Willick v. Eighth Judicial Dist. Court of Nev.

• Decision Date: 31 March 2022
• Docket Number: 82524
• Citation: 506 P.3d 1059
• Parties: Marshal S. WILLICK ; and Willick Law Group, Petitioners, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Nancy A. Becker, Senior Judge, Respondents, and Steve W. Sanson; and Veterans in Politics International, Inc., Real Parties in Interest.
• Court: Nevada Supreme Court

506 P.3d 1059

Marshal S. WILLICK ; and Willick Law Group, Petitioners,

v.The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Nancy A. Becker, Senior Judge, Respondents,andSteve W. Sanson; and Veterans in Politics International, Inc., Real Parties in Interest.

No. 82524

Supreme Court of Nevada.

FILED MARCH 31, 2022

Brownstein Hyatt Farber Schreck, LLP, and Mitchell J. Langberg ; Abrams & Mayo Law Firm and Jennifer V. Abrams, Las Vegas, for Petitioners.

McLetchie Law and Margaret A. McLetchie, Las Vegas, for Real Parties in Interest.

BEFORE THE SUPREME COURT, EN BANC.¹

OPINION

By the Court, HARDESTY, J.:

In this opinion, we address as a matter of first impression whether district courts in Nevada have jurisdiction to vacate a plaintiff's notice of voluntary dismissal in a defamation action in which an anti-SLAPP motion has been filed, denied, appealed, and remanded back to the district court. Without creating a rule that would determine this issue in all instances, we determine that the district court did not err in vacating petitioners’ notice of voluntary dismissal in this instance because the litigation had reached an advanced stage.

FACTS AND PROCEDURAL HISTORY

Petitioners Marshal S. Willick and Willick Law Group (collectively, Willick) filed a complaint against respondents Steve Sanson and Veterans in Politics International, Inc. (collectively, Sanson), alleging that they made defamatory statements against Willick online. In response, Sanson filed a special motion to dismiss the action pursuant to Nevada's anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, NRS 41.660. The district court denied Sanson's motion on step one of Nevada's two-step anti-SLAPP analysis, determining that Sanson failed to meet his burden of demonstrating that the statements he published concerned an issue of public interest and were made in good faith. Sanson appealed. This court reversed the district court's order and remanded the matter, concluding that Sanson in fact had met his burden under step one of the anti-SLAPP analysis and directing the district court to consider whether Willick could meet his burden of demonstrating a probability of prevailing on his claims, which is step two of the court's analysis. Veterans in Politics Int'l, Inc. v. Willick, No. 72778, 2020 WL 891152 (Nev. Feb. 21, 2020) (Order Reversing and Remanding).

On remand to the district court, the parties entered mediation, stipulating that if mediation failed, the parties would submit briefing on step two of the anti-SLAPP analysis. Mediation failed, but soon thereafter and before the district court rendered a determination on step two of the anti-SLAPP motion, Willick filed a notice to voluntarily dismiss his complaint under NRCP 41(a)(1)(A)(i). The district court vacated the notice, reasoning that (1) an anti-SLAPP motion triggers the summary judgment exception to a plaintiff's right to voluntarily dismiss the case under NRCP 41(a)(1)(A)(i), and (2) a plaintiff cannot voluntarily dismiss the case after the proceedings reached an advanced stage. Willick filed this petition for a writ of mandamus and prohibition, asking us to vacate the district court's order.

DISCUSSION

We exercise our discretion to entertain Willick's petition

The decision to issue a writ of mandamus or prohibition is discretionary. Wynn Resorts, Ltd. v. Eighth Judicial Dist. Court , 133 Nev. 369, 373, 399 P.3d 334, 340-41 (2017). "Writ relief is an extraordinary remedy that is only available if a petitioner does not have ‘ a plain, speedy and adequate remedy in the ordinary course of law.’ " In re Raggio Family Tr., 136 Nev. 172, 175, 460 P.3d 969, 972 (2020) (quoting NRS 34.330 ); see NRS 34.170. The right to an appeal is generally an adequate legal remedy, and where, as here, "an appeal is not immediately available because the challenged order is interlocutory in nature, the fact that the order may ultimately be challenged on appeal from the final judgment generally precludes writ relief." Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 225, 88 P.3d 840, 841 (2004).

Nevertheless, we have elected to consider petitions challenging interlocutory orders where "the issue is not fact-bound and involves an unsettled and potentially significant, recurring question of law," Buckwalter v. Eighth Judicial Dist. Court, 126 Nev. 200, 201, 234 P.3d 920, 921 (2010), and "where the petition presents a matter of first impression and considerations of judicial economy support its review," Dekker/Perich/Sabatini Ltd. v. Eighth Judicial Dist. Court, 137 Nev. ––––, 495 P.3d 519, 522 (2021). Here, Willick's writ petition raises an important and unsettled issue of law—whether an anti-SLAPP motion is equivalent to a summary judgment motion within the meaning of NRCP 41(a)(l)(A)(i) so as to preclude the voluntary dismissal of a complaint. We therefore exercise our discretion to entertain Willick's petition.

