McGowen v. Second Judicial Dist. Court of Nev.

432 P.3d 220
CourtNevada Supreme Court
DecidedNovember 21, 2018
DocketNo. 73312
StatusPublished
Cited by5 cases

This text of 432 P.3d 220 (McGowen v. Second Judicial Dist. Court of Nev.) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGowen v. Second Judicial Dist. Court of Nev., 432 P.3d 220 (Neb. 2018).

Opinions

By the Court, HARDESTY, J.:

Petitioner Jim McGowen *222was 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.

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Bluebook (online)
432 P.3d 220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgowen-v-second-judicial-dist-court-of-nev-nev-2018.