1 13 12 2jdc elliott order granting wls ashley's mtn dismiss insuff service process...

7/27/2019 1 13 12 2JDC Elliott Order Granting WLS Ashley's Mtn Dismiss Insuff Service Process CV11-01955-2647147 (Ord Gr

1/6

F I L E DElectronically

01-13-2012:10:14:06 AMJoey Orduna Hastings

Clerk of the Court

Transaction # 26990271234567

IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADAIN AND FOR THE COUNTY OF WASHOE

89

10 ZACH COUGHLIN

1213 vs.

Plaintiff,

14 WASHOE LEGAL SERVICES et al;15 Defendants.16 __________________________ JI

Case No.: CVll-01955Dept. No.: 10

17 ORDER GR NTING MOTION TO DISMISS FOR INSUFFI IENT PROCESS18 Presently before the Court is a Motion to Dismiss for Non-Service of Process and, in19 the Alternative, Insufficient Process filed by Defendant MARC ASHLEY (hereafter20 Defendant'') on November 28, 2011. Following, on December 15, 2011, Plaintiff ZACH21 COUGHLIN (hereafter Plaintiff',) filed a document titled Opposition to all Defendant's22 Motions to Dismiss and all Defendant's Motions to Quash Service, Motion for Extension of23 Time to Respond/Continuance; Opposition to Motion to Tax Costs Simultaneously Seeking24 Extensions of Time or Continuance to Respond (hereafter Plaintiff's Opposition''). The25 following day, December 16, 2011, Plaintiff file a document titled Supplement to Motion26 for Reconsideration and Motion to Set Aside NRCP 59, 60 Dismissal and Supplement to27 Opposition to all Defendant's Motions to Dismiss and all Defendant's Motions to Quash28 Service, Motion for Extension of Time to Respond/Continuance; Opposition to Motion to

1

1234567

IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADAIN AND FOR THE COUNTY OF WASHOE

89

10 ZACH COUGHLIN

1213 vs.

Plaintiff,

14 WASHOE LEGAL SERVICES et al;15 Defendants.16 __________________________ JI

Case No.: CVll-01955Dept. No.: 10

17 ORDER GR NTING MOTION TO DISMISS FOR INSUFFI IENT PROCESS18 Presently before the Court is a Motion to Dismiss for Non-Service of Process and, in19 the Alternative, Insufficient Process filed by Defendant MARC ASHLEY (hereafter20 Defendant'') on November 28, 2011. Following, on December 15, 2011, Plaintiff ZACH21 COUGHLIN (hereafter Plaintiff',) filed a document titled Opposition to all Defendant's22 Motions to Dismiss and all Defendant's Motions to Quash Service, Motion for Extension of23 Time to Respond/Continuance; Opposition to Motion to Tax Costs Simultaneously Seeking24 Extensions of Time or Continuance to Respond (hereafter Plaintiff's Opposition''). The25 following day, December 16, 2011, Plaintiff file a document titled Supplement to Motion26 for ReconSideration and Motion to Set Aside NRCP 59, 60 Dismissal and Supplement to27 Opposition to all Defendant's Motions to Dismiss and all Defendant's Motions to Quash28 Service, Motion for Extension of Time to Respond/Continuance; Opposition to Motion to

1


2/6

1 Tax Costs Simultaneously Seeking Extensions of Time or Continuance to Respond23

(hereaf ter Plaintiff 's First Supplemental Opposition''). That same day, Plaintiff also filed adocument titled Opposition to all Defendant's Motions to Dismiss; Motion to Set Aside or

4 Vacate Order Granting Dismissal NRCP 59, NRCP 50; Motion for Reconsideration5 (hereafter Plaintiff's Second Supplemental Opposition,,).1 Subsequently, on December 27,6789

10

12134

151617

2011, Defendant filed a Reply in Support of Motion to Dismiss for Non-Service of Processand, in the Alternative, Insuf ficient Process. Contemporaneously therewith, Defendant fileda Request for SubmisSion, thereby submitting the matter for the Court's consideration.

I Factual . Procedural ackgroundThis case arises out of an employment dispute. Plaintiff was formerly employed as

an attorney for Defendant Washoe Legal Services. Plaintiff alleges that while he was anemployee, he became aware of several potential legal violations by his former employer.Plaintif f claims that he was fired after he informed his former employer of the violations,and that such firing was in retaliation for his informing the former employer of theviolations. Additional ly, Plaintiff claims that he was subjected to a hostile workenvironment.

Plaintiff filed suit against his former employer and related entities and individuals on1819202222324252627

June 27, 2011, in Case No. CV11-01896. This suit is currently assigned to Department Sixof the 2nd Judicial District Court. Three days later, on June 30, 2011, Plaintiff filed a seconaction, which he admits asserts the same claims as those presented in his first action.Plaintiff's second action is Case No. CVll-01955 and it is Plaintiff's second action that iscurrently before this Court. Defendant Marc Ashley is named as a defendant in bothactions. Defendant now moves the Court to dismiss Plaintiff's claim on the basis thatPlaintiff failed to serve process in the manner required by Nevada law.

