139 Nev., Advance Opinion 50

IN THE SUPREME COURT OF THE STATE OF NEVADA 

CARMEN SABATER, AN INDIVIDUAL; 

AND VINCENT JAMES DESIMONE, 

AN INDIVIDUAL, 

Appellants, 

vs. 

SHAUN RAZMY, AN INDIVIDUAL, 

Respondent. 

No. 85161 

FILED 

Appeal from a district court order dismissing a tort action for 

failure to timely effect service of process. Eighth Judicial District Court, 

Clark County; Timothy C. Williams, Judge. 

Affirmed. 

Feher Law, APC, and Andrew Alexandroff, Torrance, California, 

for Appellants. 

Christian, Kravitz, Dichter, Johnson & Sluga, LLC, and Gena L. Sluga, Las 

Vegas, 

for Respondent. 

BEFORE THE SUPREME COURT, CADISH, PICKERING, and BELL, JJ. 

OPINION 

By the Court, BELL, J.: 

Following a car crash, Appellants Carmen Sabater and Vincent 

Desimone filed a lawsuit against Respondent Shaun Razrny for personal 

injuries. Sabater and Desimone failed to serve the summons and complaint 

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on Razmy within 120 days. As a result, the district court issued an order to 

show cause. After that order issued, the summons and complaint were 

served, and Razmy filed a motion to quash the service of process and to 

dismiss the complaint. The district court granted the motion to dismiss, 

denying Sabater and Desimone's late motion for an extension of time to 

serve process. Sabater and Desimone appeal, arguing the district court 

improperly denied their request for an extension of time to serve the 

summons and complaint and Razmy's motion to dismiss was itself untimely. 

When a party fails to effectuate service of process and fails to 

request an enlarged period for service within 120 days of the complaint's 

filing date, that party must show good cause for the initial delay in 

requesting an extension before a motion to extend the time to serve can be 

considered. Here, because Sabater and Desimone failed to plead good cause 

for the delay in moving for an enlarged period for service, the district court 

did not abuse its discretion in denying the motion for an extension of time 

to serve the complaint. 

After the period for service closes, a party may seek the 

dismissal of an action under NRCP 12(b)(4) when there is insufficient 

service. Although NRCP 12(b) does not permit the filing of a motion to 

dismiss based on insufficient service after a responsive pleading has been 

filed, the rule does not contain any other time limit for filing the motion to 

dismiss. Here, no responsive pleading had been filed when Razmy filed his 

motion to quash service and dismiss the complaint, so the motion was not 

untimely. We conclude the district court did not abuse its discretion when 

it denied the request for enlargement of time to serve and dismissed the 

action. 

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FACTS AND PROCEDURAL HISTORY 

In 2019, Sabater and Desimone were involved in a car crash 

with Razmy. On August. 26, 2021, Sabater and Desimone filed a negligence 

complaint against Razmy. Per NRCP 4(e)(1), the summons and complaint 

needed to be served on Razmy within 120 days, or by December 24, 2021, 

but Sabater and Desimone neglected to calendar the date. As a result, 

December 24 passed without Sabater and Desimone serving the summons 

and complaint. Due to the lack of service, on February 23, 2022, the district 

court issued an order to show cause why the case should not be dismissed. 

Following the order to show cause, on March 15, Sabater and Desimone 

served Razmy with the summons and complaint and filed proof of service 

with the district court. Service occurred 81 days after the 120-day deadline. 

One month later, on April 15, Razmy moved to quash the service 

of process as untimely and to dismiss the complaint for failure to timely 

serve. Any opposition to this motion was due by April 29, but Sabater and 

Desimone failed to file a timely opposition. Razmy filed a notice of 

nonopposition on May 6, requesting the district court grant the motion as 

unopposed. An opposition was eventually filed on May 20. 

