https://scholar.google.com/scholar_case?case=394923290241786322&q=116+Nev.+650&hl=en&as_sdt=4,29
6 P.3d 982 (2000)
Supreme Court of
August 21, 2000.
983*983 Hunterton & Associates and Terry John Care,
Smith
Larsen & Wixom and Stewart C. Fitts, Las Vegas; Law Office of V. Andrew
Cass and Michael R. Hall, Las Vegas; and Amesbury & Schutt, Las Vegas, for
Real Parties in Interest.
BEFORE
THE COURT EN BANC.
PER
CURIAM:
This
is an original petition for a writ of prohibition challenging a district court
order that denied a motion to quash service of process for lack of personal
jurisdiction. Petitioner has filed a motion for a stay of the district court
proceedings pending resolution of the petition so that it will not be forced to
risk making a general appearance by answering the complaint filed against it.
We conclude that the special/general appearance doctrine should be abrogated in
light of the 1998 amendments to NRCP 12(b) and several recent decisions of this
court, and that a stay is not warranted.
Real
party in interest Robert P. Gustavson filed a complaint in the district court
against real party in interest Ramparts, Inc., alleging that he was injured
when a chair broke at its property, the Luxor Hotel and Casino. Ramparts then
filed a third-party complaint against real party in interest International
Contract Furnishings, Inc. ("ICF"), the vendor of the chair. ICF
subsequently filed its own third-party complaint against the chair's
manufacturer, petitioner Fritz Hansen A/S. Fritz Hansen moved to quash service
of process, arguing that the district court lacked personal jurisdiction over
it. Without holding an evidentiary hearing, the district court denied the
motion. Shortly thereafter, ICF served a notice of its intention to take
default; that same day, Fritz Hansen filed its petition in this court. Fritz
Hansen later filed a motion in the district court for a stay of proceedings,
pending resolution of the writ petition, which the district court denied. Fritz
Hansen now seeks a stay in this court.
Fritz
Hansen is understandably concerned that if the litigation proceeds and it
answers the complaint to avoid entry of default, it will have been deemed to
have made a general appearance, thus waiving its contention that the district
court lacks jurisdiction over it. This court has long endorsed the special/general
appearance doctrine, which is the basis for much confusion and complexity
regarding jurisdictional defenses and procedures in
Previously,
we have explained that "[a] general appearance is entered when a person
(or the person's attorney) comes into court as party to a suit and submits to
the jurisdiction of the court. A special appearance is entered when a person
comes into court to test the court's jurisdiction or the sufficiency of
service." Milton v. Gesler, 107 Nev.
767, 769, 819 P.2d 245, 247 (1991). More specifically, "when a
defendant requests a remedy in addition to relief from jurisdictional defects
or defective service of process, the defendant enters a general appearance and
submits to the jurisdiction of the court."
The federal courts have concluded that the special/general appearance doctrine was abolished when they adopted Federal Rule of Civil Procedure 12, the origin of NRCP 12. The leading treatise on federal procedure observes:
Prior
to the federal rules, the practice was to appear specially for the purpose of
objecting by motion to the jurisdiction of the court, the venue of the action,
or an insufficiency of process or service of process; a failure to follow the
correct procedure for doing so often resulted in a waiver of the defense. There
no longer is any necessity for appearing specially to challenge personal
jurisdiction, venue, or service of process. This is made clear by the absence
in Rule 12 of any reference to either a general or special appearance and the
express provisions in subdivision (b) to the effect that every defense may be
made either in the responsive pleading or by motion, and that no defense or
objection is waived by being joined with any other defense or objection in a
responsive pleading or motion. Thus, technical distinctions between general and
special appearances have been abolished and no end is accomplished by retaining
the terms in federal practice.
5A
Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure §
1344 (1990) (footnotes omitted); accord S.E.C. v. Wencke, 783 F.2d 829, 832 n. 3 (9th Cir.1986)(noting
that "Federal Rule of Civil Procedure 12 abolished the distinction between
general and special appearances when the Federal Rules were adopted in
1938").
