Cervantes-Guevara v. Eighth Judicial Dist. Court of Nev.

• Decision Date: 03 March 2022
• Docket Number: 83156
• Parties: Maria Del Rosario CERVANTES-GUEVARA, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Erika D. Ballou, District Judge, Respondents, and Mark Thomas Anderson; and Thor Development, LLC, a Limited Liability Corporation, Real Parties in Interest.
• Court: Nevada Supreme Court

505 P.3d 393

Maria Del Rosario CERVANTES-GUEVARA, Petitioner,

v.The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Erika D. Ballou, District Judge, Respondents,andMark Thomas Anderson; and Thor Development, LLC, a Limited Liability Corporation, Real Parties in Interest.

No. 83156

Supreme Court of Nevada.

FILED MARCH 03, 2022

Bighorn Law and Jacqueline R. Bretell and Joshua P. Berrett, North Las Vegas, for Petitioner.

Messner Reeves LLP and M. Caleb Meyer and Scott L. Rogers, Las Vegas, for Real Party in Interest Mark Thomas Anderson.

Resnick & Louis, P.C., and Prescott T. Jones and Katlyn M. Brady, Las Vegas, for Real Party in Interest Thor Development, LLC.

BEFORE THE SUPREME COURT, EN BANC.

OPINION

By the Court, HARDESTY, J.:

Rule 4 of the Nevada Rules of Civil Procedure (NRCP) sets forth the requirements for summons and service of civil complaints. Specifically, NRCP 4(e) gives plaintiffs 120 days after filing a civil complaint in the district court to serve the defendants with a summons and a copy of the complaint. NRCP 4 further permits a plaintiff to request an extension of time to serve process on a defendant if the plaintiff is unable to serve the defendant within the 120-day period. If a motion demonstrating good cause is timely filed before the expiration of the service period, or any extension thereof, the court is required to extend the service period and set a reasonable date by which service should be made. NRCP 4(e)(3). However, if the plaintiff fails to timely move to extend the time for service, the court must determine whether good cause exists for the plaintiff's delay in filing the motion before considering whether good cause exists for granting an extension of the service period. NRCP 4(e)(4).

On March 12, 2020, Nevada Governor Steve Sisolak issued an Emergency Declaration declaring a state of emergency related to the COVID-19 pandemic. Subsequently, the Governor issued a series of Emergency Directives that impacted the daily lives of individuals, businesses, and government. Specifically, on April 1, 2020, the Governor issued Emergency Directive 009 (Revised), which, among other things, tolled any specific time limits set by statute or regulation pertaining to the commencement of any legal action until 30 days from the date the state of emergency was terminated. The Governor thereafter terminated Emergency Directive 009 (Revised) by issuing Emergency Directive 026 on June 29, 2020. Pursuant to Emergency Directive 026, the tolling period for commencing legal action ended on July 31, 2020, at 11:59 p.m.

In this original petition for a writ of mandamus, we determine whether the district court was within its discretion in denying, as untimely, petitioner Maria Del Rosario Cervantes-Guevara's second motion to enlarge time for service of process. In analyzing this question, we conclude that Emergency Directive 009 (Revised) did not apply to court rules and, thus, the deadline for service under NRCP 4(e) was not tolled by the Emergency Directive. Therefore, Cervantes-Guevara's motion was untimely under NRCP 4(e)(1), and she did not demonstrate good cause for her delay in filing the motion under NRCP 4(e)(3). Because the district court did not manifestly abuse its discretion by denying Cervantes-Guevara's motion and dismissing her complaint as to the party whom she failed to timely serve, we deny the original petition for a writ of mandamus.

FACTS AND PROCEDURAL HISTORY

In early 2018, Cervantes-Guevara and real party in interest Mark Thomas Anderson were involved in a motor vehicle incident in Las Vegas. On January 7, 2020, Cervantes-Guevara filed a complaint against Anderson and his employer, real party in interest Thor Development, LLC, alleging various tort claims. Under NRCP 4(e)(1), the 120-day deadline to effect service of process expired on May 6, 2020. Cervantes-Guevara unsuccessfully attempted to effectuate personal service on Anderson three times between February 18, 2020, and March 8, 2020. On March 12, 2020, Governor Steve Sisolak declared a state of emergency due to the COVID-19 pandemic.

On April 1, 2020, the Governor issued Emergency Directive 009 (Revised), section 2 of which mandated that "[a]ny specific time limit set by state statute or regulation for the commencement of any legal action is hereby tolled from the date of this Directive until 30 days from the date the state of emergency declared on March 12, 2020 is terminated." The Governor terminated the tolling section of the Emergency Directive on June 29, 2020, and recommenced the time tolled as of August 1, 2020. See Emergency Directive 026 (June 29, 2020), § 5.