28 The Court notes that Plaintiff's filings do not conform to District Court rules for such filings. Nonetheless, inthe interest of fairness, the Court will consider the merits of Plaintiff's arguments.

-2-


3/6

1 II Standard o Review2 Pursuant to NRCP 12(b)(5) the standard of review for a motion to dismiss is3 rigorous. Blackjack Bonding v City ofLas Vegas Municipal Court 116 Nev. 1213; 14 P 3d4 1275 (2000). As such, the Court will construe the pleadings liberally and draw every5 reasonable inference in favor of the non-moving party. Vacation Village v Hitachi America6 110 Nev 481 484 874 P 2d 744, 746 (1994).7 The purpose of a motion to dismiss is to test the legal sufficiency of the complaint.8 Navarro v Block 250 F.3d 729, 732 (9th Cir 2001). However, there is a strong9 presumption against dismissing an action for failure to state a claim. See Gilligan v l mco

10 Dev Corp. 108 F.3d 246, 249 (9th Cir 1997) (citation omitted). Thus, upon being11 adequately stated, a claim may be supported by showing enough facts to state a claim to12 relief that is plausible on its face. Bell Atlantic Corp v Twombly 127 S Ct 1955, 196913 (2007) (citation omitted). However, the factual allegations included in a complaint must14 be enough to raise a right to relief above the speculative leveL d at 1964-65. 'The15 pleading must contain something more ... than ... a statement of facts that merely creates16 a suspicion [of] a legally cognizable right of action. d at 1965.17 III Legal Analysis18 As noted above, Defendant seeks to dismiss Plaintiff's claim for insuffiCient service19 process pursuant to NRCP 12(b)(4). As explained below, the Court agrees that service of20 process was insufficient as to Defendant.212223242526

NRCP 4(a) requires that:Upon the filing of the complaint, the clerk shall forthwith issue asummons and deliver it to the plaintiff or to the plaintiff'sattorney, who shall be responsible for service of the summonsand a copy of the complaint. Upon request of the plaintiff,separate or additional summons shall issue against anydefendants.

27 NRCP 4(i) further provides that a Plaintiff must serve a summons and complaint within 12028 days of the filing of the complaint:

-3-


4/6

1

34567

f a service of the summons and complaint is not made upon adefendant within 120 days after the filing of the complaint, theaction shall be dismissed as to that defendant without prejudiceupon the court s own initiative with notice to such party or uponmotion, unless the party on whose behalf such service wasrequired files a motion to enlarge the time for service andshows good cause why such service was not made within thatperiod

Here, Plaintiff filed the instant suit on June 30, 2011. Accordingly, Plaintiff had until8 October 28, 2011 to timely serve process upon the various defendants. However, Plaintiff9 did not serve Defendant with process until November 14, 2011. To date, Plaintiff has not

10 moved for an enlargement of time for service, nor has he shown good cause as to why111213

such service was not made within the statutory period.Plaintiff does not respond to Defendant s argument in his oppositions. Instead,

Plaintiff merely notes that he served several of the other defendants, and raises several14 other issues that appear to be completely unrelated to the issue currently before the Court.1516 The Court considers Plaintiff s failure to respond to Defendant s argument as an admission17 of the argument s merit. See Polk v State 126 Nev. Adv. Op 19, 233 P 3d 357 (2010).1819221

2324256

2728

-4-


5/6

1 Thus, the Court concludes that Plaintiff s service of process was untimely pursuant to NRCP2 4(i) , and the Court will dismiss his claims against Defendant.23456789

1111213141516171819221222324252627

NOW THEREFORE IT S HEREBY ORDERED that Defendant s Motion toDismiss for Insufficient Process is GRANTED.

IT IS FURTHER ORDERED that Plaintiff s Complaint against Defendant isISMISSE WITHOUT PREJUDICE.

DATED this 2 day of January 2 0 1 : ~ ~STEVEN P. LLlOrrDistrict Judge

28 2 In light of the Court s conclusion that Plaintiff s attempted service was untimely, the Court does not addressDefendant s arguments regarding additional defects in service.

5


6/6

12

CERTIFIC TE OF M ILING

I hereby certify that I electronically filed the foregoing with the Clerk o the Court by3 using the ECF system which served the following parties electronically:45 JOSEPH GARIN, ESQ. for MELISSA MANGIARACINA, KATHY BRECKENRIDGE, BOARD PRES.OF WLS, MARC ASHLEY, TODD TORVINEN, KATHY BRECKENRIDGE, TODD TORVINEN,6 WLS BOARD MEMBER, PAUL ELCANO, PAUL ELCANO, EXECUTIVE DIRECTOR, WLSBOARD, WASHOE LEGAL SERVICES78 GARY FULLER, ESQ. for COMMmEE TO AIDE ABUSED WOMAN9 ZACHARY COUGHLIN, ESQ. for ZACH COUGHLIN

1 BRIAN GONSALVES, ESQ for TAHOE WOMEN S SERVICES1112134

151678

1922122232425262728

DATED this JCb. day o a n u a ~ ~HEIDI HOW NJudicial Assistant

6

1 13 12 2jdc elliott order granting wls ashley's mtn dismiss insuff service process...

Documents