10 5 11 opposition to wls elcano's mtn to dismiss , coughlin's mtn to consolidate casees cv11-01955...

7/27/2019 10 5 11 Opposition to WLS Elcano's Mtn to Dismiss , Coughlin's Mtn to Consolidate Casees Cv11-01955 01896 01

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Document Code: 2645 Opposition to MtnZach Coughlin, Esq.121 River Rock St.Reno, NV 89501Tele: [email protected] se Plaintitf

IN THE SECOND JUDICIAL DISTRICT COURT Of THE STATE OF NEVADA

IN AND FOR THE COUNTY OF WASHOE) CASE NO: CVII-01955Plaintiff, )

vs ) DEPT. NO: 10ASHOE LEGAL SERVICES a Nevada )orporation, KATHY BRECKENRIDGE, )

ndividually and in her capacity as Board )resident ofWLS. )TODD TORVINEN, Individually and in his ) OPPOSITION TO DEFENDANT S WLSapacityas WLS Board Member, ) AND PAUL ELCANO'S MOTION TO '.,AUL ELCANO. Individually and in his ) DISMISS FOR INSUFFICIENT SERVICE .apacity as Executive Director ofWLS, DOES ) OF PROCESS AND OTHER RELIEF;1-100, Individually and in their capacity as ) MOTION FOR SANCTIONS; MOTION TOembers of the BOARD OF DIRECTORS OF ) CONSOLIDATE CASESASHOE LEGAL SERVICES, CARYNTERNLlCHT, Individually and in herapacity at WLS attorney. JON SASSERndividually and in his capacity at WLS agent.TAREN SABO Individually and in her

19 apacity at WLS attorney. MELISSA20

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ANGIARACINA Individually and in herapacity at WLS attorney, MARC ASHLEYndividually and in his capacity at WLSttollley. ZANDRA LOPEZ Individually and iner capacity as WLS employee, DOES andOES 1-100, COMMlnEE TO AmBUSED WOMEN, TAHOE WOMEN SERVICES. Defendants.

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OPPOSITION TO DEFENDANT'S WLS AND PAUL ELCANO'S MOTION TO DISMISSFOR INSUFFICIENT SERVICE 1< PROCESS AND OTHER RELIEF; MOTION FORSANCTIONS; MOTION TO CONSOLIDATE CASES

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PLAINTIff COUGHLIN'S OPPOSITION TO DEFENDANTS WASHOE LEGAL SERVICESAND PAUL ELCANO'S MOTION TO DISMISS FOR INSUFFICIENT SERVICE OF PROCESSAND OTHER RELIEF

PLAINTIFF COUGHLIN, BY HIMSELF AND WITH HIS PERIPHERAL ATTORNEYS,submit PLAINTIFF'S OPPOSITION TO DEFENDANTS WASHOE LEGAL SERVICES ANDPAUL ELCANG'S MOTION TO DISMISS FOR INSUFFICIENT SERVICE OF PROCESS ANDOTHER RELIEF ( Motion ) under NRCP 12(b)(4) and NRCP 4; AND MOTION FORSANCTIONS. This Motion is based upon the Memorandum of Points and Authorities, the exhibitsattached hereto, the pleadings and papers on file, and any oral argument that may be presented in thismatter.

ughlin, Esq. (Bar No. 9473)iver Rock, SIRe 0 NV 8950 I(775) 338-8118

One of the Plaintiff's Attorneys

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12 MEMORANDUM OF POINTS AND AUTHORITIES3 1. Introduction4 Plaintiff Coughlin was formerly employed as an attorney for WLS. Coughlin has filed two5 lawsuits against WLS, ct aI., asserting claims for wrongful termination: Zach Coughlin v. Washoe6 Legal Services, et al. Case No.: CV 110 1896 Hon. Brent Adams Filed: June 27, 2011 and Zachary7

Coughlin v Washoe Legal Services, et al. Case No.: CVll01955 Hon. Steven P. Elliott Filed: June89 30,2011.

10 The rationale behind filing two of what would seem to be the same case, lies in the way11 Petition's to Proceed In Forma Pauperis (IFP) are processed in the Second Judicial District Court for12 Washoe County and the effect the potential denial of such an IFP would have on a Title VII litigants13 filing date for statute of limitations purposes with respect to the 90 day deadline to tile suit from1415 re eipt of an EEOC Right To Sue Letter (RTSL). Should the IFP Coughlin filed in CV110189616 have been denied, it was relayed to Coughlin by filing otlicer desk clerks and Assistant Clerk of17 Court Julie Wise, that Coughlin would subsequently need to return to the filing office and pay the18 filing fee, and would be accorded a filing date consistent with the date the filing fee was paid, and19 that there would be no opportunity to cure the failure to pay a filing fee and have the filing date20

