IN THE SUPREME COURT OF THE STATE OF NEVADA
VENETIAN MACAU LTD., A MACAU No. 69090
CORPORATION,
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, FILE
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE MAR 1 7 2016
MARK R. DENTON, DISTRICT JUDGE, TRADE K. UNDEMAN
CLERK FS PRErviE COURT
Respondents, BY
DEPUTY CLERK
and
STEVEN C. JACOBS,
Real Party in Interest.
ORDER DISMISSING WRIT PETITION
This is an original petition for extraordinary relief challenging
the striking of petitioner's peremptory challenge of a district court judge.
Eighth Judicial District Court, Clark County; Mark R. Denton, Judge.
The action underlying this proceeding is before District Judge
Elizabeth Gonzalez, who has made numerous rulings on contested issues.
Defendants below, Sands China and Las Vegas Sands, did not file a
peremptory challenge of Judge Gonzalez. As the litigation proceeded, real
party in interest (plaintiff below) filed a fifth amended complaint, adding
petitioner, Venetian Macau, Ltd., as a defendant below. Instead of filing
an answer to the complaint, petitioner filed a motion to dismiss the
complaint, and then filed a peremptory challenge of Judge Gonzalez. Real
party in interest filed a motion to strike the peremptory challenge, which
was granted by District Judge Mark Denton on October 27, 2015.
Petitioner then filed the instant writ petition.
On November 4, 2015, this court entered an order granting
petitioner's emergency motion to stay the proceedings below as to
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petitioner only. The order also directed real party in interest to file an
answer to the writ petition. Instead of filing an answer, real party in
interest filed a "Notice of Mootness," indicating that the instant writ
petition is moot based on real party in interest's filing in the district court,
on December 18, 2015, a notice pursuant to NRCP 41(a)(1), voluntarily
dismissing petitioner from the proceedings below without prejudice.
Petitioner has filed a motion and amended motion to strike
the notice of mootness, to submit the petition and grant the relief
requested, or alternatively, to permit dismissal below with prejudice. Real
party in interest opposes the motion and petitioner has filed a reply.
Having considered the motion, amended motion, opposition, and reply, we
deny it, and we order this original writ proceeding dismissed as moot and
we lift the stay that was previously entered.' See Fed. Say. & Loan Ins.
Corp. v. Moss, 88 Nev. 256, 259, 495 P.2d 616, 618 (1972) (stating that in
order to accomplish a voluntary dismissal pursuant to NRCP 41(a)(1), a
plaintiff "need do no more than file a notice of dismissal with the Clerk,"
and that such a filing "is a matter of right running to the plaintiff and may
not be extinguished or circumscribed by adversary or court") (internal
quotations omitted); Commercial Space Mgmt. Co. v. The Boeing Co., 193
F.3d 1074, 1078 (9th Cir. 1999) (interpreting the federal counterpart to
NRCP 41(a)(1) and stating that a voluntary dismissal is "effective on
filing" and "no court order is required"); Concha v. London, 62 F.3d 1493,
1506 (9th Cir. 1995) (interpreting the federal counterpart to NRCP
41(a)(1) and stating that the filing of a notice of voluntary dismissal
'We decline to reach petitioner's request that the dismissal below be
with prejudice.
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"automatically terminates the action as to the defendants who are the
subject of the notice"); Nelson v. Heer; 121 Nev. 832, 834, 122 P.3d 1252,
1253 (2005) ("[Flederal decisions involving the Federal Rules of Civil
Procedure provide persuasive authority when this court examines its
rules.").
Moreover, it appears that petitioner is barred from filing a
peremptory challenge of Judge Gonzalez because defendants Sands China
and Las Vegas Sands waived the right. See SCR 48.1(1) (providing that
each side is entitled to one change of judge by peremptory challenge); SCR
48.1(5) ("A notice of peremptory challenge may not be filed against any
judge who has made any ruling on a contested matter or commenced
hearing any contested matter in the action").
It is so ORDERED. 2
J.
Hardesty Douglas
_Cf12.
Saitta
The Honorable Ron Parraguirre, Chief Justice, and the Honorable
2
Kristina Pickering, Justice, have voluntarily recused themselves from
participation in the decision of this matter.
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cc: Hon. Mark R. Denton, District Judge
Carbajal & McNutt, LLP
Pisanelli Bice, PLLC
Eighth District Court Clerk
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