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,
14 WASHOE LEGAL SERVICES, et al;
15 Defendants.
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Case No.: CV11-01955
Dept. No.: 10
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ORDER GRANTING MOTION TO DISMISS FOR INSUFFICIENT PROCESS
18 Presently before the Court is a Motion to Dismiss for Insufficient Process, filed by
19 Defendant TODD TORVINEN (hereafter "Defendant'') on November 15, 2011. Following,
20 on November 30, 2011, Plaintiff ZACH COUGHLIN (hereafter "Plaintiff',) filed an Opposition
21 to Defendant's Torvinen and Elcano's Motions to Dismiss (hereafter "Plaintiff's Opposition").
22 Thereafter, on December 15, 2011, Plaintiff filed a document titled "Opposition to all
23 Defendant's Motions to Dismiss and all Defendant's Motions to Quash Service, Motion for
24 Extension of Time to Respond/Continuance; Opposition to Motion to Tax Costs
25 Simultaneously Seeking Extensions of Time or Continuance to Respond" (hereafter
26 "Plaintiff's First Supplemental Opposition''). The following day, December 16, 2011,
27 Plaintiff filed a document titled "Supplement to Motion for Reconsideration and Motion to
28 Set ASide NRCP 59, 60 Dismissal and Supplement to Opposition to all Defendant's Motions
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1 to Dismiss and all Defendant's Motions to Quash Service, Motion for Extension of Time to
2 Respond/Continuance; Opposition to Motion to Tax Costs Simultaneously Seeking
3 Extensions of Time or Continuance to Respond" (hereafter "Plaintiff's Second Supplemental
4 Opposition''). That same day, Plaintiff also filed a document titled "Opposition to all
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Defendant's Motions to Dismiss; Motion to Set Aside or Vacate Order Granting Dismissal
NRCP 59, NRCP 50; Motion for Reconsideration" (hereafter "Plaintiff's Third Supplemental
Opposition',).! Subsequently, on December 12, 2011, Defendant filed a Reply in Support
of Motion to Dismiss for Insufficient Process. Finally, on December 15, 2011, Defendant
filed a Request for Submission, thereby submitting the matter for the Court's consideration.
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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
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employee, he became aware of several potential legal violations by his former employer.
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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
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violations. Additionally, Plaintiff claims that he was subjected to a hostile work
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environment.
Plaintiff filed suit against his former employer and related entities and individuals on
June 27, 2011, in Case No. CV11-01896. This suit is currently assigned to Department Six
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of the 2
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Judicial District Court. Three days later, on June 30, 2011, Plaintiff filed a secon
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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 Todd Torvinen is named as a defendant in both
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actions. 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.
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 II. Standard of Review
2 Pursuant to NRCP 12(b)(5) the standard of review for a motion to dismiss is
3 rigorous. Blackjack Bonding v. City of Las Vegas Municipal Court, 116 Nev. 1213; 14 P.3d
4 1275 (2000). As such, the Court will construe the pleadings liberally and draw every
5 reasonable inference in favor of the non-moving party. Vacation Village v. Hitachi America,
6 110 Nev. 481,484, 874 P.2d 744, 746 (1994).
7 The purpose of a motion to dismiss is to test the legal sufficiency of the complaint.
8 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). However, there is a strong
9 presumption against dismissing an action for failure to state a claim. See Gilligan v. lamco
10 Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (Citation omitted). Thus, upon being
11 adequately stated, a claim may be supported by showing "enough facts to state a claim to
12 relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1969
13 (2007) (citation omitted). However, the factual allegations included in a complaint "must
14 be enough to raise a right to relief above the speculative leveL" fd. at 1964-65. ''The
15 pleading must contain something more ... than ... a statement of facts that merely creates
16 a suspicion [of] a legally cognizable right of action." fd. at 1965.
17 III. Legal Analysis
18 As noted above, Defendants seek to dismiss Plaintiff's claim for insufficient service 0
19 process pursuant to NRCP 12(b)(4). As explained below, the Court agrees that service of
20 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,
separate or additional summons shall issue against any
defendants.
