Mountain View Recreation, Inc. v. Imperial Commercial Cooking Equip. Co., No. 56193.

Docket NºNo. 56193.
Citation129 Nev. Adv. Op. 45, 305 P.3d 881
Case DateJuly 03, 2013
CourtSupreme Court of Nevada

305 P.3d 881
129 Nev.
Adv. Op. 45

MOUNTAIN VIEW RECREATION, INC., d/b/a Mountain View Recreation Center, Appellant,
v.
IMPERIAL COMMERCIAL COOKING EQUIPMENT CO.; Harmony Fire Protection, Inc.; and Heritage Operating, L.P., Respondents.

No. 56193.

Supreme Court of Nevada.

July 3, 2013.


[305 P.3d 882]


Lewis & Roca, LLP, and Daniel F. Polsenberg and Joel D. Henriod, Las Vegas; McDonald & McCabe, LLC, and Thomas A. McDonald, David R. Butzen, Michael P. Rohan, and Terry L. Welch, Chicago, Illinois, for Appellant.

Lemons, Grundy & Eisenberg and Robert L. Eisenberg, Reno, for Respondent Imperial Commercial Cooking Equipment Co.


Lincoln, Gustafson & Cercos and Nicholas B. Salerno and James M. Barrington, Las Vegas, for Respondent Harmony Fire Protection, Inc.

Wood, Smith, Henning & Berman, LLP, and Janice M. Michaels and T. Blake Gross, Las Vegas, for Respondent Heritage Operating, L.P.

BEFORE THE COURT EN BANC.

OPINION

By the Court, HARDESTY, J.:

This appeal arises from the district court's grant of a motion to change venue from Nye County to Clark County. The district court granted the motion based on the doctrine of forum non conveniens and its findings that existing courtroom facilities in Pahrump, located in Nye County, were inadequate to accommodate a trial in the underlying matter. We conclude that the district court abused its discretion by granting the motion for change of venue because it (1) failed to cite sufficient evidence supporting a change

[305 P.3d 883]

of venue pursuant to the doctrine of forum non conveniens; (2) failed to conduct a proper analysis, under NRS 3.100(2) and Angell v. Eighth Judicial District Court, 108 Nev. 923, 839 P.2d 1329 (1992), as expanded by this opinion, regarding the adequacy of courtroom facilities in a county; and (3) failed to consider the docket congestion in Clark County before reaching its decision. Accordingly, we reverse and remand for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

In 2003, a fire destroyed the Mountain View Recreation Center in Pahrump, Nevada. The fire allegedly started when a deep fat fryer overheated and the building's sprinkler system failed to extinguish the fire. In December 2005, appellant Mountain View Recreation, Inc., which owned and operated the recreation center, filed a complaint in Nye County against numerous defendants, including respondents Imperial Commercial Cooking Equipment Co., which manufactured the fryer, Heritage Operating, L.P. (Proflame), which provided propane fuel to Mountain View and serviced the fryer, and Harmony Fire Protection, Inc., which designed and installed the building's sprinkler system.

In February 2010, Proflame filed a motion for change of venue from Nye County to Clark County, which was joined by Harmony.1 Proflame argued that finding an impartial jury in Pahrump was “highly unlikely” in light of the pretrial publicity and the community's connection to the recreation center, 2 and that a trial in Las Vegas, located in Clark County, would be more convenient for the witnesses and would better serve the ends of justice. Without providing any evidence to support its latter argument, Proflame asserted that (1) the majority of the pretrial litigation and discovery, including most of the depositions, had taken place in Las Vegas; (2) the physical evidence, the special master, and the majority of counsel were located in Las Vegas; (3) any experts located outside of Pahrump would have to travel through Las Vegas to attend court proceedings in Pahrump; (4) the majority of Mountain View's witnesses would not have to travel from Pahrump to Las Vegas; and (5) the transfer would not require reassignment to a Clark County district court judge because the Nevada Supreme Court had appointed the currently presiding senior judge. Mountain View opposed the motion, arguing that Proflame had failed to provide any affidavits or evidence in support of its argument that transferring the matter to Clark County would be more convenient for the witnesses and would better serve the ends of justice.

At a hearing on the motion, the district court declined to change venue based on the potential inability to seat an impartial jury, but nonetheless indicated that the trial could not be held in Pahrump because existing courtroom facilities were inadequate and NRCP 41(e)'s five-year want-of-prosecution rule would require dismissal of the action in December 2010. In response to the district court's concerns, Mountain View argued that Nye County was required to provide facilities for trial in Pahrump and suggested substitute locations such as a banquet room or school. Mountain View alternatively asked that, if the trial was moved from Pahrump, it be transferred to Tonopah, also located in Nye County, rather than to Las Vegas. The district court ordered supplemental briefing by the parties to address whether it was required to seek alternative facilities within Nye County instead of granting the motion to change venue.

Mountain View argued in its supplemental brief that, under Angell v. Eighth Judicial District Court, 108 Nev. 923, 839 P.2d 1329 (1992), Nye County must provide adequate facilities for the district court to conduct the trial within the county. It further argued

[305 P.3d 884]

that the trial should be conducted in Nye County based on local private and public interests in the matter.

