Opinion
No. 64370
03-18-2014
CONSTABLE JOHN BONAVENTURA, AN INDIVIDUAL, Appellant, v. LAUGHLIN TOWNSHIP CONSTABLE JORDAN ROSS, AN INDIVIDUAL; AND HENDERSON TOWNSHIP CONSTABLE EARL MITCHELL, AN INDIVIDUAL, Respondents.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER DISMISSING APPEAL
This is an appeal from district court orders striking appellant's first amended complaint, awarding respondents attorney fees and costs as sanctions, and imposing monetary sanctions on appellant's counsel under NRCP 11. Eighth Judicial District Court, Clark County; Ronald J. Israel, Judge.
Respondents have moved to dismiss this appeal for lack of jurisdiction, asserting that the district court has not entered a final order appealable under NRAP 3A(b)(1) and that the named interlocutory orders are not appealable under any other court rule or statute. In response, appellant contends that he was never served with the motion to dismiss and seeks either to compel service or the denial of the motion. Appellant also asserts that jurisdiction is proper because the case below was "effectively ended" when this court determined in a related case that no private cause of action exists under NRS 258.070, see Ross v. Bonaventura, Docket No. 61430 (Order of Reversal, November 20, 2013), rehearing denied, petition for en banc reconsideration filed, and the district court struck his first amended complaint in which he attempted to correct the standing problem below. As authority for this court's jurisdiction, cited in both appellant's response to the motion and in his docketing statement, appellant points to NEAP 3A(b)(1) (final judgment), NRAP 3A(b)(3) (injunction), and NRAP 3A(b)(8) (special order after final judgment).
As appellant miscalculated the deadline for filing the docketing statement, appellant's unopposed motion for leave to file a late docketing statement is granted. See NRAP 26(c) (three days are added to prescribed periods when a party is required to act after service of a document and that document is served by mail); NRAP 14(b) (docketing statement due 20 days from docketing). Accordingly, the clerk of this court shall detach from appellant's December 11, 2013, motion and file the proposed docketing statement.
Because respondents' motion contains a proper certificate of service and appellant's arguments concerning this court's jurisdiction are adequately set forth in his response to the motion and in his docketing statement, we deny his countermotion to compel service and to refuse dismissal on that basis. Typically, an amended complaint supersedes the original complaint, Randono v. Ballow, 100 Nev. 142, 143, 676 P.2d 807, 808 (1984), and thus, an order striking it in its entirety may effectively dismiss the entire action and constitute a final, appealable judgment. NRAP 3A(b)(1); Lee v, GNLV Corp., 116 Nev. 424, 996 P.2d 416 (2000). Here, however, the district court found that the amended complaint was filed without permission and struck it as a fugitive document. That order did not end the case; indeed, it appears that appellant's claims remain pending as originally set forth in the complaint filed on June 20, 2012. Neither did the district court prohibit appellant from seeking leave to file an amended complaint in the future. Accordingly, we conclude that no final judgment has been entered below. As there exists no authority for allowing an appeal from interlocutory orders striking an amended complaint and awarding sanctions, we lack jurisdiction and
Additionally, we note that the appeal is not properly taken from the order sanctioning appellant's counsel, as appellant is not aggrieved by that order. NRAP 3A(a).
Because we cannot conclude that this appeal was frivolous, we decline respondents' request to impose sanctions under NRAP 38(a). In light of this order, appellant's motion to remand this matter to the district court to receive evidence and for factual findings as to the reasonableness of the attorney fees awarded is denied as moot. Nor do we need to take any action with respect to appellant's February 4, 2014, notice regarding the return of payment for, and lack of delivery of, ordered transcripts.
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__________, J.
Pickering
__________, J.
Parraguirre
__________, J.
Saitta
cc: Hon. Ronald J. Israel, District Judge
Robert B. Pool
Goodman Law Group
Eighth District Court Clerk