ORDER GRANTING IN PART AND DENYING IN PART 

PETITIONS FOR WRITS OF MANDAMUS OR PROHIBITION 

These are consolidated original petitions for writs of 

mandamus or prohibition challenging district court orders granting and 

then denying sequential motions to dismiss for failure to comply with NRS 

38.310's arbitration requirements in a real property action. 

At foreclosure auctions, Prem Deferred Trust and others 

purchased real property located in the Southern Highlands Community. 

Afterwards, Southern Highlands Community Association sought to collect 

from Prem and other purchasers the full amount of past due assessments, 

together with all accrued interest, fees, and other charges. Prem and the 

remaining real parties in interest, however, refused to pay, or paid and 

now seek to recoup, all sums greater than the amount given superpriority 

status by NRS 116.3116(2). 

Prem initially sought, on behalf of itself and others similarly 

situated, to arbitrate the disputes with Southern Highlands before the 

Nevada Real Estate Division (NRED) under NRS 38.310. NRS 38.310 

requires claims involving the interpretation of homeowners' association 

covenants, conditions, and restrictions (CC&Rs) to be submitted to NRED 

for arbitration or mediation before either party may institute a civil action 

in district court.' After refusing to rule on the merits of the claims as they 

'Although the parties do not, in many cases, adequately identify 

which version of the statutes applies to the different facets of their 

dispute, the 2009 version of NRS Chapter 38 applies to our consideration 

herein of whether NRS 38.310 requires arbitration of the claims in the 

complaint. Accordingly, we refer herein to the 2009 statutes unless 

otherwise specified. 

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pertained to claimants other than Prem, the arbitrator ruled against 

Prem. Prem then sued Southern Highlands in district court, seeking to 

resolve the disputes as a class action. 

Southern Highlands filed a motion to dismiss the class 

allegations and all claims that were not individually submitted to NRED 

for arbitration or mediation. The district court initially granted Southern 

Highlands' motion to dismiss the claims that directly involved the CC&Rs, 

and with leave of the court, Prem ultimately filed a second amended 

complaint, omitting reference to the CC&Rs. Southern Highlands again 

moved to dismiss the class allegations against all plaintiffs except for 

Prem, but the district court denied its motion. Southern Highlands 

consequently filed the writ petition in Docket No. 61940, seeking a writ of 

mandamus or prohibition directing the district court to grant its motion to 

dismiss the second amended complaint because the dispute involved the 

interpretation of the CC&Rs and thus had to be submitted to NRED for 

arbitration or mediation first under NRS 38.310. Prem then filed the writ 

petition in Docket No. 62587 in February 2013, belatedly challenging the 

district court's February 2012 order dismissing its original complaint 

nearly one year earlier. 

These writ petitions were consolidated and, as requested, 

answers and replies were filed. Having considered the parties' arguments 

therein and for the reasons explained below, we grant in part and deny in 

part Southern Highlands' petition. We refuse to consider the petition filed 

by Prem. 

Southern Highlands' petition warrants the court's consideration 

Mandamus relief is available to compel an act that is required 

by law or to control an arbitrary or capricious abuse of discretion. NRS 

34.160; see also Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 

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Nev. 193, 197, 179 P.3d 556, 558 (2008). 2Because a writ petition seeks an 

"extraordinary remedy, we will exercise our discretion to consider such a 

petition only when there is no plain, speedy and adequate remedy in the 

ordinary course of law or there are either urgent circumstances or 

important legal issues that need clarification in order to promote judicial 

economy and administration." Cheung v. Eighth Judicial Dist. Court, 121 

Nev. 867, 869, 124 P.3d 550, 552 (2005) (internal quotations omitted). 

"[W]hether an appeal is an adequate and speedy remedy necessarily turns 

on the underlying proceedings' status, the types of issues raised in the 

writ petition, and whether a future appeal will permit this court to 

meaningfully review the issues presented." Rolf Jensen & Assocs. v. 

Eighth Judicial Dist. Court, 128 Nev. „ 282 P.3d 743, 745-46 (2012) 

(internal quotations omitted). 

As to Prem's petition, the doctrine of laches bars our 

consideration. Laches precludes review of a writ petition when there is an 

inexcusable delay in seeking relief, waiver can be implied from the 

petitioner's knowing acquiescence in existing conditions, and the real 

party in interest is prejudiced thereby. Bldg. & Constr. Trades Council of 

N. Nev. v. State ex rel. Pub. Works Bd., 108 Nev. 605, 611, 836 P.2d 633, 

637 (1992). By waiting nearly one year after the challenged order was 

entered, Prem unreasonably delayed filing its writ petition, which 

concerns a complaint that in the interim was amended twice. Because of 

2Because mandamus, rather than prohibition, constitutes the proper 

vehicle to challenge the rulings at issue here, we deny Southern 

Highlands' alternative request for a writ of prohibition. See NRS 34.320 

(noting that prohibition relief is available to address proceedings in excess 

of a tribunal's jurisdiction). 

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the delay and the current status of the case, we decline to exercise our 

discretion to review its petition or the merits of the arguments therein. 3 

See State v. Eighth Judicial Dist. Court, 116 Nev. 127, 134-35, 994 P.2d 

692, 697 (2000) (concluding that an eleven-month delay alone precluded 

consideration of a petition). 

