Opinion
82438-COA
08-19-2021
PORTSMOUTH QUALITY FLOOR CORPORATION, A NEW HAMPSHIRE CORPORATION, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE; AND THE HONORABLE BARRY L. BRESLOW, DISTRICT JUDGE, Respondents, and GST INTERNATIONAL, INC., A NEVADA CORPORATION, Real Party in Interest.
UNPUBLISHED OPINION
ORDER DENYING PETITION
Gibbons C.J.
This original petition for a writ of mandamus and/or prohibition challenges a district court order denying a motion to quash service and, in the alternative, an order denying a motion for reconsideration.
A writ of mandamus is available to compel the performance of an act that the law requires or to control an arbitrary or capricious exercise of discretion. NRS 34.160; Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). A writ of prohibition may issue when a district court acts without or in excess of its jurisdiction. NE, S 34.320. We have discretion to consider a writ petition. Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). The petitioner must demonstrate that extraordinary relief is warranted. Pan v. Eighth Judicial Dist. Cout, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004). Where there is no plain, speedy, and adequate remedy in the ordinary course of law, extraordinary relief may be available. NRS 34.170; NRS 34.330; Smith, 107 Nev. at 677, 818 P.2d at 851.
Portsmouth Quality Floor Corporation asks this court to compel the district court to vacate the order denying Portsmouth's motion to quash service for want of personal jurisdiction and suspend and dismiss the lower court proceedings; or alternatively, grant Portsmouth's motion to reconsider and order an evidentiary hearing. The underlying matter was litigated while in the pleading stage, and there has been no discovery. Personal jurisdiction over Portsmouth turns on whether there is an agency relationship between Portsmouth and AQUA Tite Innovative Solutions, LLC-that is, whether Portsmouth is a principal organization with AQUA Tite acting as its agent. The district court denied the motion to quash service and dismiss for lack of personal jurisdiction. It subsequently ruled that a motion for reconsideration was a procedurally improper vehicle to request an evidentiary hearing for the first time; Portsmouth failed to comply with DCR 13(7) by not seeking leave of court to file the motion; the district court retained discretion to order an evidentiary hearing; and a hearing was inappropriate because personal jurisdiction turned on the same facts as the merits of the overall case, citing as persuasive support Anderson v. American Society of Plastic & Reconstructive Surgeons, 807 P.2d 825, 827 (Utah 1990) (holding that if personal jurisdiction is determined by the same facts as to the merits of the case, a pretrial evidentiary hearing to determine jurisdiction is not warranted).
The agency issue appears to be a factual dispute, which is resolved in favor of the plaintiff at this stage. See Tricarichi v. Coop. Rabobank, U.A., 135 Nev. 87, 91, 440 P.3d 645, 649 (2019). Additionally, GST needed only to allege facts sufficient to make a prima facie showing of agency at this stage in the proceedings, which the district court properly concluded it did. See Trump v. Eighth Judicial Dist. Court, 109 Nev. 687, 694-96, 857 P.2d 740, 745-46 (1993). Thus, having considered the briefs and appendices filed in this matter, we are not convinced that our extraordinary and discretionary intervention is warranted at this time. Accordingly, we
ORDER the petition DENIED.
Tao J., Bulla J.
Hon. Barry L. Breslow, District Judge