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Tolling the statute of limitations

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quincy

Senior Member
In my last post I mentioned that I had been contacted by various anti intensive farming organization but so far have only given them an acknowledgement of the contact but have declined to give an interview.
I know why they are interested but I have concerns that talking to them may be detrimental to my case, or, as is seems to be a common practice would it be acceptable to get the media on my side prior to going to court?
The media can be helpful when someone wants to focus attention on a matter of public concern.

It is rarely wise or advised to try your case in the media.
 


@NeilTheCop you said you were developing health issues because of this. When did you see the doctor about the health issues and what is the health issue? Wouldn't a new new personal injury claim restart the clock?
 
The media can be helpful when someone wants to focus attention on a matter of public concern.

It is rarely wise or advised to try your case in the media.
Therein lies my dilemma.
Perhaps an elaboration.

There are 2 brothers, the one who is the defendant in my case owns an agricultural operation, the other owns a concentrated animal feeding operation (dairy). The brother with the dairy has been cited a few times for water pollution from the manure generated by the dairy so his brother stores the manure next to my house, possibly to stop it polluting the water even more.
Another dairy, not associated with the 2 brothers was forced to close some time ago because an animal activist group made a video recording of animal abuse. I have not seen the video but it was supposedly horrific.

Now this is where the environmental groups interest lies.
The brother who has the field next to my house where he is storing the manure is a New Mexico senator. In 2015 he authored a bill to amend the right to farm act to give himself and other farmers more protection from any lawsuits. The bill failed but was reintroduced verbatim in 2016 by another senator and was, according to the media, 'railroaded through'. The brother who is the senator also authored a bill making it a criminal offense to make a video or audio recording inside any dairy. The obvious assumption is that this is an attempt to stop the animal rights groups making any more horrific videos of animal abuse. This also failed.
As I have not attempted to discover the environment groups intent I can only assume that it would in reference to a politicians attempts to introduce or amend laws simply to protect his own interests and the interests of his family.
I'm not sure why the environmental groups want to talk to me because all of this information is a public record and freely available.
 
@NeilTheCop you said you were developing health issues because of this. When did you see the doctor about the health issues and what is the health issue? Wouldn't a new new personal injury claim restart the clock?
As I'm in my mid 60's my health could be attributed to my age rather than the manure dust and being in the middle of a farming area I would have to prove that this manure was the cause.
It would be easier to apply to the court pleading that they allow me to amend my complaint to include trespass, where there is no protection under the right to farm act.
 

quincy

Senior Member
.. I'm not sure why the environmental groups want to talk to me because all of this information is a public record and freely available.
Perhaps the environmental groups want permission to test your water and film the Senator's activities from your property?
 
Perhaps the environmental groups want permission to test your water and film the Senator's activities from your property?
An excellent reason to decline as my 'water' is about 60 proof.;)
My intent has never been to demonizes a politician, just to be able to enjoy my property without being poisoned.
 
Need some more advice.
The trucks have started up again and no court date has yet been set. It was a nice respite but now I can't go out to my yard again without being poisoned.
I'm considering requesting a TRO but the problem is that all the references, self help guides and forms from the court relate to obtaining a TRO for domestic violence and none deal with requesting a TRO on an existing case.
Would I be better filing a motion for an expedited hearing for the temporary injunction which I have already filed for?
 

quincy

Senior Member
Need some more advice.
The trucks have started up again and no court date has yet been set. It was a nice respite but now I can't go out to my yard again without being poisoned.
I'm considering requesting a TRO but the problem is that all the references, self help guides and forms from the court relate to obtaining a TRO for domestic violence and none deal with requesting a TRO on an existing case.
Would I be better filing a motion for an expedited hearing for the temporary injunction which I have already filed for?
A temporary injunction seems appropriate.
 
I've already filed for the temporary and permanent injunction so it was the motion for an expedited hearing for the original temporary injunction that I was asking about.
Can't wait for however long it will take to set a court date, because I know private nuisance claims are real low on a courts priority list
 

Taxing Matters

Overtaxed Member
Need some more advice.
The trucks have started up again and no court date has yet been set. It was a nice respite but now I can't go out to my yard again without being poisoned.
I'm considering requesting a TRO but the problem is that all the references, self help guides and forms from the court relate to obtaining a TRO for domestic violence and none deal with requesting a TRO on an existing case.
Would I be better filing a motion for an expedited hearing for the temporary injunction which I have already filed for?
You have two choices in seeking an injunctive order prior to a full hearing on your injunction complaint. One is a preliminary injunction. A preliminary injunction is an injunction issued by the court prior to a full trial on the injunction complaint. You have to show several things to get it:

