WILLICK v. DIST. CT. (SANSON) , 2022 NV 19 ( 2022 )

138 Nev., Advance Opinion 11
IN THE SUPREME COURT OF THE STATE OF NEVADA
MARSHAL S. WILLICK; AND WILLICK No. 82524
LAW GROUP,
Petitioners,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
FIL
IN AND FOR THE COUNTY OF MAR 3 1 2022
CLARK; AND THE HONORABLE
NANCY A. BECKER, SENIOR JUDGE, CLERK
Respondents, EF DEPUTY CLERK
and
STEVE W. SANSON; AND VETERANS
IN POLITICS INTERNATIONAL, INC.,
Real Parties in Interest.
Original petition for a writ of mandamus and prohibition
challenging a district court order vacating a notice of voluntary dismissal.
Petition denied.
Brownstein Hyatt Farber Schreck, LLP, and Mitchell J. Langberg; Abrams
& Mayo Law Firm and Jennifer V. Abrams, Las Vegas,
for Petitioners.
McLetchie Law and Margaret A. McLetchie, Las Vegas,
for Real Parties in Interest.
BEFORE THE SUPREME COURT, EN BANC.'
'The Honorable Elissa F. Cadish, the Honorable Abbi Silver, and the
Honorable Kristina Pickering, Justices, did not participate in the decision
of this matter.
SUPREME Couirr
OF
NEVADA
i 0) 1947A cgiallp
40,0007
OPINION
By the Court, HARDESTY, J.:
In this opinion, we address as a matter of first impression
whether district courts in Nevada have jurisdiction to vacate a plaintiff s
notice of voluntary dismissal in a defamation action in which an anti-
SLAPP motion has been filed, denied, appealed, and remanded back to the
district court. Without creating a rule that would determine this issue in
all instances, we determine that the district court did not err in vacating
petitioners notice of voluntary dismissal in this instance because the
litigation had reached an advanced stage.
FACTS AND PROCEDURAL HISTORY
Petitioners Marshal S. Willick and Willick Law Group
(collectively, Willick) filed a complaint against respondents Steve Sanson
and Veterans in Politics International, Inc. (collectively, Sanson), alleging
that they made defamatory statements against Willick online. In response,
Sanson filed a special motion to dismiss the action pursuant to Nevada's
anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, NRS
41.660. The district court denied Sanson's motion on step one of Nevada's
two-step anti-SLAPP analysis, determining that Sanson failed to meet his
burden of demonstrating that the statements he published concerned an
issue of public interest and were made in good faith. Sanson appealed. This
court reversed the district court's order and remanded the matter,
concluding that Sanson in fact had met his burden under step one of the
anti-SLAPP analysis and directing the district court to consider whether
Willick could meet his burden of demonstrating a probability of prevailing
on his claims, which is step two of the court's analysis. Veterans in Politics
SUPREPAE COURT
OF
NevADA
io) 1.947A mega>
2
Int'l, Inc. v. Willick, No. 72778, 2020 WL 891152 (Nev. Feb. 21, 2020) (Order
Reversing and Remanding).
On remand to the district court, the parties entered mediation,
stipulating that if mediation failed, the parties would submit briefing on
step two of the anti-SLAPP analysis. Mediation failed, but soon thereafter
and before the district court rendered a determination on step two of the
anti-SLAPP motion, Willick filed a notice to voluntarily dismiss his
complaint under NRCP 41(a)(1)(A)(i). The district court vacated the notice,
reasoning that (1) an anti-SLAPP motion triggers the summary judgment
exception to a plaintiff s right to voluntarily dismiss the case under NRCP
41(a)(1)(A)(i), and (2) a plaintiff cannot voluntarily dismiss the case after
the proceedings reached an advanced stage. Willick filed this petition for a
writ of mandamus and prohibition, asking us to vacate the district court's
order.
DISCUSSION
We exercise our discretion to entertain Willick's petition
The decision to issue a writ of mandamus or prohibition is
discretionary. Wynn Resorts, Ltd. v. Eighth Judicial Dist. Court, 133 Nev.
369, 373, 399 P.3d 334, 340-41 (2017). "Writ relief is an extraordinary
remedy that is only available if a petitioner does not have 'a plain, speedy
and adequate remedy in the ordinary course of law."' In re Raggio Family
Tr., 136 Nev. 172, 175, 460 P.3d 969, 972 (2020) (quoting NRS 34.330); see
NRS 34.170. The right to an appeal is generally an adequate legal remedy,
and where, as here, "an appeal is not immediately available because the
challenged order is interlocutory in nature, the fact that the order may
ultimately be challenged on appeal from the final judgment generally
precludes writ relief." Pan v. Eighth Judicial Dist. Court, 120 Nev. 222,
225, 88 P.3d 840, 841 (2004).