In the opposition, Sabater and Desimone argued Razmy's motion 

to quash was untimely, as it needed to be filed within the 21 days provided 

post-service for defendants to file an answer. Sabater and Desirnone also 

denied being served with Razmy's motion to quash. Additionally; Sabater 

and Desimone sought leave to retroactively extend the 120-day period for 

service of the summons and complaint, having failed to request such an 

extension within the statutory period. Sabater and Desimone argued a 

clerical calendaring error and high rates of turnover at their counsel's office 

supported good cause to grant the extension. 

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Razmy replied to the opposition, pointing out that Sabater and 

Desimone's counsel failed to register an email address with the district 

court and provide a Nevada address to the State Bar of Nevada. Without 

this required information, Razmy's attorney was forced to search prior 

email correspondence to locate an email suitable for service and sent notice 

to another lawyer at the firm. 

After a hearing, the district court declined to grant Sabater and 

Desimone an extension, finding they did not prove good cause existed for 

their failure to file a motion to extend the service deadline before that 

deadline expired. Instead, the district court granted Razmy's motion to 

disniiss, finding that the motion was timely filed before the filing of any 

answer and that because Sabater and Desimone failed to serve the 

summons and complaint within the statutory time frame, dismissal was 

required. Sabater and Desirnone appeal the district court's dismissal of the 

complaint without prejudice. 

DISCUSSION 

On appeal, Sabater and Desirnone .argue the district .court 

abused its discretion by denying their motion for an extension of ti.me to 

serve the summons and complaint. They also argue Razrny's motion to 

quash was untimely pursuant to NRCP 12 and should have been denied.. 

The district court did not abuse its discretion in denying the motion for an 

extension of time to serve the surnrnons and complaint or in granting 

Razrny's motion to disrniss 

Sabater and Desimone claim. that the district court abused its 

discretion by denying their motion for an extension of time to effectuate 

service. We review a district court's denial of a motion for an extension of 

time to serve for an abuse of discretion. Saavedra-Sandoval v. Wal-Mart 

Stores, Inc., 126 Nev. 592, 595, 245 P.3d. 1.198, 1200 (2010). 

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The district court did not abuse its discretion in denying the 

retroactive request for an extension of time to serve Razmy, as Sabater and 

Desimone failed to demonstrate good cause for their late motion. A request 

for an extension of time to serve a summons and complaint must be made 

within the initial 120 day-period for service, a threshold requirement for 

relief under NRCP 4(e)(4) and Saavedra-Sandoval, 126 Nev. at 597, 245 

P.3d at 1201. When a party fails to file a timely motion to extend time for 

service, that party must demonstrate •good cause exists for the untimely 

request before the court will considèr whether good cause exists for an 

extension. Id. "Only upon a showing of good cause for the delay in filing 

the motion to enlarge time should the court then engage in a complete 

Scrimer analysis to determine whether good cause also supporth the request 

for enlargement of time for service of process . . . ." Id.; see also Scrimer v. 

Eighth Judicial Dist. Court, 116 Nev. 507, 516-17, 998 P.2d 1190, 1195-96 

(2000) (establishing various factors to determine whether good cause exists 

to allow a plaintiff to serve process beyond the 120-day deadline). 

Sabater and Desimone did not request an extension of time for 

service until 147 days after the period for service had closed. In thatmotion, 

Sabater and Desimone addressed whether there was good cause for an 

extension; however, they did not present separate argument regarding any 

good cause for the failure to request this extension within the 120-day 

deadline. When asked, counsel admitted being unfamiliar with our holding 

in Saavedra-Sandoval. Therefore, Sabater and Desirnone have waived any 

argument on appeal regarding possible good cause for their failure to make 

a timely request for an extension. Old Aztec Mine, Inc. v. Brown, 97 Nev. 

49, 52; 623 P.2d 981, 983 (1981) ("A point not urged in the tria). court, unless 

it goes to the jurisdiction of that Court, is deemed to have been waived and 

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will not be considered on appeal."). Moreover, we need not address the 

district court's analysis of the Scrimer factors because Sabater and 

Desimone's failure to show good cause for the untimely motion for an 

extension rendered consideration of those factors moot. Scrirner, 116 Nev. 

at 516-17, 998 P.2d at 1195-96. We conclude that the district court did not 

abuse its discretion in denying the motion for an extension of time to serve 

the summons and complaint. 

