oc ivsJo341IN THE SUPREME COURT OF THE STATE OF NEVADA

Zach Coughlin, Esq.,

Petitioner, ) CIvs.

The SECOND JUDICIAL DISTRICT COURTof the State of Nevada,In and For the COUNTY OF WASHOEand the Honorable Linda Gardner, District Judge,

Respondents

BY

LINDPREN

PETITIONER'S MOTION TO TREAT SECOND AMENDED NOTICE OF APPEAL OR PLED INTHE ALTERNATIVE PETITION FOR WRIT OF MANDAMUS A9,A PETITION FOR WRIT OF

MANDAMUS ONLY AND NOT A NOTICE OF APPEAL

Petitioner/Appellant's Counsel: Respondent ' s Counsel (for Mr. Joshi)Zach Coughlin, Esq. John Springgate, Esq.931 Forest St. 203 S. Arlington Ave.Reno, NV 89509 Reno , NV 89501

Second Judicial District CourtJudge Linda Gardner1 South Sierra StreetReno, NV 89501

FILEDJUN 0 42009

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MOTION TO TREAT SECOND AMENDED NOTICE OF APPEAL OR PLED INTHE ALTERNATIVE PETITION FOR WRIT OF MANDAMUS AS A PETITION

FOR WRIT OF MANDAMUS ONLY AND NOT A NOTICE OF APPEAL

COMES NOW, Zach Coughlin, Esq., on behalf of himself (and not on behalf of his

former client Ms. Joshi) and moves the Court to treat all filed Notices of Appeal

(including the Second Amended Notice of Appeal pleaded in the alternative as a Petition

for Writ of Mandamus) as one Petition for Writ of Mandamus on Mr. Coughlin's behalf,

thus dismissing Mr. Joshi from this matter and changing the caption in this case to reflect

the nature of a mandamus petition of an attorney, non-party, challenging sanctions

against the attorney from the district court. If this matter is not treated as a Petition for

Writ of Mandamus, Mr. Coughlin does not wish to withdraw the Second Amended

Notice of Appeal/Petition for Write of Mandamus at this time. This motion is made and

based upon the attached memorandum of points and authorities and all the papers and

pleadings on file in this action. Mr. Coughlin requests further time to file a Docketing

Statement should this Motion fail and this matter is not treated as a Petition for Writ of

Mandamus. I have read this Motion and to the best of my knowledge, information and

belief, the Motion is not frivolous or interposed for any improper purpose, such as to

harass or to cause unnecessary delay or needless increase in the cost of litigation;and I

certify that this Motion complies with all applicable Nevada Rules of Appellate

Procedure, including the requirement of Rule 28(e) that every assertion in the briefs

regarding matters in the record is supported by a reference to the page of the appendix

where the matter relied on is to be found (which is inapplicable here as this Motion is not

a Brief).

MEMORANDUM OF POINTS AND AUTHORITIES

The Nevada Supreme Court has established precedent in support of treating

notice of appeal as a Petition for Writ of Mandamus. "The Court may in its discretion

treat a petition for writ of mandamus as one for prohibition, or vice versa, or treat a

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notice of appeal interchangeably as a Petition for a Writ. Messner v. District Court,

104 Nev. 759, 766 P.2d 1320 (1988); In re Temporary Custody of Five Minors, 105

Nev. 441, 777 P.2d 901 (1989)."

"Nevertheless, because the order challenged in this proceeding affects the

custody of children, and may thus have far reaching consequences for both the parents

and the children, we elect to treat the instant appeal as a petition for a writ of

mandamus." Clark County Liquor v. Clark, 102 Nev. 654, 730 P.2d 443 (1986);

Jarstad v. National Farmers Union, 92 Nev. 380, 552 P.2d 49 (1976). "However, the

actions of the district court may be challenged by petition for writ of mandamus, and

we shall treat this appeal as a petition for mandamus since it would be unfair to do

otherwise in light of our previous order indicating the Board could appeal." Clark

County, Id.; See Jarstad v. National Farmer's Union, supra, 92 Nev. at 384, 552 P.2d

at 51."

