N.M. Stat. § 44-9-5 (2026)

may intervene.
    A. A person may bring a civil action for a violation of Section 44-9-3 NMSA 1978 on
behalf of the person and the state or political subdivision. The action shall be brought in
the name of the state or political subdivision. The person bringing the action shall be
referred to as the qui tam plaintiff. Once filed, the action may be dismissed only with the
written consent of the court, taking into account the best interest of the parties involved
and the public purposes behind the Fraud Against Taxpayers Act.

   B. A complaint filed by a qui tam plaintiff shall be filed in camera in district court and
shall remain under seal for at least sixty days. No service shall be made on a defendant
and no response is required from a defendant until the seal has been lifted and the
complaint served pursuant to the rules of civil procedure.

    C. On the same day as the complaint is filed, the qui tam plaintiff shall serve the
attorney general, and the political subdivision, if applicable, with a copy of the complaint
and written disclosure of substantially all material evidence and information the qui tam
plaintiff possesses. The attorney general on behalf of the state or the political
subdivision, or the political subdivision on its own behalf, may intervene and proceed
with the action within sixty days after receiving the complaint and the material evidence
and information. Upon a showing of good cause and reasonable diligence in the state's
or political subdivision's investigation, the state or political subdivision may move the
court for an extension of time during which the complaint shall remain under seal.

    D. Before the expiration of the sixty-day period or any extensions of time granted by
the court, the attorney general or political subdivision shall notify the court that the state
or the political subdivision:

       (1)      intends to intervene and proceed with the action; in which case, the seal
shall be lifted and the action shall be conducted by the attorney general on behalf of the
state or the political subdivision, or the political subdivision shall conduct the action on
its own behalf; or

       (2)    declines to take over the action; in which case the seal shall be lifted and
the qui tam plaintiff may proceed with the action.

   E. When a person brings an action pursuant to this section, no person other than
the attorney general on behalf of the state or a political subdivision, or a political
subdivision on its own behalf, may intervene or bring a related action based on the facts
underlying the pending action.

History: Laws 2007, ch. 40, § 5; 2015, ch. 128, § 4.

                                      ANNOTATIONS

Cross references. — For the rules of civil procedure for district courts, see 1-001
NMRA.
For a history of qui tam prosecutions, see Guiterrez v. Gober, 43 N.M. 146, 87 P.3d 437
(1939).

The 2015 amendment, effective June 19, 2015, authorized qui tam plaintiffs to bring
civil actions for violations of the Fraud Against Taxpayers Act on behalf of political
subdivisions and authorized political subdivisions to intervene in such actions; in the
catchline, added “or political subdivision”; in Subsection A, after "Section", deleted "3 of
the Fraud Against Taxpayers Act" and added "44-9-3 NMSA 1978", after "person and
the state", added "or political subdivision", and after "the name of the state", added "or
political subdivision"; in Subsection C, after "attorney general,", added "and the political
subdivision, if applicable", after "behalf of the state", added "or the political subdivision,
or the political subdivision on its own behalf", after "diligence in the state’s", added "or
political subdivision’s", and after "investigation, the state", added "or political
subdivision"; in the introductory sentence of Subsection D, after "attorney general",
added "or political subdivision", and after "that the state", added "or the political
subdivision"; in Paragraph (1) of Subsection D, after "behalf of the state", added "or the
political subdivision, or the political subdivision shall conduct the action on its own
behalf"; and in Subsection E, after "behalf of the state", added "or a political subdivision,
or a political subdivision on its own behalf".

Proper service of process is required before a court can exercise jurisdiction. —
Where plaintiffs filed a complaint against defendant, the mayor of Edgewood, and the
town of Edgewood for quo warranto and declaratory judgment, and a writ of mandamus
for violations of Edgewood’s nepotism ordinance and fraud, and timely served
defendant by certified mail and by personal delivery, and although defendant was
served, he did not enter his appearance in the case, and where, a month later, plaintiffs
filed the first amended complaint, adding a qui tam claim under the Fraud Against
Taxpayers Act, 44-9-1 to 44-9-14 NMSA 1978, which requires plaintiffs to file the
complaint under seal and serve notice on both the attorney general and the appropriate
political subdivisions, gives the attorney general sixty days while the complaint is under
seal to decide whether to intervene and proceed with the qui tam claim, and during this
time, a defendant cannot be served and no response is required until the seal has been
lifted and the qui tam plaintiff serves the defendant, and where, after being served with
the sealed complaint, the attorney general filed notice declining to intervene, and where
the district court granted a motion to lift the seal and ordered plaintiffs to serve a copy of
the first amended complaint on all parties to the proceedings, and although plaintiffs
served the attorney general and the town of Edgewood, plaintiffs did not serve a copy of
the first amended complaint on defendant, either individually or in his capacity as
mayor, and where plaintiffs moved for default judgement against defendant on certain
counts of the first amended complaint, the district court erred in granting plaintiffs’
motion for default judgment, because defendant was never served with the first
amended complaint and proper service of process is required before a court can
exercise jurisdiction over a defendant and render a binding judgment. McGill v. Bassett,
2023-NMCA-033.
The district court was authorized to permit the attorney general to participate in
the qui tam action after the attorney general initially declined to intervene. — In a
qui tam action, where the district court entered a judgment that dismissed the plaintiffs'
Fraud Against Taxpayers Act (FATA) claims in their entirety and also approved a
settlement negotiated by the attorney general's office (AGO), and where the plaintiffs
claimed that the AGO was without authority to seek dismissal of the FATA claims and
approval of the settlement agreement when the AGO declined to intervene in the qui
tam action, and that once the AGO declined to take over the case, plaintiffs became the
sole representative of the state's interest, the district court did not err in allowing the
AGO to participate in the qui tam action because § 44-9-6(F) NMSA 1978, expressly
authorizes the court to permit the attorney general to intervene at a later date upon a
showing of good cause. State ex rel. Foy v. Vanderbilt Capital Advisors, 2022-NMCA-
026, cert. denied.

