Sabater v. Razmy ( 2023 )

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139 Nev., Advance Opinion 50
IN THE SUPREME COURT OF THE STATE OF NEVADA
CARMEN SABATER, AN INDIVIDUAL; No. 85161
AND VINCENT JAMES DESIMONE,
AN INDIVIDUAL, - EILED
Appellants,
vs. .
SHAUN RAZMY, AN INDIVIDUAL, NOV 22 20
EL oe ME @OURT
oe
Respondent. OLERY OF f
EE DEPUTY CLERK
Appeal from a district court order dismissing a tort action for
failure to timely effect service of process. Eighth Judicial District Court,
Clark County; Timothy C. Williams, Judge.
Affirmed.
Feher Law, APC, and Andrew Alexandroff, Torrance, California,
for Appellants.
Christian, Kravitz, Dichter, Johnson & Sluga, LLC, and Gena L. Sluga, Las
Vegas,
for Respondent.
BEFORE THE SUPREME COURT, CADISH, PICKERING, and BELL, Jd.
OPINION
By the Court, BELL, J.:
Following a car crash, Appellants Carmen Sabater and Vincent
Desimone filed a lawsuit against Respondent Shaun Razmy for personal
injuries. Sabater and Desimone failed to serve the summons and complaint
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on Razmy within 120 days. As a result, the district court issued an order to
show cause. After that order issued, the summons and complaint were
served, and Razmy filed a motion to quash the service of process and to
dismiss the complaint. The district court granted the motion to dismiss,
denying Sabater and Desimone’s late motion for an extension of time to
serve process. Sabater and Desimone appeal, arguing the district court
improperly denied their request for an extension of time to serve the
summons and complaint and Razmy’s motion to dismiss was itself untimely.
When a party fails to effectuate service of process and fails to
request an enlarged period for service within 120 days of the complaint’s
filing date, that party must show good cause for the initial delay in
requesting an extension before a motion to extend the time to serve can be
considered. Here, because Sabater and Desimone failed to plead good cause
for the delay in moving for an enlarged period for service, the district court
did not abuse its discretion in denying the motion for an extension of time
to serve the complaint.
After the period for service closes, a party may seek the
dismissal of an action under NRCP 12(b)(4) when there is insufficient
service. Although NRCP 12(b) does not permit the filing of a motion to
dismiss based on insufficient service after a responsive pleading has been
filed, the rule does not contain any other time limit for filing the motion to
dismiss. Here, no responsive pleading had been filed when Razmy filed his
motion to quash service and dismiss the complaint, so the motion was not
untimely. We conclude the district court did not abuse its discretion when
it denied the request for enlargement of time to serve and dismissed the
action.
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FACTS AND PROCEDURAL HISTORY
In 2019, Sabater and Desimone were involved in a car crash
with Razmy. On August 26, 2021, Sabater and Desimone filed a negligence
complaint against Razmy. Per NRCP 4(e)(1), the summons and complaint
needed to be served on Razmy within 120 days, or by December 24, 2021,
but Sabater and Desimone neglected to calendar the date. As a result,
December 24 passed without Sabater and Desimone serving the summons
and complaint. Due to the lack of service, on February 23, 2022, the district
court issued an order to show cause why the case should not be dismissed.
Following the order to show cause, on March 15, Sabater and Desimone
served Razmy with the summons and complaint and filed proof of service
with the district court. Service occurred 81 days after the 120-day deadline.
One month later, on April 15, Razmy moved to quash the service
of process as untimely and to dismiss the complaint for failure to timely
serve. Any opposition to this motion was due by April 29, but Sabater and
Desimone failed to file a timely opposition. Razmy filed a notice of
nonopposition on May 6, requesting the district court grant the motion as
unopposed. An opposition was eventually filed on May 20.
In the opposition, Sabater and Desimone argued Razmy’s motion
to quash was untimely, as it needed to be filed within the 21 days provided
post-service for defendants to file an answer. Sabater and Desimone also
denied being served with Razmy’s motion to quash. Additionally, Sabater
and Desimone sought leave to retroactively extend the 120-day period for
service of the summons and complaint, having failed to request such an
extension within the statutory period. Sabater and Desimone argued a
clerical calendaring error and high rates of turnover at their counsel’s office
supported good cause to grant the extension.
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Razmy replied to the oppesition, pointing out that Sabater and
Desimone’s counsel failed to register an email address with the district
court and provide a Nevada address to the State Bar of Nevada. Without
this required information, Razmy’s attorney was forced to search prior
email correspondence to locate an email suitable for service and sent notice
to another lawyer at the firm.
After a hearing, the district court declined to grant Sabater and
Desimone an extension, finding they did not prove good cause existed for
their failure to file a motion to extend the service deadline before that
deadline expired. Instead, the district court granted Razmy’s motion to
dismiss, finding that the motion was timely filed before the filing of any
answer and that because Sabater and Desimone failed to serve the
summons and complaint within the statutory time frame, dismissal was
required. Sabater and Desimone appeal the district court’s dismissal of the
complaint without prejudice.
DISCUSSION
On appeal, Sabater and Desimone argue the district court
abused its discretion by denying their motion for an extension of time to
serve the summons and complaint. They also argue Razmy’s motion to
quash was untimely pursuant to NRCP 12 and should have been denied.
The district court did not abuse its discretion in denying the motion for an
extension of time to serve the summons and complaint or in granting
Razmiy’s motion to dismiss
Sabater and Desimone claim that the district court abused its
discretion by denying their motion for an extension of time to effectuate
service. We review a district court’s denial of a motion for an extension of
time to serve for an abuse of discretion. Seavedra-Sandoval v. Wal-Mart
Stores, Inc., 126 Nev. 592, 595, 245 P.38d 1198, 1200 (2010).
