130 Nev., Advance Opinion 23 IN THE SUPREME COURT OF THE STATE OF NEVADA
HUCKABAY PROPERTIES, INC., A No, 61024 NEVADA CORPORATION, Appellants, vs. FILED NC UTO PARTS, LLC, A NEVADA MAR 27 2014 LI ITED LIABILITY COMPANY; AND TRACE K. LINDEMAN ST EVEN B. CRYSTAL, AN CL BY IN I IVIDUAL, Res s ondents. HU KABAY PROPERTIES, INC., A No. 61791 NE ADA CORPORATION; AND JOHN HU KABAY, JR., Ap ellants, vs. NC UTO PARTS, LLC, A NEVADA LI ITED LIABILITY COMPANY; AND ST VEN B. CRYSTAL, Res ondents.
Petition for en banc reconsideration of an order dismissing app als for failure to file opening brief and appendix. Petition for en banc reconsideration denied.
Ho man, Test, Guinan & Collier and John A. Collier, Reno; McDonald Car no Wilson LLP and Debbie A. Leonard and Seth T. Floyd, Reno; Ste ling Law LLC and Beau Sterling, Las Vegas, for ppellants.
Le ons, Grundy & Eisenberg and Robert L. Eisenberg, Reno; Wm. Pat erson Cashill, Reno, for espondents.
Corrft1-4,4 pee- law -fr pub1i.--6her6. Oi Dcnot
BEIfORE THE COURT EN BANC.
OPINION By ii e Court, HARDESTY, J.: These consolidated appeals were dismissed for failure to tim ly file the opening brief and appendix. In seeking the en bane court's rec I sideration, appellants argue that dismissal of their appeals based on the missteps of their lead appellate attorney is contrary to this court's pre .edent recognizing public policy favoring dispositions on the merits. App llants' dissatisfaction with their attorney's performance, however, doe not entitle them to the reinstatement of their appeals, and their ar • ment to the contrary is not consistent with general agency principles, und r which a civil litigant is bound by the acts or omissions of its vol ntarily chosen attorney. Although this court has a sound policy pre rence for deciding cases on the merits, that policy is not absolute and mu t be balanced against countervailing policy considerations, including the public's interest in expeditious resolution of appeals, the parties' inte ests in bringing litigation to a final and stable judgment, prejudice to the ipposing side, and judicial administration concerns, such as the court's nee f; to manage its sizeable and growing docket. We therefore disagree wit appellants that precedential uniformity provides a basis to reinstate the -e appeals. As appellants' contentions fail to satisfy NRAP 40A's sta dards, en bane reconsideration is denied. FACTS AND PROCEDURAL HISTORY The appeal in Docket No. 61024 challenged a district court jud ent following a bench trial in a real property contract action. The app al in Docket No. 61791 challenged the same court's post-judgment ord rs awarding attorney fees and costs. The appeals were consolidated SUPREME COURT OF NEVADA 2 (0) 1947A
on P ecember 12, 2012, and a briefing schedule was set, under which app llants' opening brief was due by no later than March 12, 2013. Ove due opening brief On appellants' motion, the briefs due date was extended to Apr 1 11, 2013. On April 12, 2013, appellants filed a motion seeking a sec nd extension until May 13, 2013, to file the brief. Because appellants did not submit the brief by the May 13 requested deadline, appellants' mot on for a second extension was denied as moot on May 24, 2013. Des site denying the motion, the May 24 order allowed appellants 11 more day until June 4, 2013, to file and serve the opening brief and appendix, but the order warned that failure to do so could result in the appeals' dis issal. The brief and appendix were not filed by that deadline. Ap • llants had two attorneys of record in these appeals: Beau Sterling and John A. Collier. Mr. Sterling apparently was responsible for briefing the ppeal and filing documents in this court. Mr. Collier, who was trial cou sel, received copies of this court's notices and orders. Mot on to dismiss On June 10, 2013, respondents filed a motion to dismiss these app als. 1 Appellants, through Mr. Sterling, opposed the motion and again
'Mr. Sterling is a registered user of the court's electronic filing sys m and Mr. Collier is not. The Nevada Electronic Filing and Con v ersion Rules provide that the court must provide notice to all regi tered users that a document has been electronically filed and is ava lable for review, and registered users are deemed to have consented to rec ving service electronically. See NEFCR 9(b)-(c). As to nonregistered use s, a party filing a document must serve the nonregistered recipient by tra itional means. NEFCR 9(d). Here, respondents filed the motion to dis iss electronically, such that Mr. Sterling received service, but they did not s erve Mr. Collier by traditional means.
