12 27 11 Cv11-01955 WLS Elcano's Motion for Attorney's Fees

7/27/2019 12 27 11 Cv11-01955 WLS Elcano's Motion for Attorney's Fees

1/43

F I L E DElectronically

12-27-2011:02:15:29 PMCraig Franden

Clerk of the CourtTransaction # 26685402

3456789

100p.; 118' 8 12~ ~ o ol : j 'S 133U 0: 8Qj. , f CO ll'1C / ) 8 > ~

. 1 : l ~ z 14t; (1')' tt )U 0 gbN'v 0 ~ ~ c 15g j ~ j11 0Zooog 160U;3 17

1819202122232425262728

2010LIPSON, NEILSON, COLE, SELTZER GARIN, P.C.JOSEPH P GARINNevada Bar No 6653SHANNOND.NORDSTROMNevada Bar No. 82119080 West Post Road, Suite 100Las Vegas, Nevada 89148(702) 382-1500(702) 382-1512 - [email protected] for Defendants Washoe Legal Services,Paul Elcano, Todd Torvinen, Karen Sabo, Kathy Breckenridge,Jon Sasser, Melissa Mangiaracina, and Marc Ashley

IN THE SECOND JUDICIAL DISTRICT COURT OFTHE STATE OF NEVADA IN AND FOR THECOUNTY OF WASHOE

ZACH COUGHLIN,Plaintiff,

))))vs.WASHOE LEGAL SERVICES, a NevadaCorporation, KATHY BRECKENRIDGE, )Individually and in her capacity as Board )President of WLS, TODD TORVINEN, )Individually and in his capacity as WLS )Board Member, PAUL ELCANO, Individually)and in his capacity as Executive Director of )WLS, DOES 1-100, Individually and in their )capacity as members of the BOARD OF )DIRECTORS OF WASHOE LEGALSERVICES, CARYN STERN LIGHT,Individually and in her capacity as WLS )attorney, JON SASSER, Individually and in )his capacity as WLS agent, KAREN SABO, )Individually and in her capacity as WLS )

attorney, MELISSA MANGIARACINA, )Individually and in her capacity as WLS )attorney, MARC ASHLEY, Individually and )in his capacity as WLS attorney, ZANDRA )LOPEZ, Individually and in her capacity as )WLS employee, DOES and ROES 1-100, )COMMITTEE TO AID ABUSED WOMEN, )TAHOE WOMEN S SERVICES. )

Defendants. )

CASE NO.: CV11-01955DEPT. NO.: 10

DEFENDANTS WASHOE LEGALSERVICES AND PAUL ELCANO SMOTION FOR ATTORNEY S FEES


2/43

123456789

100p.; 11.'' IS 12d ~ o otJ s ;: ; 13C/ O\O~ '0 00 ~C / ) ~ > ~Z &l 14oo,,('t')U 0 &,N', ,0 ~ > t : 15:-;: >


3/43

MEMORANDUM OF POINTS AND AUTHORITIES2 1. Introduction3 Plaintiff Coughlin was formerly employed as an attorney for Washoe Legal Services4 ( WLS ). Coughlin filed two lawsuits against WLS, et aI., attempting to assert claims for5 wrongful termination:6789

10

Zach Coughlin v Washoe Lega/ Services et. a/.Case No.: CV11-01896Hon. Brent AdamsFiled: June 27, 2011andZachary Coughlin v Washoe Lega/ Services et. a/.Case No.: CV11-01955Hon. Steven P. ElliottFiled: June 30 2011Docket Reports, attached hereto as Exhibit 1. On August 29, 2011, Coughlin attempted to

12 complete service of the summons and complaint in the second case, Case No. CV11-01955,13 by having someone leave copies at the front reception desk of WLS's offices. Since leaving14 process at a reception desk is not an approved method of service under Nevada Rule of Civi15 Procedure 4 Defendants sought dismissal of Plaintiff's Complaint pursuantto NRCP 12(b)(4).16 This Court ordered dismissal of the case on December 8 2011. Order, attached hereto as17 Exhibit 2.18 2192022234526278

Washoe Legal Services and Paul Elcano are entitled to an award of attorney'sfees as the prevailing party in this matter pursu nt to NRS 18.010.NRS 18.010 states, in pertinent part:1. The compensation of an attorney and counselor for his or her services isgoverned by agreement, express or implied, which is not restrained by law.2. In addition to the cases where an allowance is authorized by specific statute,the court may make an allowance of attorney's fees to a prevailing party:

(a) When the prevailing party has not recovered more than $20,000; or(b) Without regard to the recovery sought, when the court finds that theclaim, counterclaim, cross-claim or third-party complaint or defense of theopposing party was brought or maintained without reasonable ground or toharass the prevailing party. The court shall l iberally construe the provisionsof this paragraph in favor of awarding attorney's fees in all appropriatesituations. It is the intent of the Legislature that the court award attorney'sfees pursuant to this paragraph and impose sanctions pursuant to Rule 11of the Nevada Rules of Civil Procedure in all appropriate situations to3


4/43

1

34

punish for and deter frivolous or vexatious claims and defenses becausesuch claims and defenses overburden limited judicial resources, hinder thetimely resolution of meritorious claims and increase the costs of engagingin business and providing professional services to the public.

This Court granted Defendants Motion based on improper service of process.5 Defendants did not recover more than $20,0000. Accordingly, as the prevailing party, WLS6 and Paul Elcano are entitled to receive their reasonable attorney's fees incurred in this action7 pursuant to NRS 18.01 0(2)(a).8 Furthermore, Plaintiff's Opposition to Defendant's Motion to Dismiss was made despite9 not having ny reasonable grounds to do so, entitling Defendants to their attorney's fees undeiO RS 18.01 0(2)(b). Plaintiff's Opposition was a twenty page diatribe that devoted little attention

to the issue before the Court. Opposition, attached hereto as Exhibit 3. Indeed, Plaintiff's12 failure to dispute the law or facts underlying the Motion served only to overburden limited13 judicial resources and hinder timely resolution of meritorious claims. In sum, WLS and Pau14 Elcano are entitled to an award of attorney's fees as the prevailing party in this matter pursuan15 to NRS 18.010.16 317181922

345678

Washoe Legal Services and Paul Elcano are entitled to an award of attorney'sfees in this matter pursuant to NRS 7.085NRS 7.085 provides:1 f a court finds that an attorney has:

(a) Filed, maintained or defended a civil action or proceeding in any court inthis State and such action or defense is not well grounded n fact or is notwarranted by existing law or by an argument for changing the existing lawthat is made in good faith; or(b) Unreasonably and vexatiously extended a civil action or proceedingbefore any court in this State, the court shall require the attorney personallyto pay the additional costs, expenses and attorney's fees reasonablyincurred because of such conduct.

2 The court shall liberally construe the provisions of this section in favor ofawarding costs, expenses and attorney's fees in all appropriate situations. It is theintent of the Legislature that the court award costs, expenses and attorney's feespursuant to this section and impose sanctions pursuant to Rule 11 of the NevadaRules of Civil Procedure in all appropriate situations to punish for and deter frivolous

- 4 -


5/43

123

or vexatious claims and defenses because such claims and defenses overburdenlimited judicial resources, hinder the timely resolution of meritorious claims andincrease the costs of engaging in business and providing professional services tothe public.4 As discussed above, Plaintifffailed to provide any true explanation forfailing to properly5 serve Defendants. Instead, Plaintiff opted for a twenty page discussion of confusing and6 inapplicable arguments that failed to address the issue before this Court. Plaintiff not only filed7 an opposition that was groundless as evidenced by this Court's Order granting Defendant's8 Motion to Dismiss, but unreasonably and vexatiously continued this proceeding, creating9 unnecessary litigation costs to Defendants. Order, attached hereto as Exhibit 2. Therefore,

10 pursuant to NRS 7.085, this Court should award Defendants their attorney's fees and costs.

