129 Nev., Advance Opinion -Lis 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

MOUNTAIN VIEW RECREATION, 

INC., D/B/A MOUNTAIN VIEW 

RECREATION CENTER, 

Appellant, 

vs. 

IMPERIAL COMMERCIAL COOKING 

EQUIPMENT CO.; HARMONY FIRE 

PROTECTION, INC.; AND HERITAGE 

OPERATING, L.P., 

Respondents. 

No. 56193 

FILE 

Appeal from a district court order granting a motion to change 

venue. Fifth Judicial District Court, Nye County; Robert E. Estes, Judge. 

Reversed and remanded. 

Lewis & Roca, LLP, and Daniel F. PoIsenberg and Joel D. Henriod, Las 

Vegas; McDonald & McCabe, LLC, and Thomas A. McDonald, David R. 

Butzen, Michael P. Rohan, and Terry L. Welch, Chicago, Illinois, 

for Appellant. 

Lemons, Grundy & Eisenberg and Robert L. Eisenberg, Reno, 

for Respondent Imperial Commercial Cooking Equipment Co. 

Lincoln, Gustafson & Cercos and Nicholas B. Salerno and James M. 

Barrington, Las Vegas, 

for Respondent Harmony Fire Protection, Inc. 

Wood, Smith, Henning & Berman, LLP, and Janice M. Michaels and T. 

Blake Gross, Las Vegas, 

for Respondent Heritage Operating, L.P. 
BEFORE THE COURT EN BANC. 

OPINION 

By the Court, HARDESTY, J.: 

This appeal arises from the district court's grant of a motion to 

change venue from Nye County to Clark County. The district court 

granted the motion based on the doctrine of forum non conveniens and its 

findings that existing courtroom facilities in Pahrump, located in Nye 

County, were inadequate to accommodate a trial in the underlying matter. 

We conclude that the district court abused its discretion by granting the 

motion for change of venue because it (1) failed to cite sufficient evidence 

supporting a change of venue pursuant to the doctrine of forum non 

conveniens; (2) failed to conduct a proper analysis, under NRS 3.100(2) 

and Angell v. Eighth Judicial District Court, 108 Nev. 923, 839 P.2d 1329 

(1992), as expanded by this opinion, regarding the adequacy of courtroom 

facilities in a county; and (3) failed to consider the docket congestion in 

Clark County before reaching its decision. Accordingly, we reverse and 

remand for proceedings consistent with this opinion. 

FACTS AND PROCEDURAL HISTORY 

In 2003, a fire destroyed the Mountain View Recreation 

Center in Pahrump, Nevada. The fire allegedly started when a deep fat 

fryer overheated and the building's sprinkler system failed to extinguish 

the fire. In December 2005, appellant Mountain View Recreation, Inc., 

which owned and operated the recreation center, filed a complaint in Nye 

County against numerous defendants, including respondents Imperial 

Commercial Cooking Equipment Co., which manufactured the fryer, 

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Heritage Operating, L.P. (Proflame), which provided propane fuel to 

Mountain View and serviced the fryer, and Harmony Fire Protection, Inc., 

which designed and installed the building's sprinkler system. 

In February 2010, Proflame filed a motion for change of venue 

from Nye County to Clark County, which was joined by Harmony. 1 

Proflame argued that finding an impartial jury in Pahrump was "highly 

unlikely" in light of the pretrial publicity and the community's connection 

to the recreation center, 2and that a trial in Las Vegas, located in Clark 

County, would be more convenient for the witnesses and would better 

serve the ends of justice. Without providing any evidence to support its 

latter argument, Proflame asserted that (1) the majority of the pretrial 

litigation and discovery, including most of the depositions, had taken place 

in Las Vegas; (2) the physical evidence, the special master, and the 

majority of counsel were located in Las Vegas; (3) any experts located 

outside of Pahrump would have to travel through Las Vegas to attend 

court proceedings in Pahrump; (4) the majority of Mountain View's 

witnesses would not have to travel from Pahrump to Las Vegas; and (5) 

lImperial initially joined in Proflame's motion for change of venue, 

but it later withdrew its joinder because it intended to file a separate 

motion. However, nothing in the record before us demonstrates that 

Imperial filed a separate motion. 