"Since our case law is somewhat confusing on the point, it is best that we attempt

clarification. We, therefore, now rule that an order quashing service of process is not

appealable. It may, however, be challenged by petition in this court for a writ of

mandamus to compel the district court to accept jurisdiction. In so far as this case is

concerned we shall treat this appeal as a petition for mandamus. It would be unfair to

do otherwise in the light of confusing case precedent." Jarstad v. National Farmers

Union Property & Cas. Co., 552 P.2d 49, 52 92 Nev. 380, 382 (Nev., 1976).

Jarstad is, perhaps, applicable in the instant case considering the wealth of

authority in support of allowing an attorney to challenge sanctions via appeal,

discussed for fully below. Mr. Coughlin decision to file a notice of appeal was

somewhat pressured by the jurisdictional deadline of thirty days from notice of entry

of a final order, the time involved in filing a Motion for Reconsideration, difficulties in

retrieving a copy of the Joshi file from Washoe Legal Services, and time spent trying

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to make sure Ms. Joshi was adequately aware of the exigencies related to filing a

notice of appeal in conjunction with evaluating the substantive issues of the case in

regard to the chances of being victorious on appeal.

There is a wealth of persuasive authority for treating a notice of appeal as a

Petition for Writ of Mandamus. "We are asked to review a district court order that

deferred a ruling, pending limited discovery, on the defendants' motion to dismiss on

grounds of absolute immunity. Because we conclude that the order is not appealable,

we construe this notice of appeal as a petition for a writ of mandamus." Cordoza v.

Pac. States Steel Corp., 320 F.3d 989, 996-98 (9th Cir.2003); the court "can treat the

notice of appeal as a writ of mandamus." Miller v. Gammie, 335 F.3d 889, 895 (9th

Cir. 2003) (en banc).

In County of Orange v. Rothert, 66 Cal. Rptr. 3D 689, 155 Cal.App.4th 1253

(Cal. App. 2007) the court held that "Rothert filed a motion to dismiss the

Department's appeal on the ground that the genetic testing order is not a judgment or

an appealable order. We do not reach this issue because we exercise our discretion to

treat the appeal as a petition for a writ of mandate, in the interests of justice and

judicial economy." (See, also, Connell v. Superior Court, 59 Cal.App.4th 382, 393

394 (1997)("Treating this appeal from a nonappealable judgment as an extraordinary

writ petition.. .we shall exercise our discretion to treat the appeal as a writ petition and

shall grant review on that basis."; Also, Morehart v. County of Santa Barbara, 7

Cal.4th 725, 743-744, 872 P.2d 143 (1994) (treating appeal as writ petition is

authorized where the interests of justice and judicial economy are best served by

reviewing the judgment rather than dismissing the appeal and because the merits of

the dispositive issues were already fully briefed).

In Olson v. Cory, 197 Cal.Rptr. 843, 854, 673 P.2d 720, 731 (1984), the Court

concluded that the order from which the appeal had been taken was not appealable,

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but that the records and briefs included in substance the elements necessary to a

proceeding for writ of mandate, and that the Court had power to treat the purported

appeal as a petition for that writ... one circumstance is the considerable prior case law

indicating that the present appeal was proper. Although we have now disapproved

that line of authority, it made counsel's perceptions of appealability not unreasonable

when the appeal was taken."

Olson provides support for the argument that Mr. Coughlin's filing an appeal was

not entirely unreasonable given the many cases that allow any attorney to challenge

sanctions via appeal. However, Nevada case law does seem fairly well established

that a Petition for Writ of Mandamus is the appropriate course. Mr. Coughlin is not

attempting to further judicial economy by bringing this situation to the Court's

attention, and hopefully, saving Mr. Joshi expense in being involved in an appeal

which is likely to be dismissed. This situation does present some question as to

whether Mr. Joshi or his counsel should have any responsibility should this Court

overturn the sanctions (more so if there is a finding that Mr. Joshi's counsel requested

the sanctions without a good faith basis in established law for doing so), however,

case law seems fairly well established on that point in Nevada.

