{ "id": 77127, "name": "John LUJAN and Aaron Romero, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE, Lawrence Rael, Chief Administrative Officer, Orlando Sedillo, Solid Waste Department Director, Bill Alberti, Solid Waste Department Assistant Director, Defendants-Appellees", "name_abbreviation": "Lujan v. City of Albuquerque", "decision_date": "2003-06-19", "docket_number": "No. 22,311", "first_page": "207", "last_page": "213", "citations": [ { "type": "official", "cite": "134 N.M. 207" }, { "type": "parallel", "cite": "75 P.3d 423" }, { "type": "parallel", "cite": "2003-NMCA-104" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "120 N.M. 151", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558966 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "158", "parenthetical": "stating that \"[t]he court may only impose the sanction of dismissal for failure to comply with a court order when the failure to comply is due to the willfulness, bad faith or fault of the disobedient party\" (internal quotation marks and citation omitted)" }, { "page": "601", "parenthetical": "stating that \"[t]he court may only impose the sanction of dismissal for failure to comply with a court order when the failure to comply is due to the willfulness, bad faith or fault of the disobedient party\" (internal quotation marks and citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0151-01" ] }, { "cite": "837 F.2d 1018", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1773014 ], "pin_cites": [ { "page": "1022" } ], "opinion_index": 0, "case_paths": [ "/f2d/837/1018-01" ] }, { "cite": "274 F.3d 677", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9458022 ], "pin_cites": [ { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/f3d/274/0677-01" ] }, { "cite": "246 F.Supp.2d 449", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 9350659 ], "pin_cites": [ { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/246/0449-01" ] }, { "cite": "120 N.M. 302", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559001 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "305", "parenthetical": "\"The moving party may not be entitled to judgment even if the non-moving party totally fails to respond to the motion.\"" }, { "page": "723", "parenthetical": "\"The moving party may not be entitled to judgment even if the non-moving party totally fails to respond to the motion.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0302-01" ] }, { "cite": "922 F.2d 168", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10542123 ], "weight": 2, "pin_cites": [ { "page": "174" }, { "page": "175-76" } ], "opinion_index": 0, "case_paths": [ "/f2d/922/0168-01" ] }, { "cite": "744 F.2d 1438", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 598881 ], "pin_cites": [ { "page": "1442" } ], "opinion_index": 0, "case_paths": [ "/f2d/744/1438-01" ] }, { "cite": "790 F.2d 1497", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1579107 ], "pin_cites": [ { "page": "1499" } ], "opinion_index": 0, "case_paths": [ "/f2d/790/1497-01" ] }, { "cite": "312 F.3d 1190", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9323644 ], "weight": 3, "pin_cites": [ { "page": "1195" }, { "page": "1195", "parenthetical": "stating that the Tenth Circuit Court of Appeals \"generally requires the district court to perform an explicit analysis of the Meade factors prior to dismissal\"" }, { "page": "1195" } ], "opinion_index": 0, "case_paths": [ "/f3d/312/1190-01" ] }, { "cite": "2001-NMCA-065", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352405 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 44" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0753-01" ] }, { "cite": "96 N.M. 155", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577300 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "203", "parenthetical": "cautioning appellate courts to be \"particularly scrupulous lest the district court too lightly resort to [the] extreme sanction [of dismissal] ... without [giving the party] an opportunity to be heard on the merits\" (internal quotation marks and citation omitted)" }, { "page": "279", "parenthetical": "cautioning appellate courts to be \"particularly scrupulous lest the district court too lightly resort to [the] extreme sanction [of dismissal] ... without [giving the party] an opportunity to be heard on the merits\" (internal quotation marks and citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nm/96/0155-01" ] }, { "cite": "118 N.M. 657", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563490 ], "weight": 4, "pin_cites": [ { "page": "660" }, { "page": "816" }, { "page": "659-60" }, { "page": "815-16", "parenthetical": "stating that \"[i]t is general policy to decide claims on the merits,\" that \"[t]he district court