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Loeb v. First Jud. Dist. Ct.

Supreme Court of Nevada

September 19, 2013

Alex LOEB, Derivatively on behalf of Universal Travel Group, Petitioner,
v.
The FIRST JUDICIAL DISTRICT COURT of the State of Nevada, in and for the COUNTY OF CARSON CITY, and The Honorable James Todd Russell, District Judge, Respondents, and Jiangping Jiang; Jing Xie; Hujie Gao; Jiduan Yuan; Lizong Wang; Wenbin An; Lawrence Lee; Yizhao Zhang; Liquan Wang; and Universal Travel Group, a Nevada Corporation, Real Parties in Interest.

Page 48

The O'Mara Law Firm, P.C., and David C. O'Mara, Reno; Robbins Umeda LLP and Kevin Seely and Christopher L. Walters, San Diego, California, for Petitioners.

McDonald Carano Wilson LLP and Matthew C. Addison, Reno; Katten Muchin Rosenman LLP and Richard H. Zelichov, Los Angeles, California; Katten Muchin Rosenman LLP and Bruce G. Vanyo, New York, New York, for Real Parties in Interest.

Before the Court En Banc.

Page 49

OPINION

HARDESTY, J.

The Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Convention) [1] sets forth the procedures to be followed when " there is occasion to transmit a judicial ... document for service abroad." Hague Convention art. 1, Nov. 15, 1965, 20 U.S.T. 361. Under the terms of the Hague Convention, a party in a foreign country may be served (1) " through the central authority of the receiving country," (2) " through diplomatic or consular agents that the receiving country considers non-objectionable," or (3) " by any method permitted by the internal law of the receiving country." Dahya v. Second Judicial Dist. Court, 117 Nev. 208, 212, 19 P.3d 239, 242 (2001) (internal quotation marks omitted) (citing Hague Convention art. 5, 8-11, 19, 20 U.S.T. at 362-65).

In Nevada, NRCP 4(e)(1) permits service on a defendant who resides outside of this state by publishing the summons in a Nevada newspaper and mailing a copy of the summons and complaint to the defendant's residence, if it is known. In this proceeding, we are asked to decide whether a party residing outside of the United States whose foreign address is known may be served by publication pursuant to NRCP 4(e)(1)(i) and (iii), rather than under the terms of the Hague Convention. Based on the plain language of the applicable provisions, we conclude that a party residing outside of the United States whose address is known must be served according to the terms of the Hague Convention, and we deny the petition.

FACTS

This writ petition arises from a shareholder derivative suit brought by petitioner Alex Loeb on behalf of real party in interest Universal Travel Group, a company incorporated in Nevada, against the officers and directors of Universal Travel Group, real parties in interest Jiangping Jiang, Jing Xie, Hujie Gao, Jiduan Yuan, Lizong Wang, Wenbin An, Lawrence Lee, Yizhao Zhang, and Liquan Wang (collectively, the Jiang parties). The Jiang parties all reside in China. After filing the complaint, Loeb unsuccessfully attempted to locate the Jiang parties in Nevada and subsequently sought their addresses from Universal Travel Group, which initially refused to disclose the addresses. Universal Travel Group also declined to accept service on behalf of the Jiang parties. As a result, Loeb moved the district court pursuant to NRCP 4(e)(1) to permit service by publication. Universal Travel Group opposed Loeb's motion, arguing that he was required to comply with the terms of the Hague Convention, which would not permit service by publication under the circumstances of this case.

After Loeb filed his motion to permit service by publication, Universal Travel Group's counsel provided Loeb with the Jiang parties' addresses in China. Thereafter, the district court denied Loeb's motion to permit service by publication on the ground that such service is not allowed by the Hague Convention when a defendant's address is known. Thus, the district court ordered Loeb to serve the Jiang parties in compliance with the terms of the Hague Convention.[2] This petition for a writ of mandamus or prohibition followed. While Loeb concedes that he never mailed copies of the summons or complaint to the Jiang parties in China, he argues that the terms of the Hague Convention do not apply because the mailing of the summons and complaint under NRCP 4(e)(1)(i) and (iii) is not an element of service.

DISCUSSION

" A writ of mandamus is available to compel the performance ...


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