SUPREME COURT OF NEVADA 3 (0) 1947A
aske for more time to file the brief, until June 12, stating that the "short amo nt of additional time is requested in order to help spread out the deal lines slightly on a number of matters, including this one, that all fell due round the same time, and Most of which are similarly urgent." Mr. Ster mg also represented that he had recently filed briefs and prepared for oral rgument in other matters and that he had a personal commitment. He tated that his motion for a third extension of time was filed late beca se he wanted to be sure he could complete the brief by any new dealine requested before making the motion. Respondents opposed any additional time and argued that beca se this court denied appellants' second motion for an extension of time as moot in the May 24 order, the 11-day grace period allowed in that orde for filing the brief could not "possibly have lead Mr. Sterling to beli e the court would grant another extension or that the 11-day time limi i in the order could be ignored." Respondents also stated that Mr. Ster mg misrepresented that he attempted to contact respondents to conf r on a third extension of time. On June 14, 2013, appellants electronically filed in this court a "cer Fl ficate of service" for the opening brief and appendix, indicating that on J ne 12, 2013, they submitted to this court and served on respondents by nited States mail the opening brief and appendix. The brief and app ndix, however, were not submitted to this court for filing with the certi icate of service. They were subsequently provisionally received in this ourt by mail on June 17, 2013. Based on the failure to file the brief and appendix by the June 4 deadline and failure to comply with court rule and directives, the appeals were dismissed by order of this court on Jun 25,2013.
SUPREME COURT OF NEVADA 4 (0) 1947A
Mot on for reconsideration and petition for rehearing Through newly retained counsel, appellants filed a motion for reco sideration and a petition for rehearing to reinstate their appeals, ing that they had no knowledge of Mr. Sterling's pattern of disregard for his court's orders, and relying on this court's stated policy favoring mer t-based consideration of appeals. They also stated that Mr. Sterling and respondents' counsel failed to notify Mr. Collier about respondents' mot on to dismiss, which "prevented Mr. Collier from taking steps to salvage the appeal[s]." Respondents opposed the motion and rehearing petition, ar. ing that Mr. Collier was aware of the briefing deadlines and was serv d with this court's notices and order regarding missed deadlines and wan ing about possible dismissal for failing to file documents. Res ondents argued that this awareness, along with the fact that Mr. Coll er never received a draft copy of the opening brief from Mr. Sterling at . y time before the briefing deadline expired, should have made it clear to r. Collier that the appeals were not being managed properly. In that reg.id, they pointed out that Mr. Sterling contacted Mr. Collier on June 4, 201 requesting copies of the transcripts from Mr. Collier, which should hay alerted Mr. Collier that Mr. Sterling could not have possibly already pre • ared the brief because he did not have the necessary transcripts even on t e briefs final due date, June 4. Respondents also argued that even tho gh Mr. Collier was not served with a copy of the motion to dismiss, whi h was filed on June 10, 2013, the opening brief was overdue by that date and this court could have sua sponte dismissed the appeals pursuant to it May 24 order, a copy of which was provided to Mr. Collier. The motion for reconsideration and petition for rehearing were deni d. See NRAP 31(b)(3) (requiring a motion for an extension of time to