1213

4 The attorney's fees and costs incurred by Washoe Legal Services and PauElcano are reasonable.Lipson, Neilson, Cole, Seltzer, & Garin, P.C., counsel for Washoe Legal Services and

14 Paul Elcano, spent 11.5 hours defending against Plaintiff's Complaint. The total amount o15 attorney's fees is $1,234.00. Attorney's Fees, attached hereto as Exhibit i-A. W S and16 Elcano sought a dismissal of the complaint in a joint motion based on the same grounds,17 insufficient service of process. The attorney's fees incurred for legal services, including the18 preparation of motions to dismiss, were reasonable and necessary in both amount and time19 spent. The Court should award WLS and Elcano the full amount incurred in reasonable20 attorney's fees in the amount of 1 ,234.00.2 \\\22 \\\23 \\\2425262728

- 5 -


6/43

cj

' 8.::l Baot1 S ;:;NCI) '8i j -0 co Lf'lC/l os. > ..... r ~ z0 rn ('..


7/43

23

CERTIFICATE OF MAILINGI certify that on the 27th day o December, 2011, I served a true and correct copy o

DEFENDANTS WASHOE LEGAL SERVICES AND PAUL ELCANO'S MOTION FORupon the following parties, via first class mail, postage prepaid,

Zach Coughlin, Esq.817 N. Virginia St. 2Reno, NV 89501Attorney for Plaintiff In Pro Per

s Nancy ooperAn Employee ofLipson, Neilson, Cole, Seltzer Garin,P.C.

7


8/43

1 AFFIDAVIT OF JOSEPH P. GARIN, ESQ.2 STATE OF NEVADA3 COUNTY OF CLARK

))) ss:

4 JOSEPH P GARIN, being first duly sworn deposes and says:5 1 I am an attorney licensed to practice law in the State of Nevada, and am a6 partner with the law firm of LIPSON, NEILSON, COLE, SELTZER & GARIN, P.C., counsel7 of record for Defendants, in the above-captioned matter.8 2. I make this Affidavit in support of Washoe Legal Services and Paul Elcano's9 Motion for Attorney's Fees. I have personal knowledge of the information contained in this10 Affidavit and would qualify as a competent witness if called upon to testify to the facts

contained herein.12 3 I personally reviewed the firm's billing invoices in this matter and the rates13 charged for the duration of this case were 180 for Partners and 85 for Associates and14 Paralegals. These rates are reasonable for defending this action.

4. To date, I charged Defendants 11.5 hours which equals a total billed amount of16 1,234.00. A copy of the relevant bills have been redacted to preserve privilege and17 attached as Exhibit 1-A.18 5 In my opinion, all the aforementioned fees were reasonable and necessary to19 defend Defendants in this matter.20222232425262728

JOEPHP GARIN

- 8 -


9/43

1 EXHIBIT INDEX2 No.1 Docket Reports on 2 pages3 CV1101955 andCV11018964 NO.1A Attorneys Fees 2 pages5 No 2 Order Granting Motion to 5 pages6 Dismiss for InsufficientService of process and7 Other Relief8 NO.3 Opposition to Defendant s 21 pagesWLS and Paul Elcano sMotion to Dismiss for9 Insufficient Service ofProcess and Other Relief;1 Motion for Sanctions;

j Motion to Consolidatep.; 11. Casesoj 8 12c ( $ ~ o o

E ~ ; ' o 13J C j , , & j ~C f J ~ > ~

. . : l " ~ Z &l 14u


10/43




. 1

I T 1


11/43

Docket Report ResultsRepprt Selectipn Crjteria

CaselD: CV11-01896Docket Start Date:Docket Ending Date:

Case oescriptipnCase ID: CV11-01896 - ZACH COUGHLIN VS. WASHOE LEGALFilingDate:

SERVICES ETAL.(06)Monday June 27th 2011

Type: WT - TORTS-WRONGFUL TERMINATIONStatus: EVNTCLOSEO - Event Closed

Related Caseso related cases V\ ere found

Case Eyent SchedYleo case events V\ ere found

Case Parties

Seq Assoc Expn Type IDDate1 Judge QQ

Name 'ADAMSHONORABLEBRENT

~ ; s e 9 i t C 1 i HOme~ ; R ' e m . t 9 $ W~ ' N & > t $ @ t ' c n ~ ~ R p m S e w q t i 2 ' h , ~ J ; ? i S e l l l e , c f l P t l b j J : .l-iEvepfSCtieawe W M epMiM: ~ ' D 9 k ' $ f E m t m :

(e) Copyright2001 Aflilia1ed Corrpu1er Syst rrs,lnc.ACSand1he CS logo are registered traderrerks.This contains uade secrets and s subjectlo a confidentiality agreerrent The unauthorized

possession,UB, reproduction, distribution, display, or disclosure of his rre1erlal or the information contained herein Is prohibi1ed.Ali rights reserved. UBr c o a p t s J ~ r e e s t o ~ Not tor official use.


12/43

Report Selection CriteriaCase 10: CV11-01955Docket Start Date:Docket Ending Date:

Case DescriptionCase 10: CV11-01955-ZACHARYCOUGHLINVS. WASHOE LEGALSRVC ET AL{D10Filing Thursday, June 30th, 2011Date:Type: WT - TORTS-WRONGFUL TERMINATIONStatus: INITIAL - Case initiated.

Relgted CasesNo related cases V\ere foundCase Event SchedyleNo case events Mere foundCase Parties

Seq Assoc1

~ ~ e e j i b : t : l O t j i t~ ' f W W e C f e i l s e j . :

Expn TypeDateJudge

~ ' N e w ' S ' m n ~,., EyOOrSbtieaullt

10D10

M3ooO ilSweCtjOil~ e t @ P a i f t

NameELLIOTTHONORABLESTEVEN P.

f C l W i t ~ D e ~ r j p l l 0 Q~ D d C l W r E r i t i i e S ~

(c) Copyright 2001 Affiliated COl l1luler SystelT6, Inc.ACS and the ACS logo are registered traderrarks.Tills contains trade secrets and is subject t a confidentiality agreement The unauthorized

possession, use, reproduction, distrlbuHon, dlsplaY,or disclosure of this meterial or1l1e inforrration contained herein is prohibited.JlJI.rights reserved. User Accepts/Agrees t Disclaimer. Not for official use.


13/43




EXHI IT i-A


14/43

LAW OFFICESLIPSON, NEILSON, COLE} SELTZER GARIN, P.C.9080 WEST POST ROAD, 100IELEPHONE (702) 382-1500IELEFAX (702) 385-1512

LAS VEGAS, NV 89148

November 14, 2011

ZACH COUGHLIN VS WASHOE LEGAL

PROFESSIONAL SERVICES

RED CTED

IfIIVIM'.LlPSONNEILSON.COMTAX 10 38-2574325

Billing through 10/31/2011


15/43

09 07 2011 JPG DRAFT I REVISE LETTER TO ZC REGARDING SERVICE. 0.30 hrs 180.00/hr 54.0009 0812011 JPG APPLICATION OF RELEVANT LAW TO APPLICABLE 0.30 hrs 180.00 Ihr 54 00

FACTS REGARDING SERVICE RULES IN STATUTE VS.COURT RULES.09/1212011 JPG REVIEW OF NRCP 12. SERVICE 0.30 hrs 180.00 Ihr 54.00AND MOTION TO QUASH SERVICE.

