Francis v. Wynn Las Vegas, LLC ( 2014 )

 mistake, or excusable neglect; (2) the district court erred in refusing to set
aside the default and judgment because the default was invalid;' and (3)
the district court abused its discretion in refusing to set aside the default
and judgment because of fraud. 2
The district court did not abuse its discretion in refusing to set aside the
default and judgment because Francis failed to provide evidence of
inadvertence, surprise, mistake, or excusable neglect
Francis argues that the court should have set aside the default
and judgment due to inadvertence, surprise, mistake, or excusable neglect
under NRCP 60(b)(1). We disagree.
"The district court has wide discretion in deciding whether to
grant or deny a motion to set aside a judgment under NRCP 60(b):'
Stoecklein v. Johnson Elec., Inc., 109 Nev. 268, 271, 849 P.2d 305, 307
(1993). This court will not overturn the district court's decision absent an
abuse of discretion. Id.; Britz v. Consol. Casinos Corp., 87 Nev. 441, 445,
488 P.2d 911, 914-15 (1971) C[T]he trial judge is free to judiciously and
'Francis argues that the default is invalid for four reasons: (1)
Sidebotham and Pakele's motion to withdraw did not contain a notice of
hearing; (2) the district court did not have jurisdiction to grant
Sidebotham and Pakele's withdrawal; (3) Francis did not receive notice of
the pretrial conference; and (4) the district court entered case-concluding
sanctions without holding an evidentiary hearing. We disagree and
conclude that the default is valid.
2 Francisargues that the district court erred in not setting aside the
default and judgment based on two misrepresentations from Wynn.
Francis alleges that Wynn misrepresented that (1) "a letter was served on
[Francis] and that this letter notified him of the pretrial conference," and
(2) Francis had notice of the prove-up hearing. We disagree and conclude
that Wynn's representations were accurate.
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reasonably exercise discretion in determining whether a default judgment
should be set aside.").
The district court may relieve a party from a final judgment or
order for grounds of "mistake, inadvertence, surprise, or excusable
neglect." NRCP 60(b)(1). This court noted that a district court must
consider several factors before granting a NRCP 60(b)(1) motion: (1)
"prompt application to remove the judgment"; (2) "absence of an intent to
delay the proceedings"; (3) evidence of a lack of knowledge of procedural
requirements on the part of the moving party, (4) moving party made the
motion in good faith; and (5) the state's "basic policy for resolving cases on
their merits when possible." 3 Kahn v. Orme, 108 Nev. 510, 513, 835 P.2d
790, 792-93 (1992) (emphasis and internal quotations omitted).
Further, "public policy dictates that cases be adjudicated on
their merits." Kahn, 108 Nev. at 516, 835 P.2d at 794. However,
"Mitigants and their counsel may not properly be allowed to disregard
process or procedural rules with impunity." Lentz v. Boles, 84 Nev. 197,
200, 438 P.2d 254, 256-57 (1968).
Prompt application
A motion for relief from default must be made "within a
reasonable time" and "not more than 6 months after the proceeding was
taken or the date that written notice of entry of the judgment or order was
served." NRCP 60(b). This court suggested that the six-month period
3 Thiscourt in Kahn also discussed another factor: "the moving party
must promptly tender a meritorious defense to the claim for relief." 108
Nev. at 513, 835 P.2d at 793 (emphasis and internal quotations omitted).
This court has since overruled that requirement. See Epstein v. Epstein,
113 Nev. 1401, 1405, 950 P.2d 771, 773 (1997).
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"represents the extreme limit of reasonableness." Union Petrochemical
Corp. of Nev. v. Scott, 96 Nev. 337, 339, 609 P.2d 323, 324 (1980) (quoting
Murphy v. Bocchio, 338 A.2d 519, 523 (R.I. 1975)). Further, this court
stated that "want of diligence in seeking to set aside a judgment is ground
enough for denial of such a motion." Union Petrochemical, 96 Nev. at 339,
609 P.2d at 324.
The district court found that Francis was aware of the
relevant court dates and deadlines, yet "waited nearly five months after
receiving notice of Wynn's intent to take default and over four months
from receiving notice that default was entered, before filing his [mlotion."
We conclude that the district court did not abuse its discretion
by finding that Francis did not promptly file his application for relief from
default. Francis waited nearly five months after becoming aware of
Wynn's intent to take default and the district court's entry of default
before filing for relief. While he filed his motion within the six-month time
period, the district court maintained the discretion to find that Francis did
not promptly file his motion, but instead used the six-month deadline as a
delay tactic. This is not how NRCP 60(b) should be utilized, and Francis
has failed to show why his delay in filing his motion should constitute the
extreme limit of reasonableness. See Union Petrochemical, 96 Nev. at 339,
609 P.2d at 324. Therefore, we conclude that this factor weighs in favor of
the district court's ruling.