be iled before the filing deadline expires); NRAP 31(d) (explaining con quences for failing to file briefs, including dismissal); Weddell v. Ste art, 127 Nev. , 261 P.3d 1080 (2011) (addressing counsel's rep ted failures to follow court rules and directives and declining to •reco sider an order dismissing an appeal based on such failures); NRAP 40(c (setting forth rehearing standards). This petition for en banc reco sideration followed. DISCUSSION In seeking to reinstate their appeals, appellants contend that reco sideration is necessary to maintain uniformity in the court's juri prudence and to preserve public policy favoring a decision on the mer ts and disfavoring a "deprivation of appeal rights based solely on the mis teps of counsel."2 Appellants further contend that since Mr. Collier was not served with the motion to dismiss or Mr. Sterling's motions for
2According to appellants, this court's dismissal order punished app llants for their attorney's misconduct in other unrelated cases, not ithstanding that Mr. Sterling belatedly sought a third extension of tim and ultimately submitted the opening brief in these matters, albeit late. To the contrary, the order dismissing these appeals was grounded sole y on appellants' failure to comply with court rules and orders con rning the overdue documents in these matters. Thus, appellants' 40 •
cont •ntion that they are being punished for their attorney's "misconduct in oth cases unrelated to their own" is not supported and lacks merit. Alt ough Mr. Sterling was referred to the state bar in the same order dis issing the appeals, the dismissal was based on the circumstances of thes • two appeals, only. While Mr. Sterling's referral to the state bar was bas d in part on the conduct that led to the dismissal of these appeals, and in p rt on similar conduct in other cases, the inverse is not true, i.e., these app als were not dismissed based in any part on Mr. Sterling's conduct in oth 4-1 cases. Thus, we do not further address this argument.
SUPREME COURT OF NEVADA 6 (0) 1947A
exte sions of time, they were deprived of their constitutional right to rece ve proper service (on Collier). En banc reconsideration is disfavored, and this court will only orde reconsideration when necessary to preserve precedential uniformity or hen the case implicates important precedential, public policy, or con itutional issues. NRAP 40A(a). Neither of those standards have bee met here. Prec dential uniformity does not mandate reinstatement of these appeals In seeking reconsideration, appellants argue that Hansen v. Uni ersal Health Services of Nevada, Inc., 112 Nev. 1245, 924 P.2d 1345 (199 •) demands that these matters be heard on their merits, but we are not ersuaded that it does. 3 In Hansen, the court noted its concern with appellant's cou sel's failure to comply with court rules and orders, but nevertheless decl ned to grant respondents' motion to dismiss the appeal. Id. at 1247, 924 • .2d at 1346. The appellant in Hansen was a patient who alleged that he as permanently disabled as a result of the respondents' actions in imp anting an experimental device in appellant's spine. Id. at 1246, 924
3Appellants also rely on Hotel Last Frontier Corp. v. Frontier Pro erties, Inc., 79 Nev. 150, 154-55, 380 P.2d 293, 295 (1963), but Fro tier reviewed the district court's denial of an NRCP 60(b) motion to set side a default judgment, and there is no analogous remedial rule in the appellate context that allows an appeal's reinstatement based on exc sable neglect or mistake. Instead, when a party receives an unf vorable decision on appeal, rehearing or reconsideration may be gra ted if that party meets the standards set forth under NRAP 40 or N P 40A. Thus, because Frontier was decided under different proc dural and factual circumstances than these appeals, we do not furt er address Frontier.