When the Nevada Rules of Civil Procedure were adopted, however, NRCP 12 was modified from the federal rule so that it could co-exist with the special/general appearance doctrine. At that time, and until amendments in 1998, NRCP 12(b) provided that
[n]o
defense or objection is waived by being joined with one or more other defenses
or objections in a responsive pleading or motion, except defenses numbered
(2)-(4) [lack of jurisdiction over the person, insufficiency of process, and
insufficiency of service of process] are waived if joined with one or more
defenses other than defenses (2)-(4), or by further pleading after denial of
such defenses.
Barnato v. Dist. Court, 76 Nev.
335, 338, 353 P.2d 1103, 1104 (1960). The Barnatocourt expressly rejected
the notion that NRCP 12's adoption abrogated the special/general appearance
doctrine: "Rule 12(b) as adopted in this state has not changed the general
rule in existence at the time of its adoption which is to the effect that a
defendant who requests relief additional to that necessary to protect him from
defective service of process renders his appearance general."
Although
this court strictly adhered to the reasoning in Barnato for many years,[1] we
have more recently limited the application of the special/general appearance
doctrine. For example, Barnato and its progeny were overruled by Indiana Insurance Co. v. District Court, 112 Nev.
949, 920 P.2d 514 (1996), which
held that personal jurisdiction could be challenged by a motion to dismiss
under NRCP 12(b)(2).[2] Similarly, Doyle v. Jorgensen, 82 Nev.
196, 414 P.2d 707 (1966), which
held that a motion under NRCP985*985 60(b)(1) to set aside a judgment that
was void for ineffective service was a general appearance, was later overruled
by Gassett v. Snappy Car Rental, 111 Nev.
1416, 906 P.2d 258 (1995), which
held that filing a motion to set aside a void judgment was not a general
appearance.
Additionally,
in another recent opinion, we determined that once the personal jurisdiction
issue has been initially raised, the district court need not resolve it
completely until trial. Trump v. District Court, 109 Nev.
687, 692-93, 857 P.2d 740, 743-45 (1993). In Trump, we explained that if a defendant
challenges personal jurisdiction, the plaintiff may demonstrate jurisdiction in
one of two ways. First, the plaintiff may establish personal jurisdiction over
the defendant by preponderance of the evidence at an evidentiary hearing.
Alternatively, the plaintiff may make a prima facie showing of jurisdiction
before trial commences, and then must prove jurisdiction at trial by a
preponderance of the evidence.
Although
we did not address the special/general appearance doctrine in Trump, we later stated that "so long as
the personal jurisdiction issue is properly presented to the district court
prior to trial, a defendant does not waive the right to challenge jurisdiction
by making an appearance at trial and arguing the case on the merits." Hospital Corp. of America v. Dist. Court, 112 Nev.
1159, 1161 n. 2, 924 P.2d 725, 726 n. 2 (1996).[3]Thus, a conflict was created with
respect to the procedure outlined in Trump and the doctrine of special/general
appearances, as reflected in NRCP 12(b) as it then existed.
In 1998, following our decision in Trump, we amended NCRP 12(b) so that it became consistent with the federal rule. In particular, NRCP 12(b) was revised to provide that the defenses of lack of jurisdiction and insufficient process and service of process arenot waived by being joined with other defenses and objections in a responsive pleading or pre-pleading motion. The rule now provides, in pertinent part, as follows:
Every
defense, in law or fact ... shall be asserted in the responsive pleading
thereto if one is required, except that the following defenses may at the
option of the pleader be made by motion: ....(2) lack of jurisdiction over the
person, (3) insufficiency of process, (4) insufficiency of service of
process.... No defense or objection is waived by being joined with one or more
other defenses or objections in a responsive pleading or motion.
NRCP
12(b).
