Moseley v. Dist. Ct.

• Decision Date: 31 July 2008
• Docket Number: No. 49533.,49533.
• Citation: 188 P.3d 1136
• Parties: Kimberly A. MOSELEY, M.D., Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, in and for the COUNTY OF CLARK, and the Honorable Elizabeth Goff Gonzalez, District Judge, Respondents, and Richard Sinicki, Wayne Sinicki, Susan Sinicki, and Charles Sinicki, as Heirs of the Decedent Joyce Ethel Sinicki; and Richard Sinicki, as the Special Administrator of the Estate of Joyce Ethel Sinicki, Real Parties in Interest.
• Court: Nevada Supreme Court

188 P.3d 1136

Kimberly A. MOSELEY, M.D., Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, in and for the COUNTY OF CLARK, and the Honorable Elizabeth Goff Gonzalez, District Judge, Respondents, and Richard Sinicki, Wayne Sinicki, Susan Sinicki, and Charles Sinicki, as Heirs of the Decedent Joyce Ethel Sinicki; and Richard Sinicki, as the Special Administrator of the Estate of Joyce Ethel Sinicki, Real Parties in Interest.

No. 49533.

Supreme Court of Nevada.

July 31, 2008.

Lewis Brisbois, Bisgaard & Smith, LLP, and Michael J. Shannon and V. Andrew Cass, Las Vegas, for Petitioner.

Robert A. Massi, Ltd., and Robert A. Massi, Henderson, for Real Party in Interest.

BEFORE HARDESTY, PARRAGUIRRE and DOUGLAS, JJ.

OPINION

PER CURIAM:

In this original petition we consider two primary issues with regard to petitioner's NRCP 25 motion to dismiss a deceased plaintiffs loss of consortium claim. First, we address whether a defendant party who files a suggestion of death on the record is required to name a successor or personal representative for the deceased plaintiff to trigger NRCP 25's 90-day limitation period. We clarify that a suggestion of a plaintiff's death filed by a defendant is generally sufficient to trigger the 90-day limitation period within which the remaining plaintiffs or the deceased party's successor or personal representative are required to move for substitution. Here, petitioner, a defendant in the underlying proceeding, filed the suggestion of death for a plaintiff who died during the proceeding's pendency. Because petitioner is the defendant and it is a plaintiff who died, petitioner was not required to locate or wait for the designation of a successor for the deceased plaintiff to successfully trigger the 90-day limitation period. Accordingly, petitioner's suggestion of death triggered NRCP 25's 90-day limitation period.

Second, we address whether, after NRCP 25's 90-day limitation period expires, a motion for an extension of time to substitute a party under NRCP 6(b)(2) may be used to obtain relief when excusable neglect is established. We conclude that after the expiration of NRCP 25's 90-day limitation period, a party may move the district court for relief under NRCP 6(b)(2) and obtain an extension of time to substitute a proper party so long as excusable neglect is shown. In this case, it is unclear what factual findings the district court made concerning the plaintiffs' establishment of excusable neglect, which would make denying the motion to dismiss proper.

Thus, we grant the petition in part and direct the clerk of this court to issue a writ of mandamus directing the district court to vacate its order denying petitioner's motion to dismiss and to reconsider this issue in light of the principles set forth in this opinion.

FACTS AND PROCEDURAL HISTORY

The underlying wrongful death action was filed by real parties in interest Richard Sinicki (decedent Joyce Sinicki's husband and personal representative), and their children, Wayne, Susan, and Charles Sinicki (the Sinickis), against Joyce's doctors, petitioner Kimberly A. Moseley and Gregg M. Ripplinger.¹ Richard also asserted an individual loss of consortium claim. While the suit was pending, Richard died on July 11, 2005.

On July 18, 2005, Dr. Moseley filed a suggestion of Richard's death. Dr. Moseley's suggestion of death did not include the name of a successor or personal representative for Richard. Subsequently, the Sinickis' attorney filed two suggestions of death, but as with Dr. Moseley's suggestion of death, neither named a successor or representative for Richard. Dr. Moseley moved to dismiss Richard's loss of consortium claim because no motion to substitute was filed, as NRCP 25 generally requires, within 90 days of the filing and service of Dr. Moseley's suggestion of death. The Sinickis opposed Dr. Moseley's motion to dismiss and moved the district court, under NRCP 6, for an enlargement of time to substitute Wayne as the special administrator of Richard's estate.