09 1412011 CH REVIEW OF FILE IN PREPARATION FOR DRAFTING 1.20 hrs 85 00/hr 102.00I\J\t lTION TO DISI\AIRR09 1412011 CH 0.20 hrs 85.00 Ihr 17.00

MOllON I u l ~ V l S S 12 S){4}09 15 2011 CH DRAFT MOTION TO DISMISS PURSUANT TO NRCP 3.80 hrs 85.00 Ihr 323.0012(6)(4)09/1512011 eli REVIEW OF NRS REGARDING INSUFFICIENT SERVICE 1.10 hrs 85.00 Ihr 93.50OFPRbcESS .............................................................................09 16 2011 JPG _ _ 0.20hrs 180.00 Ihr 36.0009 16 2011 CH RESEARCH NEVADA CASE LAW ON CONSOLIDATION OF 0.50 hrs 85 00 Ihr 42.50SIMILAR ACTIONS09 16 2011 CH 0.80 hrs 85.00/hr 68.00

0911612011 CH REVISE AND DUPPLEMENT MOTION TO DISMISS 12(8)(4) 0.30 hrs 8S.00/hr 25.500911612011 CH REDACT TO LETTER TO PLAINTIFF DATED SEPTEMBER 0.20 hrs 85.00 Ihr 17.00

9, 2011 TO ATTACH AS AN EXHIBIT TO MOTION TODISMISS 12 B) 4)09 19 2011 CH OAOhrs 85.00 Ihr 34.0009 19 2011 CH 0.30 hrs 85.00/hr 25.5009 2212011 JPG 0.80 hrs 180 00 Ihr 144.00

09 28 2011 JPG DRAFT I REVISE REPLY BRIEF. 0.80 hrs 180 00 Ihr 144.00

REDACTED


16/43




EXHI IT 2


17/43

12345678

F I LEDElectronically12082011: 11 :22:08 AMCraig FrandenClerk of the CourtTransaction 2634050

IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADAIN AND FOR THE COUNTY OF WASHOE

9 ZACH COUGHLIN,101112

vsPlaintiff, Case No.: CV11-01955

Dept. No.: 10WASHOE LEGAL SERVICES et al;13

1415161718

Defendants.ORDER GRANTING MOTION TO DISMISS fOR INSUffI IENT SERVICE Of

PROCESS AND OTHER RELIEfPresently before the Court is a Motion to Dismiss for Insufficient Service of Process

1


18/43

1 October 10, 2011, Defendants filed a Request for Submission, thereby submitting the2 matter for the Court s consideration.3 Factual . Procedyral Backgroynd4 This case arises out of an employment dispute. Plaintiff was formerly employed as5 an attorney for Washoe Legal SelVices. Plaintiff alleges that, while he was an employee,6 he became aware of several potential legal violations by his former employer. Plaintiff7 claims that he was fired after he informed his former employer of the violations, and that8 such firing was in retaliation for his informing the former employer of the violations.9 Additionally, Plaintiff claims that he was subjected to a hostile work environment.

10 Plaintiff filed suit against his former employer and related entities and individuals on11 June 27,2011, in Case No. CV11-01896. This suit is currently assigned to Department Six12 of the 2nd Judicial District Court. Three days later, on June 30, 2011, Plaintiff filed a secon13 action, which he admits asserts the same claims as those presented in his first action.14 Plaintiff s second action is Case No. CVll-01955, and it is Plaintiff s second action that is15 currently before this Court. Defendants now move the Court to dismiss Plaintiff s claim on16 the basis that Plaintiff failed to selVe Defendants in the manner prescribed by Nevada law.17 As such, Defendants assert that this Court lacks jurisdiction over Defendants.18 I I Standard of Review19 Pursuant to NRCP 12(b)(5) the standard of review for a motion to dismiss is20 rigorous. Blackjack Bonding v Cityo Las Vegas Municipal Court 116 Nev. 1213; 14 P.3d21 1275 (2000). As such, the Court will construe the pleadings liberally and draw every22 reasonable inference in favor of the non-mOVing party. Vacation Village v Hitachi America23 110 Nev. 481, 484, 874 P.2d 744, 746 (1994).24 II2526

s a preliminary matter, the Court admonishes Plaintiff to conduct himself professionally and civilly in the27 proceedings before this court. Plaintiffs sarcastic, derogatory, and disrespectful remarks do not assist in28 resolving this litigation, and may result in sanctions if continued.

-2-


19/43

1 The purpose of a motion to dismiss is to test the legal sufficiency of the complaint.2 Navarro v Block 250 F.3d 729, 732 (9th Cir. 2001). However, there is a strong3 presumption against dismissing an action for failure to state a claim. See Gilligan v lameo4 Dell. Corp. 108 F.3d 246, 249 (9th Cir. 1997) (citation omitted). Thus, upon being5 adequately stated, a claim may be supported by showing enough facts to state a claim to6 relief that is plausible on its face. Bell tlanticCorp. v Twombly 127 S.Ct. 1955, 19697 (2007) (citation omitted). Howevert the factual allegations included in a complaint must8 be enough to raise a right to relief above the speculative level. Id at 1964-65. liThe9 pleading must contain something more ... than ... a statement of facts that merely creates10 a suspicion [of] a legally cognizable right of action. Id t 1965.11 III begal Analysis12 As noted above, Defendants seek to dismiss Plaintiff's claim for insufficient service 013 process pursuant to NRCP 12(b)(4). As explained below, the Court agrees that service of14 process was insuffiCient as to both Defendants.151617181920

NRCP 4(a) requires that:Upon the filing of the complaint, the clerk shall forthwith issue asummons and deliver it to the plaintiff or to the plaintiffsattorney, who shall be responsible for service of the summonsand a copy o he complaint Upon request of the plaintiff,separate or additional summons shall issue against anydefendantS.

21 Emphasis added. NRCP 4(b) describes the form that a summons must resemble to be22 valid, and NRCP 4(c) identifies the type of parties that may serve process. SpeCifically23 NRCP 4(c) requires that: Process shall be served by the sheriff of the county where the24 defendant is found, or by a deputy, or by any person who is not a party and who is over 1825 years of age. FinallYt NRCP 4(d) explains the proper methods of service for various26 defendants.27 s applied to the instant case Plaintiff's Proof of Service shows that service was28 insufficient in several respects. First, the Proof of Service indicates th t Plaintiff did not

3


20/43

1 serve Defendants with a copy of the summons, as required by NRCP 4(a). Rather,2 Plaintiff s Proof o Service indicates that he only served Defendants with a copy o the3 Complaint. For this reason alone, the Court must dismiss Plaintiff s claim on the basis of4 insufficient service of process. ee NRCP 4(a). However, the Court also notes that5 Plaintiff s Proof of Service does not indicate whether the listed process server, whose name6 is illegible on the Proof of Service, was eligible to serve process under NRCP 4(c). Indeed,7 the Proof of Service does not include any identifying information relating to the process8 server, the process server did not make any affirmations as to the details of the service,9 and the process server s signature is not notarized. Accordingly, Plaintiff s service of10 process is also insufficient under NRCP 4(c). Finally, the Court notes that Plaintiff s method

of service for Defendants was also insufficient under NRCP 4(d)(1) and 4(d)(6).2 For all123 of these reasons, the Court will issue the following order:

14 NOW THEREfORE T S HEREBY ORDERED that Defendant s Motion to15 Dismiss for Insufficient Service of Process and Other Relief is GRANTED.16 T S fURTHER ORDERED that Plaintiff s Complaint against Defendants is17 DISMISSED WITHOUT PREJUDICE.89

202122232425262728

-ATED this day of December, 2011.2 In light o the Court s decision to dismiss Plaintiff s Complaint against Defendants for insufficient service ofprocess, Defendants separate argument that Plaintiff s suit must be dismissed, stayed or consolidated with hiother pending action is rendered moot.