should also consider alternatives to dismissal,\" and that \"generally mere negligence does not warrant such a penalty\"" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0657-01" ] }, { "cite": "1999-NMCA-101", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257772 ], "weight": 9, "pin_cites": [ { "page": "\u00b6\u00b6 13, 20, 24" }, { "page": "\u00b6 20" }, { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0708-01" ] }, { "cite": "841 F.2d 1512", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 11307226 ], "weight": 3, "pin_cites": [ { "page": "1522" }, { "page": "1521" } ], "opinion_index": 0, "case_paths": [ "/f2d/841/1512-01" ] }, { "cite": "108 N.M. 259", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592761 ], "weight": 6, "pin_cites": [ { "page": "260" }, { "page": "193" }, { "page": "260-61" }, { "page": "193-94", "parenthetical": "recognizing court's authority to dismiss under the Rules of Civil Procedure, Rule 37(b), for willful failure to comply with discovery, but holding that the evidence did not support a finding of such failure" }, { "page": "262" }, { "page": "195", "parenthetical": "stating that \"causes should be tried on their merits\" and that \"depriving parties of their day in court is a penalty that should be avoided\"" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0259-01" ] }, { "cite": "113 N.M. 71", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723274 ], "weight": 6, "year": 1992, "pin_cites": [ { "page": "74", "parenthetical": "reviewing Rule 1-041(B) NMRA 2003 dismissal with prejudice under abuse of discretion standard" }, { "page": "316", "parenthetical": "reviewing Rule 1-041(B) NMRA 2003 dismissal with prejudice under abuse of discretion standard" }, { "page": "74" }, { "page": "316", "parenthetical": "recognizing Rule 1-041(B) dismissal with prejudice, but holding that circumstances were not \"so extreme as to justify dismissal\"" }, { "page": "74" }, { "page": "316", "parenthetical": "stating that involuntary dismissals are limited to instances where a plaintiffs conduct is extreme and that the court must consider lesser sanctions prior to dismissal and use dismissal sparingly" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0071-01" ] }, { "cite": "2001-NMSC-035", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183164 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0317-01" ] } ], "analysis": { "cardinality": 841, "char_count": 19880, "ocr_confidence": 0.678, "pagerank": { "raw": 1.2142358577428075e-07, "percentile": 0.5967635564853395 }, "sha256": "a644e28e0ea2bfe0f466bbb072a2eb5602e0cf38753ad9c178f45fb4a19da7fb", "simhash": "1:9796e0b53acbb47f", "word_count": 3206 }, "last_updated": "2023-07-14T16:41:45.272947+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: A. JOSEPH ALARID and MICHAEL D. BUSTAMANTE, Judges." ], "parties": [ "John LUJAN and Aaron Romero, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE, Lawrence Rael, Chief Administrative Officer, Orlando Sedillo, Solid Waste Department Director, Bill Alberti, Solid Waste Department Assistant Director, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\n{1} Plaintiffs John Lujan and Aaron Romero appeal from an unfavorable summary judgment of dismissal entered under the rationale that, under Rule 1-007.1(D) NMRA 2003, Plaintiffs\u2019 failure to respond to Defendants\u2019 motions for summary judgment constituted consent to grant the motions. We reverse.\nBACKGROUND\n{2} In February 1998, Plaintiffs sued Defendants for wrongful termination of employment. A jury was requested. Discovery occurred and appears to have been diligently pursued. An October 5, 2000, scheduling order required discovery to be completed by March 30, 2001, with dispositive motions to be filed by February 28, 2001. The order set trial on a trailing docket for April 30, 2001. The order also required Plaintiffs to disclose their expert witnesses by January 30, 2001, and all parties to disclose their fact witnesses by March 1, 2001. It further stated that the parties could not stipulate to extensions, that a motion and order were required for any modification, and that extensions would be granted only upon a showing of good cause. A settlement conference occurred on February 6, 2001.\n{3} Defendants filed three motions for summary judgment on February 28, 2001. A hearing scheduled for March 28, 2001, on the motions, was vacated on March 9, 2001, on the district court\u2019s own motion and was reset for April 11, 2001. As of March 21, 2001, Plaintiffs had neither responded to Defendants\u2019 motions, nor sought any extensions. Defendants presented the district court with a letter dated March 21, 2001, enclosing a form of order granting Defendants summary judgment on their motions. The letter informed the court that Plaintiffs\u2019 \u201cfailure to file a response within the prescribed time period constitutes consent to grant the motion, and the court may enter an appropriate order.