SUPREME COURT OF NEVADA 7 (0) 1947A
P.2 at 1345-46. In the district court, appellant sought over $2,000,000 in dam ges, and when he lost at trial and judgment was entered against him he appealed alleging numerous reversible trial errors. Id. App llant's attorney, however, failed to have the record transmitted from the • 'strict court to this court despite being given several extensions of tim to accomplish that rule-mandated task. Id. at 1246-47, 924 P.2d at 134 ; Respondents moved to dismiss the appeal, and the court denied the mot on, explaining that counsel's calendaring error, preoccupation with other trials and failure to contact the court reporter do not constitute extreme or unforeseeable circumstances. Nevertheless, the compelling nature of the facts in the underlying dispute persuades us to allow this appeal to proceed. Moreover, in light of this court's preference for deciding cases on the merits, and because the dilatory conduct in this matter has been occasioned solely by counsel's inexcusable neglect, rather than his client's conduct, we decline to dismiss this appeal. Id. t 1247-48, 924 P.2d at 1346 (citations omitted). Hansen, therefore, is gro nded on three reasons: its compelling facts, policy preference for mer ts-based dispositions, and the dilatory conduct was deemed attr Ilutable to counsel, not appellant. Id. Addressing each of those reasons, we conclude that Hansen first is limited in part to its facts, which were determined to be “ Co
pelling." Id. But the compelling facts-conclusion that the court reco ized is not followed by any citation of authority, nor did the court adv nce any reasoning or explanation why the nature of the facts might be a s stainable basis to allow an appeal to continue despite repeated fail res to comply with court rules and orders. Id. Because Hansen does SUPREME COURT OF NEVADA 8 (0) I947A
not rovide any reasoning or legal basis for the conclusion that compelling fact may preclude dismissal, we conclude that the factual nature of an und rlying case is not an appropriate measure to evaluate whether an app al should be dismissed for violations of court rules and/or orders. Thu we disapprove of Hansen to the extent it indicates that a fact-based ass sment of the underlying civil action should be made before det w mining whether to dismiss an appeal on procedural grounds. Second, although Hansen was also partly based on the sound poli y preference for deciding cases on the merits, that policy is not bomi dless and must be weighed against other policy considerations, incl ding the public's interest in expeditious appellate resolution, which coin ides with the parties' interests in bringing litigation to a final and stab e judgment; prejudice to the opposing party; and judicial ad 'nistration concerns, such as the court's need to manage its large and gro ing docket. See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962); Kus ner v. Winterthur Swiss Ins. Co., 620 F.2d 404, 406-08 (3d Cir. 1980); GCI Emp'r Ret. Fund v. Chi. Tribune Co., 8 F.3d 1195, 1199 (7th Cir. 199 ) (noting that courts must "perpetually balance the competing inte ests of keeping a manageable docket against deciding cases on their mer ts"). Thus, a party cannot rely on the preference for deciding cases on the erits to the exclusion of all other policy considerations, and when an app llant fails to adhere to Nevada's appellate procedure rules, which emb • dy judicial administration and fairness concerns, or fails to comply wit court directives or orders, that appellant does so at the risk of forf iting appellate relief. See NRAP 31(d) (describing consequences for fail re to file briefs or appendix, which include dismissal of the appeal); Wed ell v. Stewart, 127 Nev. , 261 P.3d 1080 (2011); City of Las Vegas
V. I t'l Ass'n of Firefighters, Local No. 1285, 110 Nev. 449, 874 P.2d 735 (199 ); Varnum v. Grady, 90 Nev. 374, 528 P.2d 1027 (1974); see also 9(a)(6) and NRAP 14(c) (providing that an appeal may be dismissed for ailure to file transcript request forms and docketing statements, resp ctively). Accordingly, dismissal of an appeal after a party fails to COM ly with court rules and orders is not inconsistent with the policy pref rence to decide cases on the merits when balanced with other policy cone rns, and our decision to dismiss these appeals following such failures does not mandate reconsideration to maintain uniformity with Hansen. Finally, Hansen's reasoning that the appeal should be allowed to roceed in part because the dilatory conduct in that matter was "occ sioned solely by counsel's inexcusable neglect, rather than his client's conci uct," is inconsistent with general agency principles. 