Addressing Southern Highlands' writ petition will prevent the 

district court from adjudicating matters that must first be submitted to an 

arbitrator or mediator, thereby advancing the interests of judicial 

economy. Cheung, 121 Nev. at 869, 124 P.3d at 552. While we generally 

review district court orders challenged in a writ petition for an arbitrary 

or capricious abuse of discretion, we nevertheless review issues of law, 

including statutory interpretation, de novo, even in the context of a writ 

petition. Int'l Game Tech., 124 Nev. at 197-98, 179 P.3d at 558-59. 

Some of the claims in the second amended complaint fall within the scope 

of NRS 38.310's arbitration and mediation requirement 

Southern Highlands asserts that all of the claims in the 

second amended complaint must be dismissed under NRS 38.310 to the 

extent that they are brought by parties who failed to first submit the 

claims to an arbitrator or mediator, because the claims all involve the 

3As a result, we do not address Prem's argument that NRS 38.310 

violates the separation of powers doctrine under the Nevada Constitution. 

Moreover, we note that in asserting its constitutional argument, Prem and 

the remaining real parties in interest failed to comply with NRAP 44, 

which requires a party who asserts a constitutional challenge to a statute 

in a proceeding before this court in which the state is not a party to give 

written notice to the clerk of this court, so that the clerk can certify the 

fact to the attorney general. See In re Candelaria, 126 Nev. „ 245 

P.3d 518, 522 (2010) (providing that a failure to comply with NR.AP 44 is 

an independent basis for summarily rejecting a constitutional argument). 

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interpretation or administration of the CC&Rs and the lien statute, NRS 

116.3116(2). Prem and the remaining real parties in interest argue that 

they complied with NRS 38.310 or are not required to comply. They 

contend that the principle of vicarious exhaustion excuses those parties 

who did not arbitrate or mediate their claims because Prem arbitrated on 

their behalf. Prem and the remaining real parties in interest also argue 

that requiring numerous parties to submit their claims to an arbitrator or 

mediator is futile. 

While we disagree with Southern Highlands that any 

interpretation of NRS 116.3116(2) necessarily involves reference to the 

CC&Rs and arbitration under NRS 38.310, we agree that NRS 38.310 

requires the dismissal of some, but not all, of the claims in the second 

amended complaint. We disagree with Prem and the remaining real 

parties in interest's contentions that NRS 38.310 was satisfied or that it 

was futile to adhere to the statute's requirements. 

NRS 38.310 governs disputes requiring interpretation, application, or 

enforcement of the CC&Rs 

Before instituting a civil action requiring the interpretation, 

application, or enforcement of CC&Rs, the matter must be submitted to 

arbitration or mediation before the NRED: 

1. No civil action based upon a claim 

relating to: 

(a) The interpretation, application or 

enforcement of any [CC&Rs] applicable to 

residential property or any bylaws, rules or 

regulations adopted by an association; . . . 

may be commenced in any court in this State 

unless the action has been submitted to mediation 

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or arbitration pursuant to the provisions of NRS 

38.300 to 38.360, inclusive . . . . 

NRS 38.310(1) (2009) (amended 2013) (emphases added). Thus, if an 

action involves ascertaining the meaning of the language in the CC&Rs or 

"bylaws, rules or regulations," the action is within the scope of NRS 

38.310's mediation and arbitration requirement. See Black's Law 

Dictionary 837 (8th ed. 2004) (defining "interpretation" as "the 

ascertainment of meaning to be given to words"); see also We The People 

Nev. ex rel. Angle v. Miller, 124 Nev. 874, 881, 192 P.3d 1166, 1170 (2008) 

(explaining that this court interprets unambiguous language "in 

accordance with its plain meaning"). Any action based on such claims that 

were not arbitrated or mediated must be dismissed: "A court shall dismiss 

any civil action which is commenced in violation of the provisions of 

subsection 1." NRS 38.310(2) (2009) (amended 2013). 

While Southern Highlands asserts that adjudicating the 

second amended complaint requires looking to the CC&Rs, Prem and the 

other remaining real parties in interest argue that the district court will 

look only to Southern Highlands' periodic budget, nothing else, to resolve 

the claims about Southern Highlands' imposition and collection of 

assessments. Resolving NRS 38.310's effect on the second amended 

complaint requires an inquiry into the complaint's substance and the 

substantive laws relevant to the lien-related allegations and claims 

asserted. See Nev. Power Co. v. Eighth Judicial Dist. Court, 120 Nev. 948, 

960, 102 P.3d 578, 586 (2004) (indicating that a complaint is evaluated for 

its substance). 

As noted, the claims here are primarily based on the assertion 

that Southern Highlands is charging Prem, the remaining real parties in 

interest, and the other class members with items that they are not 

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obligated to pay under NRS 116.3116(2). 4The first subsection of NRS 

116.3116 provides associations with a statutory lien upon the property for 

unpaid assessments and certain penalties, fines, fees, interest, and other 

charges. 5NRS 116.3116(1) permits an association's declaration to alter 

which assessments or other charges may form the basis of the statutory 

lien. See also NRS 116.3102(j)-(n) (2009) (amended 2011). The 

"'[d]eclaration' means any instruments, however denominated, that create 

a common-interest community," which may include the CC&Rs. NRS 

116.037. Thus, the CC&Rs may establish which assessments and charges 

an association is authorized to impose and which imposed assessments 

and charges form the basis of the lien. As a result, where parties dispute 

the validity of the charges imposed or the lien's amount under NRS 

116.3116(1), those questions cannot be resolved without referencing the 

CC&Rs, the declaration, or other governing documents. 

