1 13 12 2jdc elliott order granting wls's sabo, formerly of nvb's beesley peck mtn dismiss for...

7/27/2019 1 13 12 2JDC Elliott Order Granting WLS's Sabo, Formerly of NVB's Beesley Peck Mtn Dismiss for Non-Service of Pr

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F I L E DElectronically

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

Clerk of the Court

Transaction # 2699027

123456789

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

10 ZACH COUGHLIN,

1213 vs.

Plaintiff,

14 WASHOE LEGAL SERVICES et al;1516

Defendants.~ /

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

17 ORDER GRANTING MOTION TO ISMISS FOR NON SERVICE O PROCESS18 Presently before the Court is a Motion to Dismiss for Non-Service of Process, filed by19 Defendant KAREN SABO (hereafter Defendant ) on November 28, 2011. Following, on20 December 15, 2011, Plaintiff ZACH COUGHLIN (hereafter Plaintiff',) filed a document titled21 Opposition to all Defendant's Motions to Dismiss and all Defendant's Motions to Quash22 Service, Motion for Extension of Time to Respond/Continuance; Opposition to Motion to23 Tax Costs Simultaneously Seeking Extensions of Time or Continuance to Respond24 (hereafter Plaintiff's Opposition''). The following day, December 16, 2011, Plaintiff file a25 document titled Supplement to Motion for Reconsideration and Motion to Set Aside NRCP26 59,60 Dismissal and Supplement to Opposition to all Defendant's Motions to Dismiss and27 all Defendant's Motions to Quash Service, Motion for Extension of Time to28 Respond/Continuance; Opposition to Motion to Tax Costs Simultaneously Seeking

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1 Extensions of Time or Continuance to Respond (hereafter Plaintiff's First Supplemental2 Opposition''). That same day, Plaintiff also filed a document titled Opposition to all3 Defendant's Motions to Dismiss; Motion to Set Aside or Vacate Order Granting Dismissal4 NRCP 59, NRCP 50; Motion for Reconsideration (hereafter Plaintiff's Second Supplemental5 Opposition,,).l Subsequently, on December 12, 2011, Defendant filed a Reply in Support of6 Motion to Dismiss for Non-Service of Process. Finally, on December 27, 2011, Defendant7 filed a Request for Submission, thereby submitting the matter for the Court's consideration.89

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

an attorney for Defendant Washoe Legal Services. Plaintif f alleges that, while he was anemployee, he became aware of several potential legal violations by his former employer.Plaintiff 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. Additionally, Plaintiff claims that he was subjected to a hostile workenvironment.16 Plaintiff filed suit against his former employer and related entities and individuals on17 June 27, 2011, in Case No CVll-01896. This suit is currently assigned to Department Six

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of 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 Karen Sabo is named as a defendant in both

22 actions. She now moves the Court to dismiss Plaintiff's claim on the basis that Plaintiff23 failed to serve process in the manner required by Nevada law.24252627

I I Standard of ReviewPursuant to NRCP 12(b)(5) the standard of review for a motion to dismiss isrigorous. lackjack onding v. City o Las Vegas Municipal Court 116 Nev. 1213; 14 P.3d

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.

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1 1275 (2000). As such, the Court will construe the pleadings liberally and draw every2 reasonable inference in favor of the non-moving party. Vacation Village v Hitachi America3 110 Nev 481 484 874 P 2d 744, 746 (1994).4 The purpose of a motion to dismiss is to test the legal sufficiency of the complaint.5 Navarro II. Block 250 F.3d 729, 732 (9th Cir 2001). However, there is a strong6 presumption against dismissing an action for failure to state a claim. See Gilligan II. Jamco7 Dell. Corp. 108 F.3d 246, 249 (9th Cir 1997) (citation omitted). Thus, upon being8 adequately stated, a claim may be supported by showing enough facts to state a claim to9 relief that is plausible on its face. Bell Atlantic Corp. II. Twombly 127 S Ct 1955, 1969

10 (2007) (citation omitted). However, the factual allegations included in a complaint must11 be enough to raise a right to relief above the speculative leveL d at 1964-65. The12 pleading must contain something more ... than ... a statement of facts that merely creates13 a suspicion [of] a legally cognizable right of action. d at 1965.14 III Legal Analysis15 As noted above, Defendant seeks to dismiss Plaintiff's claim for insufficient service 016 process pursuant to NRCP 12(b)(4). As explained below, the Court agrees that service of17 process was insufficient as to Defendant.181920212223

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 plaint iffsattorney, 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.

24 NRCP 4(i) further provides that a Plaintiff must serve a summons and complaint within 12025 days of the filing of the complaint:262728

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 upon

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234

motion, 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 thatperiodHere, Plaintiff filed the instant suit on June 30, 2011. Accordingly, Plaintiff had until

5 October 28, 2011 to timely serve process upon the various defendants. However Plaintiff6 did not serve Defendant with process until November 16, 2011. To date, Plaintiff has not7 moved for an enlargement of time for service, nor has he shown good cause as to why8 such service was not made within the statutory period.9 Plaintif f does not respond to Defendant s argument in his oppositions. Instead,

10 Plaintiff merely notes that he served several of the other defendants, and raises several11 other issues that appear to be completely unrelated to the issue currently before the Court.12 The Court considers Plaintiff s failure to respond to Defendant s argument as an admission13 of the argument s merit. See Polk v State 126 Nev. Adv. Op. 19, 233 P.3d 357 (2010).14 Thus, the Court concludes that Plaintiff s service of process was untimely pursuant to NRCP15 4(i), and the Court will dismiss his claims against Defendant. 2161718192021

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NOW THEREFORE IT IS HEREBY ORDERED that Defendant s Motion toDismiss for Non-Service of Process is GRANTED.

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

DATED this 12 day of January, 2 : ~STEVEN P. LLIOTTDistrict Judge

28 2 n 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.

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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

10 BRIAN GONSALVES, ESQ for TAHOE WOMEN S SERVICES111231451617189

202122232425262728

D TED this f day o January, 2012.~ _ J ~- -HE ID I HO NJudicial Assistant

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