Davis v. Barker

IN THE SUPREME COURT OF THE STATE OF NEVADA JAMES ANTHONY DAVIS, No. 67743 Appellant, vs. THE HONORABLE DAVID B. BARKER, DISTRICT JUDGE; FRANK J. COUMOU, CHIEF DEPUTY DISTRICT ATTORNEY; H. LEON SIMON, CHIEF DEPUTY DISTRICT ATTORNEY; FILED CAROLINE BATEMAN, DEPUTY FEB 0 3 2016 DISTRICT ATTORNEY; AND STEVEN B. WOLFSON, CLARK COUNTY TRACE K. UNDEMAN CLERK OF SUPREME COURT DISTRICT ATTORNEY; CATHERINE ev DEPUTY CLERK CORTEZ MASTO, FORMER NEVADA ATTORNEY GENERAL; THE STATE OF NEVADA; THE HONORABLE JENNIFER TOGLIATTI, DISTRICT JUDGE; AND STATE BAR OF NEVADA, Respondents. ORDER DISMISSING APPEAL This is a pro se appeal from a district court order dismissing appellant's civil rights complaint for failure of service. Eighth Judicial District Court, Clark County; Rob Bare, Judge. Our review of the documents submitted to this court under NRAP 3(g) reveals a jurisdictional defect. Specifically, it appears several defendants remain pending below, such that no final judgment has been entered in the underlying case. See NRAP 3A(b)(1) (providing a right to appeal from "[a] final judgment entered in an action"); Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d 416, 417 (2000) (defining "a final judgment [as] one that disposes of all the issues presented in the case, and leaves SUPREME COURT OF NEVADA 1(0- 03(0,52- nothing for the future consideration of the court, except for post-judgment issues such as attorney's fees and costs"). In particular, the order granting the motion to dismiss filed by respondents district court judges David Barker and Jennifer Togliatti, former Nevada Attorney General Catherine Cortez Masto, and the State of Nevada simply states the motion to dismiss filed by these parties is granted." It is not clear whether the district court's dismissal order addresses the other defendants. Further, the record is not clear concerning the service of the other defendants nor was the order certified as final pursuant to NRCP 54(b). 2 Thus, we lack jurisdiction over this appeal. See NRAP 3A(b)(1); Lee, 116 Nev. at 426, 996 P.2d at 417. 3 Accordingly, we 'Although respondents Togliatti, Masto, and the State of Nevada do not appear in the district court caption transmitted to this court, they were obviously parties to the complaint filed in the lower court as Davis asserted claims against them in the body of the complaint. Therefore, we instruct the clerk of this court to modify the caption in accordance with this order. 2 This court has previously held that "[NRCP] 54(b) does not preclude the grant of a final judgment against the only defendant who was served and who made an appearance." Rae v. All Am. Life & Gas. Co., 95 Nev. 920, 922, 605 P.2d 196, 197 (1979). Because there is no indication in the district court's order as to whether the remaining defendants were served, it is unclear whether this court's holding in Rae would apply in this instance 3 We note that the district court did not expressly invoke its power pursuant to NRCP 4(i) to dismiss the other defendants on its own initiative nor did the district court provide notice to Davis of its intent to dismiss the other defendants. SUPREME COURT OF NEVADA 2 (0)(947A ORDER this appeal DISMISSED. J. Hardesty CL J. _fPTCej l Pickering cc: Hon. Rob Bare, District Judge James Anthony Davis Attorney General/Carson City Eighth District Court Clerk SUPREME COURT OF NEVADA 3 (0) 1947A 0423P