{ Converted to text using OCR. The PDF is the controlling document. The Exhibit is in the PDF. JM}
REC'D & Filed
2013 DEC 20 PM 3:31
ALAN GLOVER CLERK
BY DEPUTY __________
MSAD
GEOFFREY W. HAWKINS, ESQ.
Nevada Bar No. 7740
JOHNATHON FAYEGHI, ESQ.
Nevada Bar No. 12736
HAWKINS MELENDREZ, P.C.
9555 Hillwood Drive, Suite 150
Las Vegas, Nevada 89134
Phone: (702) 318-8800
Fax: (702) 318-8801
ghawkins@,hawkinsmelendrez.com
Attorneys for Defendant
Reza Zandian aka Goamreza Zandian aka Gholamreza ZandianJazi aka Reza Jazi aka J. Reza Jazi aka G. Reza Jazi aka Ghononreza Zandian Jazi
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
DEFENDANT REZA ZANDIAN AKA GOLAMREZA ZANDIANJAZI AKA GHOLAM REZA ZANDIAN AKA REZA JAZI AKA J. REZA JAZI AKA G. REZA JAZI AKA GHONONREZA ZANDIAN JAZI'S MOTION TO SET ASIDE DEFAULT JUDGMENT
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Defendant REZA ZANDIAN ("Zandian") by and through his attorney Geoffrey W. Hawkins, Esq., of the law firm HAWKINS MELENDREZ P.C., and pursuant to NRCP 55 and 60,
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hereby moves for an order from this Court to set aside the default judgment entered against Zandian in the above-captioned matter.
This motion is made and based upon the attached Memorandum of Points and Authorities, the attached exhibits, the pleadings and papers on file herein, and any oral argument this Honorable Court may allow.
DATED this 19th day of December, 2013.
HAWKINS MELENDREZ, P.C.
GEOFFREY W. HAWKINS, ESQ.
Nevada Bar No. 7740
JOHNATHON FAYEGHI, ESQ.
Nevada Bar No. 12736
9555 Hillwood Drive, Suite 150
Las Vegas, NV 89134
Phone: (702) 318-8800
Attorneys for Defendant
Reza Zandian
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POINTS AND AUTHORITIES
I.
STATEMENT OF FACTS
The instant matter arises out of Plaintiff JED MARGOLIN's ("Plaintiff') allegations of fraudulent conduct on the part of Zandian and other defendants with regard to United States Patent Nos. 5,566,073, 5,904,724, 5,978,488, and 6,377,436.
Plaintiff's Original Complaint was filed on or about December 11, 2009 against Zandian, Optima Technology Corporation, a California corporation (Optima CA), and Optima Technology Corporation, a Nevada corporation (Optima NV). Plaintiff's Complaint alleged the following causes of action: (1) Conversion; (2) Tortious Interference With Contract; (3) Intentional Interference With Prospective Economic Advantage; (4) Unjust Enrichment; and (5) Unfair and Deceptive Trade Practices. On or about December 2, 2010, Plaintiff filed an Application for Entry of Default against Zandian for failure to respond to Plaintiffs Complaint. On or about March 1, 2011 default was entered against Zandian. Then on or about June 9, 2011, Zandian's prior counsel, John Peter Lee, Esq., filed a Motion to Dismiss on a Special Appearance on behalf of Zandian, Optima CA and Optima NV. On August 3, 2011, this Court set aside the default against Zandian, Optima CA and Optima NV; denied Mr. Lee's Motion to Dismiss, and granted Plaintiff and extension of time for service.
On or about August 11, 2011, Plaintiff filed his Amended Complaint against Zandian, Optima CA, and Optima NV. At the time Plaintiff's Amended Complaint was filed, Zandian was still represented by John Peter Lee, Esq. On or about February 17, 2012, Zandian's prior counsel, John Peter Lee, Esq., filed a Motion to Dismiss Amended Complaint on Special Appearance. On or about February 21, 2012, this Court issued an order denying the Motion to Dismiss Amended Complaint.
