Valdez v. Cox Commc'ns Las Vegas ( 2014 )

130 Nev., Advance Opinion 81
IN THE SUPREME COURT OF THE STATE OF NEVADA
JOE VALDEZ, INDIVIDUALLY AND No. 65383
ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED,
Appellant,
vs.
FILED
COX COMMUNICATIONS LAS VEGAS, NOV 06 2014
INC.; AND VIDEO INTERNET PHONE
INSTALLS, INC.,
Respondents.
Motion to dismiss in part, for lack of jurisdiction, an appeal
from a district court order in an unpaid wage action. Eighth Judicial
District Court, Clark County; Kenneth C. Cory, Judge.
Motion granted; appeal dismissed in part.
Leon Greenberg Professional Corporation and Leon M. Greenberg and
Dana Sniegocki, Las Vegas,
for Appellant.
Duane Morris LLP and Ryan A. Loosvelt, Las Vegas; Chamberlain
Hrdicka and Annette A. Idalski, Atlanta, Georgia,
for Respondent Cox Communications Las Vegas, Inc.
Littler Mendelson, P.C., and Rick D. Roskelley, Montgomery Y. Paek, and
Kathryn B. Blakey, Las Vegas,
for Respondent Video Internet Phone Installs, Inc.
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BEFORE HARDESTY, DOUGLAS and CHERRY, JJ.
OPINION
PER CURIAM:
Appellant Joe Valdez filed the underlying action against four
defendants. Ultimately, the claims against respondent Video Internet
Phone Installs, Inc. (VIPI), were severed from the rest of the claims and
thereafter resolved. Instead of appealing from the order resolving the
severed claims against VIPI, however, Valdez waited to appeal from the
order finally resolving the unsevered claims before challenging
interlocutory orders regarding VIPI. We issue this opinion to clarify that
one must take an appeal from an order finally resolving severed claims,
even if the unsevered claims remain pending.
FACTS AND PROCEDURAL HISTORY
Valdez filed a class action against VIPI; Cox Communications
Las Vegas, Inc.; Quality Communications, Inc.; and Sierra
Communications Services, Inc., alleging failure to pay wages in accordance
with Nevada law and the federal Fair Labor Standards Act. After the
action was removed to federal court and the claims against Quality
Communications were resolved, the state law claims against the
remaining three defendants were remanded to Nevada state court.
The claims against VIPI were severed in April 2013 and
thereafter resolved in an October 18, 2013, order. The notice of entry of
that order was served on November 18, 2013. Valdez did not file a notice
of appeal from the October 2013 order Instead, Valdez appealed from the
district court's March 4, 2014, order approving the class action settlement
between Valdez and Sierra Communications, which finally resolved the
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remaining claims and dismissed the complaint with prejudice. While
Valdez does not challenge the March 2014 order in his appeal, he
challenges three interlocutory orders, two of which involve VIPI and one of
which involves Cox Communications.
VIPI filed a motion to dismiss the appeal as to it, arguing that
Valdez could not challenge the interlocutory orders regarding VIPI
because Valdez had failed to timely appeal from the October 2013 order,
which finally resolved all the severed claims against VIP!.' Valdez filed
an opposition to that motion and VIPI filed a reply. In his opposition,
Valdez contends that he could not appeal from the October 2013 order•
because it was never certified as final under NRCP 54(b).
DISCUSSION
Under NRCP 21, when a claim against a party is severed, that
claim proceeds separately from the unsevered claims. Federal courts,
recognizing that claims severed under FRCP 21 'may be. . . proceeded
with separately," treat severed claims as a separate suit, and when a
judgment has been entered resolving claims properly severed, it is final
and appealable, despite the existence of other pending, unsevered claims.
See Acevedo-Garcia v. Monroig, 351 F.3d 547, 559 (1st Cir. 2003) (quoting
fernier FRCP 21 and explaining that an order resolving properly severed
claims is final despite any unresolved, unsevered claims); United States v.
O'Neil, 709 F.2d 361, 368-69 (5th Cir. 1983) (same); Spencer, White &
Prentis Inc. of Conn. v. Pfizer Inc., 498 F.2d 358, 361 (2d Cir. 1974) (same).
WIPI also requested sanctions against Valdez; because the
jurisdictional issues presented in this appeal are complicated, we deny
that request.
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As NRCP 21 parallels FRCP 21, we conclude likewise that a judgment
resolving claims properly severed under NRCP 21, Nevada's equivalent to
FRCP 21, is appealable. See Nelson v. Heer, 121 Nev. 832, 834, 122 P.3d
1252, 1253 (2005) (recognizing that "federal decisions involving the
Federal Rules of Civil Procedure provide persuasive authority when this
court examines its rules").
Further, an order finally resolving severed claims does not
need to be certified as final under NRCP 54(b) before a party may appeal
from it because once the claims are severed, two separate actions exist.
See Acevedo-Garcia, 351 F.3d at 559-60 (explaining that severance creates
two separate actions in part so that parties may pursue separate appeals);
see also NRAP 3A(b)(1) (providing that this court has jurisdiction to
consider an appeal from a final judgment). And all interlocutory orders
regarding the party whose claims are severed, entered before the
severance order, may then be challenged on appeal from the order finally
resolving the severed claims. See Consol. Generator-Nev., Inc. v. Cummins
Engine Co., Inc., 114 Nev. 1304, 1312, 971 P.2d 1251, 1256 (1998)
(explaining that this court may hear a challenge to interlocutory orders on
appeal from the final judgment).
Because Valdez failed to timely appeal from the October 2013
order resolving the severed claims against VIPI, see NRAP 4(a)(1)
(requiring an appellant to file a notice of appeal within 30 days of the
written notice of entry of the judgment), Valdez cannot now challenge the
orders regarding VIPI in an appeal from the March 2014 order. Thus, we
conclude that we lack jurisdiction to consider this appeal against VIPI,
and we grant VIPI's motion to dismiss this appeal as to it. As it appears,
however, that the March 2014 order constitutes the final judgment
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regarding the unsevered claims in this case, this appeal may proceed as to
Cox Communications. Briefing as to the remainder of this appeal from the
final judgment will be reinstated in a separate order.
/etc J.
Hardesty
1A-5 J.
Douglas
ri_iR to, J.
Cherry
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