Baca v. Dist. Ct. (Stately) ( 2014 )

 writ of mandamus compelling the district court to dismiss real party in
interest's complaint.
A writ of mandamus is available to compel the performance of
an act that the law requires as a duty resulting from an office, trust, or
station or to control an arbitrary or capricious exercise of discretion. NRS
34.160; Intl Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193,
197, 179 P.3d 556,558 (2008). Whether a petition for extraordinary relief
will be considered is solely within this court's discretion. Smith v. Eighth
Judicial Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). This
court may exercise its discretion to determine that the district court is
obligated to dismiss an action when there are no disputed factual issues
and a clear authority compels dismissal. Smith v. Eighth Judicial Dist.
Court, 113 Nev. 1343, 1345, 950 P.2d 280, 281 (1997). Petitioners bear the
burden of establishing that relief is warranted. Pan v. Eighth Judicial
Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004).
Having considered the parties' arguments, we conclude that
our intervention is warranted, based on real party in interest's failure to
serve petitioners with process in accordance with the Nevada Rules of
Civil Procedure.' Although real party in interest argues that he properly
served his summons and amended complaint by mailing the documents to
petitioner Isidro Baca and petitioners' counsel, Nevada requires a
'Based on our conclusion that dismissal was warranted for failure to
serve process, we do not address petitioners' arguments concerning real
party in interest's failure to include a medical expert affidavit with his
complaint, which appears to include medical malpractice claims against
petitioners Karen Gedney, a physician, and Regional Medical Facility at
Northern Nevada Correctional Center, the hospital facility at which real
party in interest allegedly received the challenged treatment.
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complaint and summons to be served by personal service, service left at
the individual's dwelling or abode with a suitable person, or service to an
agent authorized to receive service, while permitting service by mail for
pleadings and other filings. Compare NRCP 4(d)(6) with 5(b). For a suit
against a Nevada state agency or its subdivision, personal service must be
made to the Attorney General or a designated person within the Office of
the Attorney General and to the administrative head of that agency. NRS
41.031(2); NRCP 4(d). Real party in interest has not argued or provided
documentary support that proper service was attempted as to the Regional
Medical Facility at Northern Nevada Correctional Center. Failure to
properly serve process mandates dismissal, absent a showing of good
cause. NRCP 4(i); Scrimer v. Eighth Judicial Dist. Court, 116 Nev. 507,
512-13, 998 P.2d 1190, 1193 (2000). The district court's conclusion that
petitioner's notice sufficed to satisfy the service requirement lacks support
in the law. C.H.A. Venture v. G.C. Wallace Consulting Eng'rs, Inc., 106
Nev. 381, 384, 794 P.2d 707, 709 (1990) ("[N]otice is not a substitute for
service of process."). As real party in interest did not properly serve the
summons and amended complaint within 120 days of filing the amended
complaint and did not move for an enlargement of time to do so, the
district court should have dismissed real party in interest's amended
complaint without prejudice. NRCP 4(i). Accordingly, we
ORDER the petition GRANTED AND DIRECT THE CLERK
OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
district court to vacate its order denying petitioners' motion to dismiss in
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Ninth Judicial District Case No. 13-CV-0105-DC and grant petitioners'
motion to dismiss the action. 2
, J.
Parraguirre
AL-st Li-•-•••••••• , J
Saitta
cc: Hon. Nathan Tod Young, District Judge
Nathan L. Hastings, Deputy Attorney GenerallCarson City
Brian Stately
Douglas County Clerk
2 We have considered real party in interest's other arguments and
conclude that they do not warrant denying this petition. We decline to
consider real party in interest's argument regarding res ipsa loquitor
because real party in interest did not make these allegations in his
amended complaint and failed to otherwise present this argument to the
district court before it entered the challenged order. See Old Aztec Mine,
Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) ("A point not urged
in the trial court, unless it goes to the jurisdiction of that court, is deemed
to have been waived and will not be considered on appeal."). Further, we
consider real party in interest's "Rebuttal to Answer to Petition for Writ of
Mandamus" as a proposed reply and we direct the clerk of this court to file
the document. We conclude that real party in interest's arguments raised
in the reply do not warrant a different outcome.
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