LANGFORD v. EIGHTH JUDICIAL DISTRICT COURT IN AND FOR COUNTY OF CLARK (2020)

ORDER DENYING PETITION FOR WRIT OF MANDAMUS

This original petition for a writ of mandamus seeks to compel the district court to act on a petition for mandamus relief filed in the district court.

A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station, or to control an arbitrary or capricious exercise of discretion. See NRS 34.160; Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008). Whether such a petition will be considered rests within our sound discretion. Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). And it is petitioner's burden to demonstrate that our extraordinary intervention is warranted. Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004).

At the outset, we note that the petition before us is deficient to the extent that petitioner Justin Odell Langford has failed to provide the affidavit of the party beneficially interested required by NRS 34.170 and has not properly served the petition on the respondent Eighth Judicial District Court. With regard to the service of this petition, Langford attached a certificate of service with “special instructions” for the clerk of the court to electronically file and serve this document. But the Nevada Electronic Filing and Conversion Rules do not provide for a party to submit a paper copy of a petition or other filing and request that service be made in this fashion. See NEFCR 9(b) (providing for the sending of a notice to registered users when a document is electronically submitted and filed that has the legal effect of serving a paper document) (emphasis added).

Turning to the merits of the petition, Langford correctly points out that the district court has failed to take action on the writ petition he filed with that court on January 24, 2019. And Langford did make two subsequent attempts—on April 29 and August 30 of that year—to bring this situation to the district court's attention, without any action being taken on the petition or his subsequent filings.

But the documents before us indicate that, as with the petition filed in this court, Langford's district court mandamus petition was not accompanied by the affidavit of the party beneficially interested required by NRS 34.170. Moreover, to the extent Langford's petition was ready for the district court to resolve,¹ the documents before us do not demonstrate that he submitted the notice of readiness and request for setting, together with a proposed order setting the matter for consideration, required by the version of EDCR 2.20(k) in effect at the time his petition was filed.²

Although Langford is proceeding in pro se, he is nonetheless required to comply with all applicable court rules and procedures. See Rodriguez v. Fiesta Palms, LLC, 134 Nev. 654, 659, 428 P.3d 255, 258-59 (2018) (noting that procedural rules cannot be applied differently to pro se litigants). And in light of the procedural issues with Langford's district court writ petition outlined above, we cannot conclude that Langford has demonstrated that our extraordinary intervention is warranted to compel the district court to act on his petition. See Pan, 120 Nev. at 228, 88 P.3d at 844. Accordingly, we decline to exercise our discretion and issue the relief requested in this matter, Smith, 107 Nev. at 677, 818 P.2d at 851, and we therefore deny the petition. NRAP 21(b)(1). Nonetheless, if Langford corrects the deficiencies with his district court writ petition outlined above and the district court still fails to act on that petition in a timely fashion, Langford may file a new petition with the appellate courts challenging the district court's failure to take action on his district court case.

It is so ORDERED.

FOOTNOTES

1.   The documents before us indicate that Langford failed to serve his district court writ petition and instead relied on the same ineffective directive to have the court clerk electronically file and serve that document that accompanied the petition filed with this court. See NEFCR 9(b). But unlike mandamus petitions filed with the appellate courts, the mandamus statutes specifically contemplate the filing and consideration of district court writ petitions without notice to the adverse party. See NRS 34.200 (providing that the district court may grant an alternative writ “[w]hen the application to the court or district judge is made without notice to the adverse party”).

2.   EDCR 2.20(k) was amended and renumbered EDCR 2.20(j) effective January 1, 2020. See In re Proposed Amendments to the Rules of Practice for the Eighth Judicial District Court, ADKT No. 0545 (Order Amending Rules of Practice for the Eighth Judicial District Court, November 27, 2019). The revised rule now simply requires a party to deliver a “Notice of Readiness for Decision” to the assigned chambers when a petition is ready for the court to review but has not been calendared for a hearing or decision. EDCR 2.20(j).