Opinion
No. 68714
03-02-2016
JAMES MARTIN REESE, Appellant, v. LAW OFFICE OF MICHAEL H. SCHWARZ, Respondent.
ORDER OF AFFIRMANCE
This is an appeal from a district court order dismissing appellant's torts complaint as to respondent. Eighth Judicial District Court, Clark County; Mark R. Denton, Judge.
Although the order was not a final judgment, insofar as appellant's claims against another defendant remain pending below, the Nevada Supreme Court entered an order on September 29, 2015, concluding that jurisdiction was proper as to respondent based on the district court's certification of the order under NRCP 54(b). --------
The district court dismissed appellant's complaint as to respondent for failure to state a claim. Having reviewed appellant's arguments and the record on appeal, we discern no error in the dismissal as the complaint contained no allegations relating to respondent. See Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008) (providing that a district court's dismissal of a complaint under NRCP 12(b)(5) is rigorously reviewed on appeal and that dismissal is only appropriate "if it appears beyond a doubt that [the plaintiff] could prove no set of facts, which, if true, would entitle [the plaintiff] to relief"); W. States Constr., Inc. v. Michoff, 108 Nev. 931, 936, 840 P.2d 1220, 1223 (1992) (providing that a complaint must "set forth sufficient facts to demonstrate the necessary elements of a claim for relief so that the defending party has adequate notice of the nature of the claim and relief sought"). And while appellant contends on appeal that he made allegations relating to respondent at the hearing on the motion to dismiss, the transcript of that hearing shows that appellant asserted that he believed the other defendant used respondent's equipment and letterhead to undertake the acts alleged in the complaint, but he did not actually allege any wrongdoing by respondent.
Appellant also argues on appeal that the motion to dismiss should not have been granted because respondent's answer to the complaint was untimely, such that default should have been entered on that basis. Even assuming that a default should have been entered against respondent, the district court would have had discretion to set aside any default and permit the case to proceed on the merits as to respondent. See Landreth v. Malik, 127 Nev. 175, 188, 251 P.3d 163, 171 (2011) (noting that a district court's decision to set aside an entry of default is reviewed on appeal for an abuse of discretion). Under the circumstances of this case, where there were no allegations in the complaint relating to respondent, respondent explained that the failure to file an answer initially was due to uncertainty as to whether it was a defendant because of the absence of such allegations, and respondent appeared and filed an answer, a counterclaim, and a motion to dismiss within a reasonable time, granting a motion to set aside any default would have been proper. Thus, we cannot conclude that appellant's substantial rights were affected when the district court proceeded on the merits of respondent's motion to dismiss without first directing entry of default. See NRCP 61 (requiring the court to "disregard any error or defect in the proceeding which does not affect the substantial rights of the parties").
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Silver cc: Hon. Mark R. Denton, District Judge
James Martin Reese
Law Office of Michael H. Schwarz
Eighth District Court Clerk