112 Nev. at 1247- 48 24 P.2d at 1346. In particular, an attorney's act is considered to be that of the client in judicial proceedings when the client has expressly or imp iedly authorized the act. Restatement (Third) of The Law Governing Law ers §§ 26, 27 (2000Aterok Supp. 2013); see Pioneer Inv. Servs. Co. v. Bru swick Assocs. Ltd. P'ship, 507 U.S. 380, 396-97 (1993) (noting that in a re resentative litigation system, "clients must be held accountable for the acts and omissions of their attorneys"). Thus, to the extent that Ha en holds that dismissal will not follow violations of court rules or ord s because counsel, acting on the client's behalf, occasioned such viol tions, that decision is overruled. 4
4While the United States Supreme Court has recognized an exce tion to holding a litigant responsible for its attorney's procedural erro s when the attorney actually abandons the client without notice, thus sev ing the principal-agent relationship, the cause necessary for that continued on next page... SUPREME COURT OF NEVADA 10 (0) 1947A
Failkre to follow court rules as grounds for dismissing civil appeal The United States Supreme Court has recognized that when an ction is dismissed for failure to comply with court rules, the litigant can ot seek a do-over of their dismissed action based on arguments that dis issal is too harsh a penalty for counsel's unexcused conduct, as to do so ould offend general agency principles. Link, 370 U.S. at 633-34 (rej cting argument that petitioner's claim should not have been dismissed bas d on counsel's unexcused conduct because "[p] etitioner voluntarily chos this attorney as his representative in the action, and he cannot now avoi the consequences of the acts or omissions of this freely selected age t"). While Link was decided in the context of reviewing a trial court dis issal for failure to prosecute, its reasoning that a party cannot seek to avoi a dismissal based on arguments that his or her attorney's acts or omi sions led to the dismissal applies to appellate court dismissals with equ 1 force. For example, in Kushner v. Winterthur Swiss Insurance Co., the Third Circuit Court of Appeals dismissed an appeal for appellant's failure to file an appendix that complied with court rules. 620 F.2d 404,
...co tinued exce tion to apply is not present here. See Maples v. Thomas, 565 U.S. ___, 132 S. Ct. 912, 922-23 (2012) (distinguishing claims of attorney erro no matter how egregious, from claims of attorney abandonment, in cone uding that cause to excuse procedural errors cannot be based on an atto ney's error). We have also recognized two exceptions to the general age cy rule that the "sins" of the lawyer are visited upon his client where the awyer's addictive disorder and abandonment of his legal practice or cri inal conduct justified relief for the victimized client, but those exce tional circumstances are not present here either. See NC DSH, Inc. -
v. G rner, 125 Nev. 647, 656, 218 P.3d 853, 860 (2009); Passarelli v. J Mar -
Dev. Inc., 102 Nev. 283, 286, 720/9 P.2d 1221, 1223-24 (1986).
SUPREME COURT OF NEVADA 11 (0) 1947A
407 3d Cir. 1980). In so doing, the court made it clear to the appellate bar the mportance and necessity of complying with court rules concerning the content and filing of briefs and appendices. Id. The court explained the pra ical reasons and jurisprudential justification for its decision to dis iss the appeal, noting that the rules of appellate procedure and local cour rules were enacted to enable the court to effectively process its incr asing caseload, and that the number of appeals filed per judge had swe I ed dramatically since the rules were enacted. Id. at 406-07. 5 The cour thus reasoned that it would not expend valuable judicial time in perf rming the work of errant counsel who failed to properly comply with brie mg rules, and who, by failing to abide by appellate rules, hindered the cour s efforts to provide speedy and just dispositions of appeals for every litig t. Id. at 407; see also Barber v. Am. Sec. Bank, 841 F.2d 1159, 1162, (D. Cir. 1988) (dismissing appeal based on "counsel's failure to file a brie on time, his failure to file a motion for an extension ten days prior to the date his brief was due, his failure to seek leave to file his time
