Carter v. Andrews ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
CHARLES LEE CARTER, AN No. 66237
INDIVIDUAL,
Appellant,
vs.
FILED
CONSTANCE ANDREWS, AN JUN 1 0 2016
INDIVIDUAL; AND GUY ANDREWS,
III, INDIVIDUALLY,
Respondents.
ORDER OF AFFIRMANCE
This is an appeal from an order granting respondent's motion
to quash service of process and motion to dismiss. Eighth Judicial District
Court, Clark County; Jerry A. Wiese, Judge.
This case arises out of an alleged hit and run accident on
October 7, 2011. Appellant Charles Carter (Carter) alleges that he was
injured when the driver of another vehicle, Guy Andrews (driver), hit his
car and fled the scene. On October 3, 2013, Carter filed his original
complaint for negligence and negligence per se. The caption named only
the owner of the car, Constance Andrews (owner), as a defendant, though
the body of the complaint referenced both the owner and the driver. On
January 27, 2014, after realizing that the caption omitted the driver,
Carter filed an amended complaint adding the driver to the caption. By
then, the statute of limitations had expired.
Carter served the owner but not the driver with the complaint.
The district court granted the owner's motion to dismiss for lack of
personal jurisdiction, an order Carter does not appeal. Carter did not
serve the driver with either the original or amended complaints. He tried
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through the Department of Motor Vehicles (DMV), pursuant to NRS
14.070(2). However, Carter did not follow all the requirements of the
statute. On May 21, 2014, a "motion to quash service of process and
motion to dismiss" was filed on the driver's behalf. The district court
granted the motion because service of process was incomplete under NRS
14.070(2). Also, the district court concluded that since Carter's original
complaint named only the owner, not the driver, see NRCP 10(a) ("In the
complaint the title of the action shall include the names of all the
parties. ."), and Carter did not file the amended complaint adding the
driver as a defendant until after the statute of limitations in NRS
11.190(4)(e) expired, the complaint failed to state a claim against the
driver under NRCP 12(b)(5). On July 21, 2014, Carter filed a motion for
reconsideration seeking leave to amend his complaint to add the
administrator of the estate of the driver, whom he learned had died some
time in 2012, and a motion to stay the proceedings. The district court
denied reconsideration and Carter appeals.
We review an order granting an NRCP 12(b)(5) motion to
dismiss de novo, Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224,
227-28, 181 P.3d 670, 672 (2008), and an order dismissing a complaint for
failure to effectuate timely service of process for an abuse of discretion,
Saavedra-Sandoval v. Wal-Mart Stores, Inc., 126 Nev. 592, 595, 245 P.3d
1198, 1200 (2010).
The parties first debate whether the driver was a party
defendant to the original complaint, even though the caption did not name
him as a defendant as required by NRCP 10(a). This debate is beside the
point. NRCP 4(i) requires a party to serve the summons and complaint
upon a defendant within 120 days of filing the complaint or the district
court must dismiss the action. As Carter did not serve the driver with
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either the original or amended complaints, or move for an extension of
time to do so, dismissal was required, even assuming the driver was a
party defendant from the start.
We reject Carter's argument that he effectuated substituted
service of the amended complaint on the driver under NRS 14.070.' NRS
14.070(2) provides:
Service of process must be made by leaving a copy
of the process with a fee of $5 in the hands of the
Director of the Department of Motor Vehicles or in
the office of the Director, and the service shall be
deemed sufficient upon the operator if notice of
service and a copy of the process is sent by
registered or certified mail by the plaintiff to the
defendant at the address supplied by the
defendant in the defendant's accident report, if
any, and if not, at the best address available to the
plaintiff, and a return receipt signed by the
defendant or a return of the United States Postal
Service stating that the defendant refused to
accept delivery or could not be located, or that the
'Carter argues that the district court erred in finding that his
amended complaint was filed beyond the statute of limitations because the
statute of limitations did not start to run until he learned of the driver's
identity in April 2012. Even if it was filed after the statute of limitations,
Carter alleges that the district court erred when it determined that the
amended complaint did not relate back to the original complaint under
NRCP 10(a). Carter contends that his amended complaint did not need to
relate back under NRCP 10(a), but could be amended under NRCP 15(a).
(Carter's citation of NRCP 15(a) is puzzling; he may have had an
argument under NRCP 15(c), see Costello v. Casler, 127 Nev. 436, 254 P.3d
631 (2011), but he waived it by not presenting it to the district court or
this court on appeal). As we conclude below that Carter never served the
driver with the amended complaint, and failed to timely move to extend
time to accomplish service, these arguments fail in any event.
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address was insufficient, and the plaintiffs
affidavit of compliance therewith are attached to
the original process and returned and filed in the
action in which it was issued.
(Emphases added.) NRS 14.070(2) is unambiguous and requires a party
to: 1) leave a copy of the process with a $5 fee with the Director of the
DMV; 2) send, by registered or certified mail, notice of service and a copy
of the process to the defendant; 3) file a return receipt signed by the
defendant (or a return of the United States Postal Service indicating that
defendant could not be located); and 4) file an affidavit of compliance with
the district court.
Carter argues that notwithstanding its mandatory terms, all
NRS 14.070(2) requires is substantial compliance, which he achieved. We
cannot agree. The most Carter establishes is that he complied with the
first of NRS 14.070(2)'s four requirements: he left copies of the summons
and amended complaint with the Director of the DMV and received, in
return, an affidavit acknowledging service upon the DMV and a letter
acknowledging that a summons and complaint was received in the
Director's office of the DMV along with the fee. However, there is no
evidence in the record that Carter attempted to comply with the statute's
other requirements. 2 Even though the driver had passed away, there is no
evidence showing that Carter tried to locate the driver's last-known
2 NRS 14.070(2)'s second requirement is constitutionally founded. See
Browning v. Dixon, 114 Nev. 213, 217, 954 P.2d 741, 743 (1998) (citing
Wachter v. Pizzutti, 276 U.S. 13 (1928)) (providing that "a nonresident
motorist statute that allowed service upon the secretary of the state, but
contained no provision for attempted notice to a nonresident defendant,
violated due process of law").
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address to send the notice of the service or copy of the process to him or
the representative of his estate. 3
Carter argues that the district court should have sua sponte
determined that there was good cause to extend the time to serve under
NRCP 4(i). However, unlike its federal counterpart, NRCP 4(i) requires a
party to make a motion for an extension of time to effect service. NRCP
4(i) drafter's note to 2004 amendment; Saavedra-Sandoval, 126 Nev. at
596, 245 P.3d at 1200. Since Carter never made a NRCP 4(i) motion in
the district court, the district court could not have extended the time to
serve. Carter also failed to invoke the procedures for substitution of
parties afforded by NRCP 25(a) in the event of a named defendant's death.
We therefore conclude that the district court did not abuse its
discretion in dismissing the action against the driver for insufficient
service of process. Abreu v. Gilmer, 115 Nev. 308, 312-13, 985 P.2d 746,
749 (1999). Accordingly, we
ORDER the judgment of the district court AFFIRMED.
,J .
Hardesty
J.
Saitta
3 At
oral argument, Carter claimed that former counsel's affidavit
indicated that Carter made diligent efforts to locate the best-known
address of the driver, but could not. However, the affidavit makes no such
statement.
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cc: Hon. Jerry A. Wiese, District Judge
Janet Trost, Settlement Judge
Mainor Wirth
Katie E. Goldberg
Ray Lego & Associates
Hall Jaffe & Clayton, LLP
Eighth District Court Clerk
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