Co-op responds to defendants’ motions
Socorro Electric Cooperative answered two motions filed against them in response to the co-op’s lawsuit against member-owners, and yet another judge as been excused.
For the third time, the Socorro law firm of Deschamps and Kortemeier had a 13th Judicial District Court judge excused. This time, Judge George P. Eichwald was removed from the case on behalf of defendant Clark Hust of Magdalena.
A new judge was assigned on Thursday, Aug. 12. He is John F. Davis, who holds court in the Town of Bernalillo in Sandoval County.
The rural electric cooperative initially filed the case in Valencia County and asked the court to block three newly adopted bylaws that each call for greater transparency from its board of trustees. The motion for declaratory judgment and injunctive relief attempts to keep the co-op from following the Open Meetings Act and Inspection of Public Records Act, prevent members-owners from having access to certain information contained in co-op books, records and audits, and bars member-owners and the press from attending board of trustees meetings. Its argument is that the three bylaws — passed by overwhelming margins at the annual meeting in April — are unreasonable, unworkable and illegal.
Named as defendants in the case are all “unnamed member-owners of the Socorro Electric Cooperative, Inc.,” which includes approximately 13,000 individuals, businesses, and public and private entities.
Meanwhile, the co-op’s attorney, Dennis Francish, issued responses to an entry of special appearance and Rule 12B defenses, and a motion to quash service by publication filed by Socorro attorneys pro se, or on their own behalf as member-owners of the co-op.
Polly Ann Tausch and Thomas G. Fitch argued in their answer that the co-op’s original filing was faulty in that it was filed in a county that lacked jurisdiction, provided inadequate service of process and failed to state a claim on which relief may be granted. They asked for a change of venue to have the case moved to the 7th Judicial District Court in Socorro County, where most of the defendants reside.
The co-op’s response, submitted Aug. 6, states that it was proper for the case to be filed in Valencia County because the law allows for actions to be brought in the jurisdiction where more than one of either the defendants or plaintiffs reside.
“Thus, while venue might have also been proper in the District Court of Socorro County, there is nothing improper about Plaintiffs bringing suit in this Court,” it states.
The co-op counters another of Tausch’s and Fitch’s opinions by stating, “Plaintiff has made a plausible claim for relief, on specific grounds and against clearly defined parties. Defendants have provided no evidence or argument to the contrary.”
The response also disputes Tausch’s and Fitch’s claim that both process (filing in Valencia County) and service of process (by publication) were improper.
The first judge assigned to the case, John W. Pope, allowed the summons to be served to the “unnamed” defendants by publication in local newspapers.
“Defendants have not provided any indication that the Court’s selected method was unreasonable or violated Rule 1-004(J),” the response states. “Therefore, both process and service of process were proper as to Defendants Tausch and Thomas (sic).”
The co-op asks the judge to deny the defendants’ claim and order the pair to file an answer within 10 days.
Attorney John Gerbracht’s motion to quash also addressed the matter of service by publication.
On Tuesday, Aug. 9, Francish filed a response to the motion, using some of the same arguments as before.
“Logically, it seems reasonable that providing general notice to all member-owners of the Cooperative would be equally effective, if not more effective, than listing 13,000 names in the newspaper,” the document states, using the exact language as what was used in the response to Tausch and Fitch.
Countering Gerbracht’s argument that the notice of summons was not published in the county were the lawsuit is pending, the co-op states that the “newspaper of general circulation” requirement “has nothing to do with the place where the particular newspaper was published.”
The notice of summons was published in El Defensor Chieftain on July 14, 21 and 28.
“The fact that the El Defensor Chieftain is published in Socorro County is irrelevant to determining whether the newspaper is in general circulation in Valencia County,” the response states.
Finally, Francish acknowledges some “harmless procedural errors” were made in the co-op’s initial filing, but they “caused no substantive harm.”
Gerbracht had noted in his complaint the original motion was not signed by Francish and that a copy of the proposed notice of publication was not attached.
“Plantiff’s counsel sincerely regrets these procedural errors,” Francish responded. “However, Plaintiff’s counsel also affirmatively states that these errors were made through excusable mistake, and were not intended to cause harm, delay or in any way deceive this Court or any party to the current litigation.”
In conclusion, Fransich asks the court deny Gerbracht’s motion to quash. But if the court should decide to grant the motion, the co-op should be allowed 30 days to serve proper notice.
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