To obtain a preliminary injunction, a plaintiff must show that (1) the plaintiff will suffer irreparable injury unless the injunction is granted; (2) the threatened injury outweighs any damage the injunction might cause the defendant; (3) issuance of the injunction will not be adverse to the public's interest; and (4) there is a substantial likelihood plaintiff will prevail on the merits.​

LaBalbo v. Hymes, 1993-NMCA-010, ¶ 11, 115 N.M. 314, 318, 850 P.2d 1017, 1021. A preliminary injunction requires notice to the other party. NMRA 1-066(A)(1).

The second choice is a temporary restraining order (TRO). TROs are not just limited to domestic violence situations, though that is by far the most common single situation in which you see them. In NM case law, TROs have been issued in a lot of different situations. The effect of the TRO is similar to the preliminary injunction but no prior notice to the other side is required to get a TRO. But the fact that no notice is required means you have to show more to get it. First, like the preliminary injunction you must show factors like those for the preliminary injunction. But, importantly, for the TRO you have to show that you would suffer irreparable injury prior to the other party being able to be heard in opposition. NMRA 1-066(B)(1). You also have to show the efforts made to give notice, if any, and you have to provide reasons why the TRO should be granted without giving notice to the other side. The thing is, in your situation I'm not seeing anything that suggests you cannot provide notice to the other party or that you have any reasons why the TRO should be granted prior to giving such notice.
 
Thanks Taxing Matters.
1) The videos will clearly show the potential health risks if not granted
2) The defendant can enter his field from the other end of the road
3) It is in the public interest that I should be free of a deliberate infringement on my right to enjoy my property and to not be poisoned.
4) I'm confident that when I show the videos to the jury and ask if they would be happy to have that next to their house they will rule in my favor.

I emailed the paralegal for the defendants attorney (the only contact details I have) on Wednesday, and so far no answer.
Not sure how long I have to wait to show that I have made a good effort.
 

Taxing Matters

Overtaxed Member
I emailed the paralegal for the defendants attorney (the only contact details I have) on Wednesday, and so far no answer.
Not sure how long I have to wait to show that I have made a good effort.
I think the effort you have to make for a TRO is in showing you made the effort to serve notice the opposing side and were unsuccessful or show the court that you have reasons why the TRO should be granted without first making the effort to serve the opposing side. I'm guessing you can serve the opposing side or his lawyer since you have apparently already done that for your current injunction action. You also have to prove that it is necessary to get the TRO prior to allowing the other side a chance to respond and be heard. I'm not seeing anything that suggests this is so critical that you need to cut the other side out of his right to be heard before having the TRO granted. As you might expect, courts want to see something compelling before acting on just your complaint and not allowing the other side to even respond. The preliminary injunction might be better suited to your situation, but of course that's a choice you have to make based on your situation.
 
I think the effort you have to make for a TRO is in showing you made the effort to serve notice the opposing side and were unsuccessful or show the court that you have reasons why the TRO should be granted without first making the effort to serve the opposing side. I'm guessing you can serve the opposing side or his lawyer since you have apparently already done that for your current injunction action. You also have to prove that it is necessary to get the TRO prior to allowing the other side a chance to respond and be heard. I'm not seeing anything that suggests this is so critical that you need to cut the other side out of his right to be heard before having the TRO granted. As you might expect, courts want to see something compelling before acting on just your complaint and not allowing the other side to even respond. The preliminary injunction might be better suited to your situation, but of course that's a choice you have to make based on your situation.
Thanks, I'll file a motion for an expedited hearing for the preliminary injunction that I have already filed and send the defendants attorney his copy by registered mail as normal.
Do you have any idea how long it will take before I would get the expedited hearing?. I understand it's like asking how long is a piece of string, but I can't put up with this for much longer, having trouble breathing.
 

Taxing Matters

Overtaxed Member
Thanks, I'll file a motion for an expedited hearing for the preliminary injunction that I have already filed and send the defendants attorney his copy by registered mail as normal.
Did you originally file for a preliminary injunction, or a temporary injunction? They are not necessarily the same thing.

Do you have any idea how long it will take before I would get the expedited hearing?.
No way to guess at that. Depends on the details of your case, the judge the case is assigned to, and what other cases that judge has on his docket.
 
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