Bailey v. Maningo ( 2013 )

 failed to afford him an opportunity to pursue discovery and because the
motion to dismiss failed to comply with NRCP 12(b)(5) and NRCP 56(e). 2
Having considered appellant's appeal statement and the
record on appeal, we conclude that the district court properly dismissed
appellant's complaint pursuant to NRCP 12(b)(5) for failure to state a
claim. See Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 227-28,
181 P.3d 670, 672 (2008) (providing that this court reviews a district court
order dismissing a case under NRCP 12(b)(5) rigorously, accepting all
factual allegations as true and reviewing legal conclusions de novo); see
also Stalk v. Mushkin, 125 Nev. 21, 28 n.2, 199 P.3d 838, 843 n.2 (2009)
(recognizing that the Nevada Rules of Professional Conduct do not provide
an individual with a private right of action); Morgano v. Smith, 110 Nev.
1025, 1029, 879 P.2d 735, 737 (1994) (explaining that in order to overcome
a motion to dismiss a legal malpractice action, "the plaintiff must plead
that he or she has obtained appellate or post-conviction relief'). Because
dismissal was appropriate based on the complaint, without reference to
any additional evidence, the district court did not err in dismissing the
complaint without ordering discovery and without treating the motion as
an NRCP 56 motion for summary judgment. See NRCP 12(b) (explaining
that it is appropriate to treat a motion to dismiss pursuant to NRCP
2 Tothe extent that appellant also contends that the district court's
decision violated the Federal Rules of Civil Procedure, those rules are not
applicable in this state court action. Compare NRCP 1 (explaining that
the Nevada Rules of Civil Procedure "govern the procedure in the district
courts in all suits of a civil nature"), with FRCP 1 (providing that the
Federal Rules of Civil procedure "govern the procedure in all civil actions
and proceedings in the United States district courts").
SUPREME COURT
OF
NEVADA
2
(0) 1947A
12(b)(5) as a motion for summary judgment if "matters outside the
pleading are presented to and not excluded by the court").
Accordingly, we
ORDER the judgment of the district court AFFIRMED. 3
J.
Hardesty
. 4.x
6
Parraguirre
cc: Hon. Timothy C. Williams, District Judge
Anthony D. Bailey
Bellon & Maningo, Ltd.
Eighth District Court Clerk
3 Inour October 18, 2012, order granting rehearing, we determined
that no action was necessary with regard to appellant's notice of possible
confession of error. Thus, we further conclude that no action is necessary
as to appellant's November 13, 2012, letter seeking a status update as to
the notice of possible confession of error.
3