21 relate back to the date the IFP and contemplated Complaint were submitted. Judge Steinheimer's22 Adminstrative Assistant confirmed this as well. However, while there does seem to be support for23 the contention that such a relating back should be accorded, it simply would not have been prudent24 for Coughlin to persist with such a tact in light of the numerous indications to the contrary given him25 by court personnel. As such, Coughlin filed one version ofthe instant case on June 27, 2011 (and,2627 should it proved necessary, Coughlin can show that he made attempts to file this case on an earlier28 date, though he was refused even having his papers marked received by filing office personnel and

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1 Ms. Wise. in direct contravention of the dictates found in Whitman and Sullivan) and another on June2 30''',2011 (wherein he did, in fact, pay the filing fee) given that the 90 day deadline to file the instant3 action would likely run in the interim between the filing of the IFP and Department 4's decision on45 the IFP. Indeed, despite using the very form which filing office personnel insisted Coughlin use for6 an IFP (after refusing to accept Coughlin's far more detailed IFP submission), Department 4 ordered

Coughlin to provide more information with respect to his financial condition. The IFP was8 subsequently granted to Coughlin in CVII O 1896.9 Lest this court fcel any lack of dilligence on Coughlin's part contributed to this multiplicity of

10 actions. be assured that the exigency of the situation and the concomitant multiples filings was not11

12 only brought on by the 2 d Judicial's policy regarding refusing to relate back filing dates for denied3 IFP's subsequently 'cured' by a filing fee paying litigant, but further EEOC negligence exacerbated

14 this situation in failing to mail the RTSL to Coughlin's current address, an address for which15 Coughlin had previously apprised the SF District Office of the EEOC of in writing However, given16 that the 90 days to file a Title VII action is measure from receipt of the RTSL, and that1718 constructive receipt' has sometimes been applied in decisions, palticularly where a claimant has19 moved, Coughlin felt the need to guard against even the most onerous interpretations with respect to20 his filing within the 90 days from receipt' of the RTSL.21 Given that the IFP was approved and that Coughlin has been adjudged indigent by22 Depaltment 4. Coughlin asks this Court to refund the $260 filing fee he paid in CVII01955 and23

24 consolidate these two cases into one, using the Complaint submitted in connection with CV 110 195525 as Coughlin's Complaint, and thereby preserving for pro se litigant Coughlin the ability to file one26 Amended Complaint without first seeking leave ofcourt.27

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1 On August 29, 20 II, Coughlin attempted to complete service of the summons and complaint2 in the second case, Case No. CVII -01955 by having an independent process server of Reno, Nevada3 serve copies to two employees of'WLS, Jessica Garzae and Senior Paralegal Berta Mann at the45 reception desk ofWLS s oHices. Coughlin's Complaint reveals Ms. Garzae's meteoric rise from6 receptionist who hardly ever answers to phone to, obstensibly, someone being groomed for a

promotion, the likes of which would utilize the salary formerly taken up by licensed attorney8 Coughlin, and thereby reward Ms. Garzae for doing the job of Zandra Lopez, as had been detailed in9 numerous attorney only staff meetings, a situation to which Coughlin once asked the collection of

10 WLS attorneys and Executive Director Elcano now, if Jessica is too busy to ever answer the phone1112 because she is doing Zandra's job, and deserves a raise (in addition to the rather high hourly wage she13 is paid to be a receptionist who doesn't know how to change the font in a document in MS Word and14 the monies she collects for custodial services provided to WLS-though she had been known to15 belligerently challenge Coughlin to never leave a dish in the office sink for her to wash ), well, then,16 what exactly s i that Zandra does? I mean, when she is not at Court doing something with someone1718 that is not a client of mine, nor a client of Caryn's, and where she is assuredly, not engaging in the19 unauthorized practice of law? Indeed, Coughlin, a licensed attorney. and Garzae had, for a period of20 approximately two months, been summoned to WLS early, at 8:00 a.m., once or twice a week, for21 joint training sessions on how to approach the law from a theoretical and highly conceptual22 perspective sometime in 2008. Coughlin called WLS sometime in approximately early 2011 and2324 found that a new receptionist had been hired, an African-American male. Even before leaving WLS25 it was apparent to Coughlin that Garzae had become so much more than a receptionist. Additionally,26 Berta Mann was standing beside Garzae when the process server served them the Summons in this27 Case. Ms. Mann is a Senior Paralegal for WLS, having been there, perhaps, even longer than Eleano.28

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1 Since leaving process at a reception desk is not an approved method of service under Nevada Rule of2 Civil Procedure 4, Defendants seek dismissal of Plaintiffs Complaint pursuant to NRCP 12(b)(4).3 FACTS45 I. Garin, counsel for, depending upon which statement you take to be true from Mr. Garin, apparent6 Mr. Elcano and WLS (though is is. perhaps not entirely clear if Garin represents Elcano personally,7 or merely in Elcano's capacity as Executive Director of WLS ... ) wrote to Coughlin, in a letter dated8 September 22 J "'Please refrain from contacting my cliem Washoe Legal Services. its employees,9 otTtcers and directors (collectively "WLS"). You have Jiled two (2) complaints against WLS and you

