A. In all personal actions brought in any court of this state against any foreign corporation, process may be served upon any officer, director or statutory agent of the corporation, either personally or by leaving a copy of the process at his residence or by leaving a copy at the office or usual place of business of the foreign corporation.
B. If no person has been designated by a foreign corporation doing business in this state as its statutory agent upon whom service of process can be made, or, if, upon diligent search, neither the agent so designated nor any of the officers or directors of the foreign corporation can be found in the state, then, upon the filing of an affidavit by the plaintiff to that effect, together with service upon the secretary of state of two copies of the process in the cause, the secretary of state shall accept service of process as the agent of the foreign corporation, but the service is not complete until a fee of twenty-five dollars ($25.00) is paid to the secretary of state by the plaintiff in the action. The plaintiff shall provide, if known, the name of the person upon whom summons and complaint is to be served and the last known address.
C. Within two days after receipt of the process and fee, the secretary of state shall give notice by certified or registered mail to the foreign corporation at its principal place of business outside the state of the service of the process. Where the secretary of state has no record of the principal office of the foreign corporation outside the state, he shall forward the copy of the process to the place designated as its principal office in an affidavit filed with the secretary of state by the plaintiff in the suit or by his attorney.
D. The foreign corporation served as provided in this section shall appear and answer within thirty days after the secretary of state gives the notice. The certificate of service shall not be issued by the secretary of state until the defendant is served with the summons and complaint.
E. The secretary of state shall keep a record of all process served on him as provided for in this section, and of the time of the service and of his action in respect to the service.
F. Any foreign corporation engaging in business in this state, either in its corporate name or in the name of an agent, without having first procured a certificate of authority or otherwise become qualified to engage in business in this state shall be deemed to have consented to the provisions of this section.
History: Laws 1905, ch. 79, § 94; Code 1915, § 978; C.S. 1929, § 32-196; Laws 1935, ch. 113, § 1; 1941 Comp., § 19-306; 1953 Comp., § 21-3-6; Laws 1967, ch. 87, § 1; 1993, ch. 184, § 2.
Cross references. — For personal service of process outside state, see 38-1-16 NMSA 1978.
For service of process upon registered agent of foreign corporation, see 53-17-11 NMSA 1978.
The 1993 amendment, effective June 18, 1993, substituted "residence" for "dwelling house or usual place of abode" in Subsection A; in Subsection B, substituted "by the plaintiff to that effect," for "to that effect, by the person to whom the process has been delivered for service in the office of the secretary of state", "two copies" for "a duplicate copy", and "twenty-five dollars ($25.00)" for "five dollars ($5.00)" in the first sentence, and added the last sentence; in Subsection C, in the first sentence, substituted "Within two days after" for "Upon" and "certified or registered mail" for "telegraph, charges prepaid", and deleted "and shall forward to that office by registered or certified mail a copy of the process" from the end, and substituted "place" for "places" in the second sentence; rewrote the second sentence of Subsection D, which read "The certificate of the secretary of state under his official seal, of the service is competent and sufficient proof thereof"; and made stylistic changes throughout.
Due process requires proper service. — Fundamental due process requires service reasonably calculated to give parties notice, and the lack of such notice cannot be cured by an entry of a general appearance after entry of default judgment. Abarca v. Hanson, 1987-NMCA-068, 106 N.M. 25, 738 P.2d 519, cert. denied, 106 N.M. 7, 738 P.2d 125.
The secretary of state's failure to give nonresident defendant notice of a products liability suit against it under this section, resulting in a default judgment, constitutes a denial of due process. Abarca v. Hanson, 1987-NMCA-068, 106 N.M. 25, 738 P.2d 519, cert. denied, 106 N.M. 7, 738 P.2d 125.
Section does not extend to causes of action not arising out of corporations' New Mexico business. Budde v. Ling-Temco-Vought, Inc., 511 F.2d 1033 (10th Cir. 1975).
Service of failure of process upon qualified subsidiary sufficient to confer jurisdiction upon foreign subsidiary and parent corporation. — Where parent foreign corporation was doing business in state through the agency of one of its two subsidiaries, and all three had common directors and secretary and same basic name, service of process on one qualified to do business in state was sufficient to bring before the court by amendment the other two corporations. State ex rel. Grinnell Co v. MacPherson, 1957-NMSC-032, 62 N.M. 308, 309 P.2d 981, cert. denied, 355 U.S. 825, 78 S. Ct. 32, 2 L. Ed. 2d 39 (1957).
Effect of failure of process server to return original summons with proof of service after personal service on statutory agent. — Where default judgment was entered upon nonappearance, after personal service had been made upon defendant's statutory resident agent, the execution could not be recalled and judgment vacated for failure of the process server to return the original summons with proof of service. Bourgeious v. Santa Fe Trail Stages, Inc., 1939-NMSC-050, 43 N.M. 453, 95 P.2d 204.
