PETER GARDNER; CHRISTIAN GARDNER, ON BEHALF OF MINOR CHILD, L.G., Petitioners,
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE JERRY A. WIESE, DISTRICT JUDGE, Respondents, and HENDERSON WATER PARK, LLC, D/B/A COWABUNGA BAY WATER PARK; WEST COAST WATER PARKS, LLC; AND DOUBLE OTT WATER HOLDINGS, LLC, Real Parties in Interest.
petition for a writ of mandamus challenging a district court
order denying a motion to amend a complaint.
Campbell & Williams and J. Colby Williams, Donald J.
Campbell, Philip R. Erwin, and Samuel R. Mirkovich, Las
Vegas, for Petitioners.
Thorndal, Armstrong, Delk, Balkenbush & Eisinger and
Alexandra B. McLeod and Paul E. Eisinger, Las Vegas, for Real
Parties in Interest.
DOUGLAS, GIBBONS and PICKERING, JJ.
original proceeding, we are asked to consider whether seven
managers of a limited liability company (LLC) are subject to
suit for personal negligence as individual tortfeasors or
under an alter ego theory 1 of liability. We conclude that
NRS 86.371 is not intended to shield members or managers from
liability for personal negligence. We further conclude that
the corporate alter ego doctrine applies to LLCs.
Accordingly, we grant the petition and direct the district
court to allow petitioners to amend their complaint.
AND PROCEDURAL HISTORY
Peter and Christian Gardner, on behalf of their child L.G.
(the Gardners), filed suit after L.G. suffered injuries
resulting from a near-drowning at Cowabunga Bay Water Park in
Henderson. The Gardners brought suit for negligence against
Henderson Water Park, LLC, which does business as Cowabunga
Bay Water Park (the Water Park), and its two managing
members, West Coast Water Parks, LLC, and Double Ott Water
Holdings, LLC (the member-LLCs). In turn, Orluff Opheikens,
Slade Opheikens, Chet Opheikens, Shane Huish, Scott Huish,
Craig Huish, and Tom Welch (the Managers) have an ownership
interest in, or manage, the member-LLCs, and they also served
on a management committee governing the Water Park.
other allegations in their initial complaint, the Gardners
alleged the negligence of the Water Park and member-LLCs
contributed to L.G.'s injuries because of the Water
Park's inadequate staffing of lifeguards. After taking
depositions, the Gardners moved for leave to amend their
complaint to add the Managers of the Water Park as individual
defendants. Specifically, the Gardners sought to assert
direct claims for negligence against the Managers in their
individual capacities, and they sought to plead allegations
supporting an alter ego theory of liability in order to
pierce the corporate veil of the Water Park and the
member-LLCs to reach the assets of the Managers. In support
of their motion to amend their complaint, the Gardners quoted
deposition testimony of one of the Managers stating the Water
Park did not operate with 17 lifeguards at the wave pool as
required by the Southern Nevada Health District.
district court denied the Gardners' motion, concluding
that amendment would be futile because the Managers were
improper defendants. Specifically, the district court found
that NRS 86.371 protected the Managers from any liabilities
incurred by the various LLCs and Nevada's LLC statutes
contained no alter ego exception to the protection offered by
NRS 86.371. This original writ petition followed.
court has original jurisdiction to issue writs of mandamus .
. . ." MountainView Hosp., Inc. v. Eighth Judicial
Dist. Court, 128 Nev. 180, 184, 273 P.3d 861, 864
(2012). "A writ of mandamus is available to compel the
performance of an act that the law requires ... or to control
an arbitrary or capricious exercise of discretion."
Int''l Game Tech., Inc. v. Second
Judicial Dist Court, 124 Nev. 193, 197, 179 P.3d 556,
558 (2008). Extraordinary relief may be available
"[w]here there is no 'plain, speedy and adequate
remedy in the ordinary course of law.'"
Helfstein v. Eighth Judicial Dist. Court, 131 Nev.,
Adv. Op. 91, 362 P.3d 91, 94 (2015) (quoting NRS 34.170).
Whether to consider a writ petition is solely within this
court's discretion, and the petitioner bears the burden
of demonstrating why extraordinary relief is warranted.
See We the People Nev. v. Miller, 124 Nev.
874, 880, 192 P.3d 1166, 1170 (2008). In this matter, we
exercise our discretion to consider this petition because it
raises important and novel issues of law in need of
clarification, "and considerations of sound judicial
economy and administration militate in ! favor of granting
the petition." Int'l Game Tech., 124 Nev.
at 197-98, 179 P.3d at 559.
district court abused its discretion by denying the