Humphries v. Eighth Judicial Dist. Court of State

• Decision Date: 07 November 2013
• Docket Number: No. 61690.,61690.
• Citation: 129 Nev. Adv. Op. 85,312 P.3d 484
• Court: Nevada Supreme Court
• Parties: Carey HUMPHRIES, an Individual; and Lorenza Rocha, II, an Individual, Petitioners, v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, In and for the COUNTY OF CLARK; and the Honorable Michael Villani, District Judge, Respondents, and New York–New York Hotel & Casino, LLC, a Nevada Limited Liability Company d/b/a New York–New York Hotel & Casino, Real Party in Interest.

312 P.3d 484

129 Nev. Adv. Op. 85

Carey HUMPHRIES, an Individual; and Lorenza Rocha, II, an Individual, Petitioners,

v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, In and for the COUNTY OF CLARK; and the Honorable Michael Villani, District Judge, Respondents,andNew York–New York Hotel & Casino, LLC, a Nevada Limited Liability Company d/b/a New York–New York Hotel & Casino, Real Party in Interest.

No. 61690.

Supreme Court of Nevada.

Nov. 7, 2013.

Craig W. Drummond, Las Vegas; Hofland & Tomsheck and Joshua L. Tomsheck, Las Vegas, for Petitioners.

Kravitz, Schnitzer, Sloane & Johnson, Chtd., and Martin J. Kravitz and Kristopher T. Zeppenfeld, Las Vegas, for Real Party in Interest.

BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.

OPINION

By the Court, PARRAGUIRRE, J.:

In the underlying premises liability action, the premises owner successfully moved the district court to order the plaintiffs to join the plaintiffs' assailant as a defendant to the action, on the grounds that the assailant is a party necessary to the litigation. NRCP 19 provides that a person must be joined as a party if the court cannot afford complete relief in that person's absence. We conclude that the assailant was not a necessary party under NRCP 19 because the district court can afford complete relief to the parties, the defendant is able to implead the assailant as a third party under NRCP 14, and creating a per se joinder requirement would unfairly burden plaintiffs. Accordingly, we grant the petition for a writ of mandamus.

FACTS

In April 2010, petitioners Carey Humphries and Lorenza Rocha, II, were involved in an altercation with Erik Ferrell on real-party-in-interest New York–New York's casino floor. Security officers and police stopped the altercation and detained Ferrell. He was arrested and subsequently convicted of one count of attempted battery with substantial bodily harm.

In May 2011, Humphries and Rocha filed a complaint against New York–New York, alleging various causes of action for negligence based on its duty to protect. The complaint did not include any claims against Ferrell. New York–New York's answer asserted Humphries' and Rocha's comparative negligence as an affirmative defense.

Following Humphries' and Rocha's complaint, this court issued an opinion in Cafe Moda, L.L.C. v. Palma, 128 Nev. ––––, 272 P.3d 137 (2012), in which we interpreted Nevada's comparative negligence statute, NRS 41.141. In Cafe Moda, the plaintiff sued two defendants, one as an intentional tortfeasor and the other as a negligent tortfeasor, and the negligent tortfeasor asserted that it was only severally liable under NRS 41.141. Id. at ––––, 272 P.3d at 138. We clarified that, in a case alleging comparative negligence, an intentional tortfeasor's liability is joint and several, but a merely negligent cotortfeasor's liability is several, even if the injured party is not ultimately found to be comparatively negligent.

In light of Cafe Moda's holding on the apportionment of liability between intentional and negligent cotortfeasors in comparative negligence cases, New York–New York moved to compel Humphries and Rocha to join Ferrell, arguing that Ferrell was a necessary party under NRCP 19(a). The district court granted New York–New York's motion, explaining that “[j]oinder of Ferrell is necessary to ensure [New York–New York] is afforded full protection under the Cafe Moda case.” The district court further determined that joinder was feasible, since Ferrell resides in Nevada and his identity is known. It thus compelled Humphries and Rocha to join Ferrell.

Humphries and Rocha have petitioned this court for a writ of mandamus. They seek to vacate the order compelling joinder, arguing that the district court erred in compelling them to join a new party defendant when the complaint does not allege a cause of action against that defendant. They further argue that joinder of a necessary party is infeasible when the statute of limitations has run on the possible causes of action against the new defendant and that Ferrell is not an indispensable party.

DISCUSSION

We begin by addressing whether writ relief is appropriate. Determining that it is, we then consider whether the district court properly concluded that Ferrell was a necessary party under NRCP 19(a).