In light of these changes to Rule 12(b), we now abrogate the doctrine of special/general appearances. As the Ninth Circuit has recognized, "the express language and purpose of Rule 12... seeks to consolidate all pre-trial defenses and objections by eliminating the distinction between general and special appearances."Martens v. Winder, 341 F.2d 197, 200 (9th Cir.1965). The amendments to NRCP 12 have abolished
the
age-old distinction between general and special appearances. A defendant need
no longer appear specially to attack the court's jurisdiction over him. He is
no longer required at the door of the ... courthouse to intone that ancient
abracadabra of the law, de bene esse, in order by its magic power to enable
himself to remain outside even while he steps within. He may now enter openly
in full confidence that he will not thereby be giving up any keys to the
courthouse door which he possessed before he came in. This, of course, is not
to say that such keys must not be used promptly.
Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d
871, 874 (3d Cir.1944), quoted
in Wright & Miller, §
1344, at 171. Because any technical differences between general and special
appearances no longer exist under Rule 12, the doctrine has no remaining
vitality in
Now,
before a defendant files a responsive pleading such as an answer, that
defendant may move to dismiss for lack of personal jurisdiction, insufficiency
of process, and/or insufficiency of service of process, and such a defense is
not "waived by being joined with one or more other defenses."
Alternatively, a defendant may raise its defenses, including those relating to
jurisdiction and service, in a responsive pleading. Objections to personal
jurisdiction, process, or service of process are waived, however, if not made
in a timely motion or not included in a responsive pleading such as an answer.[4]See NRCP 12(g) and (h)(1). Thus, to avoid
waiver of a defense of lack of jurisdiction over the person, insufficiency of
process, or insufficiency of service of process, the defendant should raise its
defenses either in an answer or preanswer motion. SeeNRCP 12; Dougan v. Gustaveson, 108 Nev.
517, 835 P.2d 795 (1992), abrogated
in part on other grounds by Scrimer v. District Court, 116 Nev.
____, 998 P.2d 1190 (2000).
This
court's rules generally require a party to seek a stay in the district court
before seeking a stay in this court. NRAP 8(a). While this rule applies on its
face to appeals, the requirement is a sound one that should also apply to writ
petitions when the order the petition seeks to challenge is one issued by a
district court. Fritz Hansen fulfilled this requirement by unsuccessfully
moving for a stay in the district court.
In deciding whether to issue a stay, this court generally considers the following factors:
(1) Whether the object of the appeal or writ petition will be defeated if the stay is denied;
(2) Whether appellant/petitioner will suffer irreparable or serious injury if the stay is denied;
(3) Whether respondent/real party in interest will suffer irreparable or serious injury if the stay is granted; and
(4)
Whether appellant/petitioner is likely to prevail on the merits in the appeal
or writ petition.
See NRAP 8(c); Kress v. Corey, 65 Nev. 1, 189 P.2d 352 (1948).
First,
the object of the writ petition will not be defeated if the stay is denied. Fritz
Hansen will not waive its jurisdictional defense by answering after its motion
to quash was denied; as Fritz Hansen timely challenged jurisdiction, Rule 12's
waiver provisions do not apply. Additionally, in denying Fritz Hansen's motion
to quash without an evidentiary hearing, the district court presumably applied
a prima facie standard of review, and the district court implicitly ordered
that the hearing and determination of personal jurisdiction be deferred to
trial. See Hospital Corp., 112 Nev.
at 1161 n. 2, 924 P.2d at 726 n. 2; Trump, 109 Nev. at 692-93, 857 P.2d at 743-45. Hence,
Fritz Hansen's appearance, after its motion to quash was denied, would not
amount to a waiver of its challenge to the district court's jurisdiction.
Accordingly, the first stay factor does not suggest that a stay is warranted.
Fritz
Hansen would not suffer irreparable or serious injury if the stay is denied. It
argues that it should not be required to participate "needlessly" in
the expense of lengthy and time-consuming discovery, trial preparation, and
trial. Such litigation expenses, while potentially substantial, are neither 987*987 irreparable nor serious. See, e.g., Dixon v. Thatcher, 103 Nev.
