Gabrielle v. Dist. Ct. (Rocha) ( 2014 )

 Having considered the parties' arguments and the documents
before this court, we conclude that a writ of prohibition is warranted.
NRS 34.320; Smith, 107 Nev. at 677, 818 P.2d at 851. Specifically, from
the limited documents provided by petitioner, it appears that before filing
this action in district court, real party in interest filed an action in the
United States District Court seeking the same relief, the return of the
child. That action is still pending. Because the two actions are
substantially similar in that real party in interest is seeking the return of
the child in both actions, albeit through different legal means, the district
court exceeded its jurisdiction by entertaining this action without first
considering whether it would be appropriate to proceed in accordance with
the first-to-file rule. NRS 34.320. The first-to-file rule provides that
"where substantially identical actions are proceeding in different courts,
the court of the later-filed action should defer to the jurisdiction of the
court of the first-filed action by either dismissing, staying, or transferring
the later-filed suit." SAES Getters S.p.A. v. A.eronex, Inc., 219 F. Supp. 2d
1081, 1089 (S.D. Cal. 2002). The two actions need not be identical, only
substantially similar. Inherent.com v. Martindale-Hubbell, 420 F. Supp.
2d 1093, 1097 (N.D. Cal. 2006).
Here, it appears that motion practice seeking substantially the
same relief as was sought in this matter is pending, unresolved, in the
United States District Court. Given the incomplete record presented, we
cannot say that the United States District Court is not currently
considering the very relief we are being asked to give. Under these
circumstances, our state district court abused its discretion in entering
the October 2, 2014, order without staying the matter pending
determination by the United States District Court of the motions pending
there and whether this action may appropriately proceed without creating
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conflict between the two courts. See Fujitsu Ltd. v. Nanya Tech. Corp., No.
C 06-6613 CW, 2007 WL 484789 (N.D. Cal. Feb. 9, 2007) (explaining that
if two matters appear substantially similar, the court of the later-filed
action should defer to the jurisdiction of court of the first-filed action to
evaluate similarity and determine how to proceed). For these reasons, we
grant the petition for a writ of prohibition against the October 2, 2014,
order and, further, issue a writ of mandamus directing the district to
proceed as outlined herein.
ORDER the petition for a writ of prohibition and mandamus
GRANTED AND DIRECT THE CLERK OF THIS COURT TO ISSUE A
WRIT OF PROHIBITION instructing the district court to vacate its
October 2, 2014, Order for Return of Minor Child and TO ISSUE A WRIT
OF MANDAMUS instructing the district court to stay this action until the
U.S. District Court has resolved the pending motion.
piu J.
Pickering
J.
Parraguirre
SAITTA, J., concurring in part and dissenting in part:
I write separately because while I concur with my colleagues
that the district court's October 2, 2014, Order for Return of Minor Child
should be vacated, I disagree that prohibition relief is warranted here. I
would vacate the order through a writ of mandamus.
Based on the documents before us, it appears that there is a
Colombian custody order in effect providing real party in interest with
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custody of the child. The district court has jurisdiction to enforce the
Colombian custody order. See NRS 125A.475 (allowing a court of this
state to enforce a custody order of another state); and NRS 125A.225
(providing that a foreign country shall be treated as a state of the United
States for the purposes of NRS Chapter 125A). Additionally, the Ninth
Circuit Court of Appeals has concluded that a party is not barred from
filing a custody action in state court under state law while another action
is pending in federal court regarding the return of the child under the
Hague Convention. See Holder v. Holder, 305 F.3d 854, 863 (9th Cir.
2002) (explaining that a parent has a right to pursue the return of his or
her children through multiple legal avenues). Because the district court
did not exceed its jurisdiction here, a writ of prohibition is not warranted.
NRS 34.320.
Nevertheless, the district court acted arbitrarily and
capriciously in ordering the return of the child when the United States
District Court order did not explicitly provide for the return of the child
and when there is a motion pending before the United States District
Court for an order directing the return of the child. Int'l Game Tech., Inc.
v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008)
(providing that 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).
Although the district court has jurisdiction to enforce the Colombian
custody order, any district court order directing the return of the child
before the United States District Court resolves the motion pending before
it, and specifically orders the return of the child to real party in interest, is
an arbitrary and capricious abuse of the district court's discretion which
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warrants the issuance of a writ of mandamus. NRS 34.160; Int'l Game
Tech., 124 Nev. at 197, 179 P.3d at 558.
For these reasons, I would issue a writ of mandamus
instructing the district court to vacate its October 2, 2014, Order for
Return of Minor Child.
J.
Saitta
cc: Hon. William S. Potter, District Judge, Family Court Division
Veronica Gabrielle
McFarling Law Group
Eighth District Court Clerk
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