Writ of mandamus

Article 6, Section 4 of the Nevada Constitution gives this court jurisdiction to issue writs of mandamus. “A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station 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 NRS 34.160). A writ will not issue where there is a plain, speedy, and adequate remedy in the ordinary course of the law. NRS 34.170; Int'l Game Tech., 124 Nev. at 197, 179 P.3d at 558. It is within this court's discretion to determine whether to consider petitions for this extraordinary remedy. Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991).

In this case, Humphries and Rocha do not have a plain, speedy, and adequate remedy in the ordinary course of the law. This case is in the early stages of litigation, and the district court's order forces Humphries and Rocha to join Ferrell and assert causes of action against him, despite the running of the statute of limitations, or have their action dismissed. See Lund v. Eight Judicial Dist. Court, 127 Nev. ––––, ––––, 255 P.3d 280, 284 (2011) (citing In re Simons, 247 U.S. 231, 239–40, 38 S.Ct. 497, 62 L.Ed. 1094 (1918) (concluding that extraordinary writ relief was warranted because a legal error affected the course of the litigation and the party aggrieved should not have to wait until the final judgment was entered to correct the error)). Moreover, this petition identifies confusion and uncertainty surrounding Cafe Moda and NRS 41.141, highlighting the need to clarify an important legal issue of which this court's review would promote sound judicial economy and administration. Int'l Game Tech., 124 Nev. at 197–98, 179 P.3d at 559. Accordingly, we will exercise our discretion and consider this petition to address whether NRS 41.141 and Cafe Moda render Ferrell a party necessary to the underlying action under NRCP 19(a).

The district court erred in compelling Humphries and Rocha to join Ferrell as a necessary party

Humphries and Rocha argue that plaintiffs have the right to decide whom to sue, and that the district court erred by interpreting Cafe Moda as creating a per se rule that intentional tortfeasors are necessary parties in premises liability actions. New York–New York responds that in order for it to be afforded the protection of several liability under NRS 41.141(4), Ferrell is a necessary party and must be joined to the action.

Considering these arguments, we first review whether tortfeasors who were jointly and severally liable under the traditional apportionment of liability were considered necessary parties under NRCP 19 before examining apportionment of fault under Nevada's comparative negligence statute, NRS 41.141, and our interpretation of it in Cafe Moda and Warmbrodt v. Blanchard, 100 Nev. 703, 692 P.2d 1282 (1984), superseded on other grounds as stated in Countrywide Home Loans v. Thitchener, 124 Nev. 725, 740–43 & n. 39, 192 P.3d 243, 253–55 & n. 39 (2008). We then consider the effect of NRS 41.141 upon apportionment of liability in this case, as compared with traditional joint and several liability, and the policies behind apportionment of fault to cotortfeasors. Finally, given New York–New York's ability to implead Ferrell as a third-party defendant and assert a cause of action for contribution against him, we decline to disturb the traditional view that, when plaintiffs have sued a tortfeasor who is jointly and severally liable or severally liable, cotortfeasors are not necessary parties under NRCP 19(a).

This court reviews a district court's interpretation of the Nevada Rules of Civil Procedure and statutory construction de novo, even when considered in a writ petition. See Lund, 127 Nev. at ––––, 255 P.3d at 283;Int'l Game Tech., 124 Nev. at 198, 179 P.3d at 559.NRCP 19(a) provides that a person must be joined in an action if that person is necessary to the action. A person is necessary to the action if (1) in his absence, the court cannot accord complete relief among the existing parties; or (2) he has an interest in the action and his absence will impair his ability to protect his interest or subject one of the existing parties to inconsistent obligations. NRCP 19(a)(1)-(2). If that person is not a party to the action, the court must order that person be made a party, if feasible. NRCP 19(a). If joinder is not feasible, the court must determine, in equity and good conscience, whether the action should proceed or be dismissed. NRCP 19(b) (providing a four-factor test to determine whether a necessary party is indispensable).

Humphries and Rocha cite McPherson v. Hoffman, 275 F.2d 466, 470 (6th Cir.1960), for the proposition that Ferrell is not a necessary party and argue that New York–New York cannot force Ferrell's joinder upon them because “ ‘[j]oint tort[ ]feasors have no right to determine whether they shall be jointly or separately sued for their wrong. This right rests with the party aggrieved....’ ” Id. (quoting Detroit City Gas Co. v. Syme, 109 F.2d 366, 369 (6th Cir.1940)). This court cited to McPherson and held that “the plaintiff has the right to decide for himself whom he shall sue,” and that a defendant may not use NRCP 14 to offer a third party as a defendant, even though the third party may ultimately be liable to the defendant for any damages assessed against the defendant. Reid v. Royal Ins. Co., 80 Nev. 137, 141, 390 P.2d 45, 47 (1964). Reid and McPherson involve instances in which the defendant and nonparty tortfeasor were...