10 include allegations against unidentified Does as defendants. As such. you are ethically prohibited11

12 from contacting anyone at WLS. Furthermore. there are many in WLS who feel threatened by your13 actions. If you need any information about my client. please direct written inquiry to my office and14 we will respond accordingly. ClearlY'LI s the best option for all involved. There is a very15 limited fund available to However. as my fees are incurred, that fund is exhausted. I urge you16 to respond to in my last letter to you." Mr. Garin failed to, however, provide17

18 anything in the way of legal support for his position that Coughlin is "ethically prohibited from19 contacting anyone at WLS, or whether the "ethically" language Garin uses is connected to any actual20 codified rules applicable to attorneys, or applicable to pro se ligitants, or applicable to pro se litigants21 who happen to be attorneys.22 2. In a September 9, 2011 letter to Coughlin, Garin writes "Rule 4 of the Nevada Rules of Civil23

24 Procedure specifically controls service of process. On August 29 20 I I, various documents which25 apparently relate to Case No. CY 11-0 1955 were left at the front reception desk of WLS's offices. At26 no time has WLS authorized the receptionist to accept service of process of a summons and27 complaint. Since leaving documents with a receptionist is not an approved method of service under28

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Rule 4. it is unclear whether you directed this action intentionally or if it was an attempt at service ofprocess. No affidavit of service has been filed in either case. As a licensed attorney, you know that ifyou intend to serve the summons and complaint in either or both cases, your obligation is to complywith Rule 4 If you believe you have complied with the mandate of Rule 4, please send me a letterexplaining your position. In addition. please provide me with a copy of any affidavit of service.3 In Garin's Motion to Dismiss for Insufficient Service of Process, an Affidavit in Support is signedby Elcano, though is contains quite curiously evasive language with respect to the issues at hand.This is the same Elcano who curiously did not receive the written email, the successfultransmission of which is rather easily verified, from Coughlin in the day or so prior to suspendingCoughlin from his position as a Domestic Violence Attorney for WLS. In his September 19 h, 2011A ffidavit, Executive Director Elcano swears that 4. On August 29, 20 II, Plaintiff left variousdocuments which appeared to relate to this matter at the front receptionist desk ofWLS s offices. 5At no time have I or WLS authorized the receptionist to accept service of process ofa summons andcomplaint on my or WLS's behalf . Elcano's Affidavit contains no mention of whether JessicaGarzae is still to be considered the receptionist at WLS, or whether Berta Mann was served and thatfact that Ms. Mann is clearly not the receptionist. but, rather, at last check, a Senior Paralegal with avery, very long tenure at WLS.

N LYSIS

Despite Garin's September 22, 20 II contention that clearly, _ is the best option forall involved. There is a very limited fund availableto However, as my fees are incurred, that25 fund is exhausted. I urge you to respond to in my last letter to you . , and the fac26 that he represents a lall firm, a legal aid organization, Garin chooses to use this precious fund he has

27 constantly referred to, a fund wherein a zero sum game is played between Garin lining his wallet with28

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1 attorney's fees billed to his client and funds which could2

3 Not to mention that this attorney1 fired under circumstances that even the most cut-throat corporate law firm run, essentially, by a CFaS6 without a law degree. would blush at. Further, given Garin's declarations of concern for everyone

involved it is unclear why Garin is choosing to use this limited fund from which his fees for8 defending this action are drawn on something so easily overcome as the instant Motion to Dismiss.9 is unclear why Garin feels a dismissal would be appropriate prior to the expiration of 120 days, the

10 which litigants have to properly serve defendants pursuant to NRCP 4. Would not this limited11

12 Garin refers to be better spent on the all important Summary Judgment motion sure to come? Where13 will WLS be left once Garin's limited fund is exhausted? Is this limited fund some kind of14 statutory cap on damages as well? Garin has a talent for making pronouncements that sound like law15 but are unadorned with any troublesome citations to actual precedent. Perhaps that works with some16 people.17

18 Since Coughlin's process server did so much more than merely leaving a copy of the19 Summons and Complaint at a reception desk service should be deemed sufficient under Nevada20 Rule of Civil Procedure 4. As Defendant's counsel did not seem to cite even one case in support of21 his contentions and requests, a request which seeks to DISMISS the right of an individual to seek

redress for something so primary as the right to avoid being retaliated against and discriminated2324 against on the basis of one's race, sex, etc ... Plaint ifl seeks this court to order sanctions against2S Defendants, and, pursuant to NRS 7.085, against Mr. Garin himself, personally, in addition to26 providing stern written reproach to Garin regarding his attempts to prevent Coughlin from27 interviewing key witnesses via Garin's September 22 ', 2011 letter, in which Garin seeks to, in28

