Opinion
No. 62319
06-14-2013
KRISTY ANN JACKSON; AND ARIANA STARR WARM, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE DAVID B. BARKER, DISTRICT JUDGE, Respondents, and LESLIE SARA SADOVIA, Real Party in Interest.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER DENYING PETITION FOR WRIT OF MANDAMUS
This is an original petition for a writ of mandamus challenging a district court order denying a motion to strike real party in interest's complaint for failure to timely serve process. Real party in interest has filed an answer, and petitioners have filed a reply.
A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station, or to control an arbitrary or capricious exercise of discretion. See NRS 34.160; Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008). It is within our discretion to determine if a writ petition will be considered. Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). Petitioner bears the burden of demonstrating that extraordinary relief is warranted. Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004). This court generally will not consider writ petitions challenging district court orders denying motions to dismiss, unless no factual dispute exists and the district court was obligated to dismiss the action pursuant to clear authority. Int'l Game Tech., 124 Nev. at 197-98, 179 P.3d at 558-59.
Having considered the petition, we conclude that petitioners have not demonstrated that the district court was required to strike the complaint and dismiss the action below. See id.; Pan, 120 Nev. at 228, 88 P.3d at 844. Accordingly, we deny the petition. See NRAP 21(b)(1); Smith, 107 Nev. at 677, 818 P.2d at 851.
In light of this conclusion, we need not address real party in interest's procedural arguments.
It is so ORDERED.
_____, J.
Hardesty
_____, J.
Parraguirre
_____, J.
Cherry
cc: Hon. David B. Barker, District Judge
Sarah A. Smith
Law Firm of Rene L. Rosich, Ltd.
Eighth District Court Clerk