F I L E D

Electronically
12-27-2011:02:15:29 PM
Craig Franden
Clerk of the Court
Transaction # 2668540
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2010
LIPSON, NEILSON, COLE, SELTZER & GARIN, P.C.
JOSEPH P. GARIN
Nevada Bar No. 6653
SