The full case caption appears at the
end of this opinion. O P I N I O N PER CURIAM: These two writ petitions raise important issues under NRCP 4(i), which requires aplaintiff to serve a summons and complaint within 120 days of the date that thecomplaint is filed unless the plaintiff can show good cause why the complaint wasnot timely served. Docket No. 33367 is a petition for a writ of mandamus challenginga district court order granting the real party in interest’s motion to quash serviceof process under NRCP 4(i) for failure to effect timely service. Docket No. 34863 isa petition for a writ of mandamus or prohibition challenging a district court orderdenying petitioners’ motion to dismiss the complaint under NRCP 4(i). We take thisopportunity to clarify the relevant standards under NRCP 4(i). We grant the petitionfor a writ of mandamus in Docket No. 33367, and we deny the petition for a writ ofmandamus or prohibition in Docket No. 34863. Docket No. 33367 On February 7, 1996, plaintiff/petitioner Alice Scrimer was in a car driven bydefendant/real party in interest William D. Scrimer, when she suffered injuries inan accident. On January 28, 1998, she and her husband filed a complaint. Service ofprocess was not completed within the 120-day period provided for in NRCP 4(i), whichexpired on May 28, 1998. Petitioners apparently did not make any attempt to serveprocess during the 120-day period, while settlement negotiations were underway, butserved the Department of Motor Vehicles (DMV) under the substitute serviceprovisions of NRS 14.070 on June 10, 1998, thirteen days after the 120-day periodexpired. On June 16, 1998, petitioners moved for an extension of time for service under NRCP6(b). The district court granted the motion and gave petitioners until June 29,1998, to complete service of process. Real party in interest then moved to quash service. Petitioners opposed the motion.The district court granted the motion, because petitioners “failed to demonstrategood cause for the untimely service” under Dougan v. Gustaveson, 108 Nev. 517, 835P.2d 795 (1992). Petitioners moved for reconsideration, which was denied. Petitioners filed this petition for a writ of mandamus challenging the districtcourt’s order granting the real party in interest’s motion to quash service ofprocess under NRCP 4(i). This court ordered an answer, which was untimely submitted.
[FOOTNOTE 1] Docket No. 34863 On February 5, 1999, real party in interest Louis Pushnick filed a complaint againstpetitioners and others, seeking damages as a result of two auto accidents. After 136days had passed, Pushnick’s counsel sought an extension of time to servepetitioners. Counsel claimed excusable neglect, in that service had not beeneffected because of a “continual change in office staff, [and] an inadvertentconfusion as to the attorney of record.” It appears that the law firm representingPushnick had broken up during the relevant time period. On July 13, 1999, thedistrict court granted an extension until July 19, 1999. On July 22, 1999, anamended order was entered, granting an extension to serve until August 19, 1999.Service was effected on the DMV on July 20, 1999, forty-four days after the 120-dayperiod had run. Subsequently, petitioners joined in a motion to dismiss the complaint under NRCP4(i) for failure to serve process within 120 days of filing, and to vacate theorders granting extensions of time. Pushnick opposed the motion, which was denied.Petitioners filed this petition for a writ of mandamus or prohibition challengingthe district court’s order denying petitioners’ motion to dismiss the action underNRCP 4(i). This court ordered an answer, which was timely filed in this court.
[FOOTNOTE 2] DISCUSSION A writ of mandamus is available to compel the performance of an act that the lawrequires as a duty resulting from an office, trust or station, NRS 34.160, or tocontrol an arbitrary or capricious exercise of discretion. See Round Hill Gen. Imp.Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). A writ of prohibition isavailable to arrest the proceedings of a district court exercising its judicialfunctions, when such proceedings are in excess of the jurisdiction of the districtcourt. See NRS 34.320. Neither writ will issue, however, if petitioner has a plain,speedy and adequate remedy in the ordinary course of law. See NRS 34.170; 34.330.Further, both writs are extraordinary remedies, and it is within the discretion ofthis court to determine if a petition will be considered. See State ex rel. Dep’tTransp. v. Thompson, 99 Nev. 358, 662 P.2d 1338 (1983). In Smith v. District Court,113 Nev. 1343, 1344, 950 P.2d 280, 281 (1997), this court explained that it will notexercise its discretion to consider a petition for a writ of mandamus unlessconsiderations of sound judicial economy and administration militate in favor ofgranting a petition. In addition, this court may exercise its discretion to grant apetition where an important issue of law requires clarification. Id. at 1345, 950P.2d at 281. NRCP 4(i) states that service of the complaint and summons must be made within 120days, or the action will be dismissed without prejudice, unless a plaintiff can showgood cause why service was not made during the 120-day period.
