138 Nev., Advance Opinion 10
IN THE SUPREME COURT OF THE STATE OF NEVADA
MARIA DEL ROSARIO CERVANTES- No. 83156
GUEVARA,
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, FL LJ
IN AND FOR THE COUNTY OF
MAR 03 2022
CLARK; AND THE HONORABLE
ERIKA D. BALLOU, DISTRICT JUDGE,
Respondents,
and
MARK THOMAS ANDERSON; AND
THOR DEVELOPMENT, LLC, A
LIMITED LIABILITY CORPORATION,
Real Parties in Interest.
Original petition for a writ of mandamus challenging a district
court order denying a motion to enlarge time for service and serve by
publication and dismissing a complaint as to the party who was not timely
served.
Petition denied.
Bighorn Law and Jacqueline R. Bretell and Joshua P. Berrett, North Las
Vegas,
for Petitioner.
Messner Reeves LLP and M. Caleb Meyer and Scott L. Rogers, Las Vegas,
for Real Party in Interest Mark Thomas Anderson.
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Resnick & Louis, P.C., and Prescott T. Jones and Katlyn M. Brady, Las
Vegas,
for Real Party in Interest Thor Development, LLC.
BEFORE THE SUPREME COURT, EN BANC.
OPINION
By the Court, HARDESTY, J.:
Rule 4 of the Nevada Rules of Civil Procedure (NRCP) sets forth
the requirements for summons and service of civil complaints. Specifically,
NRCP 4(e) gives plaintiffs 120 days after filing a civil complaint in the
district court to serve the defendants with a summons and a copy of the
complaint. NRCP 4 further permits a plaintiff to request an extension of
time to serve process on a defendant if the plaintiff is unable to serve the
defendant within the 120-day period. If a motion demonstrating good cause
is timely filed before the expiration of the service period, or any extension
thereof, the court is required to extend the service period and set a
reasonable date by which service should be made. NRCP 4(e)(3). However,
if the plaintiff fails to timely move to extend the time for service, the court
must determine whether good cause exists for the plaintiffs delay in filing
the motion before considering whether good cause exists for granting an
extension of the service period. NRCP 4(e)(4).
On March 12, 2020, Nevada Governor Steve Sisolak issued an
Emergency Declaration declaring a state of emergency related to the
COVID-19 pandemic. Subsequently, the Governor issued a series of
Emergency Directives that impacted the daily lives of individuals,
businesses, and government. Specifically, on April 1, 2020, the Governor
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issued Emergency Directive 009 (Revised), which, among other things,
tolled any specific time limits set by statute or regulation pertaining to the
commencement of any legal action until 30 days from the date the state of
emergency was terminated. The Governor thereafter terminated
Emergency Directive 009 (Revised) by issuing Emergency Directive 026 on
June 29, 2020. Pursuant to Emergency Directive 026, the tolling period for
commencing legal action ended on July 31, 2020, at 11:59 p.m.
In this original petition for a writ of mandamus, we determine
whether the district court was within its discretion in denying, as untimely,
petitioner Maria Del Rosario Cervantes-Guevara's second motion to enlarge
time for service of process. In analyzing this question, we conclude that
Emergency Directive 009 (Revised) did not apply to court rules and, thus,
the deadline for service under NRCP 4(e) was not tolled by the Emergency
Directive. Therefore, Cervantes-Guevara's motion was untimely under
NRCP 4(e)(1), and she did not demonstrate good cause for her delay in filing
the motion under NRCP 4(e)(3). Because the district court did not
manifestly abuse its discretion by denying Cervantes-Guevara's motion and
dismissing her complaint as to the party whom she failed to timely serve,
we deny the original petition for a writ of mandamus.
FACTS AND PROCEDURAL HISTORY
In early 2018, Cervantes-Guevara and real party in interest
Mark Thomas Anderson were involved in a motor vehicle incident in Las
Vegas. On January 7, 2020, Cervantes-Guevara filed a complaint against
Anderson and his employer, real party in interest Thor Development, LLC,
alleging various tort claims. Under NRCP 4(e)(1), the 120-day deadline to
effect service of process expired on May 6, 2020. Cervantes-Guevara
unsuccessfully attempted to effectuate personal service on Anderson three
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times between February 18, 2020, and March 8, 2020. On March 12, 2020,
Governor Steve Sisolak declared a state of emergency due to the COVID-19
pandemic.
On April 1, 2020, the Governor issued Emergency Directive 009
(Revised), section 2 of which mandated that "[a]ny specific time limit set by
state statute or regulation for the commencement of any legal action is
hereby tolled from the date of this Directive until 30 days from the date the
state of emergency declared on March 12, 2020 is terminated." The
Governor terminated the tolling section of the Emergency Directive on
June 29, 2020, and recommenced the time tolled as of August 1, 2020. See
Emergency Directive 026 (June 29, 2020), § 5.
On May 6, 2020 (the expiration date of the NRCP 4 service
period), Cervantes-Guevara filed her first ex parte application to enlarge
time for service, seeking an additional 90 days and leave to serve Anderson
by publication due to COVID-19 social-distancing restrictions. The district
court granted the unopposed motion on June 5, 2020, extending the service
period until September 3, 2020. Cervantes-Guevara did not publish the
first of the four required notices until October 15, 2020, however.
Cervantes-Guevara filed her second motion to enlarge time for
service on October 28, 2020, seeking to extend the service period until
December 23, 2020. Anderson appeared in the action to oppose the motion,
and Senior Judge Joseph T. Bonaventure issued minutes denying
Cervantes-Guevara's second motion to enlarge time on December 16, 2020,
finding that the Emergency Directive did not toll the time for service of
process and that her motion was untimely under the district court's
Administrative Order 20-17, which required motions to extend service of
process deadlines filed after July 1, 2020, to be filed prior to the expiration
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of the time to serve.1 The minutes also indicated that Anderson would be
dismissed as a party to the action.
Cervantes-Guevara filed a motion for reconsideration, arguing
that Senior Judge Bonaventure did not consider whether good cause existed
for Cervantes-Guevara's delay in filing the motion. Judge Erika D. Ballou
denied Cervantes-Guevara's motion for reconsideration in a written order
issued on March 22, 2021, finding that Senior Judge Bonaventure likely
considered all factors required to deny the motion to enlarge time for
service, even if his findings were not put on the record, and that she would
not substitute her judgment for the judge who originally heard and ruled on
the motion. After denying the motion for reconsideration, Judge Ballou
issued a written order on July 13, 2021, reflecting Senior Judge
Bonaventures December 16 ruling and denying Cervantes-Guevara's
second motion to enlarge time. Cervantes-Guevara filed this original
petition for a writ of mandamus, asking this court to direct the district court
to vacate its order denying the enlargement of time and dismissing
Anderson from the action. Anderson filed an answer, as directed,2 and
Cervantes-Guevara filed a reply.
DISCUSSION
Whether this court should entertain this writ petition
"A writ of mandamus is available to compel the performance of
an act that the law requires . . . or to control an arbitrary or capricious
exercise of discretion." Int'l Game Tech., Inc. v. Second Judicial Dist. Court,
'See Eighth Judicial District Court Administrative Order 20-17, at
*15-16.
2Thor Development filed a joinder to Anderson's answer to the
petition.
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124 Nev. 193, 197, 179 P.3d 556, 558 (2008) (citing, inter alia, NRS 34.160).
In general, when considering a petition for a writ of mandamus, we review
for a manifest abuse of discretion. NuVeda, LLC v. Eighth Judicial Dist.
Court, 137 Nev., Adv. Op. 54, 495 P.3d 500, 503 (2021.). Whether to consider
such a petition is within the appellate court's discretion. Libby v. Eighth
Judicial Dist. Court, 130 Nev. 359, 363, 325 P.3d 1276, 1278 (2014).
Mandamus may only issue in "cases where there is not a plain, speedy and
adequate remedy in the ordinary course of law." NRS 34.170. An appeal is
generally an adequate legal remedy precluding writ relief. Int'l Game Tech.,
124 Nev. at 197, 179 P.3d at 558.
Here, it is appropriate to entertain Cervantes-Guevara's
petition because she does not have a plain, speedy, and adequate remedy to
challenge the district court's order dismissing Anderson as a defendant in
the underlying action. While it is true that the district court dismissed all
the claims in the complaint against Anderson, the order granting dismissal
is not appealable, absent an appropriate certification of finality under
NRCP 54(b), because there are remaining issues to be resolved against Thor
Development. See Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d 416, 417
(2000) (explaining that "a final judgment is one that disposes of all the
issues presented in the case, and leaves nothing for the future consideration
of the [district] court"). But NRCP 54(b) certification is discretionary,
Borger v. Eighth Judicial Dist. Court, 120 Nev. 1021, 1026 n.23, 102 P.3d
600, 603 n.23 (2004), and while its availability generally precludes writ
relief, see, e.g., Dattala v. Eighth Judicial Dist. Court, No. 82022 WL
510112, at *1 (Nev. Feb. 18, 2022) (Order Denying Petition), the preclusion
is not absolute, Borger, 120 Nev. at 1026 n.23, 102 P.3d at 603 n.23.
Considering this writ petition is appropriate because whether the
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Emergency Directive issued by the Governor applies to rules promulgated
by this court is an important issue of law requiring clarification and
resolving the issue will promote judicial economy. See Mona v. Eighth
Judicial Dist. Court, 132 Nev. 719, 724, 380 P.3d 836, 840 (2016) (noting
that "even if an [otherwise] adequate legal remedy exists, this court will
consider a writ petition if an important issue of law needs clarification or if
review would serve a public policy or judicial economy interest").
Whether the Governor's Emergency Directive applies to service of process
In Nevada, the judiciary has the constitutional duty "Rh)
declare what the law is or has been." N. Lake Tahoe Fire Prot. Dist. v.
Washoe Cty. Bd. of Comners, 129 Nev. 682, 687, 310 P.3d 583, 587 (2013)
(internal quotation marks omitted). Generally, this court "review [s] issues
of statutory construction de novo." Zohar v. Zbiegien, 130 Nev. 733, 737,
334 P.3d 402, 405 (2014). "When interpreting a statute, we look to its plain
language." Smith v. Zilverberg, 137 Nev., Adv. Op. 7, 481 P.3d 1222, 1230
(2021). "If a statute's language is plain and unambiguous, we enforce the
statute as written, without resorting to the rules of construction." Id.
Whenever possible, this court interprets "a rule or statute in harmony with
other rules or statutes." Slade v. Caesars Entm't Corp., 132 Nev. 374, 376,
373 P.3d 74, 75 (2016).
Although this court has not yet addressed the issue, many other
courts have applied the principles of statutory interpretation to executive
orders and directives, and we agree with their approach. See In re Murack,
957 N.W.2d 124, 128 (Minn. Ct. App. 2021) (holding that "it is appropriate
to apply statutory-interpretation principles in interpreting [emergency
executive orders]"), see also Bassidji v. Goe, 413 F.3d 928, 934 (9th Cir.
2005) ("As is true of interpretation of statutes, the interpretation of an
Executive Order begins with its text"); United States v. Abu Marzook, 412
7
F. Supp. 2d 913, 922 (N.D. Ill. 2006) ("The Court interprets Executive
Orders in the same manner that it interprets statutes."); City of Morgan
Hill v. Bay Area Air Quality Mgmt. Dist., 13 Cal. Rptr. 3d 420, 431 (Ct. App.
2004) ("The construction of an executive order presents an issue akin to an
issue of statutory interpretation . . . .").