4To the extent that Prem and the other owners challenge Southern 

Highlands' ability to impose assessments, fees, or costs, statutes from 

years prior to 2009 might apply. But the resolution of this writ petition 

does not require us to examine Southern Highlands' imposition of 

assessments or other charges. Rather, this writ petition only requires that 

we ascertain whether Prem is challenging the validity or amount of such 

charges. Accordingly, we express no opinion regarding the validity or 

amount of any charges or which version of what statutes might apply to 

determine the validity or amount of the charges. 

5Either the 2007 or 2009 version of NRS 116.3116 may apply in the 

underlying case when considering the amounts of the superpriority lien 

and its effect upon this litigation. This question, however, is beyond the 

scope of this writ petition, and we thus decline to address it. The 2009 

changes to NRS 116.3116 are immaterial for the purposes of this writ 

petition, and we thus refer herein to that version of NRS 116.3116. 

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NRS 116.3116(2)(c) provides that the association's lien has 

priority over certain other security interests, 

to the extent of the assessments for common 

expenses based on the periodic budget adopted by 

the association pursuant to NRS 116.3115 which 

would have become due in the absence of 

acceleration during the 9 months immediately 

preceding institution of an action to enforce the 

lien. 

(Emphasis added.) Southern Highlands argues that in ascertaining the 

final amount of the lien under NRS 116.3116(2), the district court 

ultimately must look to the CC&Rs to determine the nature and extent of 

the assessments. The district court agreed with Prem and the remaining 

real parties in interest's contention that the determination of the priority 

and amount of Southern Highlands' liens, as they relate to the second 

amended complaint's claims, require reference to the periodic budget and 

not to the CC&Rs. 

Prem and the remaining real parties in interest's contention 

oversimplifies the relationship between NRS 116.3116(2) and the 

remainder of the statutory scheme. As discussed above, the CC&Rs may 

affect the amount of an assessment. To the extent that the priority 

language defines the amount of the lien entitled to superpriority based on 

the assessments for common expenses under a periodic budget, the budget 

is also a matter that the CC&Rs can affect. Although the budget is 

defined generally by NRS 116.3115 and NRS 116.31151, both statutes 

provide that the declaration "[may] impose[ ] more stringent standards" 

for a budget than the statutory standards. NRS 116.3115(1) (2009) 

(amended 2011); NRS 116.31151(1) (2009). Thus, the CC&Rs can affect 

the budget and the assessments for common expenses based on the 

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budget, thereby affecting the amount of the lien entitled to superpriority 

status under NRS 116.3116(2). 

Having concluded that the CC&Rs may affect both the validity 

and the amount of an association's lien under NRS 116.3116(1) and thus 

the amount entitled to superpriority under NRS 116.3116(2), we must 

necessarily conclude that, if a party disputes the association's periodic 

budget and assessments or the validity or amount of an association's lien, 

such disputes necessarily involve resort to or interpretation of the 

association's CC&Rs or other governing documents, which triggers NRS 

38.310(1) and requires NRED mediation or arbitration prior to civil 

litigation. See Hamm v. Arrowcreek Homeowners' Ass'n, 124 Nev. 290, 

296, 183 P.3d 895, 900 (2008) (holding that where the dispute would 

require the district court to interpret the CC&Rs, the action must first be 

submitted to NRED mediation and arbitration). But if the party does not 

dispute the validity or amount of an association's lien or the monthly 

assessment derived from the association's periodic budget, then no resort 

to the CC&Rs is necessary and the matter may proceed in the district 

court. 6 Cf. id. Thus, in this dispute, we must review whether the district 

court arbitrarily or capriciously abused its discretion when it concluded 

that the underlying claims in the amended complaint were not subject to 

NRED mediation or arbitration under NRS 38.310(1). 

6In this regard, NRS 116.3116(2) gives a specified portion of the 

association's lien priority over NRS 116.3116(2)(b) security interests. If no 

challenge is brought to the association's budget or assessments or the 

validity or amount of its lien, then tabulating the statutorily mandated 

superpriority amount, or determining the statutory effect of the various 

lien priorities subsequent to a foreclosure, would generally not involve 

interpreting the CC&Rs. 

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The second amended complaint included claims that are premised on 

NRS 116.3116(2) and, thus, involve the interpretation of the CC&Rs 

Here, the second amended complaint includes the following 

causes of action: (1) declaratory relief concerning Southern Highlands' 

liens under NRS Chapter 116, (2) "[b]reach of NRS 116.3116(2)," (3) 

negligence per se, (4) injunctive relief, (5) negligent misrepresentation, 

and (6) conversion. In addition, it included allegations that Southern 

Highlands made "excessive demands . . . for claimed assessment[s]" and 

"false demands, improper liens and improper collection and retention of 

assessments," the result of which was the collection of lien amounts that 

exceeded the amounts permitted by NRS 116.3116. These allegations 

were incorporated into each claim. Although Prem and the remaining real 

parties in interest assert in their answer to the writ petition that their 

primary contention questions whether an association may assess more 

than the NRS 116.3116(2) superpriority lien amount after a first deed of 

trust on the property has been foreclosed, it appears that their second 

amended complaint contains additional assertions about the validity and 

amount of the assessments. 