On or about March 5, 2012, Zandian filed a General Denial to the Amended Complaint. Shortly thereafter, Mr. Lee's office filed a Motion to Withdraw on or about March 7, 2012. In his Motion to Withdraw, Mr. Lee provided the Court with an incorrect last known address for Zandian. The address provided was 8775 Costa Verde Blvd., San Diego, CA 92122. As Plaintiff is well
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aware, Zandian has not lived in the US for over three years. Zandian has resided at 6 Rue Edouard Fournier, 75116 Paris, France since August 2011. In fact, Plaintiff's counsel's firm had knowledge of Zandian's French address as early as March 2013 due to its representation of Fred Sadri in the Nevada Supreme Court Case No. 62839/Eighth Judicial District Court Case No. A635430. (See Notice of Appeal in Case No. A635430, attached hereto as Exhibit A).
On or about July 16, 2012, Plaintiff allegedly served Zandian with written discovery. However, Zandian never received any written discovery due to the fact that said written discovery was mailed to the address mistakenly provided in John Peter Lee Esq.'s Motion to Withdraw. Due to the fact that Zandian never received Plaintiffs written discovery, responses to the same were never provided. On or about, December 14, 2012, Plaintiff filed a Motion for Sanctions Pursuant to NRCP 37. In Plaintiff's Motion for Sanctions, Plaintiff requested the Court to strike Zandian's General Denial and award Plaintiff his fees and costs incurred in bringing the motion. Again, Zandian never received said Motion for Sanctions and as a result no opposition was filed. On or about, January 15, 2013, this Court issued an order striking the General Denial of Zandian and awarded Plaintiff his fees and costs incurred in bringing the Motion for Sanctions.
On or about March 28, 2013 the Clerk of this Court entered default against Zandian. On or about April 5, 2013, Plaintiff filed an Amended Notice of Entry of Default against Zandian. A copy of said Amended Notice of Entry of Default was again mailed to the incorrect address provided in Zandian's prior counsel's Motion to Withdraw. Plaintiff failed to mail a copy of the Amended Notice of Entry of Default to Zandian's French address, despite having knowledge of said address back in March of 2013. See Exhibit A.
On or about April 17, 2013, Plaintiff filed an Application for Entry of Default Judgment against Zandian. A copy of Plaintiff’s Application was again mailed to the incorrect address provided in John Peter Lee's Motion to Withdraw, despite Plaintiff s knowledge of Zandian's correct address in France. See Exhibit A. Furthermore, Plaintiff filed his Application for Entry of Default Judgment without providing any notice to Zandian of the impending filing despite Plaintiffs previous and extensive dealings with Zandian. On June 24, 2013 this Court entered a Default Judgment against Zandian. On June 27, 2013, Plaintiff filed a Notice of Entry of Default
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Judgment against Zandian. Both the June 24, 2013 Default Judgment and the June 27, 2013 Notice of Entry of Default Judgment were mailed to the incorrect mailing address by Plaintiff, despite Plaintiff's knowledge of Zandian's correct address in France.
Plaintiff's failure to provide notice to Zandian of the Application for Default Judgment violates the Rules of Civil Procedure. Defendant clearly has good cause for the instant Default Judgment to be set aside based upon NRCP 55(b)(2) and NRCP 55(c)'s incorporation of NRCP 60(b)(1)'s allowance for inadvertence, surprise and excusable neglect as evidence of good cause. Intermountain Lumber and Builders Supply, Inc. v. Glen Falls Insurance Co., 83 Nev. 126,129, 424 P.2d 884, 886 (1967). As such, Defendant should be allowed the opportunity to Set Aside the Default Judgment and be provided the opportunity to file a responsive pleading of its choice in this matter.
II.