2To the extent that respondents rely on this argument as an 

alternative basis to uphold the district court on appeal, we reject this 

argument as we have previously concluded that the determination of an 

impartial jury "is appropriate only after jury selection efforts have been 

made." See Sicor, Inc. v. Sacks, 127 Nev. „ 266 P.3d 618, 621 

(2011). 

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the transfer would not require reassignment to a Clark County district 

court judge because the Nevada Supreme Court had appointed the 

currently presiding senior judge. Mountain View opposed the motion, 

arguing that Proflame had failed to provide any affidavits or evidence in 

support of its argument that transferring the matter to Clark County 

would be more convenient for the witnesses and would better serve the 

ends of justice. 

At a hearing on the motion, the district court declined to 

change venue based on the potential inability to seat an impartial jury, 

but nonetheless indicated that the trial could not be held in Pahrump 

because existing courtroom facilities were inadequate and NRCP 41(e)'s 

five-year want-of-prosecution rule would require dismissal of the action in 

December 2010. In response to the district court's concerns, Mountain 

View argued that Nye County was required to provide facilities for trial in 

Pahrump and suggested substitute locations such as a banquet room or 

school. Mountain View alternatively asked that, if the trial was moved 

from Pahrump, it be transferred to Tonopah, also located in Nye County, 

rather than to Las Vegas. The district court ordered supplemental 

briefing by the parties to address whether it was required to seek 

alternative facilities within Nye County instead of granting the motion to 

change venue. 

Mountain View argued in its supplemental brief that, under 

Angell v. Eighth Judicial District Court, 108 Nev. 923, 839 P.2d 1329 

(1992), Nye County must provide adequate facilities for the district court 

to conduct the trial within the county. It further argued that the trial 

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should be conducted in Nye County based on local private and public 

interests in the matter. 

Imperial and Proflame argued that Angell was distinguishable 

and did not apply to Mountain View's argument to conduct the trial in 

Tonopah. 3Specifically, Imperial and Proflame contended that in Angell 

(1) there was no motion to change venue; (2) the dicta stated that a trial is 

to be held within existing judicial facilities and not in banquet halls or 

schoolhouse facilities and, further, the judge would have to approve if such 

change was made, which did not occur in this instance; and (3) the court 

did not require a change of venue to Tonopah. Moreover, Imperial and 

Proflame asserted that the facilities in Pahrump and Tonopah were 

inadequate to accommodate a trial of this magnitude. Imperial provided 

no supporting affidavits, citing only the discovery disclosures made by 

Mountain View that listed 35 potential percipient witnesses and 8 expert 

witnesses, with only 10 of those witnesses having Pahrump addresses. 

Thereafter, the district court entered a written order granting 

Proflame's motion for change of venue based on the convenience of the 

witnesses and the promotion of the ends of justice. In particular, the court 

found that because Pahrump had only one courtroom in which to conduct 

such a large trial, the existing courtroom facilities in Pahrump were 

3While Imperial failed to file a separate motion for change of venue, 

it did submit a supplemental brief as ordered by the district court. 

However, there is no indication in the record on appeal as to whether 

Harmony filed a supplemental brief or joined the supplemental brief of 

another party. 

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inadequate in light of the number of defendants involved, the estimated 

length of time needed for the trial, and the Pahrump district court's 

current calendar. And the court rejected Mountain View's suggestion to 

use alternative facilities in Pahrump, finding that the proposed facilities 

would not provide for adequate security or accommodate "the comfort or 

simple logistics of complex litigation." As a result, the court concluded 

that the ends of justice could not be served by retaining the case in 

Pahrump because doing so would result in the case being dismissed for 

failure to bring it to trial within five years. 

Having concluded that the trial could not be held in Pahrump, 

the district court was faced with deciding whether to transfer the case to 

Las Vegas or Tonopah. In making this determination, the court generally 

noted that Tonopah is 167 miles from Pahrump, whereas Las Vegas is 

only 63 miles from Pahrump, and that "[a]ll of the physical and 

documentary evidence to be admitted at trial is in Las Vegas." Without 

further elaboration, the district court concluded that, under the doctrine of 

forum non conveniens, the trial should be transferred to Clark County, 

rather than Tonopah. Thus, while acknowledging the deference due to 

Mountain View's choice of venue, the court nonetheless granted the 

motion for change of venue to Clark County. This appeal followed. 

