Lund v. the Eighth Judicial Dist. Court of State

• Citation: 127 Nev. Adv. Op. 28,255 P.3d 280
• Decision Date: 02 June 2011
• Docket Number: No. 57800.,57800.
• Parties: Benjamin A. LUND, an individual, Petitioner,v.The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, in and for the COUNTY OF CLARK; and The Honorable Valorie Vega, District Judge, Respondents,andBrian M. Walsh, an individual; Brad A. Mark, an individual; Hayli Rochell, an individual; Nikki Chaves, an individual; and Melanie Gross, an individual, Real Parties in Interest.
• Court: Supreme Court of Nevada

255 P.3d 280

127 Nev. Adv. Op. 28

Benjamin A. LUND, an individual, Petitioner,

v.The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, in and for the COUNTY OF CLARK; and The Honorable Valorie Vega, District Judge, Respondents,andBrian M. Walsh, an individual; Brad A. Mark, an individual; Hayli Rochell, an individual; Nikki Chaves, an individual; and Melanie Gross, an individual, Real Parties in Interest.

No. 57800.

Supreme Court of Nevada.

June 2, 2011.

Glen J. Lerner & Associates and Corey M. Eschweiler and Joseph F. Schmitt, Las Vegas, for Petitioner.Parker Scheer Lagomarsino and Andre M. Lagomarsino, Las Vegas, for Real Party in Interest Brian M. Walsh.Perry & Westbrook and Alan W. Westbrook, Las Vegas, for Real Parties in Interest Brad A. Mark, Hayli Rochell, Nikki Chaves, and Melanie Gross.

Before CHERRY, GIBBONS and PICKERING, JJ.

OPINION

By the Court, GIBBONS, J.:

In this petition, we address the narrow issue of whether a defendant may, under NRCP 13(h), bring a counterclaim that adds new parties to an action. Under that rule, if there is at least one original party included in the counterclaim, a defendant may add new parties to the action through a counterclaim as long as the nonparty meets the joinder requirements under NRCP 19 or 20. We take this opportunity to address this discrete issue and, while the dispute presented in this original proceeding does not warrant this court's expedited or emergency review, we nonetheless grant in part the petition for a writ of mandamus and direct the district court to vacate its order dismissing the counterclaims and to reconsider the decision in light of this opinion. Because petitioner has failed to fully develop his petition for extraordinary relief by necessarily addressing NRCP 19 or NRCP 20, however, we reject petitioner's request that we order the dismissed counterclaims reinstated.

BACKGROUND

In September 2010, real party in interest Brian M. Walsh filed a complaint against, among others, petitioner Benjamin A. Lund. In his complaint, Walsh alleged that he was injured by Lund in a fight that broke out at a charity golf event in Las Vegas. Lund answered Walsh's complaint, disputing much of Walsh's version of the events, and added counterclaims of his own against Walsh and real parties in interest Brad Mark, Hayli Rochell, Nikki Chaves, and Melanie Gross as additional counterclaim defendants. Lund alleged counterclaims against Walsh and Mark related to injuries he allegedly suffered in the fight and against Walsh, Mark, Rochell, Chaves, and Gross related to defamation for allegedly being untruthful about what Lund had said on the golf course and making Lund wrongly appear as an instigator of the fight.

Mark, Rochell, and Gross subsequently moved the district court to dismiss the counterclaims filed against them, arguing that under the Nevada Rules of Civil Procedure, new parties cannot be added to a lawsuit through counterclaims. ¹ Lund opposed the motion, arguing that NRCP 13(h) expressly permitted him to add new parties to his counterclaim. After a reply was filed and a hearing was held, the district court entered an order summarily dismissing the counterclaims against Mark, Rochell, and Gross. Lund then filed in this court an emergency petition for a writ of mandamus pursuant to NRAP 21(a)(6). Mark, Rochell, Chaves, and Gross were permitted to file an answer. ²

DISCUSSION

We begin our analysis by addressing the district court's refusal to permit the addition of new counterclaim defendants pursuant to NRCP 13(h). After concluding that the district court failed to apply the proper NRCP 13(h) analysis, we consider whether this failure warrants our intervention by way of extraordinary writ relief.