Although Mr. Coughlin originally filed an appeal (though it is important to note

that the Second Amended Notice of Appeal filed was also plead in the alternative as a

Petition for Writ of Mandamus and argued that Mr. Coughlin would likely be bound

by the decision in Albany v. Arcata Associates, Inc., 106 Nev. 688, 799 P.2d 566

(1990) (attorney who was aggrieved by district court judgment could not challenge

sanctions via appeal on account of attorney being a non-party)) the likelihood that this

matter will only be reviewed via a Petition for Writ of Mandamus, and a desire to

further judicial economy and prevent any unnecessary fees being incurred by Mr.

Joshi, leads counsel to submit this Motion.

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In the instant case, the district court does not have jurisdiction to continue to

define the Second Amended Notice of Appeal/Petition for Writ of Mandamus (and

require Mr. Coughlin to pay a $250 bond to the Second Judicial District Court or a

filing fee for an appeal) as a Notice of Appeal when it should be viewed as a Petition

for Writ of Mandamus because the filing of a notice of appeal divests the district court

of jurisdiction over the matters on appeal and the Supreme Court can subsequently

treat the filing as a Petition for Writ of Mandamus (which it arguably was in the first

place) (When a notice of appeal is timely filed, the district court cannot enter any

orders regarding the issues that are pending before the Supreme Court. See Mack-

Manley v. Mack, 122 Nev. 75, _, 138 P.3d 525, 529-30 (2006). In the event that a

district court enters an order on an issue pending before the Supreme Court after the

district court has been divested of jurisdiction, the district court's order is void, but

the district court may hear such a matter and certify to the Supreme Court how it

intends to rule. Smith v. Emery, 109 Nev. 737, 740-41, 856 P.2d 1386, 1388 (1993).

In fact, Mr. Coughlin believes the check he used to pay the filing fee of $250 to

the Nevada Supreme Court Clerk states on the check that it is money being paid as

the filing fee for a Petition for Writ of Mandamus and conversations with the Supreme

Court Clerk's office, on the phone and in person, involved Mr. Coughlin pointing out

the case law that would likely bar a non-party such as himself from proceeding via

appeal, but rather calling for going forward via mandamus. The Second Amended

Notice of Appeal was pled in the alternative as a Petition for Writ of Mandamus and

this is indicated on the "Receipt for Documents" from the Nevada Supreme Court's

Office of the Clerk on the fifth entry for the date of May 20th, 2009.

There is an argument to be made that an attorney in Nevada should be allowed to

challenge sanctions personally assessed against the attorney, especially considering

that proceeding via mandamus yields a somewhat more stern standard of review. (In

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context of writ of mandamus proceeding initiated by district attorney's office, the

Supreme Court would review district court's decision to impose Rule 11 sanctions

against district attorney's office, in underlying action to enforce out-of-state child

support order, under a manifest abuse of discretion standard, rather than under the

abuse of discretion standard. Office of Washoe County Dist. Atty. v. Second Judicial

Dist. Court ex rel. County of Washoe, 2000, 5 P.3d 562, 116 Nev. 629).

There is a wealth of persuasive authority, admittedly outside of Nevada, that

supports allowing a sanctioned attorney to seek review via appeal, rather than

mandamus. Scolded: Can An Attorney Appeal A District Court's Order Finding

Professional Misconduct?, 77 Fordham L. Rev. 219 (2008). This arguably provides

support for proceeding on appeal in Nevada with a good faith desire to change the

law. (District court abused its discretion in issuing Rule 11 sanctions against

plaintiffs attorney; attorney was attempting in good faith to have court recognize new

cause of action for invasion of right to privacy. Rules Civ. Proc., Rule 11. Marshall v.

Eighth Judicial Dist. Court In and For County of Clark, 1992, 836 P.2d 47, 108 Nev.

459, rehearing denied.) Additionally, the order granting attorney fees must state a

basis for granting the fees, or the award of fees is deemed an abuse of discretion.

Integrity Ins. Co. v. Martin, 105 Nev. 16, 769 P.2d 69 (1989).

