McGowen v. Second Judicial Dist. Court of Nev.

• Decision Date: 21 November 2018
• Docket Number: No. 73312,73312
• Citation: 432 P.3d 220
• Parties: Jim MCGOWEN, TRUSTEE OF MCGOWEN & FOWLER, PLLC, Petitioner, v. The SECOND JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF WASHOE; and the Honorable David A. Hardy, District Judge, Respondents, and Steven B. Crystal, Individually and as Trustee of the Barbara L. Crystal Decedent Trust, Real Party in Interest.
• Court: Nevada Supreme Court

432 P.3d 220

Jim MCGOWEN, TRUSTEE OF MCGOWEN & FOWLER, PLLC, Petitioner,

v.The SECOND JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF WASHOE; and the Honorable David A. Hardy, District Judge, Respondents,andSteven B. Crystal, Individually and as Trustee of the Barbara L. Crystal Decedent Trust, Real Party in Interest.

No. 73312

Supreme Court of Nevada.

FILED NOVEMBER 21, 2018

OPINION

By the Court, HARDESTY, J.:

Petitioner Jim McGowen was served with a summons and complaint by the attorney or an employee of the plaintiff’s counsel. In this writ proceeding, we must determine whether a plaintiff’s attorney or the employee of a plaintiff’s attorney may serve a summons and complaint on a defendant. Based on the plain language of NRCP 4(c) and federal decisions interpreting the federal analog to Nevada’s rule, we conclude that a plaintiff’s attorney or an employee of the attorney may serve a summons and complaint; thus, we deny McGowen’s petition.

FACTS AND PROCEDURAL HISTORY

McGowen is a partner in the law firm of McGowen and Fowler, PLLC, and is licensed to practice law in Texas, where he lives and works. Ron Bush, a party to an unrelated artwork dispute in which McGowen’s client has an interest, invited McGowen to attend a settlement conference in Nevada. When McGowen traveled to Nevada to attend the settlement conference on behalf of his client, Bush’s attorneys told McGowen that there was a deposition taking place the same morning that would be of interest to McGowen. After the deposition concluded, McGowen was served with a summons and complaint. McGowen claims that he was served by W. Chris Wicker, the attorney for the plaintiff in the complaint. Wicker claims that Dianne Kelling, an assistant at Wicker's firm, served the summons and complaint upon McGowen. The complaint alleged that McGowen improperly purchased valuable artwork in which Wicker’s client, real party in interest Steven B. Crystal, had a security interest.

McGowen moved to quash service and dismiss the case, and requested sanctions. McGowen argued that under NRCP 4(c), service cannot be made by plaintiff’s counsel or an employee of plaintiff’s counsel because they are not disinterested persons. As further support, McGowen cites Sawyer v. Sugarless Shops, Inc., which stated that "[s]omething as fundamental and decisive as service is best taken away from the parties or their counsel or counsel’s employees." 106 Nev. 265, 270, 792 P.2d 14, 17 (1990). McGowen also argued that service was improper because his physical presence in Nevada was procured by trickery and deceit.

The district court found that Kelling, the employee of the plaintiff’s attorney, served McGowen. The district court denied McGowen’s motion to quash, concluding that NRCP 4(c) does not prohibit service by an employee of the plaintiff’s attorney as the language of the rule allows service "by any person who is not a party and who is over 18 years of age." The district court also distinguished the holding in Sawyer , concluding that it was abrogated when NRCP 4 was subsequently amended to expressly require service by a non-party. The district court also found that McGowen voluntary entered the jurisdiction for business purposes on behalf of a client and was not induced to appear by trickery and deceit. McGowen petitions this court for a writ of mandamus directing the district court to vacate its order and to enter an order granting his motion to quash service of process.

DISCUSSION

We elect to consider the writ petition

As a preliminary issue, we must determine whether to entertain the petition for writ relief. "This court has original jurisdiction to issue writs of mandamus and prohibition." MountainView Hosp., Inc . v. Eighth Judicial Dist. Court, 128 Nev. 180, 184, 273 P.3d 861, 864 (2012) ; Nev. Const. art. 6, § 4. "A writ of mandamus is available to compel the performance of an act which the law ... [requires] as a duty resulting from an office, trust or station, or to control a manifest abuse or an arbitrary or capricious exercise of discretion." Cote H. v. Eighth Judicial Dist. Court , 124 Nev. 36, 39, 175 P.3d 906, 907-08 (2008) (alteration in original) (footnote and internal quotation marks omitted).

