F I L E D

Electronically
01-13-2012:10:14:06 AM
Joey Orduna Hastings
Clerk of the Court
Transaction # 2699027
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IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA
IN AND FOR THE COUNTY OF WASHOE
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10 ZACH COUGHLIN,
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vs.
Plaintiff, Case No.: CV11-01955
Dept. No.: 10
14 WASHOE LEGAL SERVICES, et al;
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Defendants.
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ORDER GRANTING MOTION TO OUASH SERVICE AND TO DISMISS
Presently before the Court is a Motion to Quash Service and to Dismiss, filed by
19 Defendant CRISIS INTERVENTION SERVICES (hereafter "Defendant'') on November 28,
20 2011. Following, on December 15, 2011, Plaintiff ZACH COUGHLIN (hereafter "Plaintiff")
21 filed a document titled "Opposition to all Defendant's Motions to Dismiss and all
22 Defendant's Motions to Quash Service, Motion for Extension of Time to
23 Respond/Continuance; Opposition to Motion to Tax Costs Simultaneously Seeking
24 Extensions of Time or Continuance to Respond" (hereafter "Plaintiff's Opposition"). The
25 following day, December 16, 2011, Plaintiff file a document titled "Supplement to Motion
26 for Reconsideration and Motion to Set Aside NRCP 59, 60 Dismissal and Supplement to
27 Opposition to all Defendant's Motions to Dismiss and all Defendant's Motions to Quash
28 Service, Motion for Extension of Time to Respond/Continuance; Opposition to Motion to
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1 Tax Costs Simultaneously Seeking Extensions of Time or Continuance to Respond"
2 (hereafter "Plaintiff's First Supplemental Opposition''). That same day, Plaintiff also filed a
3 document titled "Opposition to all Defendant's Motions to Dismiss; Motion to Set Aside or
4 Vacate Order Granting Dismissal NRCP 59, NRCP 50; Motion for Reconsideration"
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(hereafter "Plaintiff's Second Supplemental Opposition").! Subsequently, on December 20,
2011, Defendant filed a Reply in Support of Crisis Intervention Services' Motion to Quash
Service and to Dismiss. Contemporaneously therewith, Defendant filed a Request for
Submission, thereby submitting the matter for the Court's consideration.
I. Factual &. Procedural Background
This case arises out of an employment dispute. Plaintiff was formerly employed as
an attorney for Defendant Washoe Legal Services. Plaintiff alleges that, while he was an
employee, he became aware of several potential legal violations by his former employer.
Plaintiff claims that he was fired after he informed his former employer of the violations,
and that such firing was in retaliation for his informing the former employer of the
violations. Additionally, Plaintiff claims that he was subjected to a hostile work
environment.
Plaintiff filed suit against his former employer and related entities and individuals on
June 27, 2011, in Case No. CVll-01896. This suit is currently assigned to Department Six
of the 2
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Judicial District Court. Three days later, on June 30, 2011, Plaintiff filed a secon
action, which he admits asserts the same claims as those presented in his first action.
Plaintiff's second action is Case No. CV11-01955, and it is Plaintiff's second action that is
currently before this Court. Defendant Crisis Intervention Services is named as a
defendant in the second action. Defendant now moves the Court to dismiss Plaintiff's claim
on the basis that Plaintiff failed to serve process in the manner required by Nevada law.
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28 1 The Court notes that Plaintiff's filings do not conform to District Court rules for such filings. Nonetheless, in
the interest of fairness, the Court will consider the merits of Plaintiff's arguments.
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1 Additionally, Defendant seeks attorney's fees and costs related to its defense of the instant
2 Motion.
3 II. Standard of Review
4 Pursuant to NRCP 12(b )(5) the standard of review for a motion to dismiss is
5 rigorous. Blackjack Bonding v. City of Las Vegas Municipal Court, 116 Nev. 1213; 14 P.3d
6 1275 (2000). As such, the Court will construe the pleadings liberally and draw every
7 reasonable inference in favor of the non-moving party. Vacation Village v. Hitachi America,
8 110 Nev. 481,484, 874 P.2d 744, 746 (1994).
9 The purpose of a motion to dismiss is to test the legal sufficiency of the complaint.
10 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). However, there is a strong
11 presumption against dismissing an action for failure to state a claim. See Gilligan v. lamco
12 Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (citation omitted). Thus, upon being
13 adequately stated, a claim may be supported by showing "enough facts to state a claim to
14 relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1969
15 (2007) (citation omitted). However, the factual allegations included in a complaint "must
16 be enough to raise a right to relief above the speculative level." Id at 1964-65. "The
17 pleading must contain something more ... than ... a statement of facts that merely creates
18 a suspicion [of] a legally cognizable right of action." Id at 1965.
19 III. Legal Analysis
20 a. Insufficient service
21 As noted above, Defendant seeks to dismiss Plaintiff's claim for insufficient service 0
22 process pursuant to NRCP 12(b)(4). As explained below, the Court agrees that service of
23 process was insufficient as to Defendant.
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NRCP 4(a) requires that:
Upon the filing of the complaint, the clerk shall forthwith issue a
summons and deliver it to the plaintiff or to the plaintiffs
attorney, who shall be responsible for service of the summons
and a copy of the complaint. Upon request of the plaintiff,
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separate or additional summons shall issue against any
defendants.
