Scrimer v. Dist. Ct.
| Decision Date | 08 May 2000 |
| Docket Number | No. 34863., No. 33367 |
| Citation | 116 Nev. 507,998 P.2d 1190 |
| Parties | Alice SCRIMER and Gilbert Scrimer, Petitioners, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, In and For the COUNTY OF CLARK, and the Honorable Jack Lehman, District Judge, Respondents, and William D. Scrimer, Real Party in Interest. Cynthia G. Eviston, Bettie Carter, Gary Colvin, Petitioners, v. The Eighth Judicial District Court of the State of Nevada, in and for the County of Clark, and the Honorable Valorie J. Vega, District Judge, Respondents, and Louis R. Pushnick, Real Party in Interest. |
| Court | Nevada Supreme Court |
Burris & Thomas, Laurence B. Springberg, Las Vegas, for Petitioners Alice Scrimer and Gilbert Scrimer.
Turner & Curriden, Samuel A. Kitterman Jr., Las Vegas, for Petitioner Eviston.
Barker Brown Busby Crisman & Thomas, Michael D. Demman, Las Vegas, for Petitioners Carter and Colvin, and Real Party in Interest William Scrimer.
Williams & Wiese, Donald H. Williams, Las Vegas, for Real Party in Interest Pushnick.
BEFORE MAUPIN, SHEARING and BECKER, JJ.
These two writ petitions raise important issues under NRCP 4(i), which requires a plaintiff to serve a summons and complaint within 120 days of the date that the complaint is filed unless the plaintiff can show good cause why the complaint was not timely served. Docket No. 33367 is a petition for a writ of mandamus challenging a district court order granting the real party in interest's motion to quash service of process under NRCP 4(i) for failure to effect timely service. Docket No. 34863 is a petition for a writ of mandamus or prohibition challenging a district court order denying petitioners' motion to dismiss the complaint under NRCP 4(i). We take this opportunity to clarify the relevant standards under NRCP 4(i). We grant the petition for a writ of mandamus in Docket No. 33367, and we deny the petition for a writ of mandamus or prohibition in Docket No. 34863.
On February 7, 1996, plaintiff/petitioner Alice Scrimer was in a car driven by defendant/real party in interest William D. Scrimer, when she suffered injuries in an accident. On January 28, 1998, she and her husband filed a complaint. Service of process was not completed within the 120-day period provided for in NRCP 4(i), which expired on May 28, 1998. Petitioners apparently did not make any attempt to serve process during the 120-day period, while settlement negotiations were underway, but served the Department of Motor Vehicles (DMV) under the substitute service provisions of NRS 14.070 on June 10, 1998, thirteen days after the 120-day period expired.
On June 16, 1998, petitioners moved for an extension of time for service under NRCP 6(b). The district court granted the motion and gave petitioners until June 29, 1998, to complete service of process.
Real party in interest then moved to quash service. Petitioners opposed the motion. The district court granted the motion, because petitioners "failed to demonstrate good cause for the untimely service" under Dougan v. Gustaveson, 108 Nev. 517, 835 P.2d 795 (1992). Petitioners moved for reconsideration, which was denied.
Petitioners filed this petition for a writ of mandamus challenging the district court's order granting the real party in interest's motion to quash service of process under NRCP 4(i). This court ordered an answer, which was untimely submitted.1
On February 5, 1999, real party in interest Louis Pushnick filed a complaint against petitioners and others, seeking damages as a result of two auto accidents. After 136 days had passed, Pushnick's counsel sought an extension of time to serve petitioners. Counsel claimed excusable neglect, in that service had not been effected because of a "continual change in office staff, [and] an inadvertent confusion as to the attorney of record." It appears that the law firm representing Pushnick had broken up during the relevant time period. On July 13, 1999, the district court granted an extension until July 19, 1999. On July 22, 1999, an amended order was entered, granting an extension to serve until August 19, 1999. Service was effected on the DMV on July 20, 1999, forty-four days after the 120-day period had run.