For example, the requested declarations concerning the 

validity and amount of the "claimed liens" and Southern Highlands' 

budget involve interpreting the CC&Rs, subjecting them to NRS 38.310's 

mediation or arbitration requirement. The requested declarations which 

only concern statutes and other authorities, however, are not subject to 

MRS 38.310's mediation and arbitration requirement. 7 

7Our recent opinion in SFR Investments Pool 1, LLC v. U.S. Bank, 

N.A., 130 Nev. , 334 P.3d 408 (2014), addresses some of the issues 

relating to these requests for declaratory relief. 

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The remaining claims seek damages or relief relating to 

alleged "Unlawful Lien Amounts" or Southern Highlands' "false" or 

"improper" demands and receipt thereof, which purportedly violated NRS 

116.3116(2). These claims not only dispute superpriority amounts and 

whether the remaining amounts have been foreclosed, but they also attack 

the validity of the assessments, collection fees, and other charges forming 

the basis of Southern Highlands' liens. These claims thus involve a 

determination of what the proper lien amounts were. Since lien amounts 

may be affected by the CC&Rs, NRS 38.310 requires these claims to be 

mediated or arbitrated before they are brought in district court. 

Accordingly, with the exception of the declaratory relief claims 

that concerned authorities beyond the CC&Rs and their relationship to 

Southern Highlands' liens, the causes of action in the second amended 

complaint involve the interpretation of Southern Highlands' CC&Rs. Such 

claims are within NRS 38.310's arbitration or mediation requirement. 

Thus, inasmuch as these claims were brought on behalf of parties who did 

not submit them to an arbitrator or mediator, unless an exception applies, 

NRS 38.310 precludes the district court's consideration of these claims as 

they pertain to those parties, and these claims must be dismissed. 

NRS 38.310 was violated 

Having concluded that NRS 38.310 bars various claims in the 

second amended complaint if they are unmediated and unarbitrated, we 

now turn to Prem and the remaining real parties in interest's contention 

that they have fulfilled or are excused from fulfilling NRS 38.310's 

requirement because (1) Prem submitted all of the claims on behalf of 

itself and the class to an arbitrator, (2) Prem vicariously exhausted the 

class members' duty to arbitrate or mediate their claims pursuant to NRS 

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38.310, and (3) administrative exhaustion of the class members' claims 

was futile. We disagree. 

Prem did not actually submit the class's claims 

The contention that the plaintiffs other than Prem, including 

the class, actually submitted their claims for arbitration because Prem 

attempted to present class claims to the arbitrator is premised on a loose 

and unconventional construction of the term "submit." The term "submit" 

means "[go end the presentation of further evidence in (a case) and tender 

a legal position for decision." Black's Law Dictionary 1466 (8th ed. 2004). 

Thus, the term "submitted," as it appears in NRS 38.310, requires a party 

to do more than file a claim with an arbitrator or mediator. It requires a 

party to present its claim to the arbitrator or meditator for a resolution. 

Here, the record shows that when Prem attempted to bring 

claims on behalf of others in a class by means of a motion for class 

certification, the arbitrator denied the motion and refused to rule on the 

merits of the claims as they pertained to parties other than Prem. 

Therefore, the claims as they related to parties other than Prem were not 

submitted to the arbitrator and the arbitration only concerned the claims 

as they were submitted on behalf of Prem. Thus, when Prem submitted 

its claims for resolution by the arbitrator, it did not fulfill NRS 38.310's 

requirement on behalf of others. 

Prem did not vicariously exhaust •the remaining real parties in 

interest's or the class's claims 

The second argument is that Prem, by arbitrating its own 

claims, vicariously fulfilled the remaining real parties in interest's and the 

class members' duty to mediate or arbitrate their claims. To support this 

contention, Prem and the remaining real parties in interest proffer cases 

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which concern two circumstances in which vicarious exhaustion can occur. 

However, neither circumstance is present here. 

Outside of circumstances that authorize vicarious exhaustion, 

individualized exhaustion of administrative remedies is generally 

required. See Arctic Slope Native Ass'n v. Sebelius, 583 F.3d 785, 794 

(Fed. Cir. 2009) (holding that except in limited circumstances "the [United 

States] Supreme Court and the lower courts have held that a party that 

has not exhausted administrative remedies is not eligible to be a class 

member"). In addition, vicarious exhaustion is not allowed when a statute 

requires individual parties to exhaust administrative remedies. See U.S. 

Xpress, Inc. v. N.M. Taxation & Revenue Dep't, 136 P.3d 999, 1003 (N.M. 

2006) (refusing to allow vicarious exhaustion under a statute whose plain 

meaning required individual plaintiffs to exhaust administrative 

remedies); see also Pourier v. S.D. Dep't of Revenue & Regulation, 778 

N.W.2d 602, 605-06 (S.D. 2010) (holding that a statute requiring an 

individual taxpayer seeking relief to complete administrative remedies 

precludes the application of vicarious exhaustion). 

The first circumstance that Prem and the remaining real 

parties in interest identify is when a party shares "a community of 

interest" with a party who has exhausted its administrative remedies. 