DISCUSSION 

This court reviews a district court's grant of a motion to 

transfer a trial based on the doctrine of forum non conveniens for an abuse 

of discretion. Roethlisberger v. McNulty, 127 Nev. „ 256 P.3d 955, 

957 (2011). District courts have wide discretion when considering whether 

to grant such motions. Id. at ,256 P.3d at 957. 

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Mountain View contends, among other things, that the district 

court abused its discretion by granting Proflame's motion for a change of 

venue because (1) respondents failed to provide any affidavits or evidence 

in support of its argument that transferring the matter to Clark County 

would be more convenient for the witnesses and would better serve the 

ends of justice; (2) the district court failed to recognize the obligation of 

Nye County under NRS 3.100(2) and Angell v. Eighth Judicial District 

Court, 108 Nev. 923, 839 P.2d 1329 (1992), to provide adequate facilities 

for the litigation; and (3) the district court failed to consider the congestion 

of the Clark County district court's docket in determining whether it could 

accommodate the trial if transferred. We agree. 

Forum non conveniens 

The doctrine of forum non conveniens is statutorily embodied 

in NRS 13.050. See Cariaga v. Eighth Judicial Dist. Court, 104 Nev. 544, 

547, 762 P.2d 886, 888 (1988). NRS 13.050(2)(c) states that "[t]he court 

may, on motion, change the place of trial . . . [w]hen the convenience of the 

witnesses and the ends of justice would be promoted by the change." 

However, a plaintiffs selected forum choice may only be denied under 

exceptional circumstances strongly supporting another forum. Eaton v. 

Second Judicial Dist. Court, 96 Nev. 773, 774-75, 616 P.2d 400, 401 

(1980), overruled on other grounds by Pan v. Eighth Judicial Dist. Court, 

120 Nev. 222, 228, 88 P.3d 840, 844 (2004). A motion for change of venue 

based on forum non conveniens must be supported by affidavits so that the 

district court can assess whether there are any factors present that would 

establish such exceptional circumstances. Id. at 775, 616 P.2d at 401. 

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General allegations regarding inconvenience or hardship are insufficient 

because "[a] specific factual showing must be made." Id. 

Respondents maintain that holding the trial in Pahrump or 

Tonopah would be inconvenient to the witnesses and parties because a 

majority of the litigation and discovery, including the majority of 

depositions, took place in Las Vegas; the physical evidence, the special 

master, and the majority of counsel are located in Las Vegas; and all 

experts located outside of Pahrump would have to travel through Las 

Vegas to attend court proceedings in Pahrump. We conclude that these 

arguments lack merit because they fail to establish the existence of 

exceptional circumstances under Eaton.4 

Respondents further contend that the majority of Mountain 

View's witnesses will not be inconvenienced by transferring venue to Las 

Vegas because many already live in Las Vegas, and, if the case were 

4Extrajurisdictional caselaw supports our conclusion. See Costello v. 

Home Depot U.S.A., Inc., 888 F. Supp. 2d 258, 268 (D. Conn. 2012) ("The 

convenience of counsel is not [an] appropriate consideration on a motion to 

transfer."); Scheinbart v. Certain-Teed Prods. Corp., 367 F. Supp. 707, 709- 

10 (S.D.N.Y. 1973) ("The convenience of expert witnesses has little or no 

significance in determining whether an action should be transferred."); 

Rothschild v. Superior Court, 31 Cal. Rptr. 248, 249 (Ct. App. 1963) 

(disregarding affidavits from the plaintiff and the defendant's employee 

because "neither the convenience of a party nor an employee of a party is 

to be considered in determining a [forum non conveniens] motion" 

(citations omitted)); Said v. Strong Mem'l Hosp., 680 N.Y.S.2d 785, 786 

(App. Div. 1998) ("It is well established that the convenience of the parties, 

their agents and employees, or others under their control carries little if 

any weight" when considering a motion to change venue.). 