Material elements test adopted to determine a relator's right to an award in an
alternate remedy proceeding. — The general rule is that a subsequent action is
related, and therefore, barred from a share of the proceeds if it alleges the same
material elements of fraud described in an earlier suit, regardless of whether the
allegations incorporate somewhat different details. When a relator's complaint pleads
sufficient facts to put the government on notice of the related fraud in the alternate
remedy proceeding, the relator deserves a share of the award. When the state pursues
its claim through an alternate remedy proceeding, the qui tam plaintiff has the same
rights as if the action continued in the district court. Galloway v. N.M. Off. of the
Superintendent of Ins., 2025-NMSC-012, vacating A-1-CA-38974, mem. op. (N.M. Ct.
App. July 14, 2022) (nonprecedential).

Relator's qui tam complaint put the government on notice of related frauds
uncovered during an alternate remedy proceeding. — In a qui tam action, where
plaintiffs brought a declaratory judgment action against the office of superintendent of
Insurance seeking a twenty percent qui tam share of $15.6 million recovered from an
alternate remedy proceeding, and where the district court denied plaintiffs' recovery,
finding there was insufficient overlap between plaintiffs' Fraud Against Taxpayers Act
(FATA) lawsuit and the administrative recovery because plaintiffs' complaint lacked the
required specificity to allow recovery of proceeds from the alternate remedy, the district
court erred in denying plaintiffs' recovery, because a relator is entitled to a share of the
proceeds if their FATA action put the government on notice of the related frauds
uncovered during the alternate remedy proceeding, and in this case, although the
attorney general joined two additional defendants and alleged five additional claims,
each of the supplemental claims was against the original defendant and based on
allegations from plaintiffs' FATA complaint. The record suggests a finding that plaintiffs'
allegations put the State on notice of defendant's improper application of tax credits.
Galloway v. N.M. Off. of the Superintendent of Ins., 2025-NMSC-012, vacating A-1-CA-
38974, mem. op. (N.M. Ct. App. July 14, 2022) (nonprecedential).

Claims preclusion. — Where plaintiff was an inmate of a correctional facility;
defendant had a service contract with the corrections department to provide meals for
inmates in the facility which required defendant to provide food for religious diets for
inmates who were approved to receive a religious diet; in 2008, plaintiff sued defendant
for damages on the ground that although defendant had been approved to receive a
religious vegetarian diet, defendant had refused to provide plaintiff with an adequate
vegetarian diet which prohibited plaintiff from freely exercising plaintiff’s religion; and in
2010, plaintiff sued defendant for violation of the Fraud Against Taxpayers Act to recoup
money paid to defendant by the corrections department on the ground that defendant
refused to provide food of the nutritional content and quality specified in the service
contract, the doctrine of claims preclusion did not bar plaintiff’s 2010 lawsuit because in
the 2008 lawsuit plaintiff, as an individual on plaintiff’s own behalf, sought to recover
damages for wrongful acts perpetrated by defendant on plaintiff personally and in the
2010 lawsuit, plaintiff, on behalf of and in the name of the state, sought to recover
damages sustained by the state as a result of defendants false claims for compensation
for non-conforming goods and services. State ex rel. Peterson v. Aramark Corr. Servs.,
LLC, 2014-NMCA-036.

Issue preclusion. — Where plaintiff was an inmate of a correctional facility; defendant
had a service contract with the corrections department to provide meals for inmates in
the facility which required defendant to provide food for religious diets for inmates who
were approved to receive a religious diet; in 2008, plaintiff sued defendant for damages
on the ground that although defendant had been approved to receive a religious
vegetarian diet, defendant had refused to provide plaintiff with an adequate vegetarian
diet which prohibited plaintiff from freely exercising plaintiff’s religion; and in 2010,
plaintiff sued defendant for violation of the Fraud Against Taxpayers Act to recoup
money paid to defendant by the corrections department on the ground that defendant
refused to provide food of the nutritional content and quality specified in the service
contract; the doctrine of issue preclusion did not bar plaintiff’s 2010 lawsuit because the
relevant issue in the 2008 lawsuit was whether plaintiff had been defrauded and the
district court focused on the adequacy of plaintiff’s vegetarian meals and the relevant
issue in the 2010 lawsuit was whether defendant knowingly presented fraudulent claims
for payment to the state and the district court focused on the adequacy of meals
provided to all inmates in the facility. State ex rel. Peterson v. Aramark Corr. Servs.,
LLC, 2014-NMCA-036.