Leff v. City of Monterey Park, 267 Cal. Rptr. 343, 348 (Ct. App. 1990) 

(internal quotations omitted). California appellate courts have applied the 

"community of interest" standard when the parties challenge an agency's 

decision and when the parties' interests on the disputed issue are 

identical. Friends of Mammoth v. Bd. of Supervisors, 502 P.2d 1049, 1062- 

63 (Cal. 1972) (allowing vicarious exhaustion in the context of a challenge 

to the grant of a land use permit), disapproved of on other grounds by 

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Kowis u. Howard, 838 P.2d 250, 254 (Cal. 1992); see Tarkington v. Cal. 

Unemployment Ins. Appeals Bd., 92 Cal. Rptr. 3d 131, 143 (Ct. App. 2009) 

(allowing vicarious exhaustion for union members in a dispute about 

whether they were eligible for unemployment benefits during a labor 

lockout); Leff, 267 Cal. Rptr. at 347-48 (allowing vicarious exhaustion in 

the context of a challenge to the grant of a land use permit). 

The second circumstance is when a statute contemplates postadministrative-procedure class actions and thus excuses class members 

from pursuing administrative remedies. For example, Title VII of the 

Civil Rights Act of 1964 and the Washington State Tort Claims Act 

authorize vicarious exhaustion of administrative remedies. Albemarle 

Paper Co. v. Moody, 422 U.S. 405, 414 n.8 (1975) (holding that the Civil 

Rights Act of 1964's legislative history demonstrates an intent to allow 

vicarious exhaustion); Foster v. Gueory, 655 F.2d 1319, 1323 (D.C. Cir. 

1981) (allowing vicarious exhaustion in a claim brought pursuant to the 

Civil Rights Act of 1964); Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 

498-99 (5th Cir. 1968) (allowing the same); Oda v. State, 44 P.3d 8, 12 

(Wash. Ct. App. 2002) (holding that the Washington State Tort Claims 

Act's administrative notice requirement allows for class action claims to be 

brought on behalf of parties who did not exhaust administrative 

remedies). Thus, vicarious exhaustion may occur if the parties' interests 

with regard to the challenged issue are identical or if otherwise authorized 

by statute. 

Because of NRS 38.310's plain language, neither circumstance 

is present here. As we explained above, NRS 38.310(1) prohibits the 

commencement of any "civil action based upon a claim relating to. . . [t]he 

interpretation, application or enforcement of any [CC&Rs]" if the claim is 

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not mediated or arbitrated. NRS 38.310(1) (2009) (amended 2013). 

Furthermore, this statute states that "[a] court shall dismiss any civil 

action which is commenced in violation of the provisions of subsection 1." 

NRS 38.310(2) (2009) (amended 2013). In a statute, 'shall" is mandatory 

unless the statute demands a different construction to carry out the clear 

intent of the legislature." Leyva v. Nat'l Default Servicing Corp., 127 Nev. 

, 255 P.3d 1275, 1279 (2011) (quoting State of Nev. Emps. Ass'n v. 

Daines, 108 Nev. 15, 19, 824 P.2d 276, 278 (1992)). 

"NRS 38.310 expresses Nevada's public policy favoring 

arbitration of disputes involving the interpretation and enforcement of 

CC&Rs." Hamm v. Arrowcreek Homeowners' Ass'n, 124 Nev. 290, 299, 183 

P.3d 895, 902 (2008). Therefore, this statute's use of the term "shall" 

establishes a mandatory requirement that each CC&R-based claim be 

mediated or arbitrated and prevents district courts from considering an 

unmediated and unarbitrated CC&R-based claim. 8Because it does not 

authorize any exception to its mediation or arbitration requirement, NRS 

38.310's language precludes the theories of vicarious exhaustion proffered 

8Though the dissent identifies a potentially meritorious policy issue 

relating to the efficiency and practicality of requiring each member of a 

potential class to arbitrate its CC&R-based claims before joining a classaction lawsuit, we cannot interpret NRS 38.310 to adopt the dissent's 

preferred policy because such a holding would require a deviation from 

NRS 38.310's plain meaning. See Williams v. United Parcel Servs., 129 

Nev. 302 P.3d 1144, 1148 (2013) (refusing to deviate from the 

plain meaning of a statute and rejecting arguments that would require the 

court to read additional language into the statute); see also Diamond v. 

Swick, 117 Nev. 671, 677, 28 P.3d 1087, 1090 (2001) (observing that "[this 

court's] business does not include filling in alleged legislative omissions 

based on conjecture as to what the legislature would or should have done" 

(internal quotations omitted)). 

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by Prem and the remaining real parties in interest. Therefore, Prem's 

completion of arbitration does not vicariously apply to the class's claims. 

As a result, the remaining real parties in interest and class members who 

did not submit their claims for mediation or arbitration did not comply 

with NRS 38.310. Thus, the district court erred by not dismissing the 

claims brought by and on behalf of those who did not fulfill MRS 38.310's 

mediation or arbitration requirement. 

Administrative exhaustion of the remaining real parties in interest's 

or the class's claims was not futile 

The third argument is that the remaining real parties in 

interest's and the class members' claims are excused from NRS 38.310's 

administrative exhaustion requirement because administrative 

adjudication of their claims would be futile. Prem and the remaining real 

parties in interest contend that arbitration is futile because an arbitrator 

declined to hear their class claims on the purported grounds that he 

lacked jurisdiction. They argue that NRED arbitration is inadequate 

because there are not enough arbitrators to resolve the class members' 

claims quickly enough to allow them to participate in a class action. 