STATEMENT OF LAW
NRCP 55(c) provides that, in the court's discretion, a default judgment may be set aside in accordance with NRCP 60. NRCP 60 provides the moving party relief, in part, through rules 60(b) and 60(c). NRCP 60(b) states in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party;
The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than 6 months after the
proceeding was taken or the date that written notice of entry of the judgment or order was served.
If mistake, inadvertence, neglect, fraud, adverse party, or discharged judgment is shown, an order or judgment should be withdrawn and the
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issues should be addressed on their proper merits. Furthermore, it is a firmly established policy of the Nevada Supreme Court that "justice is best served when controversies are resolved on their merits whenever possible." Gutenberger v. Continental Thrift and Loan Company, 94 Nev. 173, 175, 576 P.2d 745 (1978).
"The salutary purpose of Rule 60(b) is to redress any injustices that may have resulted because of excusable neglect or the wrongs of an opposing party. Rule 60 should, therefore, be liberally construed to effectuate that purpose." Carlson v. Carlson, 108 Nev. 358, 361-362, 832 P.2d 380, 382 (1992), quoting Nevada Indus. Devel., Inc. v. Benedetti, 103 Nev. 360, 364, 741 P.2d 802, 805 (1987).
If a defendant enters an appearance or if the plaintiff knows of the identity of defendant's counsel, the plaintiff has an obligation to notify the defendant of his intent to take a default. Rowland v. Lepire, 95 Nev. 639, 600 P.2d 237 (1979); Gazin v. Hoy, 102 Nev. at 438; Nev.Sup.CT.R. 1752. A failure to provide notice requires such default to be set aside. Id. "An appearance within the contemplation of NRCP 55(b)(2) does not necessarily require some presentation or submission to the court... [t]hat rule is designed to insure (sic) fairness to a party or his representative who has indicated a clear purpose to defend the suit." Christy v. Carlise, 99 Nev. 612, 584 P.2d 687 (1978).
The Nevada Supreme Court construes the term "appearance" loosely to allow for situations where plaintiffs counsel has awareness of the identity of defendant's counsel or when plaintiff knows that the defendant intends to defend itself against plaintiff’s suit. Christy v. Carlise. 94 Nev. 651, 584 P.2d 687 (1978); Franklin v. Bartsas Realty. 95 Nev. 559, 598 P.2d 1147 (1979); Gazin v. Hoy. 102 Nev. at 438. Such awareness compels the plaintiff, pursuant to the rules of professional responsibility, to make an inquiry of the defendant's intentions to litigate the matter before he proceeds with the entry of a default. Cen Val Leasing Corporation v. Bockman. 99 Nev. 612, 668 P.2d 1074 (1983). Failure to make such inquiry mandates that the default be set aside. Id.
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III.
LEGAL ARGUMENT
A. Plaintiff Failed To Provide Zandian With Written Notice Of Application For Default Judgment.
In Christy v. Carlisle, the Nevada Supreme Court held "written notice of application for default judgment must be given if the defendant or representative has appeared in the action. The failure to serve such notice voids the judgment." Christy v. Carlise. 94 Nev. 651, 584 P.2d 687 (1978). In Christy, the defendant's insurance carrier was notified by plaintiff's counsel of the lawsuit and was advised that it had an indefinite extension of time to answer. See Id. Negotiations ensued between plaintiff and the insurance company, however a settlement was not reached. Plaintiff's counsel then caused service of process to be made upon the director of the department of motor vehicles pursuant to NRS 14.070. See Id.
The summons and complaint were mailed to the defendant's Las Vegas address, however the defendant had moved. As a result, neither the defendant nor her insurance company received actual notice that service of process had been made. See Id. Plaintiff obtained a default judgment against the defendant for failure to respond to the complaint. Upon learning of the default judgment (which was outside the 6-month time period) defendant's counsel filed a motion to set aside default judgment pursuant to Rule 55(b)(2). See Id. Defendant's counsel argued that for the purposes of that rule the defendant had appeared in the action and was entitled to written notice of application for judgment. The district court ruled that the settlement negotiations and exchange of correspondence between plaintiff's counsel and the defendant's insurance company should be deemed an appearance within the intendment of Rule 55(b)(2) requiring a 3-day notice of the application for default judgment. See Id. Since no notice was provided, the district court set aside the default judgment and provided the defendant with additional time to file a responsive pleading. On appeal, the Supreme Court affirmed the district court's decision. See Id.