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transferred to Tonopah, those witnesses would have to travel a distance of 

211 miles to attend trial. However, respondents fail to support such 

arguments with evidence in the record. We conclude that this argument 

also provides little, if any, support for respondents' position even if such 

evidence were provided in the record. Gates Learjet Corp. v. Jensen, 743 

F.2d 1325, 1336 (9th Cir. 1984) (noting that "a district court should keep 

in mind that the increased speed and ease of travel and 

communication. . . makes, especially when a key issue is the location of 

witnesses, no forum as inconvenient [today] as it was [in years past]" (first 

and second alterations in original) (internal quotations omitted)); 

Maynard v. Oakes, 534 N.Y.S.2d 541, 542 (App. Div. 1988) ("In our mobile 

society, a drive of some 21/2 hours is not a matter of much inconvenience."); 

see also Roethlisberger, 127 Nev. at , 256 P.3d at 957 (upholding a 

district court's denial of a motion to change venue from Douglas County to 

Washoe County, Nevada, and stating that "difference [s] in travel times to 

the courts in either county are, for many witnesses, relatively minimal"). 

The record is devoid of affidavits from either percipient or 

expert witnesses or other evidence to demonstrate how the witnesses 

would be inconvenienced if the trial were held in Pahrump. See Eaton, 96 

Nev. at 774-75, 616 P.2d at 401. Additionally, the district court failed to 

articulate how changing venue from Pahrump to Las Vegas would be more 

convenient for the witnesses or would serve the ends of justice. Thus, to 

the extent the district court relied on the doctrine of forum non conveniens 

as a basis for its decision, we conclude that there is insufficient evidence in 

the record to support such a finding. 

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Inadequate courtroom facilities 

The district court's decision to change venue away from 

Pahrump was based, in part, on its conclusion that the facilities were 

inadequate, and the trial would have to be conducted elsewhere. However, 

Mountain View contends that the court was obligated to direct Nye 

County to provide adequate facilities. 

NRS 3.100(2) states that "[i]f a room for holding court. . . is 

not provided by the county, . . . the court may direct the sheriff to provide 

such room, attendants, fuel, lights and stationery, and the expenses 

thereof shall be a county charge." In Angell, the petitioners sought a writ 

of mandamus directing the district court to require Clark County to 

provide a sufficient courtroom and court personnel to accommodate the 

underlying mass-tort litigation. 108 Nev. 923, 926-28, 839 P.2d 1329, 

1331-32 (1992). This court denied mandamus relief because there was no 

evidence in the record before it to demonstrate that "existing County 

facilities [were] inadequate or could not, with comparatively minor 

expense and effort, be made adequate." Id. at 927, 839 P.2d at 1332. This 

court concluded that Clark County "should. . . determine what facilities 

may exist within the county that may be appropriately utilized to 

accommodate the trial." Id. In doing so, this court further concluded that 

Clark County had a statutory obligation to either find existing facilities 

within the county that could accommodate a trial of this magnitude, or 

find other suitable courtroom facilities, noting that 

[a]lthough . Clark County is generally 

responsible for providing a suitable and sufficient 

trial facility and necessary court personnel, . . . the 

County may wish to seek an accommodation for 

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the [litigation] within existing judicial facilities by 

suggesting alternative trial methods that have 

been used elsewhere to accommodate mass tort 

litigation. 

Id. 

Consistent with our holding in Angell, we conclude that Nye 

County has a statutory duty under NRS 3.100 to provide adequate 

courtroom facilities and support staff. We now expand our holding in 

Angell and require that when considering whether a change of venue is 

necessary based on a potential inadequacy of courtroom facilities within a 

county, a district court must analyze and provide specific findings 

regarding whether: (1) existing courtroom facilities are adequate or, "with 

comparatively minor expense and effort, [can] be made adequate"; and (2) 

if existing courtroom facilities are inadequate, whether there are 

alternative facilities within the county that "may be appropriately utilized 

to accommodate the trial." Id. 

Here, as in Angell, there is no evidence in the record to 

support the district court's findings that the courtroom facilities in 

Pahrump or Tonopah were inadequate to conduct the trial or why 

alternative facilities suggested by Mountain View were inadequate. 