Subsequently, petitioners joined in a motion to dismiss the complaint under NRCP 4(i) for failure to serve process within 120 days of filing, and to vacate the orders granting extensions of time. Pushnick opposed the motion, which was denied. Petitioners filed this petition for a writ of mandamus or prohibition challenging the district court's order denying petitioners' motion to dismiss the action under NRCP 4(i). This court ordered an answer, which was timely filed in this court.2
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, NRS 34.160, or to control an arbitrary or capricious exercise of discretion. See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981)
. A writ of prohibition is available to arrest the proceedings of a district court exercising its judicial functions, when such proceedings are in excess of the jurisdiction of the district court. See NRS 34.320. Neither writ will issue, however, if petitioner has a plain, speedy and adequate remedy in the ordinary course of law. See NRS 34.170; 34.330. Further, both writs are extraordinary remedies, and it is within the discretion of this court to determine if a petition will be considered. See State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 662 P.2d 1338 (1983). In Smith v. District Court, 113 Nev. 1343, 1344, 950 P.2d 280, 281 (1997), this court explained that it will not exercise its discretion to consider a petition for a writ of mandamus unless considerations of sound judicial economy and administration militate in favor of granting a petition. In addition, this court may exercise its discretion to grant a petition where an important issue of law requires clarification. Id. at 1345, 950 P.2d at 281.
NRCP 4(i) states that service of the complaint and summons must be made within 120 days, or the action will be dismissed without prejudice, unless a plaintiff can show good cause why service was not made during the 120-day period.3 Dismissal is mandatory unless there is a legitimate excuse for failing to serve within the 120 days. See Dougan v. Gustaveson, 108 Nev. 517, 835 P.2d 795 (1992)
. The determination of good cause is within the district court's discretion. See Lacey v. Wen-Neva, Inc., 109 Nev. 341, 849 P.2d 260 (1993).
Rule 4(i) was promulgated to encourage diligent prosecution of complaints once they are filed. See Moore v. Shreck, 102 Nev. 163, 717 P.2d 49 (1986)
(). NRCP 4(i) is based on an analogous federal rule, which was adopted as a case-management tool. As two of the leading commentators on federal procedure have observed:
The 120-day limit on service ... reflects the modern trend of encouraging more efficient litigation by reducing the time between the institution of an action and service of process. It is hoped that the amended rule, by giving the court the authority to dismiss the plaintiff's action on its own initiative when the time requirement is not met, will help ease the increasing backlog of cases in the federal courts and the delay in their movement. In that sense, Rule 4(j) attempts to harmonize the open-door policy of the federal court system and the mandate in Rule 1 for the "just, speedy, and inexpensive determination of every action."
4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1137 at 385 (2d ed.1987) (footnotes omitted).4
There are four leading cases from this court construing NRCP 4(i). In Domino v. Gaughan, 103 Nev. 582, 747 P.2d 236 (1987), counsel's illness and inexperience were factors in reversing a dismissal under NRCP 4(i), particularly where there was apparently no prejudice to defendants. There, inexperienced Nevada counsel filed a complaint at the request of California counsel and thereafter returned the file to California counsel. California counsel retained the file until ten days before the 120-day time period expired. California counsel then asked Nevada counsel to serve the defendant. Nevada counsel, however, experienced difficulties serving the summons and complaint and in communicating with California counsel. He also fell ill. Although Nevada counsel attempted service within the 120-day time period, he was unable to complete service until nine days after the NRCP 4(i) deadline. The dismissal was effectively with prejudice since the statute of limitations had expired. This court held that "good cause" existed to excuse late service of the summons and complaint. Id. at 584, 747 P.2d at 237.5
In Dallman v. Merrell, 106 Nev. 929, 803 P.2d 232 (1990), this court affirmed an order dismissing one of two defendants under NRCP 4(i) where service was effected 108 days late. Dallman sued a car dealership and its employee, Merrell. Dallman's original counsel promptly served the dealership, but did not serve Merrell because counsel had trouble locating him. Dallman later retained new counsel, who noted that Merrell had not been served, and used a private investigator to obtain Merrell's address through driver's license records and other car salesmen. The district court dismissed the complaint as to Merrell without prejudice, holding that Dallman had not shown good cause for the failure to serve within 120 days of filing the complaint. It is unclear whether the dismissal was effectively with prejudice; nevertheless, the district court dismissed only one of the two defendants and therefore did not dismiss Dallman's entire action. Id. at 930-31, 803 P.2d at 232-33. This court held that...
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