Globig v. Dist. Ct. (Gonzalez-Velasco) ( 2013 )

 This court reviews dismissal for failure to effect timely service
of process for abuse of discretion. Abreu v. Gilmer, 115 Nev. 308, 12-313,
985 P.2d 746, 749 (1999). Under NRCP 4(i), a plaintiff must serve a
defendant with the summons and a copy of the complaint within 120 days
of filing a complaint. Service may be effectuated in several ways and NRS
14.070 permits service of process through the Department of Motor
Vehicles (DMV) in certain situations when a party cannot otherwise be
found through due diligence. See NRS 14.070(1), (2); Browning v. Dixon,
114 Nev. 213, 216, 954 P.2d 741, 742 (1998).
Petitioner Rachelle Globig argues that the district court
abused its discretion by allowing service through DMV because Real Party
in Interest Ramon Gonzalez-Velasco did not exercise due diligence in his
initial effort to serve her. As support, she cites the fact that the process
server attempted personal service only once and that there was a
grammatical error in the process server's affidavit of due diligence.
There is no formulaic standard for determining whether the
due diligence requirement is met because due diligence must be tailored to
fit the circumstances of each case. Abreu v. Gilmer, 115 Nev. 308, 313,
985 P.2d 746, 749 (1999). Here the district court did not abuse its
discretion by deciding there was no reason for the process server to
attempt personal service more than once because sufficient evidence
showed that Globig no longer lived at her last known address.
Accordingly, the process server's decision to check various databases made
more sense than repeatedly returning to the faulty address that Globig
provided in an accident report. Moreover, the process server's incorrect
reference to Globig as "him" does not undermine the integrity of the
affidavit of due diligence because grammatical errors do not vitiate the
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effectiveness of an affidavit. 2A C.J.S. Affidavits § 38 (2003). Thus, the
district court did not abuse its discretion by concluding that Gonzalez-
Velasco exercised due diligence.
Next, Globig argues that service was not effected because
Gonzalez-Velasco did not complete all four steps required for substituted
service under NRS 14.070.
NRS 14.070(2) enumerates four conjunctive steps for
achieving substitute service on the Department of Motor Vehicles (DMV).
First, a plaintiff must leave a copy of the process, along with a fee, with
the Director of the DMV. Second, a plaintiff must send notice of service
and a copy of the process to the defendant via certified mail to the address
the defendant supplies in an accident report. Third, plaintiff must obtain
a return receipt that proves the defendant received the process, refused to
accept delivery, or could not be located. Fourth, plaintiff must file an
affidavit of compliance, along with the return receipt, with the district
court.
Here, Gonzalez-Velasco failed to complete the third
requirement because he did not obtain a return receipt for the certified
mail that all parties agree he sent. As such, he also did not fully satisfy
the fourth element because he did not file a return receipt in the district
court. Nevertheless, the district court's decision that Gonzalez-Velasco
sufficiently complied with NRS 14.070 by diligently attempting to locate
Globig and by making a good faith effort to comply with the statutory
requirements does not warrant writ relief for three reasons.
First, Gonzalez-Velasco's efforts at service satisfied the
minimum requirements of due process because there was a reasonable
probability that Globig would receive notice of the pending action at the
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address she listed on the accident report. Mitchell v. District Court, 82
Nev. 377, 381-82, 418 P.2d 994, 996-97 (1966) (also explaining that a
plaintiff does not have to ascertain, at his peril, the defendant's actual
address). Second, even though Gonzalez-Velasco could not produce a
return receipt, he did provide the district court with a copy of the
completed certified mail form and a report from the postal service that the
certified mail was delivered on March 18, 2011. This evidence served the
same ends as the return receipt requirement because it showed that
Gonzalez-Velasco attempted to follow NRS 14.070 and that the document
was delivered to Globig's last-known address. Third, and most
importantly, writs are extraordinary remedies. Gonzalez-Velasco
substantially complied with NRS 14.070(2) and Globig fails to establish a
clear basis in law for holding Gonzalez-Velasco to a higher strict
compliance standard as to the return-receipt proof required. Thus, this
matter does not meet the demanding standards for granting extraordinary
writ relief with respect to an order denying a motion to dismiss.
Accordingly, we
ORDER the petition DENIED.
-429.-4S J.
Hardesty
J.
J.
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cc: Hon. Rob Bare, District Judge
David L. Riddle & Associates
Maier Gutierrez Ayon, PLLC
Eighth District Court Clerk
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