Because a writ petition seeks an extraordinary remedy, we have discretion whether to consider such a petition. Cheung v. Eighth Judicial Dist. Court, 121 Nev. 867, 869, 124 P.3d 550, 552 (2005). Extraordinary writ relief is generally only available where there is no "plain, speedy and adequate remedy in the ordinary course of law." NRS 34.170 ; Int’l Game Tech., Inc . v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008). However, despite an available legal remedy, we may still entertain a petition for writ relief "where the circumstances reveal urgency and strong necessity." Barngrover v. Fourth Judicial Dist. Court, 115 Nev. 104, 111, 979 P.2d 216, 220 (1999). Additionally, we may entertain writ petitions "where considerations of sound judicial economy and administration militate[ ] in favor of granting such petitions." Smith v. Eighth Judicial Dist. Court, 113 Nev. 1343, 1344, 950 P.2d 280, 281 (1997).

McGowen argues that he does not have a plain, speedy, or adequate remedy at law because although he may ultimately appeal the district court’s decision at the end of the case, he will have wasted vast amounts of resources litigating a case the district court might not have jurisdiction over. McGowen contends that he does not have sufficient minimum contacts to justify jurisdiction under Nevada’s long arm statute, meaning that there would be no jurisdiction in Nevada if there was a defect in the service of process. McGowen further argues that there are no disputed factual issues, because the only disputed fact—whether the plaintiff’s attorney or his employee served McGowen—is immaterial to answering the legal question raised in the petition. Finally, McGowen argues that his petition should be considered because Nevada caselaw and the Nevada rules of civil procedure appear to have a conflict which requires a clarification from this court. Crystal argues that this court should not entertain McGowen’s writ petition because the language of NRCP 4(c) is unambiguous and no genuine legal issue exists.

We agree with McGowen that Nevada caselaw and NRCP 4(c) appear to conflict on the issue of whether an attorney or his or her employee may effect service of process, and we elect to consider McGowen’s writ petition in order to answer this question. Additionally, judicial economy is benefitted by answering the question of whether the district court has jurisdiction over McGowen at the outset of the matter.

NRCP 4(c) does not prohibit service of process by a plaintiff’s attorney or the attorney’s employee

NRCP 4(c) states that "[p]rocess shall be served ... by any person who is not a party and who is over 18 years of age." McGowen argues that Sawyer prohibits service by a plaintiff’s attorney and the attorney’s employees and notes that when NRCP 4(c) was amended in 2004, the committee notes cited Sawyer. McGowen argues that this means the committee intended to codify Sawyer, rather than abrogate it, and that the word "party" in NRCP 4(c) follows Sawyer’s definition, which includes the attorney for the plaintiff and his or her employees. McGowen cites to the drafter’s note, which indicates that the amendment was intended to be consistent with Nevada’s common law rule that a process server must be a "disinterested person." See NRCP 4 drafter’s note (2004 amendment).

Crystal argues that the district court was correct in its conclusion that service by the employee of the plaintiff’s attorney was valid, because it does not violate the plain language of NRCP 4(c). Crystal contends that when this court amended NRCP 4(c) to expressly require service by a non-party, it superseded previous common law. Crystal contends that although the drafter’s note to the current rule cites Sawyer , Sawyer is factually distinguishable from the present matter and did not create a bright-line rule prohibiting service from an attorney or attorney’s employee. Crystal argues that the Sawyer opinion merely said, in dicta, that "service is best taken away from the parties or their counsel or counsel’s employees." 106 Nev. at 270, 792 P.2d at 17 (emphasis added). Crystal finally argues that the federal rule regarding service of process is nearly identical to the Nevada rule, but that federal courts have interpreted its phrase "[a]ny person who is ... not a party" to allow service by an attorney or employee of an attorney. FRCP 4(c)(2).

Although the language of NRCP 4(c) plainly states that process may be effected "by any person who is not a party and who is over 18 years of age," the drafter’s note to the 2004 amendment creates an ambiguity. The drafter’s note regarding subsection (c) states

The amendment to subdivision (c), adding the words "person who is not a party," clarifies that service may be made by any person who is over 18 years of age so long as he or she is also a disinterested person. The revised provision is consistent with the current federal rule and with the common law rule, followed in Nevada, requiring that service be made by a disinterested person, see Sawyer v. Sugarless Shops, 106 Nev. 265, 269-70, 792 P.2d 14, 17 (1990) ("Nevada has long had rules prohibiting service by a party. This was a common law requirement and has not been changed by [statute]." (citation omitted) ).

NRCP 4 drafter’s note (2004 amendment).

The drafter’s note contains three internal inconsistencies which cause confusion. First, the note references the common law concept of a "disinterested person," which arose in Nevada Cornell Silver Mines, Inc. v. Hankins , 51 Nev. 420, 429-32, 279 P. 27, 29-30 (1929), and most recently in Sawyer , 106 Nev. at 269-70, 792 P.2d at 17 ("[Respondent] cannot establish that proper service took place by a disinterested party; the default judgment is therefore...