Uber Technologies v. Dist. Ct. (Nev. Transportation Authority) ( 2014 )

 of prohibition may issue to arrest the proceedings of a district court
exercising its judicial functions when such proceedings are in excess of the
district court's jurisdiction. See NRS 34.320; Smith v. Eighth Judicial
Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). Whether a
petition for writ relief will be considered is within this court's sole
discretion, Smith, 107 Nev. at 677, 818 P.2d at 851, and it is petitioners'
burden to demonstrate that our extraordinary intervention is warranted.
Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844
(2004).
Having considered the parties' arguments and the documents
before this court, we conclude that writ relief is not warranted.
Specifically, it appears that real party in interest Nevada Transportation
Authority (NTA) filed its complaint below in the Second Judicial District
Court on October 27, 2014, one day before NTA filed its complaint in the
Eighth Judicial District Court on October 28, 2014. The two actions are
substantially similar in that NTA is seeking to enjoin petitioners from
engaging in their "ride-sharing" business without certain certificates and
licenses. In the "Order After Hearing," Judge Freeman concluded that the
complaint in the Second Judicial District Court was filed first, and
therefore jurisdiction was proper to hear the merits of the complaint.
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. Aeronex, Inc., 219 F. Supp. 2d 1081, 1089 (S.D. Cal.
2002); see also Inherent.com v. Martindale-Hubbell, 420 F. Supp. 2d 1093,
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1097 (N.D. Cal. 2006) (explaining that the two actions need not be
identical, only substantially similar). The first-to-file rule is "not a rigid or
inflexible rule to be mechanically applied," but is a matter of sound
judicial administration and its application is left to the discretion of the
trial court. Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 94-95 (9th
Cir. 1982) (explaining that declining jurisdiction based on the first-to-file
rule is discretionary, not mandatory, with the trial court).
NRCP 3 provides that "[a] civil action is commenced by filing a
complaint with the court." Although NTA filed its application for a
temporary restraining order or preliminary injunction in the Eighth
Judicial District Court before it sought the same relief in the Second
Judicial District Court, it is the filing of the complaint that commences an
action. NRCP 3; Koplow v. City of Biddeford, 494 A.2d 175, 176 (Me.
1985) (holding that the trial court lacks jurisdiction to enter a temporary
restraining order without the existence of an underlying action that was
commenced by the filing of a complaint). Both Judge Herndon and
petitioners correctly acknowledged this rule in the October 29, 2014,
hearing in Eighth Judicial District Court Case No. A-14-709002-C)- Our
'The transcript of that hearing is contained in petitioners' appendix.
At that hearing, petitioners' counsel acknowledged that "[a]n action is
commenced by the filing of a complaint under Rule 3," that counsel
"[doesn't] think they are properly [before the court]," and that the failure
to file the complaint before requesting the temporary restraining order
was a "procedural and fatal defect." Thus, we question petitioners'
apparent contradictory argument here that the Eighth Judicial District
Court action was filed first. See Marcuse v. Del Webb Cmtys., Inc., 123
Nev. 278, 287-88, 163 P.3d 462, 468-69 (2007) (explaining the doctrine of
judicial estoppel).
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dissenting colleague concludes that the first-to-file rule may be triggered
by filings other than the complaint. We do not agree. Schlesinger v.
Councilman, 420 U.S. 738 (1975), does not address our specific procedural
rule that clearly states that a civil action is commenced by the filing of the
complaint. See NRCP 3. Furthermore, the court in Schlesinger was
addressing the trial court's jurisdiction, which is not at issue here, and
made its remarks in a footnote, which we do not find persuasive.
Schlesinger, 420 U.S. at 742 n.5; see also Kirkland v. Legion Ins. Co., 343
F.3d 1135, 1142 (9th Cir. 2003) (addressing the trial court's jurisdiction to
hear a dispute). Therefore, we conclude that, whether on the basis that
the Second Judicial District Court complaint was filed first or due to the
exercise of his discretion, Judge Freeman in the Second Judicial District
Court did not exceed his jurisdiction and was not required by law to
dismiss or stay the proceedings in deference to the Eighth Judicial District
Court.
Petitioners also contend that NTA is engaging in forum
shopping. Forum shopping is "[t]he practice of choosing the most
favorable jurisdiction or court in which a claim might be heard." Black's
Law Dictionary 681 (8th ed. 2004). Although NTA's failure to follow the
relevant procedural rules demonstrates an inept effort to commence its
case, petitioners' contention that NTA is engaging in such behavior
impunes the neutrality of the three district court judges involved in the
dispute between the parties, and nothing in the record supports that
contention.
For the reasons explained above, we deny the petition. 2 See
Smith, 107 Nev. at 677, 818 P.2d at 853.
It is so ORDERED.
/ do_4* ,J
Hardest
/7:1;# J.
Douglas
CHERRY, J., dissenting:
I believe this matter should be decided by the en banc court,
and not a panel of justices. This petition raises an important issue of
statewide concern regarding litigant practices and the appropriate forum
to hear disputes when essentially the same matter is filed in multiple
district courts.
I further dissent in this case because I would grant the writ
petition. The action in the Eighth Judicial District Court was clearly filed
first. I disagree with the majority that the first-to-file rule is triggered
only by the filing of the complaint. Although NRCP 3 provides that "[a]
civil action is commenced by filing a complaint with the court," there were
significant procedural mistakes made below that warrant an exception to
this general rule. In Schlesinger v. Councilman, the United States
2 Despite
the disposition of this petition, we do not condone the
NTA's procedural errors made below.
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Supreme Court noted that where the court has subject matter jurisdiction
and that jurisdiction appears to exist from the papers filed, a defect in the
manner in which the action was instituted and processed is not itself
jurisdictional. 420 U.S. 738, 742 n.5 (1975). And in Kirkland v. Legion
Insurance Co., the court explained that the "fflailure to file a complaint is
not necessarily fatal to the action," so long as the filings made were
adequate to apprise the defendant of the nature of the claim and the relief
sought. 343 F.3d 1135, 1142 (9th Cir. 2003).
When NTA first filed its application for a temporary
restraining order or preliminary injunction in the Eighth Judicial District
Court, the clerk docketed the matter and assigned it a case number.
Although NTA's complaint was filed a few days later, the Eighth Judicial
District Court considered NTA's procedural error and allowed the case to
proceed. NTA cannot now argue that the Eighth Judicial District Court
case was not filed first. Notably, nothing in the majority's order prevents
the judge in the Eighth Judicial District Court from continuing to litigate
this matter. At the very least, the best practice in this case would have
been for the two judges involved to meet and confer and to exercise their
discretion and wisdom under the first-to-file rule's policy of sound judicial
administration, and determine who should hear this high-profile
litigation.
Additionally, NTA's filing of another request for relief and
complaint in the Second Judicial District Court after the matter was
already docketed in the Eighth Judicial District Court gives an
appearance of improper forum shopping. By denying this petition, the
majority may very well encourage such behavior in future matters in our
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district courts, which I cannot condone. Therefore, I would grant the
petition. For these reasons, I respectfully dissent.
cc: Hon. Scott N. Freeman
Campbell & Williams
Pisanelli Bice, PLLC
Attorney General/Carson City
Attorney General/Las Vegas
Washoe District Court Clerk
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