When an attempt to exhaust administrative remedies would 

be futile or the administrative process is inadequate, a party may be 

excused from a requirement to exhaust an administrative remedy. 

Malecon Tobacco, LLC v. State ex rel. Dep't of Taxation, 118 Nev. 837, 839, 

59 P.3d 474, 476 (2002) (holding that administrative exhaustion is not 

required when it is futile); see also Fernandez v. Chertoff, 471 F.3d 45, 58 

(2d Cir. 2006) (holding that administrative exhaustion may be excused if 

"the agency cannot provide effective relief'). Though Prem and the 

remaining real parties in interest treat them as a single concept, futility 

and inadequacy are separate exceptions to the administrative exhaustion 

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requirement. Randolph-Sheppard Vendors of Am. v. Weinberger, 795 F.2d 

90, 107 (D.C. Cir. 1986). Futility occurs when "the agency will almost 

certainly deny any relief either because it has a preconceived position on, 

or lacks jurisdiction over, the matter." Id. Inadequacy occurs when "the 

agency has expressed a willingness to act, but the relief it will provide 

through its action will not be sufficient to right the wrong." Id. 

NRCP 23 provides a right for parties to pursue claims in 

district court as a class. NRCP 23(a)-(b). This right "is a procedural right 

only, ancillary to the litigation of substantive claims." Deposit Guar. Nat'l 

Bank of Jackson, Miss. v. Roper, 445 U.S. 326, 332 (1980) (holding that the 

analogous FRCP 23 does not establish a substantive claim or right); see 

also Vanguard Piping Sys., Inc. v. Eighth Judicial Dist. Court, 129 Nev. 

, 309 P.3d 1017, 1020 (2013) (stating that "federal cases 

interpreting [an analogous Federal Rule of Civil Procedure] are strong 

persuasive authority") (internal quotations omitted)). Because class 

actions are a procedural device and because a plaintiff has discretion 

about whether to use this device, class actions do not affect jurisdiction. 

See Vaile v. Eighth Judicial Dist. Court, 118 Nev. 262, 275, 44 P.3d 506, 

515 (2002) (holding that "[p]arties may not confer jurisdiction upon the 

court by their consent when jurisdiction does not otherwise exist"). Thus, 

a party's decision to use or forego this procedural right does not change a 

court's subject matter jurisdiction over its claim. 

Since a party's use of a procedural device does not alter a 

court's subject matter jurisdiction, Prem's attempt to submit claims as a 

class action does not affect an NRED arbitrator's ability to hear the 

individual claims. Thus, the arbitrator's order disclaiming jurisdiction in 

this case does not actually reflect a lack of jurisdiction or establish futility 

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for two reasons. First, the arbitrator incorrectly relied on NRS 38.255(3) 

to conclude that he may not hear class claims. Because this statute 

governs court-annexed arbitration and not NRED arbitration, see NRS 

38.250(1), the rule does not govern an NRED arbitrator's ability to hear 

the class claims. An NRED arbitrator may still hear each class members' 

claims on an individual basis. Second, a statute or administrative rule 

preventing the use of class actions only limits the procedure and not the 

substance of the claims brought before the arbitrator. See Roper, 445 U.S. 

at 332. Therefore, a procedural bar to the use of class action claims does 

not change the subject matter jurisdiction of an arbitrator. 

Similarly, because a class action is a procedural device that is 

ancillary to substantive claims, it is not a type of claim or relief. See id. 

Therefore, any limitation on the use of a class action would not prevent 

consideration of a claim that is properly brought or relief based on the 

claim. 

An NEED arbitrator has authority to adjudicate claims 

relating to the "interpretation, application or enforcement of any 

[CC&Rs]." NRS 38.310(1) (2009) (amended 2013). Therefore, an NRED 

arbitrator is authorized to hear and to grant relief based on the remaining 

real parties in interest's claims and the class members' claims which 

involve the interpretation of CC&Rs. The fact that the procedural limits 

on arbitration may prevent the litigants from arbitrating as a class does 

not deprive the arbitrator of jurisdiction or preclude the arbitrator from 

granting the requested relief. As a result, administrative exhaustion is 

not futile and the administrative process is not inadequate because NRED 

arbitrators can resolve the claims brought by the remaining real parties in 

interest and the claims brought on behalf of the class members. 

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Conclusion 

Accordingly, we grant in part and deny in part Southern 

Highlands' petition and deny Prem's petition. We direct the clerk of this 

court to issue a writ of mandamus that instructs the district court to (1) 

vacate its order denying Southern Highlands' motion to dismiss the claims 

in the second amended complaint; (2) determine who among the parties 

submitted their claims to an arbitrator or meditator under NRS 38.310; 

and (3) dismiss the claims identified herein that are brought by parties 

who have not submitted their claims to arbitration under NRS 38.310, 

without prejudice to the ability of those parties to submit their claims to 

arbitration before bringing the claim again or to file an amended 

complaint that does not challenge the validity or amount of Southern 

Highlands' liens or the monthly assessment derived from its periodic 

budget. 

)09-724L,C.J. 

Gibbons 

J. 

J. 

J. 