NRCP 4(i) further provides that a Plaintiff must serve a summons and complaint within 120
days of the filing of the complaint:
If a service of the summons and complaint is not made upon a
defendant within 120 days after the filing of the complaint, the
action shall be dismissed as to that defendant without prejudice
upon the court's own initiative with notice to such party or upon
motion, unless the party on whose behalf such service was
required files a motion to enlarge the time for service and
shows good cause why such service was not made within that
period ....
Here, Plaintiff filed the instant suit on June 30, 2011. Accordingly, Plaintiff had until
12 October 28, 2011 to timely serve process upon the various defendants. However, Plaintiff
13 did not serve Defendant with process until November 9, 2011. To date, Plaintiff has not
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moved for an enlargement of time for service, nor has he shown good cause as to why
such service was not made within the statutory period.
Plaintiff does not respond to Defendant's argument in his oppositions. Instead,
Plaintiff merely notes that he served several of the other defendants, and raises several
18 other issues that appear to be completely unrelated to the issue currently before the Court.
19 The Court considers Plaintiff's failure to respond to Defendant's argument as an admission
20 of the argument's merit. See Polk v. State, 126 Nev. Adv. Op. 19, 233 P.3d 357 (2010).
21 Thus, the Court concludes that Plaintiff's service of process was untimely pursuant
22 to NRCP 4(i), and the Court will dismiss his claims against Defendant. Nonetheless, the
23 Court also concludes that Plaintiff's defective service does not so egregious as to warrant
24 the sanction of a dismissal with prejudice pursuant to WDCR 21(4).2
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28 2 In light of the Court's conclusion that Plaintiff's attempted service was untimely, the Court does not address
Defendant's arguments regarding additional defects in service.
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1 b. Attorney's fees and costs
2 Defendant seeks to recover its attorney's fees and costs related to its Motion to
3 Quash Service and Dismiss.
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Pursuant to NRS 18.010(b), "the court may make an
4 allowance of attorney's fees to a prevailing party ... when the court finds that the
5 claim ... of the opposing party was brought or maintained without reasonable ground or
6 to harass the prevailing party. The court shall liberally construe the provisions of this
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paragraph in favor of awarding attorney's fees in all appropriate situations."
Here, the Court concludes that Plaintiff maintained his Complaint without reasonable
grounds following his failure to timely serve Defendant. Plaintiff did not even attempt to
assert an argument in his three oppositions to Defendant's Motion as to why he failed to
timely serve Defendant. Moreover, the Court does not see any evidence in the record that
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13 could justify Plaintiff's maintenance of his suit against Defendant following his failure to
14 timely serve Defendant with process. Thus, the Court concludes that attorney's fees are
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16 In any event, Plaintiff did not respond to Defendant's request for attorney's fees and
17 costs, and did not dispute Defendant's assertion that Plaintiff's claims against Defendant
18 were baseless. Again, the Court considers Plaintiff's failure to respond to Defendant's
19 argument as an admisSion of the argument's merit. See Polk v. State, 126 Nev. Adv. Op.
20 19, 233 P.3d 357 (2010). Accordingly, the Court concludes that Defendant's request for
21 attorney's fees should be granted. For the same reasons, the Court determines that an
22 award of costs is warranted pursuant to NRS 18.050. Finally, the Court concludes that the
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28 3 The Court notes that Defendant cites to NRS 7.085 as providing the basis for awarding costs and fees.
However, because plaintiff is proceeding in pro per, NRS 7.085 is inapplicable.
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1 attorney's fees and costs requested by Defendant are reasonable and were justifiably
2 incurred in responding to Plaintiff's Complaint.
3 NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant's Motion to Quash
4 Service and to Dismiss is GRANTED.
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IT IS FURTHER ORDERED that Plaintiff's Complaint against Defendant is
6 DISMISSED WITHOUT PREJUDICE.
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IT IS FURTHER ORDERED that Defendant's motion for attorney's fees and costs
8 against Plaintiff is GRANTED. Defendant is awarded $1,062.50 in attorney's fees and
9 $234.12 in costs for a total award of $1,296.62.
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DATED this /2
day of January, 2 1 ~ f f ~ ;:?' W-
STEVEN P. ELLIOTT
District Judge
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CERTIFICATE OF MAILING
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I hereby certify that I electronically filed the foregoing with the Clerk of the Court by
3 using the ECF system which served the following parties electronically:
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5 JOSEPH GARIN, ESQ. for MELISSA MANGIARACINA, KATHY BRECKENRIDGE, BOARD PRES.
OF WLS, MARC ASHLEY, TODD TORVINEN, KATHY BRECKENRIDGE, TODD TORVINEN,
6 WLS BOARD MEMBER, PAUL ELCANO, PAUL ELCANO, EXECUTIVE DIRECTOR, WLS
BOARD, WASHOE LEGAL SERVICES
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8 GARY FULLER, ESQ. for COMMffiEE TO AIDE ABUSED WOMAN
9 ZACHARY COUGHLIN, ESQ. for ZACH COUGHLIN
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BRIAN GONSALVES, ESQ for TAHOE WOMEN'S SERVICES
DATED this day of January, 20120
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Judicial Assistant
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