., and Theresa Vertucci Hacsi, Butt Thornton & Baehr P.C.

ne w Me x i Co’s vi r t uA l el i M i n At i o n o F t h e “B u t F o r” CAu s At i o n te s t i n re tA l i Ato ry di s C h A r g e CA s e s

that plays a role in the decision to discharge. It need not be the only reason, nor the last nor latest reason, for the discharge.

The amendment to Uniform Jury Instruction 13-2304 was limited to the Committee Commentary. In addition to correcting various citation errors, the amendment deleted and added language in connection with the causation element of the tort of retaliatory discharge. The amendment deleted the following language:

Federal courts have developed approaches to the causation issue that may be applicable in certain circumstances under New Mexico law. See McDonnell Douglas Corp. v. Green, 411 U.S. 702 (1973) (indirect evidence of impermissible motive); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (mixed motive). Further instruction may therefore be necessary in a particular case for the jury to understand and apply the causation requirement. It will be the responsibility of the trial court when necessary to prepare a supplemental instruction on causation appropriate to the case.

The amendment eliminated citations to federal law that permits employers to introduce evidence that an employee’s termination was based on legitimate reasons and would have happened regardless of the alleged improper motive. In McDonnell Douglas Corp. v. Green, the court held that an employer discharged its burden of proof by articulating a non discriminatory reason for non selection citing the applicant’s illegal activities. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), holding modified by Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S. Ct. 1701, 123 L. Ed. 2d 338 (1993), and holding modified by Wilmot v. Forest City Auto Parts, 75945, 2000 WL 804616 (Ohio Ct. App. June 22, 2000). However, the McDonnell-Douglas Court also held that the


complainant had to be afforded a fair opportunity to show that employer’s stated reason for complainant’s rejection was, in fact, pre-textual. Id.

Further, Price Waterhouse v. Hopkins held that when a plaintiff in a Title VII case proves that gender played a part in an adverse employment decision, a defendant may avoid liability by proving by preponderance of the evidence that it would have made the same decision even if it had not taken plaintiff ’s gender into account, despite sufficient evidence establishing that sexual stereotyping played a part in evaluating plaintiff ’s candidacy. 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989)(abrogated by Texas statute). The holding in Price Waterhouse clearly establishes that a plaintiff must establish “but for” causation (that the adverse employment action would not have happened “but for” the improper motive) in order to prevail on her claim.

In place of the deleted language, the amendment to Uniform Jury Instruction 13-2304 added the following language:

The second-to-last sentence of the instruction previously stated as follows: “A motivating factor is a factor that plays a role in the decision to discharge and without which the discharge would not have happened.” (Emphasis added.) The 2008 amendment deleted the italicized language. The New Mexico Supreme Court has rejected the “but for” test as inapplicable to employment claims brought under the New Mexico Human Rights Act. See Nava v. City of Santa Fe, 2004 NMSC 039, 136 N.M. 647, 103 P.3d 571.

The amendments to UJI 13-2320 bring the jury instruction in line with New Mexico law, which has rejected the “but for” test in employment cases brought under the New Mexico Human Rights Act. The elimination of federal law citations suggests that New Mexico has moved away from the “but for” approach to causation altogether in retaliatory discharge cases.

Amendment to UJI 13-2320. Special verdict form for wrongful discharge cases

The New Mexico Supreme Court also amended Uniform Jury Instruction 13-2320, which changed Question 2 in the special verdict form from:

Causation Test in Retaliatory Discharge CasesContinued from Page 19

Did _________(defendant) discharge __________(plaintiff ) in retaliation for __________(identify public policy in issue)?

To:

Was __________ (name of the plaintiff )’s __________ (alleged impermissible basis for termination) a motivating factor in the decision to discharge __________ (name of the plaintiff )?

This change is consistent with the amendment to Uniform Jury Instruction 13-2304 because it eliminates “but for” causation. Now, to hold an employer liable for retaliatory discharge, a jury need only find that the alleged impermissible basis for termination was a factor in the discharge, regardless of how small or large a role that factor may have played in the decision. The original question in the special verdict form required that the discharge result from plaintiff ’s protected activity, while the amended question requires only that the protected activity be a motivating factor.

The question is whether the amendments indicate that “but for” causation is inapplicable in all retaliatory discharge causes of action in New Mexico, and not just in cases arising under the New Mexico Human Rights Act. The removal of the federal citations from the Committee Commentary combined with the emphasis on “but for” causation in the special verdict form materially changes an employer’s burden of proof by requiring proof that its legitimate reason is the actual and sole reason for termination. Finally, the elimination of the “but for” causation approach lessens the burden on plaintiffs. Rather than having to introduce evidence that an employer discharged an employee as a direct result of the employee’s protected actions or attributes, a plaintiff need only show that the employer considered an impermissible reason before terminating the employee.