Here, Cervantes-Guevara argues that the tolling provision
contained in Emergency Directive 009 (Revised) applied to the service
period prescribed under NRCP 4(e), such that the remaining 36 days of the
original service period recommenced on August 1, with the first 90-day
extension beginning on September 5 and not expiring until December 4,
rendering her second motion timely filed. As noted, the Emergency
Directive tolled "[a] ny specific time limit set by state statute or regulation
for the commencement of any legal action." Emergency Directive 009
(Revised) (April 1, 2020), § 2 (emphasis added). Cervantes-Guevara asserts
that NRCP 4 is a regulation that sets forth guidelines for the conduct of the
courts and attorneys during legal proceedings. However, Nevada law
dermes a "regulation," in relevant part, as "[a] n agency rule, standard,
directive or statement of general applicability which effectuates or
interprets law or policy, or describes the organization, procedure or practice
requirements of any agency." NRS 233B.038(1)(a). Further, Nevada law
defines an "agency" as "an agency, bureau, board, commission, department,
division, officer or employee of the Executive Department." NRS 233B.031
(emphasis added). Court rules are not included. Moreover, this court
recently stated in an unpublished disposition that "Wile Declaration of
Emergency Directive 009 (Revised) does not apply to deadlines established
by this court's rules." Byrd v. Byrd, No. 81198, 2020 WL 4746547 (Nev.
Aug. 14, 2020) (Order Dismissing Appeal) (noting that "the time limitation
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to file a notice of appeal is not established by state statute or regulation, but
by court rule"). Therefore, Cervantes-Guevara's attempt to frame the
NRCP as "regulatione under Emergency Directive 009 (Revised) fails
because, by definition, a regulation refers to any rule or adjudication made
by an executive branch entity and does not encompass the rules
promulgated by this court.
Cervantes-Guevara also contends that NRCP 4(e) expands the
meaning of commencing a legal action because it sets forth a specific
timeline for when the legal proceeding begins for the defendant in a civil
matter. But NRCP 3 specifically states that "[a] civil action is commenced
by filing a complaint with the court." As used in the rules of civil procedure,
a "'complaint includes a petition or other document that initiates a civil
action." NRCP 3, Advisory Committee Note-2019 Amendment (emphasis
added). Cervantes-Guevara's attempt to expand the meaning of
"commencing a civil action" to include service of process upon the defendant
fails because service of process is not a part of the commonly known
definition of the phrase.
Whether the district court manifestly abused its discretion by denying
Cervantes-Guevara's second motion to enlarge time for service as untimely
under NRCP 4(e)
A dismissal for failure to effect timely service of process is
reviewed for an abuse of discretion, Saavedra-Sandoval v. Wal-Mart Stores,
Inc., 126 Nev. 592, 595, 245 P.3d 1198, 1200 (2010), and as noted above,
writ relief will not issue absent a manifest abuse of that discretion, NuVeda,
137 Nev., Adv. Op. 54, 495 P.3d at 503.
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We agree with the district court that Cervantes-Guevara's
second motion to enlarge time, filed on October 28, 2020, was untimely
because the previously granted motion extended Cervantes-Guevara's
deadline 90 days to September 3, 2020—approximately 55 days before she
filed the second motion.
Further, Cervantes-Guevara did not have good cause under
NRCP 4(e)(3) for filing her second motion late because her interpretation of
the Emergency Directive is unreasonable. Cervantes-Guevara's assertion
that she was "reasonably diligent in her attempts" to serve Anderson is
belied by the record. As the record shows, her attempts to personally serve
Anderson stopped altogether after March 8, 2020, and she failed to begin
the service-by-publication process until October 15, 2020, after being
granted leave to do so by the district court on June 5, 2020. Therefore, the
district court was within its discretion when it denied Cervantes-Guevara's
second motion to enlarge time for service because she did not timely file the
motion and she failed to demonstrate good cause for her delay.
CONCLUSION
Emergency Directive 009 (Revised) did not apply to the
deadlines established by court rules because court rules are neither statutes
nor regulations pertaining to the commencement of a legal action. Because
the Emergency Directive did not toll the 120-day service period established
by NRCP 4(e), the district court did not manifestly abuse its discretion when
10
it denied Cervantes-Guevara's second motion to enlarge time and dismissed
her complaint as to Anderson. We therefore deny the original petition for a
writ of mandamus.
J.
Hardesty
We concur:
C.J.
Parraguirre
J.
Stiglich
J.
Cadish
J.
Silver
II
Piekm , J.
Pickering
Herndon
44- J.
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