Effect of failure of secretary of state to notify corporation of service of process. — Under 38-1-5 NMSA 1978, service of process on the secretary of state in the absence of an agent of a foreign corporation gave the court jurisdiction, although the secretary of state did not notify the foreign corporation. Silva v. Crombie & Co., 1935-NMSC-041, 39 N.M. 240, 44 P.2d 719.
Service of process upon resident director valid. — Where foreign corporation has no place of business in New Mexico, but does have directors resident in the state, service of process upon such director is good. 1915 Op. Att'y Gen. No. 15-1557.
Law reviews. — For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).
For note, "The Entry and Regulation of Foreign Corporations Under New Mexico Law and Under the Model Business Corporation Act," see 6 Nat. Resources J. 617 (1966).
For survey, "Civil Procedure in New Mexico in 1975," see 6 N.M. L. Rev. 367 (1976).
For annual survey of New Mexico law of civil procedure, 19 N.M.L. Rev. 627 (1990).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 36 Am. Jur. 2d Foreign Corporations §§ 526 to 582.
Revocation of designation of person to receive process by alien enemy corporation, 156 A.L.R. 1448, 157 A.L.R. 1449.
What amounts to presence of foreign corporation in state, so as to render liable to action therein to recover unemployment compensation tax, 161 A.L.R. 1068.
Rescission or annulment of forfeiture of license of foreign corporation to do business in the state as affecting previous contract or transactions of corporation, 172 A.L.R. 493.
Effect of execution of foreign corporation's contract while executory, was unenforceable because of noncompliance with condition of doing business in state, 7 A.L.R.2d 256.
Shipping goods: foreign corporation's purchase within state of goods to be shipped into other state or country as doing business within state for purposes of jurisdiction, 12 A.L.R.2d 1439.
Ownership or control by foreign corporation of stock of other corporation as constituting doing business within state, 18 A.L.R.2d 187.
Setting aside default judgment for failure of statutory agent on whom process was served to notify defendant, 20 A.L.R.2d 1179.
Power of state to subject foreign corporation to jurisdiction of its courts on sole ground that corporation committed tort within state, 25 A.L.R.2d 1202.
Federal diversity of citizenship jurisdiction where one of the states in which multistate corporation party litigant is alleged to be incorporated is also state of citizenship of opponent, 27 A.L.R.2d 745.
Publishing corporation: what constitutes doing business within state by a foreign magazine, newspaper, or other publishing corporation, for purposes other than taxation, 38 A.L.R.2d 747.
Insurance: foreign insurance company as subject to service of process in action on policy, 44 A.L.R.2d 416.
Leasing of real estate by foreign corporation, as lessor or lessee, as doing business within state within statutes prescribing conditions of right to do business, 59 A.L.R.2d 1131.
Meetings: holding directors', officers', or stockholders' or sales meetings or conventions in a state by foreign corporation as doing business within the state, 84 A.L.R.2d 412.
Manner of service of process upon foreign corporation which has withdrawn from state, 86 A.L.R.2d 1000.
Attorney representing foreign corporation in litigation as its agent for service of process in unconnected actions or proceedings, 9 A.L.R.3d 738.
"General" or "managing" agent of foreign corporation under statute authorizing service of process on such agent, 17 A.L.R.3d 625.
Validity, construction, and application of statute making a foreign corporation subject to action arising out of contract made within the state although such corporation was not doing business therein, 27 A.L.R.3d 397.
Validity, construction, and application of "fiduciary shield" doctrine - modern cases, 79 A.L.R.5th 587.
19 C.J.S. Corporations §§ 952 to 961.
Structure 2021 New Mexico Statutes
Section 38-1-1 - Rules of pleading, practice and procedure.
Section 38-1-2 - [Practice statutes may be modified or suspended by rules.]
Section 38-1-3 - [Common law is rule of practice and decision.]
Section 38-1-4 - [Equity rules prevail over common law.]
Section 38-1-5 - Service of process; failure to report.
Section 38-1-6 - Process against foreign corporations.
Section 38-1-6.1 - Process against foreign limited liability companies.
Section 38-1-7 - Purpose of act.
Section 38-1-8 - Service of process upon unauthorized insurer.
Section 38-1-9 - Defense of action by unauthorized insurer.
Section 38-1-10 - Attorney fees.
Section 38-1-11 - Short title.
Section 38-1-12 - Service against incapacitated.
Section 38-1-13 - [Notice of proceedings occurring prior to service of summons or appearance.]
Section 38-1-14 - Notice of lis pendens; contents; recording; effect.
Section 38-1-16 - Personal service of process outside state.