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domestic violence parlance blame the victim , vaguely citing to how threatened various non-managing-speaking test employees feel in regard to Coughlin's milquetoast written request tointerview them. [f any of these employees actually do feel threatened , and if this is not just anotherof Garin's dilatory litigation tactics, the kind practiced with such alacrity by so many employment ladefense attorneys over the years before Garin, then perhaps these employees should com,ider whetherthere feelings are based in a fundamental concern with whether saying something other than, or notquite, the truth to the EEOC may be discoverable upon the proper execution of a FO[A request to theSan Francisco District Office, whereupon the typical Determination Letter would yield the classicexemptions from disclosure (the various internal memorandum, work product etc, etc. basis), uponwhich a properly perfected appeal pursuant to 29 C.F.R. Sec 1610.11 would ensue, whereuponstatements made by those employees. under oath, to an EEOC investigator, and documentaryevidence supplied by WLS, would see the cold light of day, juxtaposed next to who knows what, be iaudio recordings, written materials, testimonial evidence or any number of other items which mightcontradict those employees earlier statements. I am sure cold blooded murderers feel threatened byprosecuting attorneys too, but that does not mean that equity should care.

Restrictions on right oflegal services corporation or public interest law firm to practice. 26A.L.RAth 614. Action of private organization providing legal aid with public funds as state actionwithin 42 U.S.CA. 1983.49 ALR. Fed. 955.I WLS s MOTION IS FATALLY FLAWED AND SHOULD BE SMITED. OR. AT THEVERY LEAST. DENIED

Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir.I 988)(citations omitted). [n that case, the court held that service on a receptionist was sufficientwhere she was ' the only employee in the office when the process server arrived, demonstrating thatmore than minimal responsibility was assigned to her: ld. at 689. A secretary to a corporation's vice

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1 president may be considered an authorized agent for accepting process by virtue ofthe fact that she2 has been habitually allowed to accept it In some cases, service made on a receptionist is valid3 because it is the equivalent of serving the receptionbl's boss directly. Fashion Page, Ltd. v Zurich45 Ins. Co., 69 A.D.2d 787, 415 N.Y.S.2d 416 (I st Dep't 1979), order affd, 50 N.Y.2d 265 428

\ 6 N.Y.S.2d 890,406 N.E.2d 747 (1980). Sternberg v Citicorp Credit Services, Inc., 110 Misc. 2d 804,442 N.Y.S.2d 1017 (Sup 1981). Implied authority to accept service of process on behalfofa

8 corporation generally will be found where the character of the agency is such as to render it fair,9 reasonable, and just to imply the authority on the part of the agent to receive service. The apparent

10 authority of an agent is to be determined by the acts of the principal, and not by the acts of the agent.1112 Tullis v Federated Mut. Ins. Co., 570 N.W.2d 309 (Minn. 1997). Kingvision Pay-Per-View, Ltd. v3 Ayers, 2003 WL 22753170 (Ala. 2003). See, also, Thompson v. Lied Animal Shelter, 2009 WL

14 3303733, *2 (D, Nev. 2009) (evaluating validity of service of process under Nevada law); Grand15 Canyon Resort Corp. v. Drive-Yourself Tours, Inc., D.C.Ariz.2006, 2006 WL 1722314 (court16 analyzed whether agent was authorized to receive process under federal standard, as well as under1718 Arizona law, where court was located, and Nevada law, where service was effected).19 While by Nevada law , the Lied case is likely concerned with Federal Courts in Nevada's20 interpretation of FRCP 4, the decision may be instructive in this state court context just the same, In21 Lieu Animal Shelter, the defendant argued that because the U.S, Marshall served an office manager22 at VCA Animal Hospital, that it has not been properly served. Service of a domestic or foreign2324 corporation may be effected pursuant to the laws of the state where the court is located or where25 service is sought. 1 Moore's Federal Practice 4,51[1] (3d ed. 2008) (citing Fed. R Civ. P 4(h)(I)26 (A); Fed. R. Civ. P 4(e)(I Under Rule 4(h)(1)(B), service may also be effected by delivering a27 copy of the summons and of the complaint to an officer, a managing or general agent, or any other28

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1 agent authorized by appointment or law to receive service of process Fed. R Civ. P 4(h)(I)(B).2 The court reasoned that if the office manager was an officer, managing agent, or general agent of3 VCA. then service upon her was sufficient to serve VCA. The Ninth Circuit uses the following

5 analysis: Despite the language of the Rule, service of process is not limited solely to officially6 designated officers, managing agents, or agents appointed by law for the receipt of process. The rules7 are to be applied in a manner that will best effectuate their purpose of giving the defendant adequate8 notice. Thus, the service can be made upon a representative so integrated with the organization that9 he will know what to do with the papers. Generally, service is sufficient when made upon an