Also, courts have articulated an attorney exception to the non-party rule,

finding that sanctioned attorneys may, in some cases, appeal a decision.

Undoubtedly, a sanctioned attorney has suffered an "injury in fact," thus

meeting one of the standing requirements articulated by the Supreme Court

in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Although the circuit

courts vary in their opinions on which types of sanctions are appealable, there is some

agreement among courts that attorneys can appeal an adverse judgment. The U. S.

Court of Appeals for the Third Circuit has opined, "There is no doubt at all but

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that at some point an attorney subject to a sanction may appeal." Bartels v. Sports

Arena Employees Local, 137, 838 F.2d 101, 104 (3d Cir. 1988).

The U. S. Court of Appeals for the Tenth Circuit has decided that it has jurisdiction

over an attorney's appeal if a district court's order has "`directly aggrieve[d]"' the

attorney. Butler v. Biocore Med. Techs., Inc., 348 F.3d 1163, 1167 (10th Cir. 2003).

The U.S. Court of Appeals for the Federal Circuit has stated that "[a]s an exception

to [the] general rule, a non-party such as an attorney who is held in contempt or

otherwise sanctioned by the court in the course of litigation may appeal from the

order imposing sanctions." Nisus Corp. v. Perma-Chink Ste., 497 F.3d 1316,

1319 (Fed. Cir. 2007) (citing U. S. Catholic Conference v. Abortion Rights

Mobilization, Inc., 487 U.S. 72, 76 (1988); Sanders Assocs. v. Summagraphics Corp.,

2 F.3d 394, 395-98 (Fed. Cir. 1993)). Several circuit courts have even addressed the

issue of jurisdiction over an attorney's appeal without even mentioning the nonparty

rule, treating as implicit the notion that attorneys have standing to appeal an adverse

finding. See, e.g., United States v. Talao, 222 F.3d 1133, 1137 (9th Cir. 2000);

Weissman v. Quail Lode, Inc., 179 F.3d 1194, 1199-200 (9th Cir. 1999); In re

Williams, 156 F.3d 86, 92 (1st Cir. 1998).

For the foregoing reasons, Mr. Coughlin respectfully requests that this Court

should treat the notice of appeal as a petition for mandamus. Because the Second

Judicial District Court and the Nevada Supreme Court Clerk's Office do not have

jurisdiction to decide whether to treat the filing as a Notice of Appeal or Petition for

Mandamus, and order should be granted that applies the $250 Petition paid to the

Clerk's office on May 28th, 2009 as the filing fee for a Petition for Writ of Mandamus

and that directs the Second Judicial District Court to not require Mr. Coughlin post a

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$250 bond or pay a filing fee for any Notice of Appeal, nor sanction Mr. Coughlin for

not so doing.

Dated this 3rd day ofne, 2009:71-

Zach9ughlin, Esq.On his own behalfNevada Bar . No. 9473945 W .12' St., Reno , NV 89503Tel: 775 338 8118

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CERTIFICATE OF SERVICE AND MAILING

Pursuant to NRCP 5(b), I certify that I am an agent of Zach Coughlin , Esq. and that on

the 3rd day of June , 2009, I deposited in the United States Mail Reno, Nevada, a true

copy of the within MOTION TO TREAT SECOND AMENDED NOTICE OF

APPEAL OR PLED IN THE ALTERNATIVE PETITION FOR WRIT OF

MANDAMUS AS A PETITION FOR WRIT OF MANDAMUS ONLY AND NOT A

NOTICE OF APPEAL, fully addressed to:

John Springgate, Esq.203 S. Arlington Ave.Reno, NV 89501counsel for Mr. Joshi

Marc Ashley, Esq.Washoe Legal Services299 S. Arlington Ave.Reno, NV 89501counsel for Ms. Joshi

Second Judicial District CourtJudge Linda Gardner1 South Sierra StreetReno , NV 89501Respondent

AFFIRMATION PURSUANT TO NRS 239B.030

The undersigned does hereby affirm that the preceding document does not contain the

social security number of any person.

Dated this 3rd day of June , 2009, 2009.

Melissa UlloaAgent of Zach Coughlin, Esq.

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