In this case, Zandian seeks relief from the entry of Default Judgment against him based on Plaintiffs failure to provide a three day notice of Plaintiff s Application for Entry of Default Judgment. As stated above, prior to filing his April 17, 2013 Application for Entry of Default
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Judgment Plaintiff, through his counsel, had knowledge of Zandian's personal residence in France. See Exhibit A. However, Plaintiff failed to provide Zandian with the required three-day notice, despite knowing that Zandian intended to defend himself against Plaintiff’s suit, as evidenced by Zandian's February 17, 2012 Motion to Dismiss and March 5, 2012 General Denial. Furthermore, Plaintiff failed to mail a copy of the April 5, 2013 Amended Notice of Entry of Default and the April 17, 2013 Application for Entry of Default Judgment to Zandian's French address despite knowledge of said address. Due to Plaintiffs failure to provide the required three day notice, failure to mail a copy of the April 5, 2013 Amended Notice of Entry of Default to Zandian's correct address in France, and subsequent failures to mail a copy of the April 17, 2013 Application for Entry of Default Judgment, the June 24, 2013 Default Judgment and the June 27, 2013 Notice of Entry of Default Judgment to Zandian's French address, Zandian was unaware of the impending default. Therefore, pursuant to NRCP 55(b)(2) and the holding in Christy, Zandian is entitled to a set aside of Plaintiffs Default Judgment.
B. Mistake, Inadvertence, Surprise, or Excusable Neglect is Present
For a party to seek relief from judgment or order under NRCP 60(b)(1), he must demonstrate that the judgment was a result of mistake, inadvertence, surprise, or excusable neglect, and a meritorious defense must be tendered within a timely manner. Gutenberger, 94 Nev. at 175. In addition to the reasons set forth in Paragraph A, Zandian seeks relief from the Default Judgment based on excusable neglect.
In Stoecklein v. Johnson Elec., Inc., the Nevada Supreme Court considered a similar set of facts as found in the instant matter. In Stoecklein the plaintiff filed a complaint against Stoecklein and five other defendants. An answer was filed by the defendants and subsequently a scheduling order for the trial was sent to counsel for the parties stating that the parties should be ready for trial on September 30, 1991. The scheduling order stated that the court would notify the attorneys for each party of the date of trial and any pretrial deadlines. See Stoecklein v. Johnson Elec., Inc., 109 Nev. 268, 849 P.2d 305 (1991). However, on August 19, 1991 Stoecklein's counsel withdrew due to nonpayment of legal fees. See Id. The order of withdrawal filed with the district court provided an incorrect address for future pleadings to be served on Stoecklein. See Id. As such, Stoecklein
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never received notice from the court of the trial date. A bench trial was held, however Stoecklein failed to appear. Judgment was then entered against Stoecklein and the other defendants.
Following the bench trial, Plaintiffs counsel sent the notice of the judgment to Stoecklein's correct address. See Id. Upon receipt of the notice of judgment, Stoecklein immediately obtained counsel and filed a motion for relief from judgment under NRCP 60(b)(1). See Id. The motion was based on Stoecklein's assertion that he had received no notice of the trial date. The district court denied Stoecklein's motion. See Id.
On appeal, the Nevada Supreme Court held that there was no evidence in the record that showed notice of the trial date was sent to or received by Stoecklein. Therefore, Stoecklein's failure to appear for trial was due to circumstances that constitute excusable neglect under NRCP 60(b)(1). See Id.