Saitta 

20 
cc: Hon. Susan Scann, District Judge 

Adams Law Group 

Brownstein Hyatt Farber Schreck, LLP/Las Vegas 

Eighth District Court Clerk 

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HARDESTY, J., with whom CHERRY, J., agrees, dissenting: 

I would allow the class action to proceed, as Prem, by 

arbitrating its claim, has vicariously exhausted the remaining real parties 

in interest's and putative class members' arbitration or mediation 

remedies prerequisite to filing a civil action. In making this 

determination, I disagree with the majority's characterization of the 

vicarious exhaustion doctrine and their conclusion that NRS 38.310 

precludes any application of that doctrine. 

The exhaustion doctrine provides agencies with an 

opportunity to defend or correct their actions, discuss legal issues with 

claimants, and otherwise attempt to settle controversies out of court. 

Mesagate Homeowners' Ass'n u. City of Fernley, 124 Nev. 1092, 1099, 194 

P.3d 1248, 1252-53 (2008). But there are circumstances where this policy 

is not implicated and thus need not be a barrier to court access. For 

example, in multi-party litigation or class actions where all claims are so 

similar that a decision on any one of them can be imputed to all, there is 

no need for each plaintiff to separately exhaust remedies or for the same 

legal question to be repeatedly brought and decided. In such situations, 

courts have repeatedly ruled that one plaintiff may exhaust 

administrative remedies on behalf of other plaintiffs. See, e.g., Foster v. 

Gueory, 655 F.2d 1319, 1322-23 (D.C. Cir. 1981); Phillips v. Klassen, 502 

F.2d 362, 369 (D.C. Cir. 1974); Friends of Mammoth v. Bd. of Supervisors, 

502 P.2d 1049, 1062-63 (Cal. 1972), disapproved of on other grounds by 

Kowis v. Howard, 838 P.2d 250 (Cal. 1992); Tarkington v. Cal. 

Unemployment Ins. Appeals Bd., 92 Cal. Rptr. 3d 131, 143 (Ct. App. 2009); 

Leff v. City of Monterey Park, 267 Cal. Rptr. 343, 348 (Ct. App. 1990). 

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Moreover, where all similarly situated plaintiffs have claims that would 

generate the same discussion and the agency has already utilized its 

opportunity to address and resolve the issue out of court, it would be 

inefficient to require all plaintiffs to exhaust their administrative 

remedies before proceeding to the courts. Tarkington, 92 Cal. Rptr. 3d at 

143; Local 186, International Pulp, Sulphite and Paper Mill Workers v. 

Minn. Mining & Mfg. Co., 304 F. Supp. 1284, 1289 (N.D. Ind. 1969). Here, 

where the real parties in interest, putative class members, and Prem 

share the same legal question, applying the vicarious exhaustion doctrine 

would speed efficient litigation without depriving Southern Highlands of 

its opportunity to settle the legal questions out of court as it has already 

taken and discarded that opportunity. 

Moreover, this result would not run afoul of NRS 38.310. 

Southern Highlands argues, and the majority agrees, that this statute 

unambiguously requires each class member to exhaust his or her 

administrative remedies as a prerequisite to participating in a class 

action. On this point, law from other jurisdictions is instructive in 

illustrating that such is not the case. 

In federal courts, vicarious exhaustion is generally applied in 

class action situations unless the requirement at issue is jurisdictional. 

Compare Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, 704- 

05 (D.C. Cir. 2009), with Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 

498-99 (5th Cir. 1968). In Blackmon-Malloy, the court held that if a 

requirement is jurisdictional each plaintiff must fulfill the requirement 

prior to bringing civil suit; otherwise, the court is without subject matter 

jurisdiction over the case. 575 F.3d at 704-05. However, the BlackmonMalloy court and other federal courts have repeatedly held that for a 

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requirement to be jurisdictional such intent must be clearly expressed 

through strong language within the statute itself, and that absent such 

language courts should presume the requirement is not jurisdictional. Id.; 

see Arbaugh v. Y&H Corp., 546 U.S. 500, 515-16 (2006); Chen v. BellSmith, 768 F. Supp. 2d 121, 148-50 (D.C. Cir. 2011); Solis v. 

Communications Workers, 766 F. Supp. 2d 84, 97 (D.C. Cir. 2011). In 

Blackmon-Malloy, for example, the statute under review, which was held 

to be jurisdictional, was titled "{jurisdiction" and expressly stated that the 

district court only had jurisdiction if the employee had first completed 

counseling in accordance with the statute. 575 F.3d at 705. 

Although many courts at the state level have not thoroughly 

addressed the question of whether administrative remedies prerequisite to 

a civil action are jurisdictional in nature, some jurisdictions have analyzed 

the language of a particular state statute in determining whether a 

statutory requirement applies to all plaintiffs. In Arizona Department of 

Revenue v. Dougherty, the Arizona Supreme Court held that where the tax 

code required that "each claim for refund" meet certain prerequisites, but 

did not specifically require each taxpayer in a class action to complete the 

requirements, vicarious exhaustion was permissible so long as a class 

representative had met the requirements. 29 P.3d 862, 866-67 (Ariz. 

2001) (emphasis omitted) (internal quotations omitted). Conversely, in 

U.S. Xpress, Inc. v. New Mexico Taxation & Revenue Department, the 

statute at issue expressly mandated that "the taxpayer" take certain steps 

prerequisite to litigating a claim, and therefore, the New Mexico Supreme 

Court held that vicarious exhaustion of the requirement was not possible 

as the statute expressly required each class member to meet the 

requirements. 136 P.3d 999, 1002-03 (N.M. 2006) (internal quotations 

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omitted). The Supreme Court of South Dakota likewise held that 

vicarious exhaustion was impermissible where the statute expressly 

required each "taxpayer seeking recovery" to follow procedure. Pourier v. 