-4-


21/43

12

CERTIfiCATE f MAILINGI 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:45 JOSEPH GARIN, ESQ. for MEUSSA 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, WLSBOARD, WASHOE LEGAL SERVICES78 GARY FULLER, ESQ. for COMMmEE TO AIDE ABUSED WOMAN9 ZACHARY COUGHUN, ESQ. for ZACH COUGHUN

10 BRIAN GONSALVES, ESQ for TAHOE WOMEN S SERVICES11121341561781922122232425262728

DATED this --,>S ,--_Judicial Assistant

5


22/43




EXHI IT 3


23/43

2

4

6

10

1213

141516

1718

Document Code: 2645 Opposition to MtnZach Coughlin, Esq.121 River Rock St.Reno, NV 89501Tele: [email protected] se Plaintitf

IN THE SECOND JUDICIAL DISTRICT COURT Of THE STATE OF NEVADA

IN AND FOR THE COUNTY OF WASHOE) CASE NO: CVII-01955Plaintiff, )

vs ) DEPT. NO: 10ASHOE LEGAL SERVICES a Nevada )orporation, KATHY BRECKENRIDGE, )

ndividually and in her capacity as Board )resident ofWLS. )TODD TORVINEN, Individually and in his ) OPPOSITION TO DEFENDANT S WLSapacityas WLS Board Member, ) AND PAUL ELCANO'S MOTION TO '.,AUL ELCANO. Individually and in his ) DISMISS FOR INSUFFICIENT SERVICE .apacity as Executive Director ofWLS, DOES ) OF PROCESS AND OTHER RELIEF;1-100, Individually and in their capacity as ) MOTION FOR SANCTIONS; MOTION TOembers of the BOARD OF DIRECTORS OF ) CONSOLIDATE CASESASHOE LEGAL SERVICES, CARYNTERNLlCHT, Individually and in herapacity at WLS attorney. JON SASSERndividually and in his capacity at WLS agent.TAREN SABO Individually and in her

19 apacity at WLS attorney. MELISSA20

21

22

23

24

ANGIARACINA Individually and in herapacity at WLS attorney, MARC ASHLEYndividually and in his capacity at WLSttollley. ZANDRA LOPEZ Individually and iner capacity as WLS employee, DOES andOES 1-100, COMMlnEE TO AmBUSED WOMEN, TAHOE WOMEN SERVICES. Defendants.

25 Ir-----------------------------2627

28

OPPOSITION TO DEFENDANT'S WLS AND PAUL ELCANO'S MOTION TO DISMISSFOR INSUFFICIENT SERVICE 1< PROCESS AND OTHER RELIEF; MOTION FORSANCTIONS; MOTION TO CONSOLIDATE CASES

- 1OPPOSITiON TO t10 L ION TO DISMISS, ETC.


24/43

123

567

89

1011

1 ?3

1415

16

1718

19

20

21

22

23

2425

26

27

28

PLAINTIff COUGHLIN'S OPPOSITION TO DEFENDANTS WASHOE LEGAL SERVICESAND PAUL ELCANO'S MOTION TO DISMISS FOR INSUFFICIENT SERVICE OF PROCESSAND OTHER RELIEF

PLAINTIFF COUGHLIN, BY HIMSELF AND WITH HIS PERIPHERAL ATTORNEYS,submit PLAINTIFF'S OPPOSITION TO DEFENDANTS WASHOE LEGAL SERVICES ANDPAUL ELCANG'S MOTION TO DISMISS FOR INSUFFICIENT SERVICE OF PROCESS ANDOTHER RELIEF ( Motion ) under NRCP 12(b)(4) and NRCP 4; AND MOTION FORSANCTIONS. This Motion is based upon the Memorandum of Points and Authorities, the exhibitsattached hereto, the pleadings and papers on file, and any oral argument that may be presented in thismatter.

ughlin, Esq. (Bar No. 9473)iver Rock, SIRe 0 NV 8950 I(775) 338-8118

One of the Plaintiff's Attorneys

- 2OPPOSITION TO MOTION TO DISMISS src.


25/43

12 MEMORANDUM OF POINTS AND AUTHORITIES3 1. Introduction4 Plaintiff Coughlin was formerly employed as an attorney for WLS. Coughlin has filed two5 lawsuits against WLS, ct aI., asserting claims for wrongful termination: Zach Coughlin v. Washoe6 Legal Services, et al. Case No.: CV 110 1896 Hon. Brent Adams Filed: June 27, 2011 and Zachary7

Coughlin v Washoe Legal Services, et al. Case No.: CVll01955 Hon. Steven P. Elliott Filed: June89 30,2011.

10 The rationale behind filing two of what would seem to be the same case, lies in the way11 Petition's to Proceed In Forma Pauperis (IFP) are processed in the Second Judicial District Court for12 Washoe County and the effect the potential denial of such an IFP would have on a Title VII litigants13 filing date for statute of limitations purposes with respect to the 90 day deadline to tile suit from1415 re eipt of an EEOC Right To Sue Letter (RTSL). Should the IFP Coughlin filed in CV110189616 have been denied, it was relayed to Coughlin by filing otlicer desk clerks and Assistant Clerk of17 Court Julie Wise, that Coughlin would subsequently need to return to the filing office and pay the18 filing fee, and would be accorded a filing date consistent with the date the filing fee was paid, and19 that there would be no opportunity to cure the failure to pay a filing fee and have the filing date20

21 relate back to the date the IFP and contemplated Complaint were submitted. Judge Steinheimer's22 Adminstrative Assistant confirmed this as well. However, while there does seem to be support for23 the contention that such a relating back should be accorded, it simply would not have been prudent24 for Coughlin to persist with such a tact in light of the numerous indications to the contrary given him25 by court personnel. As such, Coughlin filed one version ofthe instant case on June 27, 2011 (and,2627 should it proved necessary, Coughlin can show that he made attempts to file this case on an earlier28 date, though he was refused even having his papers marked received by filing office personnel and

- 3OPPOSITION TO r-10TION TO DISMISS ETC.


26/43

1 Ms. Wise. in direct contravention of the dictates found in Whitman and Sullivan) and another on June2 30''',2011 (wherein he did, in fact, pay the filing fee) given that the 90 day deadline to file the instant3 action would likely run in the interim between the filing of the IFP and Department 4's decision on45 the IFP. Indeed, despite using the very form which filing office personnel insisted Coughlin use for6 an IFP (after refusing to accept Coughlin's far more detailed IFP submission), Department 4 ordered

Coughlin to provide more information with respect to his financial condition. The IFP was8 subsequently granted to Coughlin in CVII O 1896.9 Lest this court fcel any lack of dilligence on Coughlin's part contributed to this multiplicity of

10 actions. be assured that the exigency of the situation and the concomitant multiples filings was not11

12 only brought on by the 2 d Judicial's policy regarding refusing to relate back filing dates for denied3 IFP's subsequently 'cured' by a filing fee paying litigant, but further EEOC negligence exacerbated

14 this situation in failing to mail the RTSL to Coughlin's current address, an address for which15 Coughlin had previously apprised the SF District Office of the EEOC of in writing However, given16 that the 90 days to file a Title VII action is measure from receipt of the RTSL, and that1718 constructive receipt' has sometimes been applied in decisions, palticularly where a claimant has19 moved, Coughlin felt the need to guard against even the most onerous interpretations with respect to20 his filing within the 90 days from receipt' of the RTSL.21 Given that the IFP was approved and that Coughlin has been adjudged indigent by22 Depaltment 4. Coughlin asks this Court to refund the $260 filing fee he paid in CVII01955 and23