[FOOTNOTE 3] Dismissal ismandatory unless there is a legitimate excuse for failing to serve within the 120days. See Dougan v. Gustaveson, 108 Nev. 517, 835 P.2d 795 (1992). The determinationof good cause is within the district court’s discretion. See Lacey v. Wen-Neva,Inc., 109 Nev. 341, 849 P.2d 260 (1993). Rule 4(i) was promulgated to encourage diligent prosecution of complaints once theyare filed. See Moore v. Shreck, 102 Nev. 163, 717 P.2d 49 (1986) (reversing an orderdismissing a complaint for lack of diligent prosecution because no standard thenprovided for such a dismissal, and at the same time, announcing the adoption of NRCP4(i)). NRCP 4(i) is based on an analogous federal rule, which was adopted as acase-management tool. As two of the leading commentators on federal procedure haveobserved: The 120-day limit on service . . . reflects the modern trend of encouraging more efficient litigation by reducing the time between the institution of an action and service of process. It is hoped that the amended rule, by giving the court the authority to dismiss the plaintiff’s action on its own initiative when the time requirement is not met, will help ease the increasing backlog of cases in the federal courts and the delay in their movement. In that sense, Rule 4(j) attempts to harmonize the open-door policy of the federal court system and the mandate in Rule 1 for the “just, speedy, and inexpensive determination of every action.” 4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure � 1137 at385 (2d ed. 1987) (footnotes omitted).
[FOOTNOTE 4] There are four leading cases from this court construing NRCP 4(i). In Domino v.Gaughan, 103 Nev. 582, 747 P.2d 236 (1987), counsel’s illness and inexperience werefactors in reversing a dismissal under NRCP 4(i), particularly where there wasapparently no prejudice to defendants. There, inexperienced Nevada counsel filed acomplaint at the request of California counsel and thereafter returned the file toCalifornia counsel. California counsel retained the file until ten days before the120-day time period expired. California counsel then asked Nevada counsel to servethe defendant. Nevada counsel, however, experienced difficulties serving the summonsand complaint and in communicating with California counsel. He also fell ill.Although Nevada counsel attempted service within the 120-day time period, he wasunable to complete service until nine days after the NRCP 4(i) deadline. Thedismissal was effectively with prejudice since the statute of limitations hadexpired. This court held that “good cause” existed to excuse late service of thesummons and complaint. Id. at 584, 747 P.2d at 237.
