Bergenfield v. BAC Home Loans Servicing ( 2015 )

131 Nev., Advance Opinion 46
IN THE SUPREME COURT OF THE STATE OF NEVADA
MARCIA M. BERGENFIELD, AN No. 67136
INDIVIDUAL; AND LAWRENCE
BERGENFIELD, AN INDIVIDUAL,
Appellants,
MED
vs. SEP 1 0 2015
BAC HOME LOANS SERVICING, LP, IRA
Respondent. CLE7ZX "
Jurisdictional screening of an appeal from a district court
order dismissing a complaint for lack of jurisdiction in a tort action.
Eighth Judicial District Court, Clark County; Joanna Kishner, Judge.
Dismissed.
Hafter Law and Jacob L. Hafter, Las Vegas,
for Appellants.
Akerman LLP and Ariel E. Stern and William S. Habdas, Las Vegas,
for Respondent.
BEFORE HARDESTY, C.J., SAITTA and GIBBONS, JJ.
OPINION
By the Court, GIBBONS, J.:
In this opinion, we determine whether a plaintiff can appeal
from a district court order that dismisses the complaint but allows the
plaintiff leave to amend. We conclude that an order of this nature is not a
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final, appealable judgment. If the plaintiff does not intend to amend its
complaint, then it must provide the district court with written notice of its
intent to stand on its complaint as drafted, so the district court can enter a
final, appealable order. Here, the plaintiff did not provide the district
court said notice, thus we dismiss this appeal for lack of jurisdiction.
FACTS AND PROCEDURAL HISTORY
Appellants Marcia M. Bergenfield and Lawrence Bergenfield
filed a complaint against respondent BAC Home Loans Servicing, LP,
asserting fraud and consumer fraud. BAC moved to dismiss the
complaint. The district court granted BAC's motion to dismiss but allowed
the Bergenfields leave to file an amended complaint. The Bergenfields
then filed a first amended complaint, once again asserting fraud and
consumer fraud. Again the district court dismissed it, allowing the
Bergenfields leave to amend. However, instead of filing a second amended
complaint, the Bergenfields appealed.' This court issued an order to show
cause why this appeal should not be dismissed for lack of jurisdiction. See
Landreth v. Malik, 127 Nev. 175, 179, 251 P.3d 163, 166 (2011)
("[W]hether a court lacks subject matter jurisdiction can be raised by the
parties at any time, or sua sponte by a court of review . ." (internal
quotations omitted)).
DISCUSSION
This court's appellate jurisdiction is limited to appeals
authorized by statute or court rule. Brown v. MHC Stagecoach, LLC, 129
"The Bergenfields did not seek and the district court did not certify
any of the dismissed issues under NRCP 54(b).
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Nev., Adv. Op. 37, 301 P.3d 850, 851 (2013). NRAP 3A(b) sets forth the
judgments from which a party may appeal. If a judgment "constitutes a
final judgment, then it is substantively appealable under NRAP 3A(b)(1)."
Brown, 129 Nev., Adv. Op. 37, 301 P.3d at 851. "This court determines the
finality of an order or judgment by looking to what the order or judgment
actually does, not what it is called." Valley Bank of Nev. v. Ginsburg, 110
Nev. 440, 445, 874 P.2d 729, 733 (1994). "This court has consistently
looked past labels in interpreting NRAP 3A(b)(1), and has instead taken a
functional view of finality, which seeks to further the rule's main objective:
promoting judicial economy by avoiding the specter of piecemeal appellate
review." Id. at 444, 874 P.2d at 733.
Here, we are tasked with determining an issue of first
impression: whether an order dismissing a complaint with leave to amend
is a final, appealable judgment.
In the United States Court of Appeals for the Ninth Circuit,
an order dismissing a complaint with leave to amend is not final and,
thus, not appealable. WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th
Cir. 1997) (en banc); see also Moya v. Schollenbarger, 465 F.3d 444, 451
(10th Cir. 2006) ("[W]hen the dismissal order expressly grants the plaintiff
leave to amend, that conclusively shows that the district court intended
only to dismiss the complaint; the dismissal is thus not a final decision.").
"[A] plaintiff, who has been given leave to amend, may not file a notice of
appeal simply because he does not choose to file an amended complaint."
WMX Techs., 104 F.3d at 1136. A plaintiff must obtain "[a] further district
court determination." Id. A plaintiff obtains such a determination by
"fil[ing] in writing a notice of intent not to file an amended complaint." Id.
at 1135 (internal quotations omitted). "[Ffiling of such notice gives the
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district court an opportunity to reconsider, if appropriate, but more
importantly, to enter an order dismissing the action, one that is clearly
appealable." Id. (internal quotations omitted); see also Edwards v. Mann
Park, Inc., 356 F.3d 1058, 1064 (9th Cir. 2004) ("In WMX Technologies, we
specifically noted that a plaintiff may obtain an appealable final judgment
by filing in writing a notice of intent not to file an amended complaint."
(internal quotations omitted)).
As explained by the Ninth Circuit, we conclude that this rule,
requiring the plaintiff to obtain a further district court determination, is
based on sound policy considerations because it allows plaintiffs to
"exercise their right to stand on a complaint [and appeal the issue of]
whether the complaint is adequate as a matter of law." Edwards, 356
F.3d at 1065. At the same time, it "requires only a modicum of diligence
by the parties and the district court, avoids uncertainty, and provides for a
final look before the arduous appellate process commences." WMX Techs.,
104 F.3d at 1136.
Thus, we are persuaded by the Ninth Circuit's approach and
conclude that a district court order dismissing a complaint with leave to
amend is not final and appealable. Generally, after issuing an order
dismissing a complaint with leave to amend, "in the absence of any
apparent or declared reason—such as undue delay, bad faith or dilatory
motive on the part of the movant," the district court should grant a party's
motion for leave to amend. Stephens v. S. Nev. Music Co., Inc., 89 Nev.
104, 105-06, 507 P.2d 138, 139 (1973) (discussing NRCP 15(a)). If the
plaintiff, however, chooses to stand on its complaint as drafted, then it
must file a written notice with the district court revealing its choice within
30 days from the date of written notice of entry of the court's order of
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dismissal. The district court can then enter a final and appealable order
of dismissal, i.e., one without leave to amend. See NRAP 3A(b)(1); see also
NRAP 4(a)(1) (stating that generally a notice of appeal must be filed "no
later than 30 days after the date that written notice of entry of the
judgment or order appealed from is served").
In the present case, the district court order granting BAC's
second motion to dismiss is not final and appealable because it allows the
Bergenfields leave to amend. The Bergenfields did not notify the district
court that they intended to stand on their first amended complaint. As a
result, the district court never entered a final, appealable order.
Accordingly, we dismiss this appeal for lack of jurisdiction.
We concur:
C.J.
Hardesty
(1datECL
1
Saitta
2 J.
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