24 consolidate these two cases into one, using the Complaint submitted in connection with CV 110 195525 as Coughlin's Complaint, and thereby preserving for pro se litigant Coughlin the ability to file one26 Amended Complaint without first seeking leave ofcourt.27

28

- 4OPPOSITION TO rr.OTION TO DISMISS, ETC


27/43

1 On August 29, 20 II, Coughlin attempted to complete service of the summons and complaint2 in the second case, Case No. CVII -01955 by having an independent process server of Reno, Nevada3 serve copies to two employees of'WLS, Jessica Garzae and Senior Paralegal Berta Mann at the45 reception desk ofWLS s oHices. Coughlin's Complaint reveals Ms. Garzae's meteoric rise from6 receptionist who hardly ever answers to phone to, obstensibly, someone being groomed for a

promotion, the likes of which would utilize the salary formerly taken up by licensed attorney8 Coughlin, and thereby reward Ms. Garzae for doing the job of Zandra Lopez, as had been detailed in9 numerous attorney only staff meetings, a situation to which Coughlin once asked the collection of

10 WLS attorneys and Executive Director Elcano now, if Jessica is too busy to ever answer the phone1112 because she is doing Zandra's job, and deserves a raise (in addition to the rather high hourly wage she13 is paid to be a receptionist who doesn't know how to change the font in a document in MS Word and14 the monies she collects for custodial services provided to WLS-though she had been known to15 belligerently challenge Coughlin to never leave a dish in the office sink for her to wash ), well, then,16 what exactly s i that Zandra does? I mean, when she is not at Court doing something with someone1718 that is not a client of mine, nor a client of Caryn's, and where she is assuredly, not engaging in the19 unauthorized practice of law? Indeed, Coughlin, a licensed attorney. and Garzae had, for a period of20 approximately two months, been summoned to WLS early, at 8:00 a.m., once or twice a week, for21 joint training sessions on how to approach the law from a theoretical and highly conceptual22 perspective sometime in 2008. Coughlin called WLS sometime in approximately early 2011 and2324 found that a new receptionist had been hired, an African-American male. Even before leaving WLS25 it was apparent to Coughlin that Garzae had become so much more than a receptionist. Additionally,26 Berta Mann was standing beside Garzae when the process server served them the Summons in this27 Case. Ms. Mann is a Senior Paralegal for WLS, having been there, perhaps, even longer than Eleano.28

- 5OPPOSIT10N TO MOTION TO DISMISS, ETC.


28/43

1 Since leaving process at a reception desk is not an approved method of service under Nevada Rule of2 Civil Procedure 4, Defendants seek dismissal of Plaintiffs Complaint pursuant to NRCP 12(b)(4).3 FACTS45 I. Garin, counsel for, depending upon which statement you take to be true from Mr. Garin, apparent6 Mr. Elcano and WLS (though is is. perhaps not entirely clear if Garin represents Elcano personally,7 or merely in Elcano's capacity as Executive Director of WLS ... ) wrote to Coughlin, in a letter dated8 September 22 J "'Please refrain from contacting my cliem Washoe Legal Services. its employees,9 otTtcers and directors (collectively "WLS"). You have Jiled two (2) complaints against WLS and you

10 include allegations against unidentified Does as defendants. As such. you are ethically prohibited11

12 from contacting anyone at WLS. Furthermore. there are many in WLS who feel threatened by your13 actions. If you need any information about my client. please direct written inquiry to my office and14 we will respond accordingly. ClearlY'LI s the best option for all involved. There is a very15 limited fund available to However. as my fees are incurred, that fund is exhausted. I urge you16 to respond to in my last letter to you." Mr. Garin failed to, however, provide17

18 anything in the way of legal support for his position that Coughlin is "ethically prohibited from19 contacting anyone at WLS, or whether the "ethically" language Garin uses is connected to any actual20 codified rules applicable to attorneys, or applicable to pro se ligitants, or applicable to pro se litigants21 who happen to be attorneys.22 2. In a September 9, 2011 letter to Coughlin, Garin writes "Rule 4 of the Nevada Rules of Civil23

24 Procedure specifically controls service of process. On August 29 20 I I, various documents which25 apparently relate to Case No. CY 11-0 1955 were left at the front reception desk of WLS's offices. At26 no time has WLS authorized the receptionist to accept service of process of a summons and27 complaint. Since leaving documents with a receptionist is not an approved method of service under28

- 6OPPOSITION TO t10TION TO DISMISS ETC.


29/43

123

56

R

91011

121314

1516

17

18192021222324

Rule 4. it is unclear whether you directed this action intentionally or if it was an attempt at service ofprocess. No affidavit of service has been filed in either case. As a licensed attorney, you know that ifyou intend to serve the summons and complaint in either or both cases, your obligation is to complywith Rule 4 If you believe you have complied with the mandate of Rule 4, please send me a letterexplaining your position. In addition. please provide me with a copy of any affidavit of service.3 In Garin's Motion to Dismiss for Insufficient Service of Process, an Affidavit in Support is signedby Elcano, though is contains quite curiously evasive language with respect to the issues at hand.This is the same Elcano who curiously did not receive the written email, the successfultransmission of which is rather easily verified, from Coughlin in the day or so prior to suspendingCoughlin from his position as a Domestic Violence Attorney for WLS. In his September 19 h, 2011A ffidavit, Executive Director Elcano swears that 4. On August 29, 20 II, Plaintiff left variousdocuments which appeared to relate to this matter at the front receptionist desk ofWLS s offices. 5At no time have I or WLS authorized the receptionist to accept service of process ofa summons andcomplaint on my or WLS's behalf . Elcano's Affidavit contains no mention of whether JessicaGarzae is still to be considered the receptionist at WLS, or whether Berta Mann was served and thatfact that Ms. Mann is clearly not the receptionist. but, rather, at last check, a Senior Paralegal with avery, very long tenure at WLS.

N LYSIS

Despite Garin's September 22, 20 II contention that clearly, _ is the best option forall involved. There is a very limited fund availableto However, as my fees are incurred, that25 fund is exhausted. I urge you to respond to in my last letter to you . , and the fac26 that he represents a lall firm, a legal aid organization, Garin chooses to use this precious fund he has

27 constantly referred to, a fund wherein a zero sum game is played between Garin lining his wallet with28

- 7OPPOSITION TO HOT ION TO DISHISS, ETC.


30/43

1 attorney's fees billed to his client and funds which could2

3 Not to mention that this attorney1 fired under circumstances that even the most cut-throat corporate law firm run, essentially, by a CFaS6 without a law degree. would blush at. Further, given Garin's declarations of concern for everyone

involved it is unclear why Garin is choosing to use this limited fund from which his fees for8 defending this action are drawn on something so easily overcome as the instant Motion to Dismiss.9 is unclear why Garin feels a dismissal would be appropriate prior to the expiration of 120 days, the

10 which litigants have to properly serve defendants pursuant to NRCP 4. Would not this limited11

12 Garin refers to be better spent on the all important Summary Judgment motion sure to come? Where13 will WLS be left once Garin's limited fund is exhausted? Is this limited fund some kind of14 statutory cap on damages as well? Garin has a talent for making pronouncements that sound like law15 but are unadorned with any troublesome citations to actual precedent. Perhaps that works with some16 people.17

18 Since Coughlin's process server did so much more than merely leaving a copy of the19 Summons and Complaint at a reception desk service should be deemed sufficient under Nevada20 Rule of Civil Procedure 4. As Defendant's counsel did not seem to cite even one case in support of21 his contentions and requests, a request which seeks to DISMISS the right of an individual to seek

redress for something so primary as the right to avoid being retaliated against and discriminated2324 against on the basis of one's race, sex, etc ... Plaint ifl seeks this court to order sanctions against2S Defendants, and, pursuant to NRS 7.085, against Mr. Garin himself, personally, in addition to26 providing stern written reproach to Garin regarding his attempts to prevent Coughlin from27 interviewing key witnesses via Garin's September 22 ', 2011 letter, in which Garin seeks to, in28

- 8OPPOSITTm' TO MOTION TO DISMISS, ETC.