\u201d The proposed order granted Defendants\u2019 motions for summary judgment and dismissed Plaintiffs\u2019 claims with prejudice. Defendants sent a copy of the letter to Plaintiffs\u2019 counsel.\n{4} The district court signed the order submitted by Defendants dismissing each count of Plaintiffs\u2019 complaint with prejudice and vacating the trial set for April 30, 2001. The order is \u201cdated\u201d March 22, 2001, the \u201cMarch 22\u201d portion of which is handwritten. The order was filed on March 26, 2001, and stated: \u201cThe Plaintiffs failed to respond to these motions [for summary judgment] within the prescribed fifteen (15) day period, pursuant to Rule 1-007.1 DNMRA [sic]. This Court having considered the Defendants\u2019 brief relevant law [sic] and being otherwise informed, finds that the motions will be granted.\u201d\n{5} Plaintiffs acknowledged below, as they do on appeal, that the due date for their responses was March 18, 2001. Actually, March 18, 2001, was a Sunday. Considering the three days for mailing allowed in Rule 1-006(D) NMRA 2003, under Rule 1-006(A) Plaintiffs had until the end of the next day, which was Monday, March 19, 2001, to file their responses.\n{6} On April 4, 2001, Plaintiffs moved for reconsideration of the summary dismissal, and indicated in the motion that a copy of Defendants\u2019 letter to the district court was attached to it. In their motion for reconsideration, Plaintiffs stated that their counsel \u201cunfortunately took [the court\u2019s continuance of the hearing date] as an indication that [counsel] could delay presentation of Plaintiffs\u2019 response ... until 10 days before the rescheduled hearing.\u201d Plaintiffs contended that the district court erred in granting the summary judgment motions solely due to Plaintiffs\u2019 failure to timely respond to the motions within the prescribed fifteen day period, pursuant to Rule 1-007.1. On April 10, 2001, the district court denied the motion for reconsideration without explanation or hearing.\n{7} On appeal, Plaintiffs state, \u201cPlaintiffs\u2019 counsel didn\u2019t even know what was happening until it was all over.\u201d Plaintiffs contend summary judgment cannot be granted \u201csolely because their counsel was a few days late in responding to the summary judgment motions.\u201d\nSTANDARD OF REVIEW\n{8} We review the district court\u2019s dismissal of Plaintiffs\u2019 complaint for a violation of Rule 1-007.1(D) for an abuse of discretion. See Lewis v. Samson, 2001-NMSC-035, \u00b6 13, 131 N.M. 317, 35 P.3d 972 (stating that \u201cwhereas we more closely scrutinize, albeit still under an abuse of discretion standard, the severe sanction of dismissal, we entrust sanctions short of dismissal to the sound discretion of the trial court\u201d); Lowery v. Atterbury, 113 N.M. 71, 74, 823 P.2d 313, 316 (1992) (reviewing Rule 1-041(B) NMRA 2003 dismissal with prejudice under abuse of discretion standard); Lopez v. Wal-Mart Stores, Inc., 108 N.M. 259, 260, 771 P.2d 192, 193 (Ct.App.1989) (reviewing discovery sanction of dismissal with prejudice under abuse of discretion standard); see also Meade v. Grubbs, 841 F.2d 1512, 1522 (10th Cir.1988) (reviewing dismissal for violation of a local rule for abuse of discretion).\nDISCUSSION\n{9} Defendants point to the following circumstances they contend justify the district court\u2019s dismissal: Plaintiffs did not comply with the scheduling order in which the parties agreed that no extensions of time would be granted except upon motion and good cause showing; Plaintiffs failed to respond to the motions for summary judgment, and Rule 1-007.1(D) allows for entry of the order granting summary judgment in the manner obtained; and in any ease, the district court\u2019s order indicates that the district court properly granted summary judgment based on the merits of the summary judgment motions.\nA. The Dismissal\n{10} A district court has authority to dismiss claims with prejudice for a party\u2019s failure to prosecute or to comply with procedural rules or court orders. See, e.g., Rule 1-037 NMRA 2003 (discovery); Rule 1-041 (failure to prosecute); Lowery, 113 N.M. at 74, 823 P.2d at 316 (recognizing Rule 1-041(B) dismissal with prejudice, but holding that circumstances were not \u201cso extreme as to justify dismissal\u201d); Restaurant Mgmt. Co. v. Kidde-Fenwal, Inc., 1999-NMCA-101, \u00b6\u00b6 13, 20, 24, 127 N.M. 708, 986 P.2d 504 (recognizing court\u2019s authority to dismiss through the exercise of its inherent power, but remanding for the district court to consider certain factors before imposing sanctions for pre-litigation spoliation); Universal Constructors, Inc. v. Fielder, 118 N.M. 657, 660, 884 P.2d 813, 816 (Ct.App.1994) (recognizing court\u2019s authority to dismiss based on party\u2019s failure to comply with pretrial order and to attend scheduled hearing, but finding error in court\u2019s failure to give notice and an opportunity to be heard); Lopez, 108 N.M. at 260-61, 771 P.2d at 193-94 (recognizing court\u2019s authority to dismiss under the Rules of Civil Procedure, Rule 37(b), for willful failure to comply with discovery, but holding that the evidence did not support a finding of such failure).