In the instant matter, Zandian's prior counsel, John Peter Lee Esq., withdrew as counsel on or about March 7, 2012, due to a break down in communications among other things. In his Motion to Withdraw, John Peter Lee Esq., provided an incorrect address for future pleadings and discovery to be served on Zandian. As such, Zandian never received any pleadings or discovery in this matter after April 26, 2012 (the date the Court granted John Peter Lee Esq.'s Motion to Withdraw). Specifically, Zandian did not receive the following: (1) Plaintiffs written discovery which was allegedly served on July 16, 2012; (2) Plaintiff's December 14, 2012 Motion for Sanctions Pursuant to NRCP 37; (3) the January 15, 2013 Order striking the General Denial of Zandian and awarding Plaintiff his fees and costs incurred in bringing the Motion for Sanctions; (4) the April 5, 2013, Amended Notice of Entry of Default against Zandian; (5) Plaintiff's April 17, 2013, Application for Entry of Default Judgment against Zandian; (6) the June 24, 2013 Default Judgment; and (7) the June 27, 2013 Notice of Entry of Default Judgment. Zandian only learned of the Default Judgment while visiting the US on business in late November of 2013. Upon learning of the Default Judgment, Zandian retained the law firm of Hawkins Melendrez P.C. to file the instant motion.
As was the case in Stoecklein, Zandian's failure to respond to Plaintiffs written discovery and failure to oppose Plaintiff's Motion for Sanctions and Application for Entry of Default Judgment were due to circumstances that constitute excusable neglect under NRCP 60(b)(1).
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Furthermore, there are several factors the Court should use to determine whether the conditions of 60(b)(1) have been met: (1) prompt application to remove the judgment; (2) a lack of intent to delay the proceedings; (3) ignorance on the part of counsel or party as to procedure; and (4) good faith. Ogle v. Miller, 87 Nev. 573, 576,491 P.2d 40,42 (1971).
1. Zandian Promptly Files This Motion
Rule 60(b)(1) states that a motion under subsection (b)(1) must be brought "not more than six months after judgment, order, or proceeding was entered or taken." NRCP 60(b)(1); see also Deal v. Baines, 110 Nev. 509, 512, 874 P.2d 775 (1994). This Court has found prompt application to remove the judgment is a persuasive factor. See Hotel Last Frontier Corporation v. Frontier Properties, Inc., 79 Nev. 150, 154, 380 P.2d 283 (1963). In this case, the Default Judgment was entered on or about June 24, 2013 and the Notice of Entry of Default Judgment was filed on or about June 27, 2013. Zandian learned of the Default Judgment in late November of 2013 while visiting the US on business. Upon learning of the Default Judgment, Zandian retained Hawkins Melendrez, P.C. to represent him in this matter. Zandian's current motion comes less than six months after the entry of the Default Judgment. Therefore, Zandian has promptly applied for the removal of the Default Judgment.
2. There Is No Intent To Delay The Proceedings
This Court has also found the absence of intent to delay proceedings a persuasive factor. Id. As previously stated, Zandian's prior counsel, John Peter Lee, Esq., withdrew as counsel on or about March 7, 2012. Furthermore, the last known address provided by Mr. Lee in his Motion to Withdraw was inaccurate. From April 26, 2012 Zandian did not receive any of the pleadings or discovery filed in this case. In late November 2013, Zandian learned of the Default Judgment while visiting the US for business purposes. Upon learning of the Default Judgment, Zandian immediately retained the services of Hawkins Melendrez P.C. Now, having retained counsel, Zandian files this Motion in order to state his meritorious defenses and proceed to have the trier of fact make a determination.
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3. Zandian Lacks Knowledge of Procedural Requirements
Lack of knowledge of the party or counsel as to procedural requirements has been given weight by this Court. See Hotel, 79 Nev. at 154. In this case, Zandian was without counsel as of March 7, 2012. As such, Zandian was unaware of the procedural requirements. Now, having retained counsel, Zandian files this Motion.