[FOOTNOTE 5] In Dallman v. Merrell, 106 Nev. 929, 803 P.2d 232 (1990), this court affirmed anorder dismissing one of two defendants under NRCP 4(i) where service was effected108 days late. Dallman sued a car dealership and its employee, Merrell. Dallman’soriginal counsel promptly served the dealership, but did not serve Merrell becausecounsel had trouble locating him. Dallman later retained new counsel, who noted thatMerrell had not been served, and used a private investigator to obtain Merrell’saddress through driver’s license records and other car salesmen. The district courtdismissed the complaint as to Merrell without prejudice, holding that Dallman hadnot shown good cause for the failure to serve within 120 days of filing thecomplaint. It is unclear whether the dismissal was effectively with prejudice;nevertheless, the district court dismissed only one of the two defendants andtherefore did not dismiss Dallman’s entire action. Id. at 930-31, 803 P.2d at232-33. This court held that Dallman’s claim that he could not locate Merrell(despite having tried the telephone directory, a city directory, and a processserver) did not establish good cause since Merrell’s address was readily availablefrom the DMV and the county assessor’s office. The fact that service was tardy by108 days was also a consideration. In addition, the district court had concludedthat Merrell had suffered some prejudice from the delay. Id. at 930, 803 P.2d at232-33. In Dougan v. Gustaveson, 108 Nev. 517, 835 P.2d 795 (1992), the summons andcomplaint were filed just before the statute of limitations ran, and the defendantswere served just after the 120-day period expired. Process was served eight dayslate because a secretary had erroneously calendared the date when service was due.After answering the complaint, some of the defendants filed a motion to dismiss fortardy service under NRCP 4(i), and for failure to hold an early case conference andsubmit an early case conference report under NRCP 16.1. The district court grantedthe motions and dismissed the complaint on both grounds. Although the dismissal waswithout prejudice, it was effectively with prejudice, since the statute oflimitations had run. On the Rule 4(i) issue, this court held that good cause was notpresent because an attorney’s “inadvertence does not justify untimely service.”Dougan, 108 Nev. at 520, 835 P.2d at 797. This court also concluded, however, thatthe defendants had waived the issue under NRCP 4(i) by failing to raise it in atimely fashion, and that the district court had erred in dismissing the complaintunder NRCP 16.1. The district court’s judgment of dismissal was therefore reversed.Id. The Dougan court’s observation regarding counsel’s “inadvertence,” is merelydictum, in light of its conclusions regarding the NRCP 4(i) issue on the basis ofwaiver, and is therefore not controlling in any analysis of good cause under NRCP4(i). Finally, in Lacy v. Wen-Neva, Inc., 109 Nev. 341, 849 P.2d 260 (1993), plaintiffLacey filed a complaint against defendant Wen-Neva on the final day of thelimitations period, and then served a copy of the summons and complaint on thedefendant’s agent. Both parties acknowledged that service was improper. In fact, thedefendant informed Lacey in writing that it would not respond to the complaint untilit was properly served. Id. at 343-44, 849 P.2d at 261. After doing nothing withrespect to service for more than one year, Lacey properly served the defendant withan amended complaint. The defendant moved to dismiss, and the district court grantedthe motion. On appeal, Lacey argued that good cause excused the untimely service,because the defendant had actual notice of the action and had entered intosettlement negotiations with him. This court disagreed: Settlement negotiations are no substitute for proper service of a party, and the fact that the parties were negotiating a settlement did not relieve Lacey from properly serving the complaint within 120 days. Absent an agreement between the parties as part of the settlement negotiations that the service requirements of NRCP 4(i) would not be strictly enforced, settlement negotiations alone will not constitute good cause for a plaintiff’s failure to serve process within 120 days of the filing of the complaint. . . . . While there may be circumstances which demonstrate an understanding or agreement between parties sufficient to constitute “good cause” for the plaintiff’s failure to timely serve the complaint, there has been no showing in this case of any agreement between the parties that the time restrictions of the Nevada Rules of Civil Procedure would not be strictly enforced. Id. at 345-46, 849 P.2d at 262 (citation omitted). In addition, Lacey held that filing an amended complaint against the same party doesnot restart the 120-day period for service: [S]ince Lacey did not add a new party to the action, service had to be made within 120 days of filing the original complaint. Lacey did not effect service of either the original or amended complaint within 120 days of the filing of the original complaint, and therefore the district court did not err in dismissing Lacey’s action pursuant to NRCP 4(i). Id. at 349, 849 P.2d at 265 (footnote omitted). We conclude that a number of considerations may govern a district court’s analysisof good cause under NRCP 4(i), and we emphasize that no single consideration iscontrolling. Appropriate considerations include: (1) difficulties in locating thedefendant, (2) the defendant’s efforts at evading service or concealment of improperservice until after the 120-day period has lapsed, (3) the plaintiff’s diligence inattempting to serve the defendant, (4) difficulties encountered by counsel, (5) therunning of the applicable statute of limitations, (6) the parties’ good faithattempts to settle the litigation during the 120-day period, (7) the lapse of timebetween the end of the 120-day period and the actual service of process on thedefendant, (8) the prejudice to the defendant caused by the plaintiff’s delay inserving process, (9) the defendant’s knowledge of the existence of the lawsuit, and(10) any extensions of time for service granted by the district court.