\n{11} Dismissal with prejudice, however, usually requires an assessment of the violating party\u2019s conduct weighed against the underlying principles that cases should be tried on their merits and that dismissal is so severe a sanction that it must be reserved for the extreme case and used only where a lesser sanction would not serve the ends of justice. See Gonzales v. Surgidev Corp., 120 N.M. 151, 158, 899 P.2d 594, 601 (1995) (stating that \u201c[t]he court may only impose the sanction of dismissal for failure to comply with a court order when the failure to comply is due to the willfulness, bad faith or fault of the disobedient party\u201d (internal quotation marks and citation omitted)); Lowery, 113 N.M. at 74, 823 P.2d at 316 (stating that involuntary dismissals are limited to instances where a plaintiffs conduct is extreme and that the court must consider lesser sanctions prior to dismissal and use dismissal sparingly); United Nuclear Corp. v. Gen. Atomic Co., 96 N.M. 155, 203, 629 P.2d 231, 279 (1980) (cautioning appellate courts to be \u201cparticularly scrupulous lest the district court too lightly resort to [the] extreme sanction [of dismissal] ... without [giving the party] an opportunity to be heard on the merits\u201d (internal quotation marks and citation omitted)); Chavez v. Bd. of County Comm\u2019rs, 2001-NMCA-065, \u00b6 44, 130 N.M. 753, 31 P.3d 1027 (concluding there was no abuse of discretion in the district court\u2019s denial of a motion to dismiss the complaint when the plaintiff failed to disclose his theories of liability prior to trial, stating that \u201c[dismissal is a severe sanction and is justified only when a party shows flagrant bad faith and callous disregard for one\u2019s discovery duties\u201d); Kidde-Fenwal, Inc., 1999\u2014NMCA-101, \u00b6 20, 127 N.M. 708, 986 P.2d 504 (stating, in an evidence spoliation context, that \u201cdismissal is an extreme sanction to be used only in exceptional cases\u201d (internal quotation marks and citation omitted)); Fielder, 118 N.M. at 659-60, 884 P.2d at 815-16 (stating that \u201c[i]t is general policy to decide claims on the merits,\u201d that \u201c[t]he district court should also consider alternatives to dismissal,\u201d and that \u201cgenerally mere negligence does not warrant such a penalty\u201d); Lopez, 108 N.M. at 262, 771 P.2d at 195 (stating that \u201ccauses should be tried on their merits\u201d and that \u201cdepriving parties of their day in court is a penalty that should be avoided\u201d); see also Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir.2002) (stating, where district court granted summary judgment dismissing action when a party failed to file a response to a summary judgment motion, that the sanction of dismissal \u201cis a severe sanction reserved for the extreme case, and is only appropriate where a lesser sanction would not serve the ends of justice\u201d (internal quotation marks and citation omitted)); Meade, 841 F.2d at 1521 (stating, where district court dismissed action for failure to respond to motions to dismiss as required under a local rule, that \u201c[t]he failure to respond ... was not so severe a burden on the court as to justify dismissal\u201d).\n{12} Other than to cite to Rule 1-007.1(D), the district court did not explain the basis for ordering dismissal with prejudice. We think that, despite the language of Rule 1-007.1(D), dismissal with prejudice in this case was inappropriate. Before ordering dismissal with prejudice on a motion for summary judgment for failure to respond, a district court should consider: \u201c(1) the degree of actual prejudice to the [opposing party], (2) the amount of interference with the judicial process, and (3) the culpability of the litigant.\u201d Meade, 841 F.2d at 1520 n. 7 (citations omitted); see also Reed, 312 F.3d at 1195 (stating that the Tenth Circuit Court of Appeals \u201cgenerally requires the district court to perform an explicit analysis of the Meade factors prior to dismissal\u201d); Woodmore v. Git-N-Go, 790 F.2d 1497, 1499 (10th Cir.1986) (per curiam) (stating that when a dismissal is with prejudice, the district court \u201cmust explain why it imposed the extreme sanction of dismissal\u201d); In re Sanction of Baker, 744 F.2d 1438, 1442 (10th Cir.1984) (\u201c[T]he trial court should set forth in the record the justification for the sanctions imposed.