{Converted to text using OCR. The PDF is the controlling document. JM}
REC’D & FILED
2011 JUL - 5 AM 11:15
ALAN GLOVER CLERK
BY DEPUTY _________
ROPP
JOHN PETER LEE, LTD.
JOHN PETER LEE, ESQ. Nevada Bar No. 001768
JOHN C. COURTNEY, ESQ. Nevada Bar No. 011092
830 Las Vegas Boulevard South Las Vegas, Nevada 89101
(702) 382-4044 Fax: (702) 383-9950
e-mail: info@johnpeterlee.com
Attorneys for Defendant Reza Zandian
IN THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA
IN AND FOR CARSON CITY
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JED MARGOLIN, an individual, Plaintiff, VS.
OPTIMA TECHNOLOGY CORPORATION, a California corporation, OPTIMA TECHNOLOGY CORPORATION, a Nevada corporation, REZA ZANDIAN aka GOLAMREZA ZANDIANJAZI aka GHOLAM REZA ZANDIAN aka REZA JAZI aka J. REZA JAZI aka G. REZA JAZI aka GHONONREZA ZANDIAN JAZI, an individual, DOE Companies 1-10, DOE Corporations 11-20, and DOE Individuals 21-30, Defendants.
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Case No.: 09OC00579 1B Dept. No.: I
REPLY TO OPPOSITION TO MOTION TO DISMISS ON A SPECIAL APPEARANCE
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COMES NOW Defendant Reza Zandian by and through his counsel John Peter Lee, Ltd., and hereby files his REPLY TO OPPOSITION TO MOTION TO DISMISS ON A SPECIAL APPEARANCE.
This Reply is made and based upon all of the pleadings and papers on file herein, exhibits attached hereto, the attached Memorandum of Points and Authorities; and oral argument, if required by the Court.
MEMORANDUM OF POINTS AND AUTHORITIES
I.
ZANDIAN HAS NOT BEEN SERVED IN THE INSTANT ACTION
Zandian's position, as stated in the instant motion to dismiss, is that he was never served with process in the instant action. Mtn. to Dismiss, p. 3, 1110-11. The Declaration of the process server attached to Plaintiff's Opposition as Exhibit "2" clearly states that the unidentified man served by Plaintiff’s process server told the server that Zandian did not reside at the home where service was tried. See Opposition, Ex. 2,11. 18-28. This is the only proof that Plaintiff has submitted to evidence that Zandian was served at his place of residence, however, the Plaintiff submitted a statement indicating that the residence was not Zandian's. Thus, Plaintiff has not met its burden of proof demonstrating that Zandian was served at his residence or any other place.
Plaintiff also relies on letter attached to Plaintiffs Opposition as Exhibit "3" as proof that Zandian was served. See Opposition, p. 5,11. 2-5. This letter was sent to the offices of John Peter Lee, Ltd., not to Zandian. At the time that this letter was sent, John Peter Lee, Ltd. was not the legal counsel for Zandian in the instant action. There is no legal authority whatsoever which would indicate that this is a form of proper service. Therefore, this letter is irrelevant as to whether or not Zandian was served with a summons and complaint in the instant action.
As previously stated in the instant motion to dismiss, the Complaint alleges that Zandian lives in San Diego, California or Las Vegas, Nevada. The motion also states, "Although Margolin alleged that Zandian resides in Las Vegas or San Diego, Margolin did not attempt service on Zandian at his alleged residence, but instead attempted service on Zandian in an entirely different city, Fair Oaks, California." The instant opposition does not address this issue so that Zandi an has never been given a reason why service was never attempted at his alleged places of residences, but instead served to someone who reported to the server that Zandian did not reside at the residence where service was allegedly 'effectuated. Moreover, in the Complaint, Plaintiff implies that venue is properly before First District Court because Zandian may be a resident of Storey County. Compl., p. 3,11. 1-3. There is no evidence that service was ever attempted on Zandian in Storey County either. In fact, all of the evidence presented suggest that Plaintiff may have intentionally served
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Zandian at a location that Plaintiff either knew or believed was not Zandian's residence in order to take a default. Thus, Plaintiff cannot meet his burden of proof demonstrating that Zandian was afforded his constitutional due process right of notice as prescribed by the clear an unambiguous rules regarding service.
II.
PLAINTIFF'S COUNTERMOTION TO STRIKE ZANDIAN'S MOTION AND TO PROVIDE A MORE DEFINITE STATEMENT MUST BE DENIED.
N.R.C.P. 12(f) provides the basis for a motion to strike:
Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
The Plaintiff's motion meets none of the requirements and must be denied.
Furthermore, Plaintiffs countermotion to strike the instant motion to dismiss is without merit. Plaintiff suggest that Zandian waived the right to object to insufficiencies with respect to service and personal jurisdiction because Zandian did not respond in a timely manner. Zandian, however, could not have been expected to respond to Plaintiff's Complaint before he was given proper notice thereof. Thus, Plaintiff s countermotion in this regard must be denied.
The Complaint cannot be save now, considering that it was filed 2009, and was not served within the time prescribed by NRCP 4(i) (stating in pertinent part, "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"). Thus Plaintiff s countermotion in this regard must be denied.
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V.
CONCLUSION.
For the above stated reasons, Zandian's Motion to Dismiss Plaintiff's Complaint must be granted, and Plaintiff's countermotions to strike Zandian's objection and to permit Plaintiff to provide a more definite statement must be denied.
DATED this 1st day of July, 2011.
JOHN PETER LEE, LTD.
BY: ________________________
JOHN PETER LEE, ESQ.
Nevada Bar No. 001768
JOHN C. COURTNEY, ESQ,
Nevada Bar No. 011092
830 Las Vegas Boulevard South
Las Vegas, Nevada 89101
Ph: (702) 382-4044/Fax: (702) 383-9950
Attorneys for Defendant Reza Zandian
CERTIFICATE OF MAILING
I HEREBY CERTIFY that on the 1st day of July, 2011, a copy of the foregoing REPLY TO OPPOSITION TO MOTION TO DISMISS ON A SPECIAL APPEARANCE was served on the following parties by mailing a copy thereof, first class mail, postage prepaid, addressed to:
Adam McAllen, Esq
Watson Rounds
5371 Kietzke Lane Reno, NV 89511
___________________
An employee of
JOHN PETER LEE, LTD.
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