Sands China, Ltd. v. Dist. Ct. (Jacobs) C/W 68265/68309 ( 2015 )

 ELIZABETH GOFF GONZALEZ,
DISTRICT JUDGE,
Respondents,
and
STEVEN C. JACOBS,
Real Party in Interest.
ORDER GRANTING IN PART AND DENYING IN PART PETITION
FOR WRIT RELIEF (DOCKET Na 68265), GRANTING PETITION FOR
WRIT RELIEF (DOCKET NO. 68275), AND DENYING PETITION FOR
WRIT RELIEF (DOCKET NO. 68309)
These consolidated writ petitions challenge the following four
orders: a May 28, 2015, order determining that petitioner Sands China is
preliminarily subject to personal jurisdiction in Nevada and a March 6,
2015, order imposing discovery sanctions on Sands China (Docket No.
68265); a June 19, 2015, order denying Sands China's motion for a
protective order (Docket No. 68275); and a June 12, 2015, order declining
to vacate a trial date (Docket No. 68309). The petitions also request that
the underlying matter be reassigned to a different district court judge.'
Docket No, 68265
Personal jurisdiction order
"A writ of prohibition is available to arrest or remedy district
court actions taken without or in excess of jurisdiction." Viega GmbH v.
Eighth Judicial Dist. Court, 130 Nev., Adv. Op. 40, 328 P.3d 1152, 1156
(2014). "As no adequate and speedy legal remedy typically exists to
'The Honorable James E. Wilson, Jr., District Judge in the First
Judicial District Court, and the Honorable Steve L. Dobrescu, District
Judge in the Seventh Judicial District Court, were designated by the
Governor to sit in place of the Honorable Ron Parraguirre, Justice, and the
Honorable Kristina Pickering, Justice, who voluntarily recused themselves
from participation in the decision of this matter. Nev. Const. art. 6, § 4(2).
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correct an invalid exercise of personal jurisdiction, a writ of prohibition is
an appropriate method for challenging district court orders when it is
alleged that the district court has exceeded its jurisdiction." Id. "When
reviewing a district court's exercise of jurisdiction, we review legal issues
de novo but defer to the district court's findings of fact if they are
supported by substantial evidence." Catholic Diocese, Green Bay v. John
Doe 119, 131 Nev., Adv. Op. 29, 349 P.3d 518, 520 (2015).
The district court determined that, under Trump v. Eighth
Judicial District Court, 109 Nev. 687, 857 P.2d 740 (1993), real party in
interest Steven Jacobs had made a preliminary showing of personal
jurisdiction over Sands China based on general, transient, and specific
jurisdiction theories. 2 Having considered the parties' arguments and the
record, we agree with the district court's determination that Jacobs made
a preliminary showing of specific jurisdiction, 3 as the record supports the
district court's preliminary conclusion that Sands China purposefully
availed itself of the privilege of acting in Nevada and that Jacobs' claims
arose from those actions. Catholic Diocese, 131 Nev., Adv. Op. 29, 349
P.3d at 520. We also agree with the district court's rationale as to why it
would be reasonable to require Sands China to appear in Nevada state
court. Id.
2 Wereject Sands China's suggestion that the district court's May
2015 order precludes it from contesting personal jurisdiction at trial.
3 We reject Sands China's argument regarding the mandate rule, as
this court's August 26, 2011, order did not explicitly or impliedly preclude
Jacobs from amending his complaint. Nguyen v. United States, 792 F.2d
1500, 1503 (9th Cir. 1986).
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We conclude, however, that the district court's determinations
regarding general and transient jurisdiction were based on an
unsupported legal premise. In particular, the district court determined
that Sands China was subject to general jurisdiction in Nevada because
Sands China utilized the employees of its Nevada-based parent company,
Las Vegas Sands Corporation, to conduct Sands China's business. 4 We
agree with Sands China's argument that Sands China, as Las Vegas
Sands' subsidiary, lacked the legal authority to control the employees of
its parent company. Cf. Viega, 130 Nev., Adv, Op. 40, 328 P.3d at 1158
(recognizing that "an agency relationship is formed when one person has
the right to control the performance of another" and observing that, in the
parent/subsidiary corporate relationship, it is the parent corporation that
has varying degrees of control over the subsidiary). Consequently, we
agree that the conduct of Las Vegas Sands' employees could not be
attributed to Sands China for general jurisdiction purposes. 5
4We need not separately address the district court's transient
jurisdiction analysis because that analysis largely tracked the district
court's general jurisdiction analysis.
5 In light of this conclusion, we need not address the subsequent
issue of whether the Nevada contacts of Las Vegas Sands' employees, if
attributed to Sands China, would have rendered Sands China "essentially
at home" in Nevada. See Daimler AG v. Bauman, 571 U.S. „
n.20, 134 S. Ct. 746, 761, 762 n.20 (2014) (observing that a general
jurisdiction inquiry "calls for an appraisal of a [defendant's] activities in
their entirety, nationwide and worldwide").
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We therefore grant Sands China's writ petition in Docket No.