[FOOTNOTE 6] Underlyingthese considerations is the policy behind Rule 4(i) — to encourage the diligentprosecution of complaints. Rule 4(i) was not adopted, however, to become anautomatic sanction when a plaintiff fails to serve the complaint within 120 days offiling. When making a determination under NRCP 4(i), the district court shouldrecognize that “good public policy dictates that cases be adjudicated on theirmerits.” Kahn v. Orme, 108 Nev. 510, 516, 835 P.2d 790, 794 (1992) (citing HotelLast Frontier v. Frontier Prop., 79 Nev. 150, 155-56, 380 P.2d 293, 295 (1963)). We specifically disavow and overrule Lacey to the extent that it stands for theproposition that “settlement negotiations alone will not constitute good cause for aplaintiff’s failure to serve process within 120 days of the filing of thecomplaint.” Lacey, 109 Nev. at 345, 849 P.2d at 262. Negotiations with an eye tosettlement, undertaken in good faith in a serious effort to settle the litigationduring the 120-day period, may constitute good cause for untimely service under NRCP4(i). Additionally, we renounce our dictum in Dougan, which suggests that aninflexible approach should be used in assessing motions to dismiss under Rule 4(i). In Docket No. 33367, we conclude that extraordinary relief is warranted. Under Smithv. District Court, 113 Nev. 1343, 1345, 950 P.2d 280, 281 (1997), as noted above, wemay exercise our discretion to grant a petition where an important issue of lawrequires clarification. It appears that the district court sensed a trend in ourNRCP 4(i) cases from which we now depart. In light of our clarification ofappropriate NRCP 4(i) standards, as well as our disapproval of Lacey and Dougan, weconclude that the petition should be granted. We now expressly conclude that abalanced and multifaceted analysis is warranted in determining whether to dismiss acomplaint under Rule 4(i). Here, petitioners served the DMV shortly after the120-day period expired, after having engaged in settlement negotiations, and withinthe extended period for service. In addition, it is significant that the districtcourt had granted the petitioners additional time for service, and that service waseffected before the extended deadline expired. We also note that the dismissal washighly prejudicial to petitioners, as the statute of limitations had expired, whilethere appeared to be little or no prejudice from late service to the real party ininterest. We therefore grant the petition in Docket No. 33367, and direct the clerkof this court to issue a writ of mandamus compelling the district court to vacateits order dismissing the complaint in District Court Case No. A383803. In Docket No. 34863, we conclude that the district court neither exceeded itsjurisdiction nor manifestly abused its discretion in refusing to dismiss thecomplaint under NRCP 4(i). There, the law firm representing Pushnick underwentserious personnel complications, and Pushnick sought an extension of time to servethe complaint sixteen days after the 120-day period had expired. Additionally,Pushnick’s counsel had obtained additional time to serve petitioners, and servedthem within the time permitted, and it appears that any dismissal would haveeffectively been with prejudice. We perceive no error meriting extraordinary reliefand accordingly deny the petition in Docket No. 34863. :::FOOTNOTES:::
FN1 Real party in interest filed a motion requesting permission to file an untimelyanswer, admitting that this court’s order requesting an answer was overlooked whenit was received by counsel. Petitioners moved to strike the answer as untimely.Having considered the motion and the opposition, we deny the motion to strike andgrant the motion to file the answer. We direct the clerk of the court to file theanswer and appendix received from real party in interest in Docket No. 33367, aswell as petitioners’ opposition to the motion to file an untimely answer.