enl.lgement motion late, and the clearly inadequate grounds he eve tually offered for the late filings"). In imposing the sanction of dismissal, the court in Kushner was mindful of the impact on appellants, noting that it could be argued that dismissal of an appeal unduly penalizes the litigant for the dereliction of e rant counsel. 620 F.2d at 407. The court reasoned, however, that unli e a defendant in a criminal case, an aggrieved party in a civil case invo ving only private litigants "does not have a constitutional right to the effe tive assistance of counsel. The remedy in a civil case, in which chosen cou sel is negligent, is an action for malpractice." Id. at 408 (internal quoi. tion marks omitted). 6 Other federal appellate courts have similarly dis issed appeals as a sanction for poorly presenting a case or failing to com ly with briefing and appendix content rules. See Abner v. Scott Mem'l Hos 0. 634 F.3d 962, 965 (7th Cir. 2011) (summarily affirming district cou summary judgment and striking oversized brief that was not acco panied by a timely and supported motion for leave to exceed the
6Although in criminal appeals the constitutional right to effective assi tance of counsel under the United States Constitution's Sixth Am ndment applies, there is no parallel constitutional protection in the civil context. See U.S. Const. amend. VI ("In all criminal prosecutions, the acc sed shall enjoy the right to. . . the Assistance of Counsel for his defe se"); Rodriguez v. Eighth Judicial Dist. Court, 120 Nev. 798, 804 05, -
type volume limitation, and announcing a warning that the "flagrancy of the iolation" of the appellate rules alone might well have justified the app al's dismissal); Snipes v. Ill. Dep't of Corr., 291 F.3d 460, 464 (7th Cir. 200 ) (noting that an appellate court may dismiss an appeal or summarily affir the judgment when appellant fails to comply with briefing rules); NI Corp. v. Liberty Mut. Ins. Co., 127 F.3d 1145 (9th Cir. 1997) (dis issing appeal based on briefing violations); United States v. Green, 547 F.2d 333 (6th Cir. 1976) (dismissing appeal based on appendix defi lencies), see generally Wesley Kobylak, Annotation, Sanctions, in Fed ral Circuit Courts of Appeals, for Failure to Comply with Rules Rels mg to Contents of Briefs and Appendixes, 55 A.L.R. Fed. 521, 526 27 -
setti g to correct failures to adhere to court rules and orders. 7 This court has in fact on several occasions recognized that an appeal may be app opriately dismissed for just such violations. See Weddell v. Stewart, 127 Nev. , 261 P.3d 1080 (2011) (declining to reconsider an order dis issing an appeal based on repeated failures to follow court rules and dire tives); City of Las Vegas v. Int'l Ass'n of Firefighters, Local No. 1285, 110 I ev. 449, 453-54, 874 P.2d 735, 738 (1994) (concluding that dismissal was an appropriate sanction for failure to supply the record and take acti n in an appeal as "the primary responsibility for this transgression mus lie with the appellant"); Varnum v. Grady, 90 Nev. 374, 528 P.2d 102 (1974) (dismissing an appeal based on appellant's counsel's multiple proc dural derelictions and dilatory pursuit of appeal). As explained abo e our decision denying reconsideration and declining to reinstate thes appeals is consistent with authority from federal jurisdictions and wit general agency principles that bind a client to its attorney's acts and °nu sions.
7 Likewise, appellants' argument that the court could have accepted the ate-submitted brief and appendix does not provide a basis for en banc reco sideration. See NRAP 40A, NRAP 31(b)(3) (a motion for an extension of ti e may be made no later than the due date for the brief); Varnum v. Gra '3/, 90 Nev. 374, 376, 528 P.2d 1027, 1028-29 (1974) (counsel's caseload is n t a reasonable ground for neglect of duties); Malloy v. WM Specialty Mor g., L.L.C., 512 F.3d 23, 27 (1st Cir. 2008) (affirming district court dis issal order, concluding that "plaintiffs proffered no legitimate excuse for e delay," and instead relied on legally insignificant excuses, such as pre cupation with other cases); Damiani v. R.I. Hosp., 704 F.2d 12, 17 (1st Cir. 1983) (affirming district court dismissal order and, in so doing, poi ing out counsel's improper conduct in filing self-indulgent motions, not aking every effort to comply with court orders, not seeking consent of opp sing counsel if compliance was actually impossible, and not seeking "cou t approval for noncompliance based on a truly valid reason").
