2011. In January 2012, the district court entered an order dismissing the
complaint as to all respondents on the ground that appellant had not
effected service of process on any of the respondents within 120 days of
June 27, 2011. See NRCP 4(i) (requiring generally the dismissal of a
complaint with respect to any defendant who is not served with the
summons and complaint within 120 days after the complaint is filed).
Appellant then timely filed an NRCP 59(e) motion in which he
sought to set aside the dismissal order. Cf. AA Primo Builders, LLC v.
Washington, 126 Nev. , 245 P.3d 1190, 1193 (2010) (recognizing
that any motion seeking to substantively alter a judgment is afforded
NRCP 59(e) status). In it, appellant contended that the district court
improperly used June 27, 2011, as the triggering date for NRCP 4(i)'s 120-
day window because his complaint was not formally filed until August 11,
2011. Using August 11 as the appropriate date, appellant contended that
dismissal was improper with respect to respondents Washoe Legal
Services (WLS) and Paul Elcano because Elcano, who is WLS's registered
agent, was served with a summons and complaint exactly 120 days from
August 11.
The district court acknowledged that appellant had timely
effected service on these respondents. Nonetheless, the district court
denied appellant's NRCP 59(e) motion, reasoning that service of process
was still improper because appellant had filed a "declaration," rather than
an "affidavit," with the district court as proof that these respondents had
been served. See NRCP 4(g)(2) (requiring a person who serves process and
who is not a sheriff or deputy to provide proof of service by means of an
"affidavit").
On appeal, appellant contends that the district court abused
its discretion in denying his NRCP 59(e) motion with respect to these two
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respondents.' See AA Primo Builders, 126 Nev. at , 245 P.3d at 1197
("[A]n order denying an NRCP 59(e) motion is reviewable for abuse of
discretion on appeal from the underlying judgment."). Specifically,
appellant contends that the district court improperly relied upon NRCP
4(g) because that rule expressly clarifies that If] ailure to make proof of
service shall not affect the validity of the service." We agree. 2
Accordingly, the district court abused its discretion in denying appellant's
NRCP 59(e) motion insofar as the motion sought to reverse the dismissal
of appellant's complaint as to WLS and Elcano. See BMW v. Roth, 127
Nev. „ 252 P.3d 649, 657 (2011) ("A district court would necessarily
abuse its discretion if it based its ruling on an erroneous view of the
law. . . ." (quotation omitted)).
WLS and Elcano ask us to nevertheless affirm the district
court's dismissal as to them because appellant failed to meaningfully
oppose their motions to dismiss. Cf. Foster v. Dingwall, 126 Nev. „
227 P.3d 1042, 1049 (2010) (treating the failure to respond to a motion as
an admission that the motion is meritorious). We decline to affirm based
on appellant's shortcomings in opposing the motions to dismiss, as doing
'Appellant has not cogently argued that dismissal was improper
with respect to any of the other respondents, and we therefore do not
consider any challenge to the dismissal of appellant's complaint as to the
other respondents. See Edwards v. Emperor's Garden Rest., 122 Nev. 317,
330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (noting that it is a party's
"responsibility to cogently argue, and present relevant authority, in
support of his appellate concerns").
2 We also question whether appellant's proof of service was actually
deficient. See Buckwalter v. Eighth Judicial Dist. Court, 126 Nev. ,
234 P.3d 920, 921-22 (2010) (indicating that NRS 53.045 gives a
declaration signed under penalty of perjury the same legal effect as an
affidavit).
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so under these circumstances would all but eliminate NRCP 59(e)'s utility.
Among other things, NRCP 59(e) is available to "correct[ I manifest errors
of law or fact." AA Primo Builders, 126 Nev. at , 245 P.3d at 1193
(quotation omitted). This standard was satisfied here because appellant's
proof of service was part of the district court record at the time it granted
respondents' motions to dismiss and because respondents subsequently
conceded that August 11, 2011, was the proper date from which to
calculate NRCP 4(i)'s 120-day window. Cf. Robinson v. Clipse, 602 F.3d
605, 608 (4th Cir. 2010) (tolling the 120-day service period while the
plaintiffs motion to proceed in forma pauperis was pending); Robinson v.
America's Best Contacts & Eyeglasses, 876 F.2d 596, 598 (7th Cir. 1989)
(same).
Accordingly, we affirm the judgment of the district court with
respect to all respondents except WLS and Paul Elcano. As for these two
respondents, we reverse the judgment of the district court and remand
this matter to the district court for proceedings consistent with this order. 3
It is so ORDERED.
3 In
light of our disposition, we reverse the district court's award of
attorney fees. This should not be construed as precluding the district
court from awarding attorney fees on remand under appropriate
circumstances.
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cc: Hon. Brent T. Adams, District Judge
Zachary B. Coughlin
Lipson Neilson Cole Seltzer & Garin, P.C.
Washoe District Court Clerk
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