On May 6, 2020 (the expiration date of the NRCP 4 service period), Cervantes-Guevara filed her first ex parte application to enlarge time for service, seeking an additional 90 days and leave to serve Anderson by publication due to COVID-19 social-distancing restrictions. The district court granted the unopposed motion on June 5, 2020, extending the service period until September 3, 2020. Cervantes-Guevara did not publish the first of the four required notices until October 15, 2020, however.

Cervantes-Guevara filed her second motion to enlarge time for service on October 28, 2020, seeking to extend the service period until December 23, 2020. Anderson appeared in the action to oppose the motion, and Senior Judge Joseph T. Bonaventure issued minutes denying Cervantes-Guevara's second motion to enlarge time on December 16, 2020, finding that the Emergency Directive did not toll the time for service of process and that her motion was untimely under the district court's Administrative Order 20-17, which required motions to extend service of process deadlines filed after July 1, 2020, to be filed prior to the expiration of the time to serve.¹ The minutes also indicated that Anderson would be dismissed as a party to the action.

Cervantes-Guevara filed a motion for reconsideration, arguing that Senior Judge Bonaventure did not consider whether good cause existed for Cervantes-Guevara's delay in filing the motion. Judge Erika D. Ballou denied Cervantes-Guevara's motion for reconsideration in a written order issued on March 22, 2021, finding that Senior Judge Bonaventure likely considered all factors required to deny the motion to enlarge time for service, even if his findings were not put on the record, and that she would not substitute her judgment for the judge who originally heard and ruled on the motion. After denying the motion for reconsideration, Judge Ballou issued a written order on July 13, 2021, reflecting Senior Judge Bonaventure's December 16 ruling and denying Cervantes-Guevara's second motion to enlarge time. Cervantes-Guevara filed this original petition for a writ of mandamus, asking this court to direct the district court to vacate its order denying the enlargement of time and dismissing Anderson from the action. Anderson filed an answer, as directed,² and Cervantes-Guevara filed a reply.

DISCUSSION

Whether this court should entertain this writ petition

"A writ of mandamus is available to compel the performance of an act that the law requires ... or to control an arbitrary or capricious exercise of discretion." Int'l Game Tech., Inc. v. Second Judicial Dist. Court , 124 Nev. 193, 197, 179 P.3d 556, 558 (2008) (citing, inter alia, NRS 34.160 ). In general, when considering a petition for a writ of mandamus, we review for a manifest abuse of discretion. NuVeda, LLC v. Eighth Judicial Dist. Court , 137 Nev. Adv. Op. 54, 495 P.3d 500, 503 (2021). Whether to consider such a petition is within the appellate court's discretion. Libby v. Eighth Judicial Dist. Court , 130 Nev. 359, 363, 325 P.3d 1276, 1278 (2014). Mandamus may only issue in "cases where there is not a plain, speedy and adequate remedy in the ordinary course of law." NRS 34.170. An appeal is generally an adequate legal remedy precluding writ relief. Int'l Game Tech., 124 Nev. at 197, 179 P.3d at 558.

Here, it is appropriate to entertain Cervantes-Guevara's petition because she does not have a plain, speedy, and adequate remedy to challenge the district court's order dismissing Anderson as a defendant in the underlying action. While it is true that the district court dismissed all the claims in the complaint against Anderson, the order granting dismissal is not appealable, absent an appropriate certification of finality under NRCP 54(b), because there are remaining issues to be resolved against Thor Development. See Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d 416, 417 (2000) (explaining that "a final judgment is one that disposes of all the issues presented in the case, and leaves nothing for the future consideration of the [district] court"). But NRCP 54(b) certification is discretionary, Borger v. Eighth Judicial Dist. Court, 120 Nev. 1021, 1026 n.23, 102 P.3d 600, 603 n.23 (2004), and while its availability generally precludes writ relief, see, e.g., Dattala v. Eighth Judicial Dist. Court, No. 83939, 2022 WL 510112, at *1 (Nev. Feb. 18, 2022) (Order Denying Petition), the preclusion is not absolute, Borger, 120 Nev. at 1026 n.23, 102 P.3d at 603 n.23. Considering this writ petition is appropriate because whether the Emergency Directive issued by the Governor applies to rules promulgated by this court is an important issue of law requiring clarification and resolving the issue will promote judicial economy. See Mona v. Eighth Judicial Dist. Court , 132 Nev. 719, 724, 380 P.3d 836, 840 (2016) (noting that "even if an [otherwise] adequate legal remedy exists, this court will consider a writ petition if an important issue of law needs clarification or if review would serve a public policy or judicial economy interest").

Whether the Governor's Emergency Directive applies to service of process

In Nevada, the judiciary has the constitutional duty "[t]o declare what the law is or has been." N. Lake Tahoe Fire Prot. Dist. v. Washoe Cty. Bd. of Comm'rs , 129...