SUPREME COURT OF NEVADA 15 (0) 1947A
Respondents' failure to serve appellants' second attorney with their motion to dismiss is not grounds for reconsideration Appellants argue that because Mr. Collier was not served with the notion to dismiss or Mr. Sterling's motions for extensions of time, the court in dismissing these appeals, "Condone [d] a Deprivation of Due ,
Pro ss." They argue that "[Oven the serious due process issues that are imp cated by respondents' failure to serve Mr. Collier with the motion to dis iss, the panel should not have deprived appellants of their appeal righ s under these circumstances." We reject appellants' argument that this court approved or con oned any conduct that led to a deprivation of appellants' cons itutional rights. Appellants freely chose their appellate counsel, and cou sel was served with all documents in this matter, including this cou 's May 24, 2013, order warning that the appeals were subject to dis issal if appellants failed to file the opening brief and appendix by Jun 4, and respondents' motion to dismiss, which counsel opposed on app llants' behalf. In fact, both of appellants' attorneys of record were serv d with the May 24 order and both were aware or should have been awa e of the briefing deadlines. Regardless, NRCP 5(b) provides that whe service "is required or permitted to be made upon a party repr sented by an attorney, the service shall be made upon the attorney." 8 The rule refers to "an attorney" and "the attorney" in the singular, and cou s interpreting the analogous federal rule have rejected the argument that FRCP 5 requires service on all counsel of record. See Nelson v. Heer,
8NRAP 25(b) uses consistent language, requiring a party to serve documents on other parties to the appeal and that "[s]ervice on a party represented by counsel shall be made on the party's counsel."
SUPREME COURT OF NEVADA 16 (0) I947A
121 I ev. 832, 834, 122 P.3d 1252, 1253 (2005) (recognizing that "federal deci ions involving the Federal Rules of Civil Procedure provide pers asive authority when this court examines its rules"). In particular, federal courts—recognizing that FRCP 5 req ires service on all parties, not on each attorney appearing on behalf of a p rty—have held that service on one attorney is effective service of a pleasing. See Daniel Int'l Corp. v. Fischbach & Moore, Inc., 916 F.2d 106 1063 (5th Cir. 1990); Buchanan v. Sherrill, 51 F.3d 227, 228 (10th Cir. 1995) (concluding that service of a summary judgment motion on one of p aintiffs attorneys, but not on the other, was effective service under FR •P 5); see also City of Lincoln v. MJM, Inc., 618 N.W.2d 710, 713 (Neb. Ct. A pp. 2000) (citing Comstock v. Cole, 44 N.W. 487, 488 (Neb. 1890)) (con luding that "the law has long been that where there are two atto neys of record, service upon one of them is adequate"). And in Nev da, otice to an attorney is, in legal contemplation, notice to his die t." Lange v. Hickman, 92 Nev. 41, 43, 544 P.2d 1208, 1209 (1976). Thu even if only one of two or several attorneys is served with a doc ment, a party represented by the served attorney is deemed to have rece ved notice of the document. See id. Accordingly, appellants' con itutional rights remained intact throughout the appellate process, and respondents' failure to serve Mr. Collier with the motion to dismiss doe not provide a basis for en banc reconsideration, as Mr. Sterling was serv d with that document and both Mr. Sterling and Mr. Collier were serv d with this court's May 24 order denying the motion for an extension
SUPREME COURT OF NEVADA 17 (0) 1947A
of time and warning that failure to file the brief could result in the app als' dismissa1.9 CONCLUSION While Nevada's jurisprudence expresses a policy preference for me ts-based resolution of appeals, and our appellate procedure rules emb • dy this policy, among others, litigants should not read the rules or any of this court's decisions as endorsing noncompliance with court rules and directives, as to do so risks forfeiting appellate relief. In these app als, appellants failed to timely file the opening brief and appendix afte having been warned that failure to do so could result in the appeals' dis issals. Appellants actually had two attorneys who received copies of this court's notices and orders regarding the briefing deadline, but they nev rtheless failed to comply with briefing deadlines and court rules and ord ti s. Although they assert that Hansen v. Universal Health Services of Nev (la, Inc., 112 Nev. 1245, 924 P.2d 1345 (1996), mandates reco sideration and reinstatement of their appeals, Hansen was a fact- spe 61 fic decision to some extent, and an appeal may be dismissed for fail re to comply with court rules and orders and still be consistent with the ourt's preference for deciding cases on their merits, as that policy mus be balanced against other policies, including the public's interest in an xpeditious appellate process, the parties' interests in bringing litig tion to a final and stable judgment, prejudice to the opposing side, and judicial administration considerations, such as case and docket
9Although appellant's constitutional deprivation argument lacks merit, we point out that attorneys who do not participate in the electronic filin system should be served by traditional means. See NRAP 25(c); NE CR 9(d).
