Chopra Vs. State, Emp'T Sec. Div. ( 2021 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
SURENDER CHOPRA, No. 82681
Appellant,
vs.
THE STATE OF NEVADA
EMPLOYMENT SECURITY DIVISION;
RENEE OLSON [NOW, LYNDA
FILED
PARVENJ, IN HER CAPACITY AS NOV 1 0 2021
ADMINISTRATOR OF THE
ELIZABETH A. BROWN
EMPLOYMENT SECURITY DIVISION; CLERKpF S PREME COURT
BY
AND J. THOMAS SUSICH, IN HIS •• '
DEPUTY CLERK
CAPACITY AS THE CHAIRPERSON OF
THE EMPLOYMENT SECURITY
DIVISION BOARD OF REVIEW,
Res • ondents.
ORDER OF AFFIRMANCE
This appeal challenges a district court order denying a petition
for judicial review in an unemployment benefits matter. Eighth Judicial
District Court, Clark County; Bita Yeager, Judge.
On December 7, 2020, appellant Surender Chopra filed a
petition for judicial review challenging the denial of his unemployment
benefits claim. He served the Employment Security Division (ESD)
Administrator on February 2, 2021, after a previous unsuccessful attempt
on January 29, 2021. Respondents moved to dismiss, alleging that Chopra
failed to serve the ESD Administrator within 45 days after commencing his
action, as required by NRS 612.530(2). Chopra then filed an amended
petition on February 9, 2021, in which he substituted the name of the
current ESD Administrator, Lynda Parven, in lieu of Renee Olson, who he
1Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
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had named in his initial petition. Chopra served the amended petition on
February 17, 2021. The district court later granted respondents motion to
dismiss, over Chopra's opposition, finding that Chopra did not comply with
NRS 612.530(2)s service requirements. This appeal followed.
Chopra first appears to argue that the 45-day window for
completing service commenced when he filed the amended petition.
Because he could amend his petition as a matter of course under NRCP 15,
and because he served respondents within 45 days of filing the amended
petition, he contends that the district court erred by dismissing his petition
for lack of timely service.2 We review for an abuse of discretion, Abreu v.
Gilmer, 115 Nev. 308, 312-13, 985 P.2d 746, 749 (1999) (An order granting
a motion to dismiss for failure to effect timely service of process
is . . . reviewed for an abuse of discretion."), and disagree. First, Chopra
fails to point to relevant authority supporting his proposition that an
amended petition renews the statutory deadline for service such that we
need not consider the argument. See Edwards v. Emperor's Garden Rest.,
122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (holding that this
court need not consider arguments that are not cogently argued or
supported by relevant authority). And the relevant statute bases the time
for service on the commencement of the action without extensions for
2We reject Chopra's argument that he was required to amend his
petition to correctly name the ESD Administrator. NRS 612.530 does not
require that the petitioner name the ESD Administrator by name. See NRS
612.530(2); NRCP 17(d) ("A public officer who . . . is sued in an official
capacity may be designated by official title rather than by name.").
2
amended petitions.3 See NRS 612.530(2) (holding that the petitioner may
secure judicial review of an adverse Board of Review decision "by
commencing an action in the district court," and that petitioner must serve
the Administrator "within 45 days after the commencement of the action");
see also NRS 233B.130(2) (providing that petitions for judicial review are
instituted by filing the petition in district court); cf. Lacey v. Wen-Neva, Inc.,
109 Nev. 341, 348-49, 849 P.2d 260, 264-65 (1993) (holding that the filing of
an amended complaint which does not name a new defendant does not
automatically extend the time for service under the Nevada Rules of Civil
Procedure), overruled on other grounds by Scrirner v. Eighth Judicial Dist.
Court, 116 Nev. 507, 515-17, 998 P.2d 1190, 1195-96 (2000).
Next, Chopra argues that the district court erred by failing to
consider whether his proffered reasons for delay constitute good cause to
enlarge the time for service under NRS 233B.130(5) or NRCP 4(e).
However, the record reflects that Chopra did not make this argument below
such that he has waived it on appeal. See Schuck v. Signature Flight
Support of Nev., Inc., 126 Nev. 434, 437, 245 P.3d 542, 545 (2010) (holding
that a party may not raise "new issues, factual and legal, that were not
presented to the district court . . . that neither [the opposing party] nor the
district court had the opportunity to address"). In addition, Chopra fails to
explain why those rules would govern over the special service provision in
NRS 612.530 that applies to petitions arising from unemployment
compensation claims, which has no good cause exception. See NRS
233B.039(3) (providing that the provisions of NRS Chapter 612 regarding
3Chopra also appears to suggest that his earlier attempt to serve the
Administrator should count as service. But even that attempted service fell
beyond NRS 612.530(2)s 46-day deadline.
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judicial review "prevail over the general provisions of this chapter");
compare NRS 233B.130(5) (including a good cause exception for timely
service of a petition for judicial review of an administrative agency
decision), with NRS 612.530(2) (providing that the ESD Administrator must
be served within 45 days with no good cause exception). Accordingly,
Chopra's arguments regarding extensions of time for good cause provide no
basis for reversing the district court's order.4 Accordingly, we
ORDER the judgment of the district court AFFIRMED.5
/...1 r C.J.
Hardesty
•
J.
Cadish Gibbon's
cc: Hon. Bita Yeager, District Judge
Law Office of Malik W. Ahmad
State of Nevada/DETR
Eighth District Court Clerk
4Because the untimely service issue is dispositive, we need not
address the parties arguments regarding the number of petition copies
NRS 612.530(2) requires a petitioner to serve on the ESD Administrator
and whether failure to comply with that rule provided a separate basis to
dismiss Chopra's petition.
5The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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