10 individual who stands in such a position as to render it fair, reasonable and just to imply th authority11

on his part to receive service. Generally, [tJhe determination ofwhether a given individual is a'managing or general agent' depends on a tactual analysis of that person's authority within the

14 organization. Direct Mail Specialists. Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 68815 (9th Cir. 1988)(citations omitted). In that case, the court held that service on a receptionist was16 sufficient where she was (he only employee in the office when the process server arrived,1718 demonstrating that more than minimal responsibility was assigned to her. Id. at 689. In Lied, the19 person served was an office manager for YCA at its Las Vegas animal hospital. This position is ofa20 high enough level of responsibility under the Ninth Circuit's test to effect valid service. The manager21 of an office certainly know[sJ what to do with the papers, if the receptionist in Eclat did. Id. at 688.22

If a receptionist can satisfY the lest based on more than minimal responsibility, the manager of an2324 office should satisfy the test in most cases. The Ninth Circuit noted in Eclat that Rule 4 is a flexible25 rule that should be liberally construed o long as a party receives sufficient notice of the complaint.26 Id. (quoting United Food Commercial Workers Union v Alpha Beta Co., 736 F.2d 1371, 1382 (9th27 Cir. 1984)). t cannot be said that VCA did not receive sufficient notice of the complaint. The service28

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was effected on August 27. 2009. (#21). yeA filed the present motion on September 21. (#23). VCAhad sufficient notice of he SAC based on service of Ms. Smith, who was of appropriateresponsibility. Therefore. the Court denies the motion to dismiss based on improper service ofprocess.

Wow. so. certainly, the fact that WLS is a law firm may indeed, auger toward deeming servicsufficient. The fact that E1cano is a hunt and peck with two fingers typist might also lend a hand tothe argument that his subservients stamp such a deep imprint on everything he does that they shouldbe deemed agents capable of accepting service of process for Eleano.

More commonly service is allowed on any "agent." Not every employee is considered anagent under such statutes, but only employees who are not mere subordinates or who are likely toinform the appropriate officers that service has been made. Thus such employees as janitors,dispatchers, and typists have not been considered agents, but an office manager and the highestranking employee at a construction site have been considered agents. A corporation cannot evadejurisdiction when it has created the impression that the person served was the proper person toreceive service. See, Chancellorv. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983). Megan v. L. B.Foster Co . I III. App. 3d 1036.275 N.E.2d 426 (2d Dis . 1971). Scott v. Atlanta Dairies Co-op., 239Ga. 721, 238 S.E.2d 340 (1977). Eggi v. Fleetguard, Inc., 1998 NO 166, 583 N.W.2d 812 (N.D.1998). Adair Realty Co. v. Greenbriar-Fulton, Inc., 149 Ga. App. 669, 255 S.E.2d 128 (1979).Southeastern Fidelity Ins. Co. v. Heard, 123 Ga. App. 635, 182 S.E.2d 153 (1971). Cousby v. J. T.Bickers Realty Co 139 Ga. App. 250. 228 S.E.2d 214 (1976). Burris Chemical, Inc. v. DanielS '- kc; ' rConst. Co., 251 S.c. 483, 163 S.E.2d 618 (1968). C- ,,,p n{ i;;cx,'';r > 7 r CIt s r~ C.>


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1 consist of speaing with ny employes ofWLS. Garin seems to cite to some vague proposition that by2 including DOES 1-100 in the caption of his Complaint (something made necessary by WLS's3 repeated refusal to provide the names of any of the members of its Board ofDirector's despite

5 Coughlin's numerous written requests in that regard) Coughlin is ethically prevented from6 questioning any employee's, even those traditionally available to him under the managing-speaking7 lest set out by the Nevada Supreme Court. Perhaps, Garin might take some pointers from the8 tribulations the City of Reno attorney ran into regarding allegation's ofwitness tampering in the9 recent Eoff/Pitsnogle proceedings. Well, anyways, it is not clear who exactly Garin represents and

10 whether he is invoking some sort of attorney-client, no contact with represented parties line or12 argument to prevent any evidence gathering vis a vis employee interview by Coughlin. IN Garin's13 September 9.2011 to Coughlin, Garin writes As you know, my oftlce represent Washoe Legal14 Services, its directors, oftlcers, and employees (collectively WLS ) ... No, Joe, I don't know that.15 Actually, if you could just provide me a copy of the liability insurance from which your employment16 as defense counsel stems I could ascertain better who exactly it is you represent, and in what capacity1718 (in the employees capacity as an employee or director, or personally?). Because, Joe, in some ofyou19 pleadings you describe your role as attorney for Defendants, WLS and Eleano, Now, it would seem20 that is what they called an appositive in my 9th grade honors English class right here at Reno High21 School, where that comma after the word Defendants is indicative of that fact that you are about to22 identify them further and more specifically, such as by name. You did, following that comma with2324 WLS and Elcano . So, how does that jibe with your September 9, 20 II letter wherein you go on2S about how I know that your office represents Washoe Legal Services, its directors, officers, and26 employees (collectively WLS ) ... Is this what is called a dilatory litigation practice wherein you27 hope to broaden the scope of the blanket of silence you wish to enforce to those who do not qualify28