414, 415, 742 P.2d 1029, 1029-30 (1987) (noting that, with respect to
injunctive relief, irreparable harm is harm for which compensatory damages
would be inadequate, such as the sale of a home at trustee's sale, because real
property is unique); Berryman v. Int'l Bhd. Elec. Workers, 82 Nev.
277, 280, 416 P.2d 387, 389 (1966) (stating
that with respect to harm, there should be a "reasonable probability that
real injury will occur if the injunction does not issue"); see Wisconsin Gas Co. v. F.E.R.C., 758 F.2d
669, 674 (D.C.Cir.1985) (noting
that "`[m]ere injuries, however substantial, in terms of money, time and
energy necessarily expended in the absence of a stay are not enough'" to show
irreparable harm) (quoting Virginia Petroleum Job. Ass'n v. Federal Power Com'n, 104
U.S.App.D.C. 106, 259 F.2d 921, 925 (D.C.Cir.1958)); cf. Sobol v. Capital Management, 102 Nev.
444, 446, 726 P.2d 335, 337 (1986) (concluding,
in the context of an injunction, that "acts committed without just cause
which unreasonably interfere with a business or destroy its credit or profits,
may do an irreparable injury").
Additionally,
it does not appear from the documents before us that ICF would suffer irreparable
or serious injury if the stay were granted. Nevertheless, the underlying
proceedings could be unnecessarily delayed by a stay, particularly where the
district court has made only a preliminary determination as to personal
jurisdiction, and the issue remains for trial.
Finally, we conclude that Fritz Hansen has not shown that it is likely to prevail on the merits. Its argument, that this court may have erred in its discussion of certain personal jurisdiction principles in Judas Priest v. District Court, 104 Nev. 424, 760 P.2d 137 (1988), runs contrary to this court's well-established case law. Thus, Fritz Hansen cannot be deemed likely to demonstrate that extraordinary relief is warranted. Although, when moving for a stay pending an appeal or writ proceedings, a movant does not always have to show a probability of success on the merits, the movant must "present a substantial case on the merits when a serious legal question is involved and show that the balance of equities weighs heavily in favor of granting the stay." Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981). Here, Fritz Hansen has not demonstrated that its writ petition raises a substantial legal question; additionally, the other stay factors do not militate in Fritz Hansen's favor. Accordingly, we deny Fritz Hansen's motion for a stay.[5]
__________________________________
[1] See, e.g., Silver v. Telerent Leasing, 105 Nev. 30, 768 P.2d 879 (1989); Deros v. Stern, 87 Nev. 148, 483 P.2d 648 (1971); Benson v. District Court, 85 Nev. 327, 454 P.2d 892 (1969).
[2] Even though in Indiana Insurance we held that a motion to dismiss for lack of personal jurisdiction was no longer a general appearance, we also continued to embrace the special/general appearance doctrine and stated that "[a] request for relief other than a challenge to the court's jurisdiction,... such as a request for relief premised on the court's having jurisdiction over the parties, still constitutes a general appearance." Indiana Insurance, 112 Nev. at 951, 920 P.2d at 516.
[3] The approach in Trump and Hospital Corp. is consistent with NRCP 12(d), which provides that "[t]he defenses specifically enumerated [in NRCP 12(b)(1)-(6)], whether made in a pleading or by motion ... shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial."
[4] Defenses under NRCP 12(b) are subject to waiver if not raised promptly. NRCP 12(g) provides that any Rule 12 motion may be joined with any other Rule 12 motion, but that if a defense or objection is omitted from a motion, the movant may not later make a motion based on the omitted defense or objection. NRCP 12(h)(1) explains that defenses relating to jurisdiction and sufficiency of process or service of process are generally waived if not raised "by motion under this rule [or] included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course."
[5] On January 31, 2000, we granted a temporary stay in order to consider Fritz Hansen's motion. In light of our decision, we vacate the temporary stay.