Adding new parties to an action through a counterclaim

NRCP 13 governs the filing of permissive and compulsory counterclaims and cross-claims.³ Under NRCP 13(h), “[p]ersons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20.” Courts typically construe Rule 13(h) liberally “in an effort to avoid multiplicity of litigation, minimize the circuity of actions, and foster judicial economy.” 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane Federal Practice and Procedure § 1434 (2010) (footnotes omitted); accord NRCP 1 (providing that Nevada's rules of civil procedure “shall be construed and administered to secure the just, speedy, and inexpensive determination of every action”). Federal courts that have interpreted NRCP 13(h)'s federal counterpart have concluded that a counterclaim or cross-claim brought under the rule must include at least one existing party, and thus, may not be brought solely against an unnamed party.⁴ See, e.g., AllTech Communications, LLC v. Brothers, 601 F.Supp.2d 1255, 1260 (N.D.Okla.2008) (applying FRCP 13(h)); Microsoft Corp. v. Ion Technologies Corp., 484 F.Supp.2d 955, 965 (D.Minn.2007) (same); Raytheon Aircraft Cred. Corp. v. Pal Air Intern., 923 F.Supp. 1408, 1414 (D.Kan.1996) (same); see also Johansen v. U.S., 392 F.Supp.2d 56, 59–60 (D.Mass.2005) (permitting an FRCP 13(h) counterclaim against a nonparty because the same counterclaim was already asserted against a party); Foster v. Dingwall, 126 Nev. ––––, ––––, 228 P.3d 453, 456 (2010) (explaining that federal caselaw involving the Federal Rules of Civil Procedure provides persuasive authority for this court in reviewing the Nevada Rules of Civil Procedure). In addition, NRCP 13(h) expressly permits the joinder of additional nonparties so long as the nonparty can be joined in “accordance with the provisions of Rules 19 and 20.”

NRCP 19 and 20 set forth the procedure for mandatory and permissive joinder of parties, respectively. See Dutchess Bus. Servs. v. State, Bd. of Pharm., 124 Nev. 701, 710, 191 P.3d 1159, 1165 (2008). NRCP 19 requires joinder of all parties necessary for an action's just adjudication. NRCP 19(a)(1)-(2). NRCP 20(a) authorizes permissive joinder of a defendant against whom a right to relief is asserted “in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or of fact common to all these persons will arise in the action.”

In the present matter, Walsh, the original plaintiff, was named as a counterdefendant in each of Lund's counterclaims. Thus, as long as Mark, Rochell, Chaves, and Gross can be joined under either NRCP 19 or 20 as additional counterclaim defendants, they may face Lund's counterclaims brought under NRCP 13(h). AllTech Communications, 601 F.Supp.2d at 1260; Microsoft Corp., 484 F.Supp.2d at 965; Raytheon Aircraft, 923 F.Supp. at 1414. While the next analytical step should be to address Lund's counterclaims within the context of NRCP 19 and 20, because the parties failed to provide any briefing on this point, we decline to reach this issue. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n. 38, 130 P.3d 1280, 1288 n. 38 (2006) (noting that this court need not consider an issue not cogently argued or supported by salient authority).

Our review of the documents before this court reveals that the district court was under the impression that Lund should have filed a third-party complaint, under NRCP 14, instead of filing counterclaims pursuant to NRCP 13(h). This conclusion was incorrect. Moseley v. Dist. Ct., 124 Nev. 654, 662–68, 188 P.3d 1136, 1142–46 (2008) (explaining that this court reviews the district court's interpretation of the Nevada Rules of Civil Procedure de novo, even when that interpretation is challenged through a petition for extraordinary relief). The third-party practice rule, NRCP 14, is reserved for claims based on an indemnity theory.⁵ NRCP 14; Reid v. Royal Insurance Co., 80 Nev. 137, 140, 390 P.2d 45, 46–47 (1964). In other words, under NRCP 14, “[a] defendant is permitted to defend the case and at the same time assert his [or her] right of indemnity against the party ultimately responsible for the damage.” Reid, 80 Nev. at 140–41, 390 P.2d at 47.

A review of Lund's counterclaims makes clear that he is seeking recovery for his independent injuries, which he claims were wrongfully caused by Walsh as a counterdefendant and Mark, Rochell, Chaves, and Gross as additional counterclaim defendants. He is not seeking indemnity for Walsh's claims against him. Thus, NRCP 13, rather than NRCP 14, is applicable to this case and the appropriate means for relief was the assertion of counterclaims, not a third-party complaint. Consequently, the district court erred when it concluded that it lacked the authority to allow Lund to add parties as additional counterclaim defendants under NRCP 13(h).

Propriety of writ relief

A writ of mandamus is generally not available to control the exercise of judicial discretion. Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603–04, 637 P.2d 534, 536 (1981) (explaining that writ relief may be available to correct manifest abuses of discretion). But mandamus may lie to compel a court to exercise discretion that it unquestionably has, when it fails to do so. See Willmes v. Reno Mun. Ct., 118 Nev. 831, 835, 59 P.3d 1197, 1200 (2002) (concluding that mandamus relief was warranted to correct a municipal court's complete failure to exercise discretion that it clearly possessed). Indeed, when, as here, legal error leads the district court to decline to exercise discretion that it indisputably has regarding prospective additional parties, mandamus may lie, in the discretion of this court, to avert further avoidable error. See Ex Parte Simons, 247 U.S. 231, 239, 38 S.Ct. 497, 62 L.Ed. 1094 (1918) (concluding that extraordinary relief was warranted to correct a legal error that, under the circumstances, the aggrieved party should not have had to wait until the final judgment was entered to correct); In re Connaway Rec'r of Moscow Nat. Bank, 178 U.S. 421, 425, 20 S.Ct. 951, 44 L.Ed. 1134 (1900) (...