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1 under the managing speaking agent test with respect to the ethics of contacting represented parties2 and or their employees'? Garin's words sure sound like he threatening or seeking sanctions without a3 basis to do so, which is in itself, sanctionable conduct. See, e.g., Nakash v. United States Dept. OJ45 Jm.tice, 708 F.Supp. 1354 (S.D.N.Y. 1998).6 So anyways, not really being able to tell exactly who it is Garin's office represents (does he7 represent Zandra Lopez, personally? In her capacity as an employee?) it is hard to venture forward8 figuring out whether personal service on a defendant such as Elcano was sufficiently carried out by9 Coughlin's process server. Construction and Application of Terms Abode, Dwelling, and the

10 Like; Place of employment or business. 62B Am. Jur. 2d Process 203. Construction of phrase11

12 usual place of abode, or similar terms referring to abode. residence, or domicile, as used in statutes3 relating to service of process, 32 A.L.R.3d 112.

Under some state statutes, substituted service of process may be effected by serving a person15 of discretion at a defendant's residence or place of business. In some states, when the defendant is16 an individual, the summons may be served by handing a copy thereof at any office or usual place of1718 business oftbe defendant to his or her agent or to the person for the time being in charge thereof. A19 statute may authorize service by delivery ofthe summons to a defendant's actual place of business,20 followed by mailing of the summons to him or her at his or her last known residence. Under such a21 statute, service is proper where the summons and complaint are delivered to a receptionist at the22 defendant's actual place of business, followed by mailing. A statute may authorize service by23

2.4 delivery of the summons to a defendant's Collins Music Co .. Inc. v. Lord, 289 S.c:. 458 346 S.E.2d724 (1986). Martin v. Gerner, 332 Pa. Super. 507, 481 A.2d 903 (1984). Townsend v. Hanks, 140

26 A.D.2d 162.527 N.Y.S.2d 415 (1st Dep't 1988). Townsend v. Hanks. 140 A.D.2d 162,527 N.V.S.2d27 415 (I st Dep't 1988).28

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As to the sufficiency of service of process, see 62B Am. Jur. 2d, Process 105 et seq. Answer--Defense--Improper service ofprocess--Person served not agent oremployee of defendant, AMJUR PP Forms Fed. Prac. Proc. s 113 (2009). Actions by and AgainstCorporations D. Process L Persons Who May Be Served b Particular Persons Who May Be Served.19 Am. Jur. 2d Corporations 1906.B WLS AND GARIN SHOULD BE SANCTIONED FOR THIS FRIVOLOUS ANDVEXATIOUS FILING AND MAINTENANCE OF THIS MOTION AND OTHERDILATORY LITIGATION TACTICSNRS 7.085:

Payment of additional costs, expenses and attorney's fees by attorney who files,maintains or defends certain civil actions or extends civil actions in certaincircumstances I. If a court finds that an attorney has: (a) Filed, maintained ordefended a civil action or proceeding in any court in this State and such action ordefense is not well-grounded in fact or is not warranted by existing law or by anargument for changing the existing law that is made in good faith; or (b)Unreasonably and vexatiously extended a civil action or proceeding before any courtin this State, the comi shall require the attorney personally to pay the additional costs,expenses and attorney's fees reasonably incurred because of such conduct. 2 Thecourt shali liberally construe the provisions of this section in favor of awarding costs,expenses and attorney's fees in all appropriate situations. It is the intent of theLegislature that the court award costs, expenses and attorney's fees pursuant to thissection and impose sanctions pursuant to Rule II of he Nevada Rules of CivilProcedure in all appropriate situations to punish for and deter frivolous or vexatiousclaims and defenses because such claims and defenses overburden limited judicialresources, hinder the timely resolution of meritorious claims and increase the costs ofengaging in business and providing professional services to the public.While those with a shallow understanding of Sellers v. Fourth Judicial Dist. Ct., 119 Nev.