Imperial and Proflame argued that Angell was distinguishable and did not apply to Mountain View's argument to conduct the trial in Tonopah.3 Specifically, Imperial and Proflame contended that in Angell (1) there was no motion to change venue; (2) the dicta stated that a trial is to be held within existing judicial facilities and not in banquet halls or schoolhouse facilities and, further, the judge would have to approve if such change was made, which did not occur in this instance; and (3) the court did not require a change of venue to Tonopah. Moreover, Imperial and Proflame asserted that the facilities in Pahrump and Tonopah were inadequate to accommodate a trial of this magnitude. Imperial provided no supporting affidavits, citing only the discovery disclosures made by Mountain View that listed 35 potential percipient witnesses and 8 expert witnesses, with only 10 of those witnesses having Pahrump addresses.

Thereafter, the district court entered a written order granting Proflame's motion for change of venue based on the convenience of the witnesses and the promotion of the ends of justice. In particular, the court found that because Pahrump had only one courtroom in which to conduct such a large trial, the existing courtroom facilities in Pahrump were inadequate in light of the number of defendants involved, the estimated length of time needed for the trial, and the Pahrump district court's current calendar. And the court rejected Mountain View's suggestion to use alternative facilities in Pahrump, finding that the proposed facilities would not provide for adequate security or accommodate “the comfort or simple logistics of complex litigation.” As a result, the court concluded that the ends of justice could not be served by retaining the case in Pahrump because doing so would result in the case being dismissed for failure to bring it to trial within five years.

Having concluded that the trial could not be held in Pahrump, the district court was faced with deciding whether to transfer the case to Las Vegas or Tonopah. In making this determination, the court generally noted that Tonopah is 167 miles from Pahrump, whereas Las Vegas is only 63 miles from Pahrump, and that “[a]ll of the physical and documentary evidence to be admitted at trial is in Las Vegas.” Without further elaboration, the district court concluded that, under the doctrine of forum non conveniens, the trial should be transferred to Clark County, rather than Tonopah. Thus, while acknowledging the deference due to Mountain View's choice of venue, the court nonetheless granted the motion for change of venue...

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4 practice notes
  • State v. The Cnty. of Nye, 84825
    • United States
    • Nevada Supreme Court of Nevada
    • June 29, 2022
    ...provide adequate courtroom facilities and support staff." Mountain View Rec. Inc. v. Imperial Comm. Cooking Equip. Co., 129 Nev. 413, 421, 305 P.3d 881, 886 (2013) (addressing the statute in the context of a change of venue). In addressing a request for a writ of mandamus to compel a county......
  • Borger v. Polaris Indus., 81764
    • United States
    • Nevada Supreme Court of Nevada
    • March 16, 2022
    ...establish such exceptional circumstances." Mountain View Recreation, Inc. v. Imperial Commercial Cooking Equip. Co., 129 Nev. 413, 419, 305 P.3d 881, 885 (2013) (emphasis added). "General allegations regarding inconvenience or hardship are insufficient because [a] specific factual showing m......
  • Flannery v. Shaw, No. 71440
    • United States
    • Nevada Court of Appeals of Nevada
    • December 28, 2016
    ...establish such exceptional circumstances." Mountain View Recreation, Inc. v. Imperial Commercial Cooking Equip. Co., 129 Nev. 413, 419, 305 P.3d 881, 885 (2013). In the absence of such evidence as to why a venue change is warranted, the supreme court has concluded that a venue change under ......
  • Masar v. Masar, No. 70491
    • United States
    • Nevada Court of Appeals of Nevada
    • April 17, 2017
    ...of a proceeding under NRS 13.050(2), see Mountain View Recreation, Inc. v. Imperial Commercial Cooking Equip. Co., 129 Nev. 413, 418, 305 P.3d 881, 884 (2013) (recognizing the district court's "wide discretion" in deciding motions to transfer venue for forum non conveniens), Michael has not......
5 cases
  • State v. The Cnty. of Nye, 84825
    • United States
    • Nevada Supreme Court of Nevada
    • June 29, 2022
    ...provide adequate courtroom facilities and support staff." Mountain View Rec. Inc. v. Imperial Comm. Cooking Equip. Co., 129 Nev. 413, 421, 305 P.3d 881, 886 (2013) (addressing the statute in the context of a change of venue). In addressing a request for a writ of mandamus to compel a county......
  • Borger v. Polaris Indus., 81764
    • United States
    • Nevada Supreme Court of Nevada
    • March 16, 2022
    ...establish such exceptional circumstances." Mountain View Recreation, Inc. v. Imperial Commercial Cooking Equip. Co., 129 Nev. 413, 419, 305 P.3d 881, 885 (2013) (emphasis added). "General allegations regarding inconvenience or hardship are insufficient because [a] specific factual showing m......
  • Whipple v. Whipple, 82994-COA
    • United States
    • Nevada Court of Appeals of Nevada
    • September 22, 2022
    ...of justice would be promoted by the change"); Mountain View Recreation, Inc. v. Imperial Commercial Cooking Equip. Co., 129 Nev. 413, 418, 305 P.3d 881, 884 (2013) (recognizing the district court's "wide discretion" in deciding motions to transfer venue for forum non conveniens). However, "......
  • Flannery v. Shaw, No. 71440
    • United States
    • Nevada Court of Appeals of Nevada
    • December 28, 2016
    ...establish such exceptional circumstances." Mountain View Recreation, Inc. v. Imperial Commercial Cooking Equip. Co., 129 Nev. 413, 419, 305 P.3d 881, 885 (2013). In the absence of such evidence as to why a venue change is warranted, the supreme court has concluded that a venue change under ......
  • Request a trial to view additional results

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