31/43

12

3456

89

1011J 23

41516171819202122232425262728

domestic violence parlance blame the victim , vaguely citing to how threatened various non-managing-speaking test employees feel in regard to Coughlin's milquetoast written request tointerview them. [f any of these employees actually do feel threatened , and if this is not just anotherof Garin's dilatory litigation tactics, the kind practiced with such alacrity by so many employment ladefense attorneys over the years before Garin, then perhaps these employees should com,ider whetherthere feelings are based in a fundamental concern with whether saying something other than, or notquite, the truth to the EEOC may be discoverable upon the proper execution of a FO[A request to theSan Francisco District Office, whereupon the typical Determination Letter would yield the classicexemptions from disclosure (the various internal memorandum, work product etc, etc. basis), uponwhich a properly perfected appeal pursuant to 29 C.F.R. Sec 1610.11 would ensue, whereuponstatements made by those employees. under oath, to an EEOC investigator, and documentaryevidence supplied by WLS, would see the cold light of day, juxtaposed next to who knows what, be iaudio recordings, written materials, testimonial evidence or any number of other items which mightcontradict those employees earlier statements. I am sure cold blooded murderers feel threatened byprosecuting attorneys too, but that does not mean that equity should care.

Restrictions on right oflegal services corporation or public interest law firm to practice. 26A.L.RAth 614. Action of private organization providing legal aid with public funds as state actionwithin 42 U.S.CA. 1983.49 ALR. Fed. 955.I WLS s MOTION IS FATALLY FLAWED AND SHOULD BE SMITED. OR. AT THEVERY LEAST. DENIED

Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir.I 988)(citations omitted). [n that case, the court held that service on a receptionist was sufficientwhere she was ' the only employee in the office when the process server arrived, demonstrating thatmore than minimal responsibility was assigned to her: ld. at 689. A secretary to a corporation's vice

- 9OPPOSITIoN TO [10TION TO DISMISS, ETC.


32/43

1 president may be considered an authorized agent for accepting process by virtue ofthe fact that she2 has been habitually allowed to accept it In some cases, service made on a receptionist is valid3 because it is the equivalent of serving the receptionbl's boss directly. Fashion Page, Ltd. v Zurich45 Ins. Co., 69 A.D.2d 787, 415 N.Y.S.2d 416 (I st Dep't 1979), order affd, 50 N.Y.2d 265 428

\ 6 N.Y.S.2d 890,406 N.E.2d 747 (1980). Sternberg v Citicorp Credit Services, Inc., 110 Misc. 2d 804,442 N.Y.S.2d 1017 (Sup 1981). Implied authority to accept service of process on behalfofa

8 corporation generally will be found where the character of the agency is such as to render it fair,9 reasonable, and just to imply the authority on the part of the agent to receive service. The apparent

10 authority of an agent is to be determined by the acts of the principal, and not by the acts of the agent.1112 Tullis v Federated Mut. Ins. Co., 570 N.W.2d 309 (Minn. 1997). Kingvision Pay-Per-View, Ltd. v3 Ayers, 2003 WL 22753170 (Ala. 2003). See, also, Thompson v. Lied Animal Shelter, 2009 WL

14 3303733, *2 (D, Nev. 2009) (evaluating validity of service of process under Nevada law); Grand15 Canyon Resort Corp. v. Drive-Yourself Tours, Inc., D.C.Ariz.2006, 2006 WL 1722314 (court16 analyzed whether agent was authorized to receive process under federal standard, as well as under1718 Arizona law, where court was located, and Nevada law, where service was effected).19 While by Nevada law , the Lied case is likely concerned with Federal Courts in Nevada's20 interpretation of FRCP 4, the decision may be instructive in this state court context just the same, In21 Lieu Animal Shelter, the defendant argued that because the U.S, Marshall served an office manager22 at VCA Animal Hospital, that it has not been properly served. Service of a domestic or foreign2324 corporation may be effected pursuant to the laws of the state where the court is located or where25 service is sought. 1 Moore's Federal Practice 4,51[1] (3d ed. 2008) (citing Fed. R Civ. P 4(h)(I)26 (A); Fed. R. Civ. P 4(e)(I Under Rule 4(h)(1)(B), service may also be effected by delivering a27 copy of the summons and of the complaint to an officer, a managing or general agent, or any other28

- 10OPPOSITION TO [ lOTION TO DISMISS ETC.


33/43

1 agent authorized by appointment or law to receive service of process Fed. R Civ. P 4(h)(I)(B).2 The court reasoned that if the office manager was an officer, managing agent, or general agent of3 VCA. then service upon her was sufficient to serve VCA. The Ninth Circuit uses the following

5 analysis: Despite the language of the Rule, service of process is not limited solely to officially6 designated officers, managing agents, or agents appointed by law for the receipt of process. The rules7 are to be applied in a manner that will best effectuate their purpose of giving the defendant adequate8 notice. Thus, the service can be made upon a representative so integrated with the organization that9 he will know what to do with the papers. Generally, service is sufficient when made upon an

10 individual who stands in such a position as to render it fair, reasonable and just to imply th authority11

on his part to receive service. Generally, [tJhe determination ofwhether a given individual is a'managing or general agent' depends on a tactual analysis of that person's authority within the

14 organization. Direct Mail Specialists. Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 68815 (9th Cir. 1988)(citations omitted). In that case, the court held that service on a receptionist was16 sufficient where she was (he only employee in the office when the process server arrived,1718 demonstrating that more than minimal responsibility was assigned to her. Id. at 689. In Lied, the19 person served was an office manager for YCA at its Las Vegas animal hospital. This position is ofa20 high enough level of responsibility under the Ninth Circuit's test to effect valid service. The manager21 of an office certainly know[sJ what to do with the papers, if the receptionist in Eclat did. Id. at 688.22

If a receptionist can satisfY the lest based on more than minimal responsibility, the manager of an2324 office should satisfy the test in most cases. The Ninth Circuit noted in Eclat that Rule 4 is a flexible25 rule that should be liberally construed o long as a party receives sufficient notice of the complaint.26 Id. (quoting United Food Commercial Workers Union v Alpha Beta Co., 736 F.2d 1371, 1382 (9th27 Cir. 1984)). t cannot be said that VCA did not receive sufficient notice of the complaint. The service28

- 11OPPOSITION TO t'10'rION TO DISMISS ETC.


34/43

1234

567

9

10111213141516171819202122232425262728

was effected on August 27. 2009. (#21). yeA filed the present motion on September 21. (#23). VCAhad sufficient notice of he SAC based on service of Ms. Smith, who was of appropriateresponsibility. Therefore. the Court denies the motion to dismiss based on improper service ofprocess.

Wow. so. certainly, the fact that WLS is a law firm may indeed, auger toward deeming servicsufficient. The fact that E1cano is a hunt and peck with two fingers typist might also lend a hand tothe argument that his subservients stamp such a deep imprint on everything he does that they shouldbe deemed agents capable of accepting service of process for Eleano.