3
Nevertheless, we have elected to consider petitions challenging
interlocutory orders where "the issue is not fact-bound and involves an
unsettled and potentially significant, recurring question of law,"
Buckwalter v. Eighth Judicial Dist. Court, 126 Nev. 200, 201. 234 P.3d 920,
921 (2010), and "where the petition presents a matter of first impression
and considerations of judicial economy support its review,"
Dekker ./ Perich/ Sabatini Ltd. u. Eighth Judicial Dist. Court, 137 Nev., Adv.
Op. 53, 495 P.3d 519, 522 (2021). Here, Willick's writ petition raises an
important and unsettled issue of law—whether an anti-SLAPP motion is
equivalent to a summary judgment motion Within the meaning of NRCP
41(a)(1)(A)(i) so as to preclude the voluntary dismissal• of a complaint. We
therefore exercise our discretion to entertain Willick's petition.
The district court did not err in vacating Willick's notice to 'voluntarily
dismiss his action at an advanced stage of litigation
"[W]e review questions of law . . de novo, even in the context
of writ petitions." Helfstein v. Eighth Judicial Dist. Court, 131 Nev. 909,
913, 362 P.3d 91, 94 (2015). Nevada Rule of Civil Procedure 41(a) governs
voluntary dismissals. It provides that a "plaintiff may dismiss an action
without a court order by filing: (i) a notice of dismissal before the opposing
party serves either an answer or a motion for summary judgement." NRCP
41(a)(1)(A)(i). At the outset, we are not persuaded by the district court's
reasoning, nor by Sanson's arguments in support of the• district court's
reasoning, that an anti-SLAPP motion is the functional equivalent of a
motion for summary judgment under NRCP 41(a)(1)(A)(i). This court has
never recognized such an interpretation, and we decline to do so now.2 See
2A1though Sanson also argues waiver, Willick argues that he did not
waive his right to voluntarily dismiss his action by stipulation. We agree.
SUPREME COURT
OF
NEVADA
(0) 1947A OSSOD
4
OMA.
Young v. Nev. Gaming Control Bd., 136 Nev. 584, 586, 473 P.3d 1034, 1036
(2020) (When reviewing de novo, we will interpret a statute or regulation
by its plain meaning unless the statute or regulation is ambiguous, the plain
meaning would provide an absurd result, or the interpretation clearly was
not intended." (citations and internal quotation marks omitted)).
This court has, however, on one occasion, determined that a
notice of voluntary dismissal was ineffective "because it was filed at an
advanced stage of the proceedings." In re Petition of Phillip A.C., 122 Nev.
1284, 1290, 149 P.3d 51, 55 (2006). Recogni zing that "federal decisions
involving the Federal Rules of Civil Procedure provide persuasive authority
when this court examines its rules," we looked at the United States Court
of Appeals for the Second Circuit's application of the advanced-stage
exception to FRCP 41(a), the federal counterpart to NRCP 41(a). Id.(internal quotation marks omitted); see also Harvey Aluminum, Inc. v. Am.
Cyanarnid Co., 203 F.2d 105, 107-08 (2d Cir. 1953). Persuaded by the
Second Circuit's reasoning, we applied it to NRCP 41(a) and the facts
presented to us and concluded that the voluntary dismissal was ineffective.
Phillip A.C., 122 Nev. at 1290-91, 149 P.3d at 55-56. Specifically, a
petitioner attempted to voluntarily dismiss a petition to invalidate an
adoption pursuant to NRCP 41(a)(1)(A)(i) "three months after the district
"Stipulations should . . . generally be read according to their plain words
unless those words are ambiguous, in which case the task becomes to
identify and effectuate the objective intention of the parties." DeChambeau
v. Balkenbush, 134 Nev. 625, 628, 431 P.3d 359, 361-62 (Ct. App. 2018).
Here, the stipulation is clear. The parties agreed to mediation and, in the
event the case was not resolved, to submit briefing on the second prong of
the anti-SLAPP motion. The stipulation contains no reference to NRCP
41(a)(1)(A)(i), and nowhere did Willick waive his right to voluntarily dismiss
under it.