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1 While NRCP 4 does not go into further details on the requirement that a plaintiff
2 serve the defendant with a "copy" of the complaint, this Court draws guidance from WOCR
3 10(1) and OCR 12(1). Both of those provisions are aimed at ensuring that pleadings and
4 other papers filed with the Court are legible and suitable for copies to be made that may b
5 reviewed by the Court, the parties, and the public. To ensure legibility, the provisions
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require that all papers and pleadings be presented on 8 V2 x 11 inch paper and that the
font size be between 10 and 12 points.
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Unless these requirements are met, the Court will
refuse filing. Together with the common usage of the word "copy," these rules suggest
that a copy must accurately reproduce the original from which it is made. Moreover,
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copies of legal papers and pleadings must be legible to facilitate the review of such papers.
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Turning to the case at hand, Plaintiff shrunk the pages of his complaint so that each
13 of his 8 112 x. 11 inch pages actually contained nine shrunken pages. As a result, each
14 page is squeezed into a space that is approximately 3 inches high by two inches wide, and
15 the font on those shrunken pages is miniscule and illegible. Clearly, the shrunken pages do
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18 2 WOCR 10(1) provides that:
All pleadings and papers presented for filing must be flat, unfolded, firmly
bound together at the top, on white paper of standard quality, not less
than 16-lb. weight and 8 1/2 x 11 inches in size. All papers must be
typewritten or prepared by some other duplicating process that will
produce clear and permanent copies equally legible to printing. The font
size shall not be more than 12 pOints. Photocopies may not be filed,
except as provided in section 6 of this rule. Only one side of the paper
may be used.
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OCR 12(1) provides that:
All pleadings and papers presented for filing shall be flat, unfolded, firmly
bound together at the top, on white paper of standard quality, not less
than 16-lb. weight and 8 1/2 by 11 inches in size. All papers shall be
typewritten or prepared by some other duplication process that will
produce clear and permanent copies equally legible to printing. Type may
not be smaller than pica size, and may be either 10-or 12-point type.
Carbon or photocopies may not be filed, except as provided in subsection
6 of this rule. Only one side of the paper may be used.
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1 not accurately reproduce the original filing of the Complaint, nor would they be sUitable for
2 filing under WDCR 10(1) and DCR(l).
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In his oppositions, Plaintiff concedes that he shrunk the complaint as described by
4 Defendant, and does not contest that he failed to provide Defendant with an accurate
5 reproduction of his complaint. In his Second Supplemental Opposition, Plaintiff asserts
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that: "I actually spent about 4 hours researching the issue [of what constitutes a valid
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copy] and if given the time could provide the court with some real insight into the issue."
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However, aside from this unsupported and unexplained assertion, Plaintiff completely fails
to respond to Defendant's argument in all four of the oppositions he filed in response to
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Defendant's motion. Plaintiff does not cite any law relating to this issue, nor does he make
12 any kind of argument as to why he believes service of such shrunken pages is sufficient
13 under NRCP 4. Despite filing fouroppositions, Plaintiff has failed to respond to Defendant's
14 argument. The Court considers Plaintiff's failure to respond to Defendant's argument as an
15 admission of the argument's merit. See Polk v. State, 126 Nev. Adv. Op. 19, 233 P.3d 357
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17 By serving Defendant with a shrunken and illegible copy of the Complaint, Plaintiff
18 has intentionally thwarted the purpose of NRCP 4. For all of the above reasons, the Court
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1 concludes that Plaintiff's service of process was insufficient pursuant to NRCP 4, and the
2 Court will dismiss his claims against Defendant.
3 NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant's Motion to
4 Dismiss for Insufficient Process is GRANTED.
5 IT IS FURTHER ORDERED that Plaintiff's Complaint against Defendant is
6 DISMISSED WITHOUT PREJUDICE.
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DATED this (';).
day of JanualY, 2 : ~
STEVEN P. ELLIOTT
District Judge
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CERTIFICATE OF MAILING
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 COMMmEE 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 -e'_J-- __ day of January, 2 0 1 ~ ~
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Judicial Assistant
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