FN2 Petitioners requested that this court stay the district court proceedings, arguingthat if the petitioners answered the complaint or otherwise generally appeared inthe proceedings below, they would waive the NRCP 4(i) issue that was the subject oftheir petition. On February 1, 2000, we entered a temporary stay. We note, however,that the stay in this instance was unnecessary to preserve the Rule 4(i) issue,because the petitioners would not have waived their argument under NRCP 4(i) merelyby answering the complaint or appearing in the action. To avoid waiver of a defenseof untimely service of process under NRCP 4(i), a defendant must raise the defensein its first responsive pleading or pre-answer motion to dismiss. See NRCP 12(b),12(g), and 12(h)(1) (setting forth procedures for objecting to insufficiency ofservice of process); Dougan v. Gustaveson, 108 Nev. 517, 835 P.2d 795 (1992)(concluding that respondent’s objection to untimely service under NRCP 4(i) wasitself untimely because respondent failed to object in its first responsive pleadingor pre-pleading motion). Once timely raised, the defense of untimely service ispreserved for review, and the defendant may answer the complaint without fear ofwaiving the NRCP 4(i) issue. We therefore vacate our order granting the temporarystay.
FN3If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, 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. NRCP 4(i).
FN4 The analogous Federal Rule of Civil Procedure is currently Rule 4(m), although itwas Rule 4(j) when this passage was written.
FN5 We note that the federal courts, under Federal Rule of Civil Procedure 4(m), thecurrent analog to NRCP 4(i), may consider “if the applicable statute of limitationswould bar the refiled action, or if the defendant is evading service or conceals adefect in attempted service.” Fed. R. Civ. P. 4 advisory committee’s notes.
FN6 In Lacey, defendant promptly warned plaintiff that service was defective, andwaited for proper service of the original complaint. As noted above, instead ofserving the original complaint, plaintiff waited a year, filed an amended complaint,and properly served the amended complaint. Id. at 348, 849 P.2d at 264. Lacey notedthat if service is made upon a defendant within 120 days, but the service isdefective, and the defectiveness of the service was not called to the plaintiff’sattention until after the 120-day period runs, “the NRCP 4(i) ‘good cause’ standardmay, under the circumstances, be applied to prevent the inequity of allowing thedefendant’s concealment of the defectiveness of the service to result in dismissalof the action.” Id. at 348 n.4, 849 P.2d at 264 n.4. We further observe that if the 120-day period is running out, a plaintiff may seekto extend the time to serve under NRCP 6(b). As occurred in the proceedings below,even if the 120-day period has expired, a plaintiff may obtain an extension of theservice period under NRCP 6(b) upon a showing of “excusable neglect.” See NRCP6(b)(2). If a district court finds good cause for tardy service under NRCP 4(i), itshould explicitly extend the time for service, and set a reasonable date by whichservice should be accomplished.
Scrimer v. Eighth Judicial Dist. Court In the Supreme Court of the State of Nevada Alice Scrimer and Gilbert Scrimer, Petitioners, v. The Eighth Judicial District Court of the State of Nevada, in and for the County ofClark, and The Honorable Jack Lehman, District Judge, Respondents, and William D. Scrimer, Real Party in Interest. No. 33367 Filed: May 8, 2000 Before: MAUPIN, SHEARING and BECKER, JJ. Cynthia G. Eviston, Bettie Carter, Gary Colvin, Petitioners, vs. The Eighth Judicial District Court Of The State Of Nevada, In And For The County OfClark, And The Honorable Valorie J. Vega, District Judge, Respondents, and Louis R. Pushnick, Real Party in Interest. No. 34863 Original petitions for extraordinary relief. Petition granted in Docket No. 33367; petition denied in Docket No. 34863. Counsel: Burris & Thomas and Laurence B. Springberg, Las Vegas, for Petitioners Alice Scrimerand Gilbert Scrimer. Turner & Curriden and Samuel A. Kitterman Jr., Las Vegas, for Petitioner Eviston. Barker Brown Busby Crisman & Thomas and Michael D. Demman, Las Vegas, forPetitioners Carter and Colvin, and Real Party in Interest William Scrimer. Williams & Wiese and Donald H. Williams, Las Vegas, for Real Party in InterestPushnick.