SUPREME COURT
OF
NEVADA
(0) I947A mato
5
court had already held a hearing on the [petitioner]s motion to intervene
and to invalidate the adoption. . . [T]he merits of the [petitioner]'s motion
were raised by the parties and addressed and decided by the district court."
Id. at 1290-91, 149 P.3d at 56.
Similarly, in Harvey Aluminum, the Second Circuit reversed a
lower court's refusal to vacate a voluntary dismissal pursuant to FRCP
41(a)(1). 203 F.2d at 108. The court found that because the lower court had
conducted a hearing on the controversy that "required several days of
argument and testimony" and "the merits of the controversy [had been]
squarely raised," voluntarily dismissing the controversy pursuant to FRCP
41(a)(1) "would not be in accord with its essential purpose of preventing
arbitrary dismissals after an advanced stage of a suit has been reached."
Id. at 107-08.
Harvey Aluminum has since engendered controversy in other
federal circuit courts and has for the most part been limited to its "extreme"
facts. Thorp v. Scarne, 599 F.2d 1169, 1.176 (2d Cir. 1979) (holding "that at
least in cases falling short of the extreme exemplified by Harvey Aluminum,
notices of dismissal filed in conformance with the explicit requirements of
[former] Rule 41(a)(1)(i) are not subject to vacatue); accord In re Bath &
Kitchen Fixtures Antitrust Litig., 535 F.3d 161, 166 n.10 (3d Cir. 2008)
(declining to reach the issue but acknowledging that circumstances
sometimes "warrant[ ] a departure from the literal text" of FRCP
41(a)(1)(A)(i)); Safeguard Bus. Sys., Inc. v. Hoeffel, 907 F.2d 861, 864 (8th
Cir. 1990) ("There may be rare cases with extreme circumstances in which
a district court enters a judgment on the merits at an early stage of the
proceedings . . . in which the use of Rule 41(a)(1) is foreclosed."); Univ. Cent.
del Caribe, Inc. v. Liaison Comm. on Med. Educ., 760 F.2d 14, 19 (1st Cir.
6
1985) ([T]he facts of this case clearly fall short of Harvey Aluminum."). The
United States Court of Appeals for the Ninth Circuit has explicitly
determined that FRCP 41(a)(1)(A)(i) "does not authorize a court to make a
case-by-case evaluation of how far a lawsuit has advanced to decide whether
to vacate a plaintiffs voluntary dismissal." Am. Soccer Co. v. Score First
Enters., 187 F.3d 1108, 1112 (9th Cir. 1999).
However, even the more skeptical of federal circuits have
acknowledged that la]dmittedly, one can question the wisdom of allowing
a party, through adroit lawyering, to dismiss a case in order to avoid an
unfavorable decision on the• merits after the court has considered the
evidence," and many circuits view the advanced-stage exception as a form
of equitable remedy. Marex Titanic, Inc. v. Wrecked & Abandoned Vessel, 2
F.3d 544, 547 (4th Cir. 1993); see Merit Ins. Co. v. Leatherby Ins. Co., 581
F.2d 137, 143 (7th Cir. 1978) (finding no "exceptional equitable
considerations" to warrant reversal of FRCP 41(a)(1) voluntary dismissal);
Pilot Freight Carriers, Inc. v. Ina Bhd. of Teamsters, 506 F.2d 914, 916 (5th
Cir. 1975) (same). For its part, the Second Circuit, though critical of its
previous ruling in Harvey Aluminum, allows its district courts to apply the
exception in limited circumstances. See, e.g., Century Sur. Co. v. Vas & Sons
Corp., No. 17-CV-5392 (DLI) (RLM), 2018 WL 4804656, at *3-4 (E.D.N.Y.
Sept. 30. 2018); Poparic v. Jugo Shop, No. 08-CV-2081 (KAM) (JO), 2010
WL 1260598, at *6 (E.D.N.Y. Mar. 31, 2010); Grass v. Citibank, N.A., 90
F R.D. 79. 80 (S.D.N.Y. 1981) (considering, in addition to the length of the
underlying hearing and the prior consideration of the case's merits, the
extensive effort expended by the defendant and the conduct of the plaintiff).