Intent to delay proceedings
The district court will consider the circumstances of each case
to determine if the party has filed a NRCP 60(b) motion with the intent to
delay the proceedings. Stoecklein, 109 Nev. at 272, 849 P.2d at 308; Kahn,
108 Nev. at 514, 835 P.2d at 793 (the district court did not abuse its
discretion when it found that the party intended to delay the proceedings
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by waiting nearly five months after the entry of default to obtain counsel
to file a motion to set aside default and failed to establish an absence of
intent to delay); Union Petrochemical, 96 Nev. at 339, 609 P.2d at 324 (the
district court found that the party intended to delay by not filing until just
before the six month period ended and it was not excused merely because
the party's headquarters were located out of state).
Here, when denying Francis' motion for relief, the district
court found that "the record demonstrates that Francis has sought to
delay this case from its inception." Further, the district court stated that
"Francis has been on notice of these proceedings and failed to take any
action until his [m]otion for [r]elief was filed. And, it determined that
"[Francis] willfully ignored his responsibility to comply with procedural
rules as a pro se litigant."
We conclude that the district court did not abuse its discretion
in determining that Francis intended to delay the proceedings by filing his
motion for relief nearly five months after the notice of the entry of default.
Union Petrochemical, 96 Nev. at 339, 609 P.2d at 324. Further, Francis
has failed to provide any justification for filing his motion nearly five
months after the district court entered default. 4 Kahn, 108 Nev. at 514,
4 Francis did not allege that it took him five months to file his motion
for relief for lack of counsel. However, even if Francis claimed that he
delayed filing his motion for relief for lack of counsel, this argument is
without merit because the district court found that Francis had hired
David Houston to represent him at least three months prior to filing his
motion for relief based on the comments Houston and Francis made to the
press regarding appealing the district court decision. Kahn, 108 Nev. at
514, 835 P.2d at 793
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835 P.2d at 793. Therefore, we conclude that this factor also weighs in
favor of the district court's ruling.
Lack of knowledge of procedural requirements
If a party is unaware of the trial date because he did not
receive notice of the date, then the party has shown they lacked knowledge
of procedural requirements, which constitutes excusable neglect.
Stoecklein, 109 Nev. at 273, 849 P.2d at 308. However, the neglect is not
excusable if the party receives notice of the scheduled proceedings but fails
to appear. See Durango Fire Prot., Inc. v. Troncoso, 120 Nev. 658, 663, 98
P.3d 691, 694 (2004) (holding that a movant has notice of the proceedings
if he or she was served by mail). This court has further noted, when
referring to NRCP 60(b), that "we are not confronted here with some
subtle or technical aspect of procedure, ignorance of which could readily be
excused. The requirements of the rule are simple and direct." Union
Petrochemical, 96 Nev. at 339, 609 P.2d at 324.
The district court determined that Francis received notice of
the scheduled proceeding but failed to appear. Specifically, the district
court found that once Sidebotham and Pakele withdrew, Francis was
acting without counsel because, even though another attorney, Mr.
Aftergood, was assisting Francis in locating replacement counsel,
Aftergood was never retained as counsel of record in this matter. Further,
the district court found that "Nile evidence demonstrates that Francis
was fully aware of these proceedings, independent of what Aftergood may
have told him."
We conclude that the district court did not abuse its discretion
by refusing to set aside the default and judgment because Francis had
knowledge of the procedural requirements to appear at the hearings.
Francis' neglect was inexcusable because he was served with notice of the
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hearings by mail. Also, Aftergood was not Francis' counsel of record, so it
was Francis' responsibility, as a pro se litigant, to appear at the hearings.
Further, this is not a complex procedural requirement, and someone as
experienced at litigation as Francis surely understands that he needs to
appear at the proceedings. This factor also weighs in favor of the district
court's ruling and we, therefore, conclude that the district court did not
abuse its discretion in refusing to set aside the default and judgment. 5
Accordingly, we ORDER the judgment of the district court
AFFIRMED. 6
xas, J.
Hardesty
J.
Douglas
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Cherry
5 The district court did not address the remaining two factors.
However, we conclude that they weigh in Wynn's favor because Francis
did not file his motion to set aside in good faith and the policy of hearing
cases on the merits was not intended to allow litigants to disregard
process or procedural rules. See Lentz, 84 Nev. at 200, 438 P.2d at 256-57.
6 We have considered the parties' remaining arguments and conclude
they are without merit.
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cc: Hon. Mark R. Denton, District Judge
An H. Shirinian, Settlement Judge
Parker Scheer Lagomarsino
Lipson Neilson Cole Seltzer & Garin, P.C.
Brownstein Hyatt Farber Schreck, LLP/Los Angeles
Pisanelli Bice, PLLC
Brownstein Hyatt Farber Schreck, LLP/Las Vegas
Eighth District Court Clerk
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