Instead, the district court made generalized statements regarding the 

existing courtroom facilities and rejected out of hand the feasibility of 

alternative facilities in Pahrump and the ability of those facilities to 

accommodate a trial in this complex litigation. Thus, no specific details 

were provided as to what cases were currently pending in the one 

available courtroom in Pahrump, how many days were free on the court 

schedule, how many people the courtroom could accommodate, and what 

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size of courtroom would be needed given the size of the trial. In addition, 

when the court's order was issued, seven months remained before the fiveyear deadline, but the court did not specifically refer to the court's 

schedule and, instead, made general statements that there was no way 

that a trial could be scheduled before the five years ran. 

Furthermore, the district court failed to conduct any analysis 

to determine whether, under Angell and NRS 3.100(2), Nye County met its 

responsibility to provide adequate or alternative courtroom facilities. 

Instead, the district court ruled, without any evidentiary support or proper 

analysis, that alternative facilities in Pahrump would be 

unaccommodating to jurors, and it thus transferred the case to Las Vegas 

for trial proceedings. And, beyond its determination that Tonopah was 

farther in distance from Pahrump than Las Vegas, the district court 

conducted no further analysis in determining whether Tonopah served as 

an adequate alternative facility to conduct the trial. 

Because the district court failed to conduct a proper analysis 

prior to granting a change of venue in this matter, we conclude that the 

district court abused its discretion. 

Congestion of docket 

Finally, Mountain View contends that the district court failed 

to consider Clark County's court schedule and docket congestion before 

ordering a change of venue. At the outset, we note the Ninth Circuit's 

observation that "[t]he forum non conveniens doctrine should not be used 

as a solution to court congestion." Gates Learjet Corp., 743 F.2d at 1337. 

When assessing docket congestion in one venue with that of a proposed 

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transferring venue, "[t]he real issue is not whether a dismissal will reduce 

a court's congestion but whether a trial may be speedier in another court 

because of its less crowded docket." Id. (noting that "the district 

court. . . observed only that its docket was congested; it did not determine 

whether a trial would be speedier in the [proposed transferring venue]"). 

"A party seeking a transfer has the burden to make prima 

facie proof that venue is maintainable in the county to which transfer is 

sought." GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 543 (Tex. 

1998); see also Walker v. Iowa Marine Repair Corp., 477 N.E.2d 1335, 1342 

(Ill. App. Ct. 1985) (concluding that "a compilation of [courtroom] statistics 

prepared by the Administrative Office of the Illinois Courts showing the 

number of cases disposed of and the average time to trial" submitted by 

the defendant convincingly demonstrated that defendant was entitled to a 

transfer of the case to a different county). 

Here, nothing in the record demonstrates that respondents 

satisfied their burden of proof by demonstrating that venue was 

maintainable in Clark County. Furthermore, nothing in the record or the 

district court's order indicates that the district court considered the docket 

congestion of the Clark County district court system before deciding to 

change venue to that county. The district court should have properly 

considered the docket and the availability of courtrooms and staff in Clark 

County before reaching its decision. The district court's failure to do so 

was an abuse of discretion. See Roethlisberger, 127 Nev. at , 256 P.3d 

at 957. 

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b.dot 

Parraguirre 

For the foregoing reasons, we reverse the district court's order 

granting the motion for change of venue and remand this matter to the 

district court for further proceedings consistent with this opinion. 5 

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Hardesty 

J. 

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Saitta 

J. 

J. 

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5Mountain View also challenges the district court's order denying its 

motion for reconsideration. However, Mountain View filed its motion for 

reconsideration after filing its notice of appeal before this court. Thus, we 

conclude that the district court was divested of jurisdiction to decide the 

motion. See Foster v. Dingwall, 126 Nev. , 228 P.3d 453, 454-55 

(2010) ("[T]he timely filing of a notice of appeal divests the district court of 

jurisdiction to act and vests jurisdiction in this court." (internal quotations 

omitted)); Tuxedo Int? Inc. v. Rosenberg, 127 Nev. n.3, 251 P.3d 

690, 692 n.3 (2011) ("[A]rguments set forth for the first time in a motion 

for reconsideration are only reviewable if the district court addresses those 

arguments on the merits in an order entered before the notice of appeal is 

filed." (citing Arnold v. Kip, 123 Nev. 410, 416-17, 168 P.3d 1050, 1054 (2007))). 

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