256 71 P .3d 495 (2003), might argue attorney's rees of any sort are not available to a pro se litigant,even one who is an attorney, see: NOTE: Awarding Attorney's Fees to Pro Se Litigants Under RuleII June, 1997.95 Mich. L Rev. 2308, Jeremy D. Spector. To wit:

states that have considered whether an attorney proper person litigant may beawarded attorney fees are divided, with a slight majority permitting such fees.Decisions approving fee awards to attorney proper person litigants generally do soon the basis that an attorney is paid ror rendering legal services, and ifhe renders

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such services on his own behalf, it results in as much pecuniary loss to him as ifhepaid another attorney to render the same services. So if a losing party must payattorney fees anyway, it should make no difference whether the fees are to be paidto an attomey representing himself or another attorney employed by him. In short,a lawyer's time and advice are his stock in trade. ... We interpret NRS 69.030 torequire that all proper person litigants. whether attomey or non-attorney. be

obligated to pay attorney fees as a p r r ~ u i s i t for an award of prevailing partyattorney fees. This interpretation gives effect to the Legislature's clear intent that theprevailing party in justice's court be reimbursed by the losing party for out-ofpocket costs incurred to prosecute the suit. To interpret the statute otherwise wouldrequire us to redefine what is meant by an attorney fee, which is commonlyunderstood to be the sum paid or charged for legal services. Because Matthewsrepresented himselfand did not payor incur any obligation to pay attorney fees. thejustice's court exceeded its jurisdiction by awarding such fees. We therefore grant,in part, the petition for a writ of certiorari. Sellers v Fourth Judicial Dist. Ct., 119Nev. 256, 71 P .3d 495 (2003).almer v ioneer Inn Assocst. 59 P.3d 1237 (Nev. 2002) clearly contradicts Garin's ominous

writing and directives to Coughlin and this court should not countenance such quasi witnesstampering. In Palmer v Pioneer Inn Associates. Ltd., 59 P.3d 1237 (Nev. 2002), the NevadaSupreme Court engaged in an extensive interpretation of Nevada SCR 182 and determined to apply itto organizational entities according to a managing-speaking agent test. in which an attorney isprecluded trom ex parte contact with a person affiliated with the adverse entity only if the personqualifies as a managing-,peaking agent (defined by the Court as someone with supervisory control orauthorization to speak for the entity as to the matter that is the subject of the conflict). See 59 PJd at1238, 1244-45 and 1248 (test applies to those representatives w o are in a position to speak for andbind the organization during the course of litigation ). Nevada Supreme Court Rule 182. Officialcomment to Model Rule 4.2. Palmer VS. Pioneer Inn Associates, 59 P.3d 1237 (Nev. 2002). NevadaSupreme Court Rule 182, which governs the issue. states: In representing a client, a lawyer shall notcommunicate about the subject ofthe representation with a party the lawyer knows to be representedby another lawyer in the matter. unless the lawyer has the consent of the other lawyer or is authorizedby law to do so. Nevada SCR 182 is based on ABA Model Rule 4.2. Comments to the Model Rules



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1 were not adopted, but may be used as guidance for interpretation. See Nevada SCR 150(2). Personal2 interviews of witnesses by counsel arc the time honored means by which an attorney develops and3 refines his case. Sec IBM v. Edelstein, 526 F.2d 37 (S.D.N.Y., 1975). Interviews are one method of45 satisfying an attorney's obligations under Rule II to conduct a reasonable inquiry to ensure Ihal a6 claim is well grounded in fact. See Nev. R Civ. P. II. The purpose ofRule 182 is to protect7 laypersons from being taken advantage of by lawyers, to protect the attorney-client relationship, and8 to prevent the inadvertent disclosure ofprivileged information. See In re Discipline o/Schaeffer, 259 P.3d 191,198 (Nev. 200 I). The issue arises in connection with contacting non-managerial corporate

1 employees. Ex parte contact with managerial employees of a corporation is prohibited by the Rule.1112 See Cronin v. Eighth Judicial District Court. 105 Nev. 635. 781 P.2d 1150 (1989). The issue in the3 case of corporations, and other organizational entities as well, is: Which individuals constitute the

14 represented party? Some courts embrace the position that no corporate employees, even lower level15 employees. should be contacted ex parte when that corporation is represented. See, e.g., Public16 Service Elec. Gas Co. v. Associated Elec. Gas Ins. Svcs., Ltd., 745 F. Supp. 1037 (D.N.J. 1996)17

18 (superseded by Rule and Reg.). The majority take the position that some communication may take19 place. See Niesig v. Team 1,76 N.Y.S. 2d 363, 558 N.E. 2d 1030 (1990). The scope of corporate2 employees covered by the Rule has been broadened by courts over the years. The narrowest test is21 the control group test. Those courts which adopt the control group test, reason that the maximum22 amount of information should be readily available through informal discovery. See Fair Automotive23

24 Repair, Inc. v. Car-X Service Systems, Inc . 128 III. App. 3d 763, 471 N.E.2d 554 (III. App. 1984). In25 Wright v. Group Health Hospital, 691 P.2d 564 (Wash 1984), the Court used a managing-speaking26 agent test that defines a manager as one who in words or actions bind the corporation ( speaker-27 manager ). By identifying a speakermanager as the party, the Court reasoned that the purpose of the28

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1 Rule was satisfied by preventing an adverse attorney from contacting someone who could bind the2 corporation. See 691 P.2d at 569. The Wright Court refused to distinguish between employees who3 witnessed the damaging act from the employees who caused it reasoning that the Rule is not meant45 to shield a corporation from discovery of the facts ofa matter, even if they are prejudicial. See 6916 P.2d at 569. The Nevada Supreme Court has addressed the application ofSCR 182 in detail in7 Palmer v. Pioneer Inn Associates, ,Ltd., 59 P.3d 1237 (Nev. 2002). The Palmer court adopted the8 managing-speaking agent test of the Washington Supreme Court in Wright v. Group Health, supra,9 to define who is meant as a person with managerial responsibility.