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The district court did not abuse its discretion in denying the
retroactive request for an extensicn of time to serve Razmy, as Sabater and
Desimone failed to demonstrate good cause for their late motion. A request
for an extension of time to serve a summons and complaint must be iiade
within the initial 120 day-period for service, a threshold requirement for
relief under NRCP 4(e)(4) and Saavedra-Sandoval, 126 Nev. at 597, 245
P.3d at 1201. When a party fails to file a timely motion to extend time for
service, that party must demonstrate good cause exists for the untimely
request before the court will consider whether good cause exists for an
extension. Id. “Only upon a showing of good cause for the delay in filing
the motion to enlarge time should the court then engage in a complete
Scrimer analysis to determine whether good cause also supports the request
for enlargement of time for service of process... .” IJd.; see also Scrimer v.
Eighth Judicial Dist. Court, 116 Nev. 507, 516-17, 998 P.2d 1190, 1195-96
(2000) (establishing various factors to determine whether good cause exists
to allow a plaintiff to serve process beyond the 120-day deadline).
Sabater and Desimone did not request an extension of time for
service until 147 days after the period for service had closed. In that motion,
Sabater and Desimone addressed whether there was good cause for an
extension; however, they did not present separate argument regarding any
good cause for the failure to request this extension within the 120-day
deadline. When asked, counsel admitted being unfamiliar with our holding
in Saavedra-Sandoval. Therefore, Sabater and Desimone have waived any
argument on appeal regarding possible good cause for their failure to make
a timely request for an extension. Old Aztec Mine, Inc. v. Brown, 97 Nev.
49, 52; 623 P.2d 981, 983 (1981) (“A point not urged in the trial court, unless
it goes to the jurisdiction of that court, is deemed to have been waived and
on
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will not be considered on appeal.”). Moreover, we need not address the
district court’s analysis of the Scrimer factors because Sabater and
Desimone’s failure to show good cause for the untimely motion for an
extension rendered consideration of those factors moot. Scrimer, 116 Nev.
at 516-17, 998 P.2d at 1195-96. We conclude that the district court did not
abuse its discretion in denying the motion for an extension of time to serve
the summons and complaint.
The district court properly dismissed for failure to tumely serve process
Sabater and Desimone contend that the district court abused
its discretion by granting Razmy’s motion to dismiss. We review “[a]n order
granting a motion to dismiss for failure to effect timely service of
process... for an abuse of discretion.” Abreu v. Gilmer, 115 Nev. 308, 312-
13, 985 P.2d 746, 749 (1999). We review the district court’s interpretation
of NRCP 12(b) de novo. Marquis & Aurbach v. Eighth Judicial Dist. Court,
122 Nev. 1147, 1156. 146 P.3d 1130, 1136 (2006). “When a rule is clear on
its face, we will not look beyond the rule’s plain language.” Morrow v.
Eighth Judicial Dist. Court, 129 Nev. 110, 113, 294 P.3d 411, 414 (2013).
The plain language of NRCP 12 provides no time restraint on a
defendant's motion to dismiss for lack of service before a responsive
pleading has been filed. NRCP 12(a)(1)(A)(@) requires that defendants serve
an answer to a complaint “within 21 days after being served with the
summons and complaint.” Prior to filing an answer, a defendant may assert
certain defenses by motion. Those defenses include insufficient service of
process, NRCP 12(b)(4); see also Hansen. v. Eighth Judicial Mst. Court, 116
Nev. 650, 656, 6 P.3d 982, 986 (2000) (explaining that. under NRCP 12(b),
“hefore a defendant files a responsive pleading such as an answer, that
defendant may move tc dismiss for lack of personal jurisdiction,
insufficiency of process, and/or insufficiency of service of process’).
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While no other time limit governs a motion filed under NRCP
12(b)(4), a defendant takes risks filing such a motion beyond the 21 days
provided for answering the complaint—if the motion or an answer is not
filed by 21 days after service, a plaintiff could obtain a default. NRCP 55.
Even so, “[djefault ...is not automatic.” Opaco Lumber & Realty Co. v.
Phipps, 75 Nev. 312, 314, 340 P.2d 95, 96 (1959), superseded by statute on
other grounds as stated in Simmons Self-Storage Partners, LLC v. Rib Roof,
Inc., 130 Nev. 540, 548, 331 P.3d 850, 855 (2014): see also Scheinwald v.
Bartlett, 51 Nev. 155, 157-58, 271 P. 468, 468-69 (1928) (noting that where
no default is entered, district courts have discretion to allow an untimely
answer).
Here, Razmy did not file an answer. Instead, Razmy filed a
motion to dismiss the complaint for insufficient service of process 31 days
after the complaint was served. Razmy risked default by failing to make
any defensive filing within 21 days of service, but given the lack of a pre-
answer deadline to file motions under NRCP 12(b)(4), the motion to dismiss
was not untimely. We conclude the plain language of NRCP 12 supports
the district court’s ruling, and we find no error in the district court’s decision
to grant the motion to dismiss. Because Razmy’s motion tc dismiss was
timely, Sabater and Desimone did not serve Razmy within 120 days, and
the district court properly denied an extension of time to serve, the case was
properly dismissed under NRCP 4(e)(2).
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CONCLUSION
When a plaintiff fails to demonstrate good cause for failing to
seek an extension of time to serve the summons and complaint within the
120-day period prescribed by NRCP 4(e), the district court may properly
deny an untimely motion for an extension of time. Additionally, under
NRCP 12, a motion to dismiss for insufficient service of process may be filed
at any time before a responsive pleading is filed. Absent the filing of a
responsive pleading or entry of a default, a motion to dismiss for insufficient
service of process is not untimely. Accordingly, we affirm the district court’s
order dismissing the complaint.
We concur:
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Pickering