2 9 12 2jdc elliott granting wls sternlicht mtn dismiss for non-service of process...

7/27/2019 2 9 12 2JDC Elliott Granting WLS Sternlicht Mtn Dismiss for Non-Service of Process CV11-01955-2697393 (Ord Gran

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F I L E DElectronically

02-09-2012:01:30:50 PMJoey Orduna Hastings

Clerk of the Court

Transaction # 27550631234567

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

89

10 ZACH COUGHLIN

123 vs.

Plaintiff,

14 WASHOE LEGAL SERVICES et al;15 Defendants.6

Case No.: CV11-01955Dept. No.: 10

17 ORDER GRANTING MOTION TO ISMISS FOR NON SERVICE OF PROCESS18 Presently before the Court is a Motion to Dismiss for Non-Service of Process and, in19 the Alternative, Insufficient Process filed by Defendant CARYN STERNLICHT (hereafter20 Defendant ) on January 18. 2012. Following, on February 7 2012, Defendant filed a21 Request for Submission, thereby submitting the matter for the Court's consideration. The22 current motion remains unopposed.23 I Factual 8c Procedural ackground24 This case arises out of an employment dispute. Plaintiff was formerly employed as25 an attorney for Defendant Washoe Legal Services. Plaintiff alleges that, while he was an26 employee, he became aware of several potential legal violations by his former employer.27 Plaintiff claims that he was fired after he informed his former employer of the violations,28 and that such firing was in retaliation for his informing the former employer of the

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1 violations. Additionally, Plaintiff claims that he was subjected to a hostile work2 environment.3 Plaintiff filed suit against his former employer and related entities and individuals on4 June 27 2011, in Case No. CV11-01896. This suit is currently assigned to Department Six5 of the 2nd Judicial District Court. Three days later, on June 30, 2011, Plaintiff filed a secon6 action, which he admits asserts the same claims as those presented in his first action.7 Plaintiff's second action is Case No. CV11-01955, and it is Plaintiff's second action that is8 currently before this Court. Defendant now moves the Court to dismiss Plaintiff's claim on9 the basis that he failed to serve process in the manner required by Nevada law.

10 II Standard o Review11 Pursuant to NRCP 12(b )(5) the standard o review for a motion to dismiss is12 rigorous. Blackjack Bonding v City o Las Vegas Municipal Court 116 Nev. 1213; 14 P.3d13 1275 (2000). As such, the Court will construe the pleadings liberally and draw every14 reasonable inference in favor o the non-moving party. Vacation Village v Hitachi America15 110 Nev. 481,484, 874 P.2d 744, 746 (1994).16 The purpose o a motion to dismiss is to test the legal sufficiency o the complaint.17 Navarro v Block 250 F.3d 729, 732 (9th Cir. 2001). However, there is a strong18 presumption against dismissing an action for failure to state a claim. See Gilligan v Jamco19 Dev Corp. 108 F.3d 246, 249 (9th Cir. 1997) (citation omitted). Thus, upon being20 adequately stated, a claim may be supported by showing enough facts to state a claim to21 relief that is plausible on its face. Bell Atlantic Corp v Twombly 127 S.Ct. 1955, 196922 (2007) (citation omitted). However, the factual allegations included in a complaint must23 be enough to raise a right to relief above the speculative leveL lei at 1964-65. The24 pleading must contain something more ... than ... a statement o facts that merely creates25 a suspicion [of] a legally cognizable right o action. lei at 1965.26 III Legal Analysis27 As noted above, Defendant seeks to dismiss Plaintiff's claim for insufficient service28 process pursuant to NRCP 12(b)(4). As explained below, the Court agrees that service o

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process was insufficient as to Defendant.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 plaintiff sattorney, 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.

8 NRCP 4(i) further provides that a Plaintiff must serve a summons and complaint within 1209 days of the filing of the complaint:

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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 uponmotion, 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 thatperiod

Here, Plaintiff filed the instant suit on June 30, 2011. Accordingly, Plaintiff had until17 October 28, 2011 to timely serve process upon the various defendants. However, Plaintiff18 did not serve Defendant with process until November 15, 2011. To date, Plaintiff has not19 moved for an enlargement of time for service, nor has he shown good cause as to why2 such service was not made within the statutory period. Thus, the Court concludes that212223

Plaintiff s service of process was untimely pursuant to NRCP 4(i).Moreover, the Court notes that District Court Rule 13(3) provides that an opposing

party has ten (10) days following service of a motion in which to file and serve a written24 opposition. Failure to conform to this rule may be construed as an admission that the256

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motion is meritorious and consent to granting the same. lei n the instant matter, Plainti

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1 failed to file an Opposition to Defendant s Motion to Dismiss. Thus, Plaintiff s failure is2 deemed consent to granting Defendant s Motion.3 NOW THEREFORE IT IS HEREBY ORDERED th t Defendant s Motion to4 Dismiss for Non-Service of Process and, in the Alternative, Insufficient Process is5 GRANTED.6 IT IS FURTHER ORDERED th t Plaintiff s Complaint against Defendant is7 ISMISSE WITHOUT PREJUDICE.89

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DATED this .:t day of February, 2012.

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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 PRESOF WLS, MARC ASHLEY, TODD TORVINEN, KATHY BRECKENRIDGE, TODD TORVINEN,6 WLS BOARD MEMBER, PAUL ELCANO, PAUL ELCANO, EXECUTIVE DIRECTOR, WLSBOARD, WASHOE LEGAL SERVICES, CARYN STERNLICHT78 GARY FULLER, ESQ. for COMMmEE TO AIDE ABUSED WOMAN9 ZACHARY COUGHLIN, ESQ. for ZACH COUGHLIN

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BRIAN GONSALVES, ESQ for TAHOE WOMEN S SERVICESD TED this f day of February 2012.~ d w l .

Judicial Assistant

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2 9 12 2jdc elliott granting wls sternlicht mtn dismiss for non-service of process...

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