Following a hearing on the motions, the district court denied Dr. Moseley's motion to dismiss and granted the Sinickis' motion to enlarge time and to substitute Wayne as the special administrator. Thereafter, the Sinickis filed an amended complaint reflecting the substitution of Wayne as the special administrator of Richard's estate.² Subsequently, Dr. Moseley filed this writ petition challenging the district court's order denying her motion to dismiss Richard's loss of consortium claim. The Sinickis have filed an answer, as directed.

DISCUSSION

Standards for writ relief

A writ of mandamus is available to compel the performance of an act that the law requires or to control a manifest abuse of discretion.³ Mandamus is an extraordinary remedy, and the decision to entertain such a petition is addressed to our sole discretion.⁴ Generally, we will not exercise our discretion to consider writ petitions challenging district court orders denying motions to dismiss, unless "pursuant to clear authority under a statute or rule, the district court is obligated to dismiss an action ... [or] an important issue of law requires clarification."⁵

In this writ petition, important issues of law require clarification: (1) whether the filing of a suggestion of death by an opposing party, without naming a potential successor or personal representative for the adverse deceased party, triggers NRCP 25's 90-day limitation period for substituting a proper party; and (2) given NRCP 25's mandatory language generally requiring that an action be dismissed if a motion to substitute a proper party for a deceased party is not filed within 90 days of the suggestion of death on the record, may a party obtain an extension of time, under NRCP 6 and upon a showing of excusable neglect, to file a motion for substitution of a proper party.⁶

NRCP 25(a)(1)'s 90-day period is triggered

Dr. Moseley contends that the district court had a duty to dismiss Richard's loss of consortium claim once the Sinickis failed to move for substitution within NRCP 25's 90-day limitation period. Under NRCP 25(a)(1), when a party dies during a pending proceeding, a substitution generally may be allowed when

the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, [otherwise] the action shall be dismissed as to the deceased party.

In other words, generally, once a suggestion of death has been filed in the district court, a motion for substitution must be made within 90 days of the date the death was suggested on the record.

The Sinickis assert that NRCP 25's 90-day limitation period was not triggered because Richard's successor was not named in any of the suggestions of death filed in the district court.⁷ To support their contention, the Sinickis rely on this court's 1985 decision in Barto v. Weishaar.⁸ In Barto, the defendant died while the district court action was proceeding. The deceased defendant's counsel filed a suggestion of death upon the record but did not identify a successor or personal representative who could be substituted for the deceased defendant.⁹ After the 90-day period to file a motion for substitution had passed, the deceased defendant's counsel filed a motion to dismiss the plaintiffs complaint on the basis that a motion to substitute a proper party for the deceased defendant had not occurred within NRCP 25's 90-day limitation period.¹⁰ The district court denied the motion to dismiss and allowed the plaintiff additional time to locate a successor or personal representative for the deceased defendant. After plaintiff failed to locate a proper party for substitution, the district court dismissed the plaintiff's complaint.¹¹

On appeal, the plaintiff argued that the deceased defendant's suggestion of death was insufficient to trigger NRCP 25's 90-day period because it did not identify a successor for the deceased defendant. This court agreed and concluded that the 90-day period in which to seek substitution was not triggered because allowing the 90-day period to run when a suggestion of death emanating from the deceased party fails to identify a successor or personal representative would create a "tactical maneuver" that would burden the plaintiff with the duty of locating a representative for the deceased defendant's estate or have an otherwise meritorious action dismissed.¹²

The year following Barto's issuance, this court distinguished it in Bennett v. Topping.¹³ In Bennett, a plaintiff died, rather than a defendant, while the case was pending. The defendant filed a suggestion of death that did not name the deceased plaintiff's successor and a motion to substitute a successor was not filed on behalf of the deceased plaintiff within NRCP 25's 90-day limitation period. The district court dismissed the action.¹⁴ In affirming the dismissal of the deceased plaintiffs cause of action, the Bennett court distinguished Barto on the basis that requiring a defendant to speculatively identify a successor or personal representative for a deceased plaintiff incorrectly shifts the burden of locating a successor or personal representative to the defending party.¹⁵

Thus, under Barto, requiring the plaintiff to name the deceased defendant's successor improperly placed the burden on the plaintiff to discover the deceased defendant's successor's identity. Whereas, under Bennett, the surviving plaintiff was properly charged with locating the deceased plaintiff's successor because it is more likely that the deceased plaintiff's wife was, or knew who would be, the successor or personal representative to represent the deceased's estate in the pending litigation.

Here, reliance on the decision in Bennett is proper because the facts in this writ petition are similar to the facts in Bennett and distinguishable from what occurred in Barto. Specif...