Dallman v. Merrell, 20963
| Decision Date | 27 December 1990 |
| Docket Number | No. 20963,20963 |
| Citation | 106 Nev. 929,803 P.2d 232 |
| Parties | William DALLMAN, Jr., Appellant, v. Mark MERRELL, Respondent. |
| Court | Nevada Supreme Court |
On June 16, 1989, appellant William Dallman, Jr. filed in the district court a complaint against respondent Mark Merrell, Hallman Chevrolet, Inc. a Nevada corporation, and Does 1-50. Dallman and Merrell had both been employed as automobile salesmen by Hallman Chevrolet. Dallman served Hallman Chevrolet with the summons and complaint on June 20, 1989. Dallman did not serve Merrell at this time because he could not locate him. Dallman had attempted to locate Merrell through the telephone directory, a city directory and a process server. On August 4, 1989, Hallman Chevrolet filed an answer. Trial was scheduled for September 24, 1990.
In January of 1990, Dallman retained new counsel, who discovered that Merrell had not been served and that Hallman Chevrolet did not intend to defend Merrell. A private investigator obtained the address of Merrell's residence in Reno through auto salesmen and drivers license records of the Department of Motor Vehicles. On February 1, 1990, 230 days after the complaint was filed, Dallman served Merrell with an alias summons at Merrell's residence.
Merrell moved to dismiss because service had not been accomplished within 120 days of the filing of the complaint, as required by NRCP 4(i). Dallman opposed the motion. The district court found that Dallman had not shown good cause for the failure to serve process within 120 days of the filing of the complaint, and that some prejudice to Merrell would result from the delay. On March 13, 1990, the district court entered an order granting the motion to dismiss, without prejudice. See NRCP 4(i). Thereafter, pursuant to a stipulation of the parties, the district court certified its order as final under NRCP 54(b). This appeal followed.
Dallman contends that the district court abused its discretion in granting the motion to dismiss. NRCP 4(i) provides:
If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or...
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Scrimer v. Dist. Ct.
...held that "good cause" existed to excuse late service of the summons and complaint. Id. at 584, 747 P.2d at 237.5 In Dallman v. Merrell, 106 Nev. 929, 803 P.2d 232 (1990), this court affirmed an order dismissing one of two defendants under NRCP 4(i) where service was effected 108 days late.......
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Lacey v. Wen-Neva, Inc.
...of untimely service of process. See NRCP 4(i); Dougan, 108 Nev. [109 Nev. 345] at 520-21, 835 P.2d at 797-98; Dallman v. Merrell, 106 Nev. 929, 930-31, 803 P.2d 232, 233 (1990); see also Arroyo v. Wheat, 102 F.R.D. 516, 517-18 (D.Nev.1984) (Federal Rule of Civil Procedure 4(j) applies where......
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...days after the complaint was filed. The only cases in which we have addressed the NRCP 4(i) good cause exception are Dallman v. Merrell, 106 Nev. 929, 803 P.2d 232 (1990), and Domino v. Gaughan, 103 Nev. 582, 747 P.2d 236 (1987). In Dallman, we upheld an NRCP 4(i) dismissal where service wa......