4. Zandian Files This Motion In Good Faith.
Of the multiple elements, this Court has found good faith to be the most significant. Id. In Stocklein v. Johnson Electric, 109 Nev. 268, 849 P.2d 305 (1993), the Nevada Supreme Court stated that "good faith is an intangible and abstract quality with no technical meaning or definition and encompasses, among other things, an honest belief, the absence of malice, and the absence of design to defraud." (quoting Doyle v. Gordan, 158 N.Y.S.2d 248, 259060 (Sup. Ct. 1954). There is no question that Zandian is acting in good faith by seeking to have this Court set aside the Default Judgment. The last known address provided by Zandian's prior counsel in his Motion to Withdraw was inaccurate. As such, from April 26, 2012 on Zandian did not receive any of the pleadings or discovery filed in this case. Zandian did not receive Plaintiff's written discovery, Plaintiffs Motion for Sanctions, or Plaintiff's Application for Entry of Default Judgment. Zandian only learned of the Default Judgment in November of 2013. Immediately upon learning of the Default Judgment, Zandian retained the law firm of Hawkins Melendrez P.C. The instant Motion comes less than six months after the entry of the Default Judgment.
C. Although A Meritorious Defense Is No Longer Required, Zandian Has Clearly Demonstrated A Meritorious Defense
Prior to 1990, this Court had consistently held that a party moving to set aside a default judgment must show a meritorious defense to the claim. See Sealed Unit Parts v. Alpha Gamma Ch., 99 Nev. 641, 643, 668 P.2d 288, 289 (1983). However, in Price v. Dunn, 106 Nev. 100, 787 P.2d 785 (1990), this Court ruled that the meritorious defense requirement must be set aside pursuant to the United States Supreme Court holding in Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S.CT. 896, 99 L. Ed. 2d 75 (1988). Most recently, in Epstein v. Epstein, 113 Nev.
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1401, 950 P.2d 771, the Nevada Supreme Court overruled the requirement that a party must show a meritorious defense because it is inconsistent with the holding in Price and Peralta.
Despite the fact that Zandian is not required to demonstrate a meritorious defense pursuant to Price and Epstein, Zandian has clearly demonstrated a meritorious defense through his June 9, 2011 and February 17, 2012 Motions to Dismiss as well as his March 5, 2012 General Denial.
IV.
CONCLUSION
Based on the foregoing points and authorities, Defendant Reza Zandian respectfully requests that the default judgment be set aside to allow him to respond as intended.
AFFIRMATION PURSUANT TO NRS 239B.030
The undersigned does hereby affirm that the preceding document does not contain the social security number of any person.
DECLARATION
The undersigned also declares under penalty of perjury that the foregoing is true and accurate to the best of my knowledge.
Dated this 19th day of December, 2013.
HAWKINS MELENDREZ, P.C.
____________________________________
GEOFFREY W. HAWKINS, ESQ.
Nevada Bar No. 7740
JOHNATHON FAYEGHI, ESQ.
Nevada Bar No. 12736
9555 Hillwood Drive, Suite 150
Las Vegas, NV 89134
Phone: (702) 318-8800
Attorneys for Defendant
Reza Zandian
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CERTIFICATE OF SERVICE
Pursuant to Nevada Rules of Civil Procedure 5(b), I hereby certify that, on the 19th day of December, 2013, service of DEFENDANT REZA ZANDIAN AKA GOLAMREZA ZANDIANJAZI AKA GHOLAM REZA ZANDIAN AKA REZA JAZI AKA J. REZA JAZI AKA G. REZA JAZI AKA GHONONREZA ZANDIAN JAZI'S MOTION TO SET ASIDE DEFAULT JUDGMENT was made this date by depositing a true copy of the same for mailing, first class mail, at Las Vegas, Nevada, addressed follows:
Matthew D. Francis
Adam P. McMillen
WATSON ROUNDS
5371 Kietzke Lane
Reno, Nevada 89511
Attorneys for Plaintiff
Jed Margolin
__________________________________
An employee of Hawkins Melendrez, P.C.
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