More commonly service is allowed on any "agent." Not every employee is considered anagent under such statutes, but only employees who are not mere subordinates or who are likely toinform the appropriate officers that service has been made. Thus such employees as janitors,dispatchers, and typists have not been considered agents, but an office manager and the highestranking employee at a construction site have been considered agents. A corporation cannot evadejurisdiction when it has created the impression that the person served was the proper person toreceive service. See, Chancellorv. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983). Megan v. L. B.Foster Co . I III. App. 3d 1036.275 N.E.2d 426 (2d Dis . 1971). Scott v. Atlanta Dairies Co-op., 239Ga. 721, 238 S.E.2d 340 (1977). Eggi v. Fleetguard, Inc., 1998 NO 166, 583 N.W.2d 812 (N.D.1998). Adair Realty Co. v. Greenbriar-Fulton, Inc., 149 Ga. App. 669, 255 S.E.2d 128 (1979).Southeastern Fidelity Ins. Co. v. Heard, 123 Ga. App. 635, 182 S.E.2d 153 (1971). Cousby v. J. T.Bickers Realty Co 139 Ga. App. 250. 228 S.E.2d 214 (1976). Burris Chemical, Inc. v. DanielS '- kc; ' rConst. Co., 251 S.c. 483, 163 S.E.2d 618 (1968). C- ,,,p n{ i;;cx,'';r > 7 r CIt s r~ C.>


35/43

1 consist of speaing with ny employes ofWLS. Garin seems to cite to some vague proposition that by2 including DOES 1-100 in the caption of his Complaint (something made necessary by WLS's3 repeated refusal to provide the names of any of the members of its Board ofDirector's despite

5 Coughlin's numerous written requests in that regard) Coughlin is ethically prevented from6 questioning any employee's, even those traditionally available to him under the managing-speaking7 lest set out by the Nevada Supreme Court. Perhaps, Garin might take some pointers from the8 tribulations the City of Reno attorney ran into regarding allegation's ofwitness tampering in the9 recent Eoff/Pitsnogle proceedings. Well, anyways, it is not clear who exactly Garin represents and

10 whether he is invoking some sort of attorney-client, no contact with represented parties line or12 argument to prevent any evidence gathering vis a vis employee interview by Coughlin. IN Garin's13 September 9.2011 to Coughlin, Garin writes As you know, my oftlce represent Washoe Legal14 Services, its directors, oftlcers, and employees (collectively WLS ) ... No, Joe, I don't know that.15 Actually, if you could just provide me a copy of the liability insurance from which your employment16 as defense counsel stems I could ascertain better who exactly it is you represent, and in what capacity1718 (in the employees capacity as an employee or director, or personally?). Because, Joe, in some ofyou19 pleadings you describe your role as attorney for Defendants, WLS and Eleano, Now, it would seem20 that is what they called an appositive in my 9th grade honors English class right here at Reno High21 School, where that comma after the word Defendants is indicative of that fact that you are about to22 identify them further and more specifically, such as by name. You did, following that comma with2324 WLS and Elcano . So, how does that jibe with your September 9, 20 II letter wherein you go on2S about how I know that your office represents Washoe Legal Services, its directors, officers, and26 employees (collectively WLS ) ... Is this what is called a dilatory litigation practice wherein you27 hope to broaden the scope of the blanket of silence you wish to enforce to those who do not qualify28

- 13OP?OSITWN TO MOTION TO DISMISS ETC.


36/43


37/43

1234

56789

1011

1314151617181920212223247 5

262728

As to the sufficiency of service of process, see 62B Am. Jur. 2d, Process 105 et seq. Answer--Defense--Improper service ofprocess--Person served not agent oremployee of defendant, AMJUR PP Forms Fed. Prac. Proc. s 113 (2009). Actions by and AgainstCorporations D. Process L Persons Who May Be Served b Particular Persons Who May Be Served.19 Am. Jur. 2d Corporations 1906.B WLS AND GARIN SHOULD BE SANCTIONED FOR THIS FRIVOLOUS ANDVEXATIOUS FILING AND MAINTENANCE OF THIS MOTION AND OTHERDILATORY LITIGATION TACTICSNRS 7.085:

Payment of additional costs, expenses and attorney's fees by attorney who files,maintains or defends certain civil actions or extends civil actions in certaincircumstances I. If a court finds that an attorney has: (a) Filed, maintained ordefended a civil action or proceeding in any court in this State and such action ordefense is not well-grounded in fact or is not warranted by existing law or by anargument for changing the existing law that is made in good faith; or (b)Unreasonably and vexatiously extended a civil action or proceeding before any courtin this State, the comi shall require the attorney personally to pay the additional costs,expenses and attorney's fees reasonably incurred because of such conduct. 2 Thecourt shali liberally construe the provisions of this section in favor of awarding costs,expenses and attorney's fees in all appropriate situations. It is the intent of theLegislature that the court award costs, expenses and attorney's fees pursuant to thissection and impose sanctions pursuant to Rule II of he Nevada Rules of CivilProcedure in all appropriate situations to punish for and deter frivolous or vexatiousclaims and defenses because such claims and defenses overburden limited judicialresources, hinder the timely resolution of meritorious claims and increase the costs ofengaging in business and providing professional services to the public.While those with a shallow understanding of Sellers v. Fourth Judicial Dist. Ct., 119 Nev.

256 71 P .3d 495 (2003), might argue attorney's rees of any sort are not available to a pro se litigant,even one who is an attorney, see: NOTE: Awarding Attorney's Fees to Pro Se Litigants Under RuleII June, 1997.95 Mich. L Rev. 2308, Jeremy D. Spector. To wit:

states that have considered whether an attorney proper person litigant may beawarded attorney fees are divided, with a slight majority permitting such fees.Decisions approving fee awards to attorney proper person litigants generally do soon the basis that an attorney is paid ror rendering legal services, and ifhe renders

- 15OPPOSITION TO ~ 1 T I O N TO DISMISS ETC.


38/43

123456

89

10111213141516

171819202122232425262728

such services on his own behalf, it results in as much pecuniary loss to him as ifhepaid another attorney to render the same services. So if a losing party must payattorney fees anyway, it should make no difference whether the fees are to be paidto an attomey representing himself or another attorney employed by him. In short,a lawyer's time and advice are his stock in trade. ... We interpret NRS 69.030 torequire that all proper person litigants. whether attomey or non-attorney. be

obligated to pay attorney fees as a p r r ~ u i s i t for an award of prevailing partyattorney fees. This interpretation gives effect to the Legislature's clear intent that theprevailing party in justice's court be reimbursed by the losing party for out-ofpocket costs incurred to prosecute the suit. To interpret the statute otherwise wouldrequire us to redefine what is meant by an attorney fee, which is commonlyunderstood to be the sum paid or charged for legal services. Because Matthewsrepresented himselfand did not payor incur any obligation to pay attorney fees. thejustice's court exceeded its jurisdiction by awarding such fees. We therefore grant,in part, the petition for a writ of certiorari. Sellers v Fourth Judicial Dist. Ct., 119Nev. 256, 71 P .3d 495 (2003).almer v ioneer Inn Assocst. 59 P.3d 1237 (Nev. 2002) clearly contradicts Garin's ominous

writing and directives to Coughlin and this court should not countenance such quasi witnesstampering. In Palmer v Pioneer Inn Associates. Ltd., 59 P.3d 1237 (Nev. 2002), the NevadaSupreme Court engaged in an extensive interpretation of Nevada SCR 182 and determined to apply itto organizational entities according to a managing-speaking agent test. in which an attorney isprecluded trom ex parte contact with a person affiliated with the adverse entity only if the personqualifies as a managing-,peaking agent (defined by the Court as someone with supervisory control orauthorization to speak for the entity as to the matter that is the subject of the conflict). See 59 PJd at1238, 1244-45 and 1248 (test applies to those representatives w o are in a position to speak for andbind the organization during the course of litigation ). Nevada Supreme Court Rule 182. Officialcomment to Model Rule 4.2. Palmer VS. Pioneer Inn Associates, 59 P.3d 1237 (Nev. 2002). NevadaSupreme Court Rule 182, which governs the issue. states: In representing a client, a lawyer shall notcommunicate about the subject ofthe representation with a party the lawyer knows to be representedby another lawyer in the matter. unless the lawyer has the consent of the other lawyer or is authorizedby law to do so. Nevada SCR 182 is based on ABA Model Rule 4.2. Comments to the Model Rules

- 16OPPOSITION TO MOTION TO DISMISS ETC.