\u201d); Kidde-Fenwal, Inc., 1999-NMCA-101, \u00b6 23, 127 N.M. 708, 986 P.2d 504 (\u201cWe therefore make the requirement of findings and conclusions explicit in cases in which a court draws on its inherent power to sanction a litigant.\u201d).\n{13} Failing a satisfactory explanation by the district court for ordering dismissal with prejudice, we must hold that the dismissal with prejudice was too severe. At the time of entry of the order granting summary judgment, this case had been pending over three years. Discovery appears to have been diligently pursued. A jury trial was set to occur in a little over a month after the summary judgment dismissing Plaintiffs\u2019 complaint was entered. The district court nowhere indicated any willful or egregious conduct by Plaintiffs or Plaintiffs\u2019 counsel. It set out no prejudice to Defendants or intentional disregard for the court, its process, or its docket.\n{14} Defendants argue that they were prejudiced by Plaintiffs\u2019 failure to timely respond, because Defendants would not have had time to reply to Plaintiffs\u2019 responses by the date of the hearing which was nineteen days before the trial date, they \u201cwould not know whether there would be a trial at all.\u201d In the context of this case, however, these circumstances do not constitute prejudice in the sense or to the extent that the ultimate sanction of dismissal with prejudice was appropriate. That is not to say, however, that the time and procedure disruptions that may have resulted in this case may well have given the court good reason to impose a sanction on Plaintiffs\u2019 counsel short of dismissal of Plaintiffs\u2019 complaint, particularly given what appears to have been a combination of a cavalier attitude and negligent behavior on Plaintiffs\u2019 counsel\u2019s part.\nB. Rule 1-007.1 and Rule 1-056\n{15} Although we reverse based on the impropriety of the entry of dismissal with prejudice, we take this opportunity to clarify the use of Rule 1-007.1 in summary judgment proceedings. Rule 1-007.1 applies to all motions. The purpose of Rule 1-007.1(D) is to facilitate the court\u2019s efficient disposition of motions generally. See Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 174 (3d Cir.1990) (describing purpose of local rule similar to Rule 1-007.1(D) as \u201cnot to impose or authorize a sanction for failure to prosecute or defend [but] to facilitate the court\u2019s disposition of motions\u201d). Rule 1-007.1(D) reads:\nUnless otherwise specifically provided in these rules, any written response and all affidavits, depositions or other documentary evidence in support of the response shall be filed within fifteen (15) days after service of the motion. Failure to file a response within the prescribed time period constitutes consent to grant the motion, is a waiver of the notice provisions of Paragraph C of Rule 1-058 NMRA, and the court may enter an appropriate order.\nRule 1-058(C) NMRA 2003 reads: \u201cIn all events, before the court signs any order or judgment, counsel shall be afforded a reasonable opportunity to examine the same and make suggestions or objections.\u201d The Committee Commentary to Rule 1-007.1(D) states:\nAlthough the specific provisions of Rule 1-058(C) NMRA are not applicable, if a party submits a proposed order to the court, a copy of the proposed order must be served on all other parties. See Rule 1-005 NMRA of these rules, Rules 16-303 and 16-305 of the Rules of Professional Conduct and Rule 21-300 NMRA of the Code of Judicial Conduct. After assuring the non-responding party has received notice of the proposed order, the judge may enter an appropriate order.\n{16} Thus, although the language of Rule 1-007.1(D) says that failure to timely respond to a motion \u201cconstitutes consent to grant the motion,\u201d and \u201cis a waiver of the notice provisions of Paragraph C of Rule 1-058 NMRA,\u201d the Committee Commentary makes clear that \u201ca copy of the proposed order must be served on all other parties,\u201d and the district court may act upon the proposed order only \u201c[a]fter assuring the non-responding party has received notice of the proposed order.