S.D. Dep't of Revenue and Regulation, 778 N.W.2d 602, 605 (S.D. 2010) 

(emphasis omitted) (internal quotations omitted). While this area of law 

remains unsettled, these cases nevertheless provide a framework for 

determining this question. 

Here, the issue is whether each real party in interest and each 

putative class member must fulfill the requirements of NRS 38.310 before 

the class action may proceed. NRS 38.310 is titled "Limitations on 

commencement of certain civil actions," and states: 

1. No civil action based upon a claim 

relating to: 

(a) The interpretation, application or 

enforcement of any covenants, conditions or 

restrictions applicable to residential property or 

any bylaws, rules or regulations adopted by an 

association; or 

(b) The procedures used for increasing, 

decreasing or imposing additional assessments 

upon residential property, 

may be commenced in any court in this State 

unless the action has been submitted to mediation 

or, if the parties agree, has been referred to a 

program pursuant to the provisions of NRS 38.300 

to 38.360, inclusive, and, if the civil action 

concerns real estate within a planned community 

subject to the provisions of chapter 116 of NRS or 

real estate within a condominium hotel subject to 

the provisions of chapter 116B of NRS, all 

administrative procedures specified in any 

covenants, conditions or restrictions applicable to 

the property or in any bylaws, rules and 

regulations of an association have been exhausted. 

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2. A court shall dismiss any civil action 

which is commenced in violation of the provisions 

of subsection 1. 

The statute expressly precludes "a claim" from being brought 

"unless the action" was first submitted to alternative dispute resolution 

and, if the action implicates NRS Chapter 116, administrative procedures 

have been exhausted. NRS 38.310(1) (emphasis added). Neither in the 

title nor in the text does the statute state that such actions are required 

before the court may have jurisdiction or that the requirements are 

jurisdictional in nature. Moreover, the statute never refers to the 

person(s) bringing the action, but instead refers to requirements that must 

be satisfied as to "(the] claim" or "the action" before it may proceed to 

court. Thus, on its face, the statute does not require that each plaintiff 

and class member exhaust his or her administrative remedies before 

bringing a class action. Rather, a fair reading of the statute suggests that 

so long as administrative remedies have been exhausted as to that claim, 

the court may hear the case. 

Furthermore, NRS 116.4117(1), a provision referenced by NRS 

38.310(1), states that "any person or class of persons suffering actual 

damages. . . may bring a civil action for damages or other appropriate 

relief," subject to NRS 38.310. (Emphasis added.) This language seems to 

contemPlate class actions, and, unlike NRS 38.310, refers to a "person or 

class of persons" while NRS 38.310 refers only to a "claim" or "action." 

This further suggests that the Legislature did not intend NRS 38.310's 

requirements to extend to each class member and that vicarious 

exhaustion by a class representative is possible, as NRS 116.4117(1) both 

contemplates class actions and implies that the Legislature would have 

used more specific language to impart NRS 33.310's requirement on 

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individual class members had it wished to do so. Because the majority's 

reading of NRS 30.310 undermines if not eliminates any realistic 

possibility of a class action, that holding is contrary to NRS 116.4117(1). 

Given that statutes should be construed as a whole and in harmony with 

one another, the majority's conclusions also run counter to wellestablished legal canon. See Canarelli v. Eighth Judicial Dist, Court, 127 

Nev. „ 265 P.3d 673, 677 (2011); Buclavalter u. Eighth Judicial 

Dist. Court, 126 Nev. 200, 202, 234 P.3d 920, 922 (2010); see also Antonin 

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal 

Texts 167-69, 180-82 (2012). 

Here, Prem brought the claim on behalf of itself and all class 

members. Prem attempted to submit the class action to arbitration and, 

when that failed, Prem individually proceeded through arbitration and 

then brought the class action to court. Given that Pram's claims are 

representative of the legal questions common to the class as a whole and 

that Prem exhausted its administrative remedies, vicarious exhaustion 

should apply to allow the class action to proceed.' Moreover, allowing 

such actions to proceed presents little danger of claims circumventing the 

administrative process because, prior to certifying the class, the court 

must evaluate the commonality and typicality of the claims of the 

individual class members so that only those members whose claims mirror 

'There may be some hesitancy to apply the doctrine of vicarious 

exhaustion as the facts of this case do not fall squarely under 

administrative law. The parties do not question whether this case is truly 

administrative in nature, and I do not consider whether the doctrine of 

vicarious exhaustion is inapplicable to cases arguably falling outside of 

administrative law. 

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J. 

the claims of the class representative(s) will fall within the class. To hold 

otherwise only serves, as a practical matter, to preclude the possibility of a 

class action lawsuit against homeowners' associations and would therefore 

increase litigation and impede—if not prohibit—access to the courts. Such 

a result turns the policy behind the exhaustion of remedies doctrine on its 

head. It is cases such as this, where a large class of plaintiffs share a 

common interest in resolving a narrow legal question, that the vicarious 

exhaustion doctrine would seem to best serve public policy and judicial 

economy. 

Accordingly, I dissent. 

. J. 

Hardesty 

I concur: 

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