10 In answering the certified question, the Nevada Supreme Court in Palmer v. Pioneer Inn11

12 adopted a managing-speaking agent test for applying Nevada SCR 182 to corporate persons. Under13 this test, an attorney may not engage in ex parte communication (absent consent or authorization14 pursuant to other substantive law) if the person is a managing agent who is authorized to speak for15 the company about the subject matter of the litigation or dispute. The Nevada Supreme Court's16 analysis meant that the Sous Chef, although a supervising employee, was not a representative ofthe1718 Hotel in the Palmer dispute for purposes of the managingspeaking agent test. Consequently, Palmer's19 counsel did not violate Rule 182 as interpreted by the Nevada Supreme Court. After the Palmer v.20 Pioneer Inn decision, it is now clear that Nevada SCR 182 utilizes a managing-speaking agent test21 for determining which adverse entity employees are off limits to counsel and that neither the22 Restatement-Niesig ability to bind the company test nor the admission by a party-opponent test2324 applies to Nevada SCR 182 Despite the pedigree supporting the party-opponent and New York-25 Niesigtests, the Nevada Supreme Court rejected them in favor of the managing-speaking agent test26 because it best balances the policies at stake when considering what contact with an organization's27 representatives is appropriate. The test protects from overbearance by opposing counsel those28



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1 representatives who are in a position to speak for and bind the organization during the course of2 litigation, while still providing ample opportunity for an adequate Rule 11 investigation. In particular,3 the managing-speaking agent test best fulfills this purpose by not being over-inclusive. In particular,45 the managing-speaking agent test adopted by this court does not protect the organization at the6 expense of the justice system's truth-finding function by including employees whose conduct could7 be imputed to the organization based simply on the doctrine of respondeat superior. Finally, while8 any non-blanket rule has some uncertainty, we conclude that the test is sufficiently clear to provide9 signiticant guidance to counsel. See 59 P.3d at 1248 (footnotes omitted). The Court also noted that it

10 was not adopting ABA Model Rule 4.2's comment and was not adopting the ABA's 2002 comment,11

12 which essentially tracks the New York tcst. Rather. SCR 182 should be interpreted according to the13 managingspeaking agent test as set forth by the Washington Supreme Court in Wright by Wright v14 Group Health Hospital. See 59 P.3d at 1248 (footnotes omitted). See also Wright v Group Health15 Hosp., 691 P.2d at 569 (Wash. 1984): [The function of anti-contact rule 1 is to preclude the16 interviewing of those corporate employees who have the authority to bind the corporation.1718 [Employees should be viewed as within the anti-contact rule where they have 1 managing authority19 sufficient to give them the right to speak for. and bind, the corporation an employee does not20 speak for the organization simply because his or her statement may be admissible as a party-21 opponent admission. Rather, the inquiry is whether the employee can bind the organization with his22 or her statement.2324 onclusion25 Plaintiff has properly eflectuated service on Defendants Washoe Legal Services and26 Paul Elcano, and. perhaps, on most of the other Defendants. save CAAW and Tahoe27 Women's Services. Plaintiffs success in complying with NRCP 4 warrants a denial fo28



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1 Defendant's motion for dismissal of the Complaint pursuant to NRCP 12(b)(4).2 Accordingly, Plaintiff respectfully request this Court dismiss the Complaint nd provide3 other relief as warranted. WLS nd Garin's dilatory tactics should be punished.

AFFIRMATlO Pursuant to NRS 239B 03056 Also. this document does not contain any social security number or other inappropriate material7 pursuant to NRS 2398.030.8 DA TED this 23'" day of September. 2 II9

10 /s/ Zach Coughlin11 Zach Coughlin12 Plaintiff13141516

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PROOF OF SERVI E

I Zach Coughlin declare:

Joe Garin Esq. NV Bar 6653Shannon Nordstrom Esq. NV Bar 82119080 West Post Road Suite 100Las Vegas Nevada 89148Attorneys for Defendants WLS and Paul Elcano

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ch Coughlin

OPPOSITIoN TO MOTlON TO DISMISS ETC.

10 5 11 opposition to wls elcano's mtn to dismiss , coughlin's mtn to consolidate casees cv11-01955...

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