In sum, a close reading of Harvey Aluminum's treatment in the
federal circuits that have addressed it reveals a long-running tension
SUPREME COURT
OF
NEVADA
(0) t9(7r, 44611D
7
between an unwillingness to weaken the rule with exceptions, while
protecting the rule's purpose "to limit the right of dismissal to an early stage
of the proceedings, thereby curbing the abuse of the right [to voluntarily
dismiss]." Littman v. Bache & Co., 252 F.2d 479, 480 (2d Cir. 1958). Or in
other words, "to preserve the plaintiffs right to take a voluntary nonsuit
and start over so long as the defendant is not hurt." McCall-Bey v. Franzen,
777 F.2d 1178, 1184 (7th Cir. 1985).3
Our purpose here is 'not to weaken the analogous NRCP
41(a)(1)(A)(i). Rather, in carefully weighing the factors considered in
Phillip A. C., and in comparing factual circumstances in similar cases from
other courts, we have determined that estopping Willick from voluntarily
dismissing his case serves NRCP 41(a)(1)(A)(i)'s essential purpose in this
instance. Like the plaintiffs in Phillip A.G., Willick waited a long tirne—
four years—before filing his notice of voluntary dismissal. Further, he filed
this notice only after this court reversed a district court order favorable to
3This tension is vivid within the Second Circuit itself, which, perhaps
in overcorrecting its earlier emphasis on the defendant's interests in Harvey
Aluminum, ruled that a plaintiffs right under FRCP 41(a)(1) was so
absolute that district courts could not even retain jurisdiction for the
collateral, nonmerits issue of FRCP 11 sanctions. See Johnson Chem. Co.
v. Home Care Prods., lnc., 823 F.2d 28, 30 (2d Cir. 1987) (noting the circuit's
c`cool reception" to Harvey Aluminum (internal quotation marks omitted)),
abrogated by Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990). The
United States Supreme Court overruled the Second Circuit's narrow, pro-
plaintiff interpretation, reminding courts that the rule was intended to
restrict plaintiffs traditionally "expansive control over their suits
[by] . . . allow[ing] a plaintiff to dismiss an action withour court order and
without prejudice "only during the brief period before the defendant had
made a significant commitment of time and money." Cooter, 496 U.S. at
394-95, 397. Implicitly then, the Supreme Court noted a positive correlation
between the length of a case measured in time and the aspect of FRCP
41(a)(1)(A)(i)'s purpose that seeks to protect defendants. See id.SUPREME COURT
cf
NEVADA
10) 1947A afaio
8
his case. and one day after a failed mediation attempt. These events
themselves happened after a hearing on the anti-SLAPP motion. By now,
the merits of the anti-SLAPP motion's first prong have been thoroughly
raised, determined, appealed, reviewed de novo, and remanded. Now,
Willick and Sanson await the district court's determination on the motion's
second prong.4
"Nevada's anti-SLAPP statutes aim to protect First
Amendment rights by providing defendants with a procedural mechanism
to dismiss meritless lawsuit[s] that a party initiates primarily to chill a
defendant's exercise of his or her First Amendment free speech rights'
before incurring the costs of litigation." Coker v. Sassone, 135 Nev. 8, 10,
432 P.3d 746, 748 (2019) (alteration in original) (quoting Stubbs v.
Strickland, 129 Nev. 146, 150, 297 P.3d 326, 329 (2013)); Stubbs, 129 Nev.
at 151, 297 P.3d at 329 (explaining that an anti-SLAPP motion "allows the
district court to evaluate the merits of the alleged SLAPP claim"). Here, at
this point in the proceedings, Sanson has no doubt incurred litigation costs.
Given these unique and extreme circumstances, we conclude that Willick is
estopped from dismissing his action with no consequences, as the litigation
has reached an advanced stage after four years and a prior de novo appeal.
Therefore, we conclude that the district court did not manifestly abuse its
discretion by, or lack jurisdiction when, vacating petitioners notice of
4 Given the scarcity of the petitioners' appendix on appeal, we focus
our determination on the unique posture of this case's length as well as the
appeal. However, this court recognizes that other factors, such as the length
of discovery, length of hearings on substantive issues, and the extent to
which the merits of a case have been raised, are all important in considering
this rare equitable advanced stage exception to the strict application of
NRCP 41(a)(1)(A)(i).
SUPREME Com.
OF
NEVADA
(01 1947A MOIROA
9
voluntary dismissal. For these reasons, we deny Willick's petition for a writ
of mandamus and prohibition.
Hardesty
oncur:
Parraguirre
. •
-Ar* J.
Stiglich
J.
l' Jon
Hern
SUPREME COURT
OF
NEVADA
10
(0) 1947A .40..