CERVANTES-GUEVARA v. DIST. CT. (ANDERSON) , 2022 NV 10 ( 2022 )

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(0) 197A 124 Nev. 193, 197, 179 P.3d 556, 558 (2008) (citing, inter alia, NRS 34.160).
In general, when considering a petition for a writ of mandamus, we review
for a manifest abuse of discretion. NuVeda, LLC v. Eighth Judicial Dist.
Court, 137 Nev., Adv. Op. 54, 495 P.3d 500, 503 (2021). Whether to consider
such a petition is within the appellate court’s discretion. Libby v. Eighth
Judicial Dist. Court, 180 Nev. 359, 363, 325 P.3d 1276, 1278 (2014).
Mandamus may only issue in “cases where there is not a plain, speedy and
adequate remedy in the ordinary course of law.” NRS 34.170. An appeal is
generally an adequate legal remedy precluding writ relief. Intl Game Tech..,
124 Nev. at 197, 179 P.3d at 558.
Here, it is appropriate to entertain Cervantes-Guevara’s
petition because she does not have a plain, speedy, and adequate remedy to
challenge the district court’s order dismissing Anderson as a defendant in
the underlying action. While it is true that the district court dismissed all
the claims in the complaint against Anderson, the order granting dismissal
is not appealable, absent an appropriate certification of finality under
NRCP 54(b), because there are remaining issues to be resolved against Thor
Development. See Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d 416, 417
(2000) (explaining that “a final judgment is one that disposes of all the
issues presented in the case, and leaves nothing for the future consideration
of the [district] court”). But NRCP 54(b) certification is discretionary,
Borger v. Eighth Judicial Dist. Court, 120 Nev. 1021, 1026 n.23, 102 P.3d
600, 603 n.23 (2004), and while its availability generally precludes writ
relief, see, e.g., Datiala v. Eighth Judicial Dist. Court, No. 82022 WL
510112, at *1 (Nev. Feb. 18, 2022) (Order Denying Petition), the preclusion
is not absolute, Borger, 120 Nev. at 1026 n.23, 102 P.3d at 603 n.23.
Considering this writ petition is appropriate because whether the
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Emergency Directive issued by the Governor applies to rules promulgated
by this court is an important issue of law requiring clarification and
resolving the issue will promote judicial economy. See Mona v. Eighth
Judicial Dist. Court, 132 Nev. 719, 724, 380 P.3d 836, 840 (2016) (noting
that “even if an [otherwise] adequate legal remedy exists, this court will
consider a writ petition if an important issue of law needs clarification or if
review would serve a public policy or judicial economy interest”).
Whether the Governor’s Emergency Directive applies to service of process
| In Nevada, the judiciary has the constitutional duty “[t]o
declare what the law is or has been.” N. Lake Tahoe Fire Prot. Dist. v.
Washoe Cty. Bd. of Comm'rs, 129 Nev. 682, 687, 310 P.3d 583, 587 (2013)
(internal quotation marks omitted). Generally, this court “review[s] issues
of statutory construction de novo.” Zohar v. Zbiegien, 130 Nev. 733, 737,
334 P.3d 402, 405 (2014). “When interpreting a statute, we look to its plain
language.” Smith v. Zilverberg, 137 Nev., Adv. Op. 7, 481 P.3d 1222, 1230
(2021). “If a statute’s language is plain and unambiguous, we enforce the
statute as written, without resorting to the rules of construction.” Id.Whenever possible, this court interprets “a rule or statute in harmony with
other rules or statutes.” Slade v. Caesars Entm’t Corp., 132 Nev. 374, 376,
373 P.3d 74, 75 (2016).
Although this court has not yet addressed the issue, many other
courts have applied the principles of statutory interpretation to executive
orders and directives, and we agree with their approach. See In re Murack,
957 N.W.2d 124, 128 (Minn. Ct. App. 2021) (holding that “it is appropriate
to apply statutory-interpretation principles in interpreting [emergency
executive orders]”); see also Bassidji v. Goe, 413 F.3d 928, 934 (9th Cir.
2005) (“As is true of interpretation of statutes, the interpretation of an
Executive Order begins with its text.”); United States v. Abu Marzook, 412
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2004) (“The construction of an executive order presents an issue akin to an
issue of statutory interpretation ... .”).
Here, Cervantes-Guevara argues that the tolling provision
contained in Emergency Directive 009 (Revised) applied to the service
period prescribed under NRCP 4(e), such that the remaining 36 days of the
original service period recommenced on August 1, with the first 90-day
extension beginning on September 5 and not expiring until December 4,
rendering her second motion timely filed. As noted, the Emergency
Directive tolled “[a]ny specific time limit set by state statute or regulation
for the commencement of any legal action.” Emergency Directive 009
(Revised) (April 1, 2020), § 2 (emphasis added). Cervantes-Guevara asserts
that NRCP 4 is a regulation that sets forth guidelines for the conduct of the
courts and attorneys during legal proceedings. However, Nevada law
defines a “regulation,” in relevant part, as “[aln agency rule, standard,
directive or statement of general applicability which effectuates or
interprets law or policy, or describes the organization, procedure or practice
requirements of any agency.” NRS 233B.038(1)(a). Further, Nevada law
defines an “agency” as “an agency, bureau, board, commission, department,
division, officer or employee of the Executive Department.” NRS 233B.031
(emphasis added). Court rules are not included. Moreover, this court
recently stated in an unpublished disposition that “[t]he Declaration of
Emergency Directive 009 (Revised) does not apply to deadlines established
by this court’s rules.” Byrd v. Byrd, No. 81198, 2020 WL 4746547 (Nev.
Aug. 14, 2020) (Order Dismissing Appeal) (noting that “the time limitation
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to file a notice of appeal is not established by state statute or regulation, but
by court rule”). Therefore, Cervantes-Guevara’s attempt to frame the
NRCP as “regulations” under Emergency Directive 009 (Revised) fails
because, by definition, a regulation refers to any rule or adjudication made
by an executive branch entity and does not encompass the rules
promulgated by this court.
Cervantes-Guevara also contends that NRCP 4(e) expands the
meaning of commencing a legal action because it sets forth a specific
timeline for when the legal proceeding begins for the defendant in a civil
matter. But NRCP 3 specifically states that “[a] civil action is commenced
by filing a complaint with the court.” As used in the rules of civil procedure,
a “complaint’ includes a petition or other document that initiates a civil
action.” NRCP 3, Advisory Committee Note—2019 Amendment (emphasis
added). Cervantes-Guevara’s attempt to expand the meaning of
“commencing a civil action” to include service of process upon the defendant
fails because service of process is not a part of the commonly known
definition of the phrase.
Whether the district court manifestly abused its discretion by denying
Cervantes-Guevara’s second motion to enlarge time for service as untimely
under NRCP 4(e)
A dismissal for failure to effect timely service of process is
reviewed for an abuse of discretion, Saavedra-Sandoval v. Wal-Mart Stores,
Inc., 126 Nev. 592, 595, 245 P.3d 1198, 1200 (2010), and as noted above,
writ relief will not issue absent a manifest abuse of that discretion, NuVeda,
137 Nev., Adv. Op. 54, 495 P.3d at 503.
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