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F I L E DElectronically

01-13-2012:10:14:06 AMJoey Orduna Hastings

Clerk of the Court

Transaction # 26990271

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IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA

IN AND FOR THE COUNTY OF WASHOE

10 ZACH COUGHLIN,

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13vs.

Plaintiff, Case No.: CV11-01955

Dept. No.: 10

14 WASHOE LEGAL SERVICES et al;

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Defendants.

ORDER GR NTING MOTION TO OU SH SERVICE ND TO ISMISS

Presently before the Court is a Motion to Quash Service and to Dismiss, filed by

19 Defendant CRISIS INTERVENTION SERVICES (hereaf ter Defendant'') on November 28,

20 2011. Following, on December 15, 2011, Plainti ff 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"5

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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 ackground

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 2nd

Judicial District Court. Three days later, on June 30, 2011, Plaint iff 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 basisthat

Plaintif f failedto

serve process in the manner required by Nevada law.

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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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:

f 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, Plaint iff 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).

2 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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6 III27

28 2 n light of the Court s conclusion that Plaintiff s attempted service was untimely, the Court does not addressDefendant 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.3 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 that12

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

15 warranted.

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

3 III

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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 th t Defendant's Motion to Quash

4 Service and to Dismiss is GRANTED.5 IT S FURTHER ORDERED that Plaintiff's Complaint against Defendant is

6 ISMISSE WITHOUT PREJUDICE.

7 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 /2day of January 2 1 ~ f f ~ ;:?'W-

STEVEN P ELLIOTT

District Judge

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1CERTIFIC TE OF M ILING

2I hereby certify that I electronically filed the foregoing with the Clerk o the Court by

3 using the ECF system which served the following parties electronically:

45 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 SERVICES7

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

D TED this { ~ day of January, 2 2

Cf Q ~~ H O W E NJudicial Assistant

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