SUPREME COURT OF NEVADA 18 (0) 1947A
— 19 —
man gement. As for declining to dismiss the appeal because the dilatory cond ct was occasioned by counsel, and not the client, that reasoning does not c mport with general agency principles, under which a client is bound by it civil attorney's actions or inactions, and thus Hansen is overruled to the tent that it holds otherwise. For the reasons stated above, all other argu ents advanced by appellants in support of their petition for en banc reco sideration are either not legally sound or do not meet the standards for e banc reconsideration under NRAP 40A. En banc reconsideration is ther fore denied.
J. We cbncur:
C.J. Piek.ait tiy Gibilbns Pickering
Parriiguirre
J. Che
Footnotes
[5] Unlike civil procedure rules governing district court actions, app llate court rules generally do not provide a remedial basis for reco sidering a final decision based on a litigant's neglect or mistake in proc ssing its appeal; instead, rehearing or reconsideration of an appeal are ot favored and will only be granted for limited reasons. Compare, e.g. the remedial district court rule NRCP 60(b), which provides a mec anism for setting aside a default judgment or order for mistake, ina ertence, surprise, or excusable neglect with the appellate rule for reh aring, NRAP 40, which allows rehearing of an appeal only upon dem s nstration that the court overlooked or misapprehended points of law or f ct, and NRAP 40A, which explains the two bases on which en bane reco sideration may be granted, neither of which are grounded on cou sel's or the litigant's excusable neglect, mistake, or inadvertence. SUPREME COURT OF NEVADA 12 (0) 1947A
[102] .3d 41, 45-46 (2004) (recognizing that the Sixth Amendment right to cou sel applies only in criminal prosecutions); Sanchez v. U.S. Postal Ser 785 F.2d 1236, 1237 (5th Cir. 1986) ("[T]he sixth amendment right to ellective assistance of counsel does not apply to civil litigation."); Nelson v. B eing Co., 446 F.3d 1118, 1119 (10th Cir. 2006) (providing that "[ill' a die t's chosen counsel performs below professionally acceptable sta • ards, with adverse effects on the client's case, the client's remedy is not eversal, but rather a legal malpractice lawsuit against the deficient atto ney"). SUPREME COURT OF NEVADA 13 (0) 1947A (198'). Here, appellants did not follow the rules governing briefing and otions practice, and they did not adhere to the briefing deadlines set fort by court order, nor did they provide any adequate basis for their fail re to do so. Thus, they cannot expect this court to continue to keep these matters on its docket and then consider the merits of the appeals whe appellants eventually decide to submit their brief for consideration. Our May 24, 2013, order in fact warned appellants that dismissal may be fort coming if the brief was not filed by the deadline imposed by that ord The dismissal therefore should have come as no surprise. Although app llants contend that Hansen v. Universal Health Services of Nevada, Inc. 112 Nev. 1245, 924 P.2d 1345 (1996), provides them an out for the dis issal of their appeals and that Hansen should be applied to grant the a mulligan, in a sense, such a do-over is appropriately limited to rem dy a poorly executed tee-shot, and not so much in the litigation SUPREME COURT OF NEVADA 14 (0) 1947A