68265 insofar as it seeks to vacate the district court's determination that
Sands China is subject to personal jurisdiction under general and
transient jurisdiction theories. Accordingly, we direct the clerk of this
court to issue a writ of prohibition instructing the district court to vacate
from its May 28, 2015, order the determinations that Sands China is
subject to personal jurisdiction under general and transient jurisdiction
theories, and further instructing the district court to prohibit Steven
Jacobs from introducing evidence at trial that pertains solely to those
theories. 6
Discovery sanctions order
As acknowledged by Jacobs at oral argument, the district
court's May 28, 2015, order did not intend to prohibit Sands China from
introducing evidence at trial regarding personal jurisdiction. Thus, Sands
China's challenge to the portion of the district court's March 16, 2015,
discovery sanctions order prohibiting Sands China from introducing
evidence to that effect at the preliminary evidentiary hearing is denied as
moot. As for the $250,000 monetary sanction, we conclude that the
district court exceeded its authority in awarding sanctions to the Sedona
Conference. See RPC 6.1(e) (setting forth the permissible entities to which
a monetary sanction may be made payable). Accordingly, we direct the
clerk of this court to issue a writ of prohibition instructing •the district
court to vacate from its March 16, 2015, order the sanction that was made
6 We vacate the stay imposed by our June 23, 2015, order.
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payable to the Sedona Conference and to reallocate the total $250,000
sanction in compliance with RPC 6.1(e). 7
Docket No. 68275
Sands China challenges the district court's June 19, 2015,
order in which it declined to vacate the deposition of Sands China's
Independent Director and directed the deposition to be held in Hawaii.
We conclude that our intervention is warranted because the district court
lacked the authority to order the Independent Director, who is neither a
party nor a corporate representative under NRCP 30(b)(6), to appear for a
deposition in Hawaii. See NRCP 30(a)(1) (providing that the attendance of
a nonparty deponent may be compelled by subpoena under NRCP 45); see
also NRCP 45(c) (affording certain protections to nonparty deponents).
Accordingly, we direct the clerk of this court to issue a writ of prohibition
instructing the district court to vacate its June 19, 2015, order in which it
directed Sands China's Independent Director to appear for a deposition in
Hawaii. 8
Docket No. 68309
Sands China, Las Vegas Sands Corporation, and Sheldon
Adelson challenge the district court's June 12, 2015, order in which it
declined to vacate an October 2015 trial date. The parties agree that this
challenge is moot in light of this court's July 1, 2015, order in which it
vacated the trial date pending resolution of this writ petition.
7 We vacate the stay imposed by our April 2, 2015, order in Docket
No. 67576.
8 We vacate the stay imposed by our June 23 and July 1, 2015,
orders.
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Accordingly, we decline to further entertain this writ petition, other than
to note that the stay imposed by this court's August 26, 2011, order served
to toll NRCP 41(e)'s five-year time frame because that stay prevented the
parties from bringing the action to trial while the stay was in place. 9
Boren v. City of N. Las Vegas, 98 Nev. 5, 6, 638 P.2d 404, 404-05 (1982).
Thus, the writ petition in Docket No. 68309 is denied.
Request for reassignment
Sands China requests that this matter be reassigned to a
different district court judge on the ground that the presiding district
court judge harbors a bias against Sands China, Las Vegas Sands
Corporation, and Sheldon Adelson. Because the district court's rulings
and the district court's comment that Sands China has identified do not
suggest bias, we deny the request. See Millen v. Eighth Judicial Dist.
Court, 122 Nev. 1245, 1254-55, 148 P.3d 694, 701 (2006)
("[D]isqualification for personal bias requires an extreme showing of bias
that would permit manipulation of the court and significantly impede the
judicial process and the administration of justice." (quotation and
alteration omitted)). In any event, Sands China's request is procedurally
improper because it did not submit in district court an affidavit and a
certificate of counsel under NRS 1.235 or file a motion pursuant to NCJC
Canon 2, Rule 2.11. See Towbin Dodge, LLC v. Eighth Judicial Dist.
Court, 121 Nev. 251, 259-60, 112 P.3d 1063, 1068-69 (2005) (noting that "if
is unclear whether the district court entered its own stay order,
9 It
as directed by this court in our August 2011 order, or if the district court
and the parties simply treated our August 2011 order as the stay order.
Regardless, we clarify that any tolling of NRCP 41(e)'s five-year time
frame ended on May 28, 2015, the date when the district court entered its
personal jurisdiction decision.
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new grounds for a judge's disqualification are discovered after the time
limits in NRS 1.235(1) have passed, then a party may file a motion to
disqualify based on [current Rule 2.11] as soon as possible after becoming
aware of the new information"); cf. A Minor v. State, 86 Nev. 691, 694, 476
P.2d 11, 13 (1970) (explaining in the context of an appeal that when a
litigant fails to avail itself of the relief set forth under what is now NRS
1.235, the litigant has waived any right to seek disqualification).
It is so ORDERED.
, C.J.
Hardesty
J.
Saitta
, D.J.
cc: Hon. Elizabeth Goff Gonzalez, District Judge
Alan M. Dershowitz
Kemp, Jones & Coulthard, LLP
Holland & Hart LLP/Las Vegas
Morris Law Group
Pisanelli Bice, PLLC
Eighth District Court Clerk
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CHERRY, J., and GIBBONS, J., concurring in part and dissenting in part:
We concur with the majority on all issues except for monetary
sanctions. While we agree with the majority that the discovery sanctions
the district court ordered payable to the Sedona Conference exceeded its
jurisdiction, we would strike these sanctions and not order them to be
reallocated. Further, we would defer the imposition of monetary sanctions
until the conclusion of trial. In our view the better procedure would be to
award monetary sanctions, if any, to the opposing party to offset costs and
attorney fees.
J.
Gibbons
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