The district court properly dismis,sed for failure to timely serve process 

Sabater and Desimone contend that the district court abused 

its discretion by granting Razmy's motion to dismiss. We review lain order 

granting a motion to dismiss for failure to effect timely service of 

process . . . for an abuse of discretion." Abreu v. Gilmer, 115 Nev. 308, 312-

13, 985 P.2d 746, 749 (1999). We review the district court's interpretation 

of NRCP 12(b) de novo. Marquis & Aurbach v. Eighth Judicial Dist. Court, 

122 Nev. 1147, 1156, 146 P.3d 1130, 1136 (2006). "When a rule is clear on 

its face, we will not look beyond the rule's plain language." Morrow v. 

Eighth Judicial Dist. Court, 129 Nev. 110, 113, 294 P.3d 411, 414 (2013). 

The plain language of NRCP 12 provides no time restraint on a 

defendant's motion to dismiss for lack of service before a responsive 

pleading has been filed. NRCP 12(a)(1)(A)(i) requires that defendants serve 

an answer to a complaint "within 21 days after being served with the 

summons and complaint." Prior to filing an answer, a defendant may assert 

certain defenses by motion. Those defenses include insufficient servi.ce of 

process. NRCP 12(b)(4); see a,lso Hansen v. Eighth Judicial Dist. Court, 116 

Nev. 650, 656, 6 P.3d 982, 986 (2000) (explaining that, under NRCP 12(o), 

"before a defendant files a responsive pleading such as an answer, that 

defendant• may move to dismiss for lack of personal jurisdictiori, 

insufficiency of process, and/or insufficiency of service of process"). 

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While no other time limit governs a motion filed under NRCP 

12(b)(4), a defendant takes risks filing such a motion beyond the 21 days 

provided for answering the complaint—if the motion or an answer is not 

filed by 21 days after service, a plaintiff could obtain a default. NRCP 55. 

Even so, "[d]efault . .. is not automatic." Opaco Lumber & Realty Co. v. 

Phipps, 75 Nev. 312, 314, 340 P.2d 95, 96 (1959), superseded by .statute on 

other grounds as stated in Simmons Self-Storage Partners, LLC v. Rib Roof, 

Inc., 130 Nev. 540, 548, 331 P.3d 850, 855 (2014); see also Scheinwald v. 

Bartlett, 51 Nev. 155, 157-58, 271 P. 468, 468-69 (1928) (noting that where 

no default is entered, district courts have discretion to allow an untimely 

answer). 

Here, Razmy did not file an answer. Instead, Razmy filed a 

motion to dismiss the complaint for insufficient service of process 31 days 

after the complaint was served. Razmy risked default by failing to make 

any defensive filing within 21 days of.service, but given the lack of a preanswer deadline to file /notions under N.RCP 12(b)(4), the motion to dismiss 

was not untimely. We conclude the plain language of NRCP 12 supports 

the district court's ruling, and we find no error in the district court's decision 

to grant the motion to dismiss. Because Razmy's motion to dismiss was 

timely, Sabater and Desimone did not serve Razmy within 120 days, and 

the district court properly denied an extension of time to serve, the case was 

properly dismissed nnder NRCP 4(e)(2). 

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CONCLUSION 

When a plaintiff fails to demonstrate good cause for failing to 

seek an extension of time to serve the summons and complaint within the 

120-day period prescribed by NRCP 4(e), the district court may properly 

deny an untimely motion for an extension of time. Additionally, under 

NRCP 12, a motion to dismiss for insufficient service of process may be filed 

at any time before a responsive pleading is filed. Absent the filing of a 

responsive pleading or entry of a default, a motion to dismiss for insufficient 

service of process is not untimely. Accordingly, we affirm the district court's 

order dismissing the complaint. 

, J. 

Bell 

We concur: 

6,“ J. 

Cadish 

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