The district court did not err in vacating Willick's notice to voluntarily dismiss his action at an advanced stage of litigation

"[W]e review questions of law ... de novo, even in the context of writ petitions." Helfstein v. Eighth Judicial Dist. Court, 131 Nev. 909, 913, 362 P.3d 91, 94 (2015). Nevada Rule of Civil Procedure 41(a) governs voluntary dismissals. It provides that a "plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgement." NRCP 41(a)(1)(A)(i). At the outset, we are not persuaded by the district court's reasoning, nor by Sanson's arguments in support of the district court's reasoning, that an anti-SLAPP motion is the functional equivalent of a motion for summary judgment under NRCP 41(a)(1)(A)(i). This court has never recognized such an interpretation, and we decline to do so now.² See Young v. Nev. Gaming Control Bd ., 136 Nev. 584, 586, 473 P.3d 1034, 1036 (2020) ("When reviewing de novo, we will interpret a statute or regulation by its plain meaning unless the statute or regulation is ambiguous, the plain meaning would provide an absurd result, or the interpretation clearly was not intended." (citations and internal quotation marks omitted)).

This court has, however, on one occasion, determined that a notice of voluntary dismissal was ineffective "because it was filed at an advanced stage of the proceedings." In re Petition of Phillip A.C., 122 Nev. 1284, 1290, 149 P.3d 51, 55 (2006). Recognizing that "federal decisions involving the Federal Rules of Civil Procedure provide persuasive authority when this court examines its rules," we looked at the United States Court of Appeals for the Second Circuit's application of the advanced-stage exception to FRCP 41(a), the federal counterpart to NRCP 41(a). Id. (internal quotation marks omitted); see also Harvey Aluminum, Inc. v. Am. Cyanamid Co., 203 F.2d 105, 107-08 (2d Cir. 1953). Persuaded by the Second Circuit's reasoning, we applied it to NRCP 41(a) and the facts presented to us and concluded that the voluntary dismissal was ineffective. Phillip A.C. , 122 Nev. at 1290-91, 149 P.3d at 55-56. Specifically, a petitioner attempted to voluntarily dismiss a petition to invalidate an adoption pursuant to NRCP 41(a)(1)(A)(i) "three months after the district court had already held a hearing on the [petitioner]’s motion to intervene and to invalidate the adoption. ... [T]he merits of the [petitioner]’s motion were raised by the parties and addressed and decided by the district court." Id. at 1290-91, 149 P.3d at 56.

Similarly, in Harvey Aluminum, the Second Circuit reversed a lower court's refusal to vacate a voluntary dismissal pursuant to FRCP 41(a)(1). 203 F.2d at 108. The court found that because the lower court had conducted a hearing on the controversy that "required several days of argument and testimony" and "the merits of the controversy [had been] squarely raised," voluntarily dismissing the controversy pursuant to FRCP 41(a)(1) "would not be in accord with its essential purpose of preventing arbitrary dismissals after an advanced stage of a suit has been reached." Id. at 107-08.

Harvey Aluminum has since engendered controversy in other federal circuit courts and has for the most part been limited to its "extreme" facts. Thorp v. Scarne, 599 F.2d 1169, 1176 (2d Cir. 1979) (holding "that at least in cases falling short of the extreme exemplified by Harvey Aluminum, notices of dismissal filed in conformance with the explicit requirements of [former] Rule 41(a)(1)(i) are not subject to vacatur"); accord In re Bath & Kitchen Fixtures Antitrust Litig., 535 F.3d 161, 166 n.10 (3d Cir. 2008) (declining to reach the issue but acknowledging that circumstances sometimes "warrant[ ] a departure from the literal text" of FRCP 41(a)(1)(A)(i) ); Safeguard Bus. Sys., Inc. v. Hoeffel , 907 F.2d 861, 864 (8th Cir. 1990) ("There may be rare cases with extreme circumstances in which a district court enters a judgment on the merits at an early stage of the proceedings ... in which the use of Rule 41(a)(1) is foreclosed."); Univ. Cent. del Caribe, Inc. v. Liaison Comm. on Med. Educ., 760 F.2d 14, 19 (1st Cir. 1985) ("[T]he facts of this case clearly fall short of Harvey Aluminum. "). The United States Court of Appeals for the Ninth Circuit has explicitly determined that FRCP 41(a)(1)(A)(i) "does not authorize a court to make a case-by-case evaluation of how far a lawsuit has advanced to decide whether to vacate a plaintiff's voluntary dismissal." Am. Soccer Co. v. Score First Enters ., 187 F.3d 1108, 1112 (9th Cir. 1999).

However, even the more skeptical of federal circuits have acknowledged that "[a]dmittedly, one can question the wisdom of allowing a party, through adroit lawyering, to dismiss a case in order to avoid an unfavorable decision on the merits after the court has considered the evidence," and many circuits view the advanced-stage exception as a form of equitable...