Petculescu v. Dist. Ct. (Debt Commercial Prop. LLC) ( 2015 )

 consider the affidavits and other evidence before it and determine "the
probable validity of the plaintiffs underlying claim." If the court
determines that the claim is "probably valid," the writ of attachment must
issue upon the plaintiff posting a bond in the sum of the amount claimed
or the value of the property, with two or more sureties. NRS 31.026; NRS
31.030(1).
Here, the district court failed to make any findings as to the
merits of petitioner's claim and refused to issue the writ of attachment
only because it could find "no nexus" between the claim and the property
to be attached. While a connection between the case and the attachment
might help support issuance of a writ without pre-deprivation notice, see
Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974), the lack of any connection
does not preclude issuance if the claim's probable validity is determined
after a hearing or if other factors warranting its ex parte issuance are met.
See NRS 31.017; NRS 31.026; Connecticut ix Doehr, 501 U.S. 1, 16 (1991)
(explaining that evidence that the defendant is taking steps to render his
real estate unable to satisfy a judgment could warrant issuing an ex parte
writ of attachment).
The district court failed to analyze petitioner's assertions
under NRS 31.017(5) as to whether real parties in interest were
attempting to dispose of assets that could be used to satisfy a judgment in
petitioner's favor, such as to warrant immediate attachment. Moreover,
although a hearing was held, the district court failed to analyze the
probable validity of petitioner's claim in light of the disputed facts.
Accordingly, the district court arbitrarily and capriciously exercised its
discretion in denying petitioner's motion for a prejudgment writ of
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attachment, Int? Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev.
193, 197, 179 P.3d 556, 558 (2008), and we thus
ORDER the petition GRANTED AND DIRECT THE
CLERK OF THIS COURT TO ISSUE A WRIT OF MANDAMUS
instructing the district court to reconsider petitioner's motion under the
standards recited above.
J.
Gibbons
cc: Hon. Douglas Smith, District Judge
Shimon Law Firm, APC
Law Offices of P. Sterling Kerr
Eighth District Court Clerk
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