Howard v. Drumm ( 2014 )

 The district court has broad discretion in deciding whether to
set aside a default judgment, and its determination will be affirmed
absent a clear abuse of that discretion. Kahn v. Orme, 108 Nev. 510, 513,
835 P.2d 790, 792 (1992). Under NRCP 60(b)(1), the district court may
provide relief on grounds of mistake, inadvertence, surprise, or excusable
neglect. Kahn, 108 Nev. at 513, 835 P.2d at 792. In determining whether
relief is appropriate, the court must consider whether (1) there has been a
prompt application to remove the judgment, (2) the moving party did not
intend to delay the proceedings, (3) the moving party lacked knowledge of
procedural requirements, and (4) the moving party acted in good faith. Id.
at 513, 835 P.2d at 792-93. The moving party bears the burden of
establishing the grounds for relief. Id. at 513-14, 835 P.2d at 793.
Appellant argues that his delay constituted excusable neglect,
as, when he received service of the action, he was incarcerated in the "Fish
Tank" at Northern Nevada Correctional Center and was unable to receive
legal assistance until after mid-October 2011. Appellant further argues
that the district court erred in not appointing a legal representative, not
allowing appellant to attend the prove-up hearing, and not granting
appellant an opportunity to review the evidence against him. 2 The district
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motion to set aside the default judgment, see Foster v. Dingwall, 126 Nev.
228 P.3d 453, 455 (2010) (providing that the district court has
jurisdiction to deny an NRCP 60(b) motion when an appeal of the
judgment is pending), we do not further address that issue as the district
court denied appellant's requested relief on the merits in its other order
entered on October 17, 2012.
2 Appellant'sargument regarding clerical error in his
codefendant's mailing address is not relevant to this appeal, and
accordingly, his argument under NRCP 60(a) does not warrant reversal.
Cf. Salman v. Newell, 110 Nev. 1333, 1336, 885 P.2d 607, 608 (1994)
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court considered the Kahn factors in its order and concluded that
excusable neglect was not present. Id. at 513-14, 835 P.2d at 792-93. The
court noted that appellant admitted to being properly served; had ample
time to file any type of pleading in response to this suit, even considering
receiving service while in the "Fish Tank"; and did not attend the prove-up
hearing despite having notice of it. Having considered the record and
appellant's arguments, we conclude that the district court was within its
discretion in determining that appellant did not establish that any neglect
was excusable. See Tahoe Village Realty v. DeSmet, 95 Nev. 131, 134, 590
P.2d 1158, 1160 (1979) (recognizing that although failure to file an answer
"may suggest neglect, the district court was not bound to declare it
excusable"), abrogated on other grounds by Ace Truck & Equip. Rentals v.
Kahn, 103 Nev. 503, 746 P.2d 132 (1987), abrogated on other grounds by
Bongiovi v. Sullivan, 122 Nev. 556, 138 P.3d 433 (2006). Accordingly, we
ORDER the judgment of the district court AFFIRMED. 3
A
Hardesty
-4-1 cee-s-Ri , J.
Douglas Cherry
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(noting that an individual may represent himself, but not another person,
before the court).
3 Having considered appellant's other arguments, we conclude
that they lack merit and do not warrant reversal.
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cc: Second Judicial District Court Dept. 10
Lamont Howard
Kathleen A. Sigurdson
Washoe District Court Clerk
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