\u201d\n{17} Placing these rules in the context of Rule 1-056 NMRA 2003, we think that the proper manner in which to request entry of an order granting a motion for summary judgment and to request entry of judgment of dismissal with prejudice, when the order and judgment are sought based on failure to timely respond to a motion for summary judgment, is through a written motion as provided under Rules 1 \u2014 007(B)(1) NMRA 2003 and 1-007.1(A), providing fifteen days to respond after service of the motion pursuant to Rule 1-007.1(D). See also Rule 1-056(D)(2) (allowing fifteen days to respond to a motion for summary judgment). Hence, the relief Defendants sought due to Plaintiffs\u2019 failure to timely respond should have been presented only after a written motion with notice of hearing, not by presenting a proposed order to be signed without regard to notice and opportunity to be heard.\n{18} These requirements are particularly important because a district court should not enter an order granting summary judgment of dismissal with prejudice without first ruling on the merits of the motion for summary judgment. Before entry of an order granting summary judgment, the district court must assess whether, on the merits, the moving party satisfied the burden under Rule 1-056(C). See Brown v. Taylor, 120 N.M. 302, 305, 901 P.2d 720, 723 (1995) (\u201cThe moving party may not be entitled to judgment even if the non-moving party totally fails to respond to the motion.\u201d). Plaintiffs\u2019 failure to file a timely response to Defendants\u2019 summary judgment motions \u201cdoes not alter the traditional summary judgment standard, although it requires that the Court account for the lack of a response in its analysis.\u201d Reynolds v. Rick\u2019s Mushroom Serv., Inc., 246 F.Supp.2d 449, 453 (E.D.Pa.2003). The Tenth Circuit Court of Appeals recently addressed the duty of district courts when the non-movant does not respond:\n[A] party\u2019s failure to file a response to a summary judgment motion is not, by itself, a sufficient basis on which to enter judgment against the party. The district court must make the additional determination that judgment for the moving party is \u201cappropriate\u201d under Rule 56. Summary judgment is appropriate only if the moving party demonstrates that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. By failing to file a response within the time specified by the local rule, the nonmoving party waives the right to respond or to controvert the facts asserted in the summary judgment motion. The court should accept as true all material facts asserted and properly supported in the summary judgment motion. But only if those facts entitle the moving party to judgment as a matter of law should the court grant summary judgment.\nReed, 312 F.3d at 1195; accord Amaker v. Foley, 274 F.3d 677, 681 (2d Cir.2001); Anchorage Assocs., 922 F.2d at 175-76; Livernois v. Med. Disposables, Inc., 837 F.2d 1018, 1022 (11th Cir.1988). We agree with Reed.\nC. The Merits\n{19} Defendants contend that the severity of the court\u2019s action and any procedural mistakes were cured because the district court\u2019s order indicates that the court considered the motions on their merits. We disagree. Entry of an order of dismissal with prejudice under Rule 1-056 based on Plaintiffs\u2019 failure to respond required a motion and an opportunity to be heard. Further, nothing in the order indicates that the district court considered whether Defendants were entitled to judgment as a matter of law irrespective of Plaintiffs\u2019 failure to respond.\nCONCLUSION\n{20} We hold that the district court erred in entering an order granting Defendants\u2019 motions for summary judgment and dismissing Plaintiffs\u2019 complaint with prejudice pursuant to Rule 1-007.1(D) because of Plaintiffs\u2019 failure to timely respond to the motions. We reverse and remand to the district court to vacate the order granting Defendants\u2019 motions for summary judgment and dismissing Plaintiffs\u2019 complaint with prejudice.\n{21} IT IS SO ORDERED.\nWE CONCUR: A. JOSEPH ALARID and MICHAEL D. BUSTAMANTE, Judges.\n. Because this ground was not stated in either Defendants' letter, proposed order, or in the order entered, we do not address this circumstance.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "Paul Livingston, Placitas, NM, for Appellants.", "Robert M. White, City Attorney, Victor E. Valdez, Benjamin S. Chavez, Assistant City Attorneys, Albuquerque, NM, for Appellees." ], "corrections": "", "head_matter": "2003-NMCA-104\n75 P.3d 423\nJohn LUJAN and Aaron Romero, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE, Lawrence Rael, Chief Administrative Officer, Orlando Sedillo, Solid Waste Department Director, Bill Alberti, Solid Waste Department Assistant Director, Defendants-Appellees.\nNo. 22,311.\nCourt of Appeals of New Mexico.\nJune 19, 2003.\nPaul Livingston, Placitas, NM, for Appellants.\nRobert M. White, City Attorney, Victor E. Valdez, Benjamin S. Chavez, Assistant City Attorneys, Albuquerque, NM, for Appellees." }, "file_name": "0207-01", "first_page_order": 237, "last_page_order": 243 }