McMillan v. NobleMcMillan v. Noble
James B. and Marie McMillan sued Walton B. Noble for $538,000.00 in the Eighth Judicial District Court of Nevada. Noble was personally served in New Orleans with the summons and complaint pursuant to the Nevada Long Arm Statute,
On May 2, 1986, the McMillans’ Nevada counsel mailed a notice of deposition to Swanson in New Orleans seeking to depose Noble in Las Vegas on May 15, 1986. Swanson notified the McMillans’ counsel that Noble would not appear. Five days later pursuant to Nevada Rule of Civil Procedure 37, the McMillans filed a motion for sanctions for failure to comply with discovery, asking to have Noble‘s answer stricken, and requesting a default judgment against him. The “Notice of Motion” and “Motion For Sanctions For Failure to Comply With Discovery“, were mailed to both Swanson and Noble at the address both Swanson and Noble listed as their mailing address in the counter claim. The Motion for Sanctions explicitly informed Swanson and Noble that the requested sanctions were the striking of Noble‘s answer and counter-claim, and the rendering of a default judgment against him. Neither Swanson nor Noble appeared to oppose the motion, and a default judgment in the amount of $538,000.00 was entered against Noble on July 8, 1986.
The McMillans filed a petition in the Civil District Court for the Parish of Orleans to make the Nevada judgment executory in Louisiana in accordance with
Noble contested both subject matter and personal jurisdiction in the Civil District Court however, he has failed to brief the subject matter jurisdiction issue on appeal; therefore, pursuant to Rule 2-12.4 of the Uniform Rules—Courts of Appeal, this issue is considered abandoned.
Under the
The Nevada Supreme Court has held “that when a defendant seeks relief additional to that necessary to protect himself from service of process, he enters a general appearance.” Davis v. Eighth Judicial District Court of the State of Nevada, 629 P.2d 1209, 1213 (1981), cert. denied, 454 U.S. 1055, 102 S.Ct. 601, 70 L.Ed.2d 591 (1981). In that case the Nevada Supreme Court approved the holding of the Supreme Court of California, which is particularly appropriate to this case. “Where the defendant appears, and asks some relief which can only be granted on the hypothesis that the Court has jurisdiction of the cause and person, it is a submission to the jurisdiction of the Court.” Goodwine v. Superior Court of Los Angeles, 63 Cal.2d 481, 47 Cal.Rptr. 201, 203, 407 P.2d 1, 3 (1965). Applying the rule of Davis, supra, when Noble counter-claimed for damages allegedly caused by the McMillans’ breach of contract, he asked for relief which can be granted only by a Court of competent jurisdiction and as a consequence submitted to the jurisdiction of the Nevada court.
Additionally, the Nevada Rules of Civil Procedure are applicable. Rule 12(b) and (h)(1) provide that the defense of lack of personal jurisdiction is waived if not asserted by motion before filing responsive pleadings. Noble did not assert a jurisdictional defense by motion before filing an answer and counter claim. As a consequence, Noble waived any defense of lack of personal jurisdiction by failing to raise the objection in a procedurally proper manner.
Notwithstanding his failure to object to personal jurisdiction prior to filing responsive pleadings, Noble objects to the Nevada Court‘s jurisdiction because he was not personally served with notice of the motion and rule for sanctions. Although N.R.C.P. 5 permits service by mail upon counsel for a party of any pleadings or discovery related requests filed subsequent to the original complaint, Rule 5 also requires personal service on a party of any pleading subsequent to the original complaint which asserts “new or additional claims for relief” and Noble claims the Motion for Sanctions and request for default judgment sought claims for relief in excess of the original complaint. Noble‘s reliance on the requirement of personal service is misplaced. The motion and rule for sanctions sought a judgment based on the original complaint. A simple reading of the original complaint compared with the request for default judgment shows it did not assert “new or additional claims for relief“, therefore personal service was not required.
Once a Court obtains jurisdiction either through submission by a party or waiver of the defense that Court is not divested of jurisdiction until disposition, and it is questionable whether Noble has raised a jurisdictional issue by this argument. The proper forum to decide procedural questions of notice and applicable sanctions for failure to comply under Nevada law is the Nevada Court.
Noble also contends denial of due process of law because he was not personally served with the notice of the hearing on the Motion for Sanctions. Although Noble relies upon Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75, (1988) to support his argument, the record reveals that notice of the hearing was mailed to both Noble and Swanson at the address listed on Noble‘s answer. The notice very clearly informed Noble of the possibilty of sanctions, more particularly, the striking of his answer and entry of default judgment. Because Noble submitted to Nevada jurisdiction by filing an answer and considering N.R.C.P. 5 permitting service by mail, Noble was duly notified of the consequences of his failure to appear. Nevada procedural and substantive law unquestionably afforded Noble due process.
Finally, Noble contends that Louisiana‘s statutes under the Uniform Enforcement of Foreign Judgments Act
AFFIRMED.