Biscay v. MGM Resorts Int'l ( 2015 )

131 Nev., Advance Opinion 447
IN THE SUPREME COURT OF THE STATE OF NEVADA
SANDRA BISCAY, No. 63492
Appellant,
vs.
MGM RESORTS INTERNATIONAL, A
DELAWARE CORPORATION; JEAN FILED
DEVELOPMENT, LLC, A NEVADA
LIMITED LIABILITY CORPORATION JUL 0 2 2015
D/B/A GOLD STRIKE HOTEL & TRACIE K. LINDEMAN
CLER OF SUPREME COURT
GAMBLING HALL, BY •
DEPUTY CLERK
Respondents.
Appeal from a district court order of dismissal in a tort action.
Eighth Judicial District Court, Clark County; Douglas Smith, Judge.
Reversed and remanded.
Kang & Associates, PLLC, and Patrick W. Kang and Erica D. Loyd, Las
Vegas,
for Appellant.
Troy E. Peyton, Las Vegas,
for Respondents.
BEFORE HARDESTY, C.J., SAITTA and GIBBONS, JJ.
OPINION
By the Court, GIBBONS, J.:
In this opinion, we consider whether dismissal is appropriate
under NRS 18.130(4) when a nonresident plaintiff files security with the
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court clerk for the defendant's costs more than 30 days after receiving
notice that security is required, but before the district court has dismissed
the case. We conclude that dismissal under NRS 18.130(4) is
inappropriate if the plaintiff files the required security with the court
clerk at any time prior to dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Sandra Biscay slipped and fell at a hotel owned by
respondent MGM Resorts International (MGM). Biscay filed a complaint
against MGM for various torts relating to her fall. On September 26,
2012, MGM filed a demand for security of costs pursuant to NRS 18.130.
Over six months later, Biscay filed a notice stating that she had filed the
required security with the court clerk. Nine days after Biscay filed her
bond, MGM moved the court to dismiss the case pursuant to NRS
18.130(4), which the district court ultimately did.
The district court concluded that NRS 18.130(4) requires that
plaintiffs file security with the court clerk within 30 days of receiving
notice that security is required. Thus, the district court concluded that
even though Biscay filed the required bond before MGM moved the court
to dismiss the case, dismissal was appropriate because Biscay filed her
bond well outside of 30 days from receiving notice that security was
required.
In this appeal, Biscay argues that pursuant to NRS 18.130(4),
dismissal is inappropriate as long as the plaintiff files the required
security with the court clerk before the case is dismissed.
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DISCUSSION
Standard of review
This court reviews a dismissal under NRS 18.130 for an abuse
of discretion. Brion v. Union Plaza Corp., 104 Nev. 553, 555, 763 P.2d 64,
64 (1988). This case also raises issues of statutory interpretation, which
we review de novo. MGM Mirage v. Nev. Ins. Guar. Ass'n, 125 Nev. 223,
226, 209 P.3d 766, 768 (2009). "This court has established that when it is
presented with an issue of statutory interpretation, it should give effect to
the statute's plain meaning." Id. at 228, 209 P.3d at 769. "Thus, when the
language of a statute is plain and unambiguous, such that it is capable of
only one meaning, this court should not construe that statute otherwise."
Id. at 228-29, 209 P.3d at 769.
The district court abused its discretion in dismissing the case
NRS 18.130 allows defendants to protect themselves from the
dangers of litigating against nonresident plaintiffs. NRS 18.130(1) states,
in relevant part:
When a plaintiff in an action resides out of the
State, . . . security for the costs and charges which
may be awarded against such plaintiff may be
required by the defendant, by the filing and
service on plaintiff of a written demand therefor
within the time limited for answering the
complaint.
In cases where security is required by the defendant, "all proceedings in
the action [are] stayed until" the plaintiff files the security. NRS
18.130(1). NRS 18.130(4) states that "[a]fter the lapse of 30 days from the
service of notice that security is required,. . . upon proof thereof, and that
no undertaking as required has been filed, the court or judge may order
the action to be dismissed."
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Based on a plain reading, we conclude that neither NRS
18.130(1) nor 18.130(4) gives a mandatory time frame in which the
security must be filed Instead, upon providing proof that 30 days has
passed and no security has been filed, the defendant may move to dismiss
the case or the district court may dismiss the case on its own. Thus, the
30-day requirement is a prerequisite for dismissal, not filing the security.'
In other words, once 30 days has passed, the defendant has the right to
ask the district court to dismiss the case, or the district court has the
authority to dismiss the case on its own. Until the case is dismissed,
however, the plaintiff is still free to file the security. See Carter v.
Superior Court of Kern Cnty., 169 P. 667, 669 (1917) (interpreting an
identical California statute and stating that "[i]t seems clear. .. . that the
required undertaking may be filed at any time prior to dismissal").
Deciding whether or not to dismiss a case pursuant to NRS
18.130(4) is within the sound discretion of the district court. Borders Elec.
Co., Inc. v. Quirk, 97 Nev. 205, 206, 626 P.2d 266, 267 (1981). However,
we conclude that it is an abuse of discretion for the district court to
dismiss the case if the plaintiff has filed the required security with the
court clerk at any time before the court dismisses the case. Accordingly,
because Biscay filed her bond before the case was dismissed, the district
court abused its discretion in granting MGM's motion to dismiss. We
"To the extent that Borders Electronic Co., Inc. v. Quirk, 97 Nev.
205, 626 P.2d 266 (1981), holds that NRS 18.130(4) creates a time limit for
plaintiffs to file the security with the court clerk, such a holding is
overruled by the present case.
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therefore reverse the district court's order of dismissal and remand the
case to the district court for further proceedings.
J.
Gibbons
We concur:
F_VA., ,ALA-t„ C.J.
Hardesty
(- 16
V , J.
Saitta
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