Carey HUMPHRIES, an Individual; and Lorenza Rocha, II, an Individual, Petitioners,
The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, In and for the COUNTY OF CLARK; and the Honorable Michael Villani, District Judge, Respondents, and New York-New York Hotel & Casino, LLC, a Nevada Limited Liability Company d/b/a New York-New York Hotel & Casino, Real Party in Interest.
Craig W. Drummond, Las Vegas; Hofland & Tomsheck and Joshua L. Tomsheck, Las Vegas, for Petitioners.
Kravitz, Schnitzer, Sloane & Johnson, Chtd., and Martin J. Kravitz and Kristopher T. Zeppenfeld, Las Vegas, for Real Party in Interest.
BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.
In the underlying premises liability action, the premises owner successfully moved the district court to order the plaintiffs to join the plaintiffs' assailant as a defendant to the action, on the grounds tat the assailant is a party necessary to the litigation. NRCP 19 provides that a person must be joined as a party if the court cannot afford complete relief in that person's absence. We conclude that the assailant was not a necessary party under NRCP 19 because the district court can afford complete relief to the parties, the defendant is able to implead the assailant as a third party under NRCP 14, and creating a per se joinder requirement would unfairly burden plaintiffs. Accordingly, we grant the petition for a writ of mandamus.
In April 2010, petitioners Carey Humphries and Lorenza Rocha, II, were involved in an altercation with Erik Ferrell on real-party-in-interest New York-New York's casino floor. Security officers and police stopped
the altercation and detained Ferrell. He was arrested and subsequently convicted of one count of attempted battery with substantial bodily harm.
In May 2011, Humphries and Rocha filed a complaint against New York-New York, alleging various causes of action for negligence based on its duty to protect. The complaint did not include any claims against Ferrell. New York-New York's answer asserted Humphries' and Rocha's comparative negligence as an affirmative defense.
Following Humphries' and Rocha's complaint, this court issued an opinion in Cafe Moda, L.L.C. v. Palma, 128 Nev.
__, 272 P.3d 137 (2012), in which we interpreted Nevada's comparative negligence statute, NRS 41.141. In Cafe Moda, the plaintiff sued two defendants, one as an intentional tortfeasor and the other as a negligent tortfeasor, and the negligent tortfeasor asserted that it was only severally liable under NRS 41.141. Id. at __, 272 P.3d at 138. We clarified that, in a case alleging comparative negligence, an intentional tortfeasor's liability is joint and several, but a merely negligent cotortfeasor's liability is several, even if the injured party is not ultimately found to be comparatively negligent.
In light of Cafe Moda 's holding on the apportionment of liability between intentional and negligent cotortfeasors in comparative negligence cases, New York-New York moved to compel Humphries and Rocha to join Ferrell, arguing that Ferrell was a necessary party under NRCP 19(a). The district court granted New York-New York's motion, explaining that " [j]oinder of Ferrell is necessary to ensure [New York-New York] is afforded full protection under the Cafe Moda case." The district court further determined that joinder was feasible, since Ferrell resides in Nevada and his identity is known. It thus compelled Humphries and Rocha to join Ferrell.
Humphries and Rocha have petitioned this court for a writ of mandamus. They seek to vacate the order compelling joinder, arguing that the district court erred in compelling them to join a new party defendant when the complaint does not allege a cause of action against that defendant. They further argue that joinder of a necessary party is infeasible when the statute of limitations has run on ...