39/43

1 were not adopted, but may be used as guidance for interpretation. See Nevada SCR 150(2). Personal2 interviews of witnesses by counsel arc the time honored means by which an attorney develops and3 refines his case. Sec IBM v. Edelstein, 526 F.2d 37 (S.D.N.Y., 1975). Interviews are one method of45 satisfying an attorney's obligations under Rule II to conduct a reasonable inquiry to ensure Ihal a6 claim is well grounded in fact. See Nev. R Civ. P. II. The purpose ofRule 182 is to protect7 laypersons from being taken advantage of by lawyers, to protect the attorney-client relationship, and8 to prevent the inadvertent disclosure ofprivileged information. See In re Discipline o/Schaeffer, 259 P.3d 191,198 (Nev. 200 I). The issue arises in connection with contacting non-managerial corporate

1 employees. Ex parte contact with managerial employees of a corporation is prohibited by the Rule.1112 See Cronin v. Eighth Judicial District Court. 105 Nev. 635. 781 P.2d 1150 (1989). The issue in the3 case of corporations, and other organizational entities as well, is: Which individuals constitute the

14 represented party? Some courts embrace the position that no corporate employees, even lower level15 employees. should be contacted ex parte when that corporation is represented. See, e.g., Public16 Service Elec. Gas Co. v. Associated Elec. Gas Ins. Svcs., Ltd., 745 F. Supp. 1037 (D.N.J. 1996)17

18 (superseded by Rule and Reg.). The majority take the position that some communication may take19 place. See Niesig v. Team 1,76 N.Y.S. 2d 363, 558 N.E. 2d 1030 (1990). The scope of corporate2 employees covered by the Rule has been broadened by courts over the years. The narrowest test is21 the control group test. Those courts which adopt the control group test, reason that the maximum22 amount of information should be readily available through informal discovery. See Fair Automotive23

24 Repair, Inc. v. Car-X Service Systems, Inc . 128 III. App. 3d 763, 471 N.E.2d 554 (III. App. 1984). In25 Wright v. Group Health Hospital, 691 P.2d 564 (Wash 1984), the Court used a managing-speaking26 agent test that defines a manager as one who in words or actions bind the corporation ( speaker-27 manager ). By identifying a speakermanager as the party, the Court reasoned that the purpose of the28

- 17OPPOSITION TO MOTiON TO DISMISS, ETC.


40/43

1 Rule was satisfied by preventing an adverse attorney from contacting someone who could bind the2 corporation. See 691 P.2d at 569. The Wright Court refused to distinguish between employees who3 witnessed the damaging act from the employees who caused it reasoning that the Rule is not meant45 to shield a corporation from discovery of the facts ofa matter, even if they are prejudicial. See 6916 P.2d at 569. The Nevada Supreme Court has addressed the application ofSCR 182 in detail in7 Palmer v. Pioneer Inn Associates, ,Ltd., 59 P.3d 1237 (Nev. 2002). The Palmer court adopted the8 managing-speaking agent test of the Washington Supreme Court in Wright v. Group Health, supra,9 to define who is meant as a person with managerial responsibility.

10 In answering the certified question, the Nevada Supreme Court in Palmer v. Pioneer Inn11

12 adopted a managing-speaking agent test for applying Nevada SCR 182 to corporate persons. Under13 this test, an attorney may not engage in ex parte communication (absent consent or authorization14 pursuant to other substantive law) if the person is a managing agent who is authorized to speak for15 the company about the subject matter of the litigation or dispute. The Nevada Supreme Court's16 analysis meant that the Sous Chef, although a supervising employee, was not a representative ofthe1718 Hotel in the Palmer dispute for purposes of the managingspeaking agent test. Consequently, Palmer's19 counsel did not violate Rule 182 as interpreted by the Nevada Supreme Court. After the Palmer v.20 Pioneer Inn decision, it is now clear that Nevada SCR 182 utilizes a managing-speaking agent test21 for determining which adverse entity employees are off limits to counsel and that neither the22 Restatement-Niesig ability to bind the company test nor the admission by a party-opponent test2324 applies to Nevada SCR 182 Despite the pedigree supporting the party-opponent and New York-25 Niesigtests, the Nevada Supreme Court rejected them in favor of the managing-speaking agent test26 because it best balances the policies at stake when considering what contact with an organization's27 representatives is appropriate. The test protects from overbearance by opposing counsel those28



41/43

1 representatives who are in a position to speak for and bind the organization during the course of2 litigation, while still providing ample opportunity for an adequate Rule 11 investigation. In particular,3 the managing-speaking agent test best fulfills this purpose by not being over-inclusive. In particular,45 the managing-speaking agent test adopted by this court does not protect the organization at the6 expense of the justice system's truth-finding function by including employees whose conduct could7 be imputed to the organization based simply on the doctrine of respondeat superior. Finally, while8 any non-blanket rule has some uncertainty, we conclude that the test is sufficiently clear to provide9 signiticant guidance to counsel. See 59 P.3d at 1248 (footnotes omitted). The Court also noted that it

10 was not adopting ABA Model Rule 4.2's comment and was not adopting the ABA's 2002 comment,11

12 which essentially tracks the New York tcst. Rather. SCR 182 should be interpreted according to the13 managingspeaking agent test as set forth by the Washington Supreme Court in Wright by Wright v14 Group Health Hospital. See 59 P.3d at 1248 (footnotes omitted). See also Wright v Group Health15 Hosp., 691 P.2d at 569 (Wash. 1984): [The function of anti-contact rule 1 is to preclude the16 interviewing of those corporate employees who have the authority to bind the corporation.1718 [Employees should be viewed as within the anti-contact rule where they have 1 managing authority19 sufficient to give them the right to speak for. and bind, the corporation an employee does not20 speak for the organization simply because his or her statement may be admissible as a party-21 opponent admission. Rather, the inquiry is whether the employee can bind the organization with his22 or her statement.2324 onclusion25 Plaintiff has properly eflectuated service on Defendants Washoe Legal Services and26 Paul Elcano, and. perhaps, on most of the other Defendants. save CAAW and Tahoe27 Women's Services. Plaintiffs success in complying with NRCP 4 warrants a denial fo28



42/43

1 Defendant's motion for dismissal of the Complaint pursuant to NRCP 12(b)(4).2 Accordingly, Plaintiff respectfully request this Court dismiss the Complaint nd provide3 other relief as warranted. WLS nd Garin's dilatory tactics should be punished.

AFFIRMATlO Pursuant to NRS 239B 03056 Also. this document does not contain any social security number or other inappropriate material7 pursuant to NRS 2398.030.8 DA TED this 23'" day of September. 2 II9

10 /s/ Zach Coughlin11 Zach Coughlin12 Plaintiff13141516

1718

192021

22

2324

252627

28

- 20OPPOSITION TO IOTION TO DISMISS ETC.


43/43

123

56789

1011

121314

1516171819

2021

22

232425

2627

PROOF OF SERVI E

I Zach Coughlin declare:

Joe Garin Esq. NV Bar 6653Shannon Nordstrom Esq. NV Bar 82119080 West Post Road Suite 100Las Vegas Nevada 89148Attorneys for Defendants WLS and Paul Elcano

ch Coughlin

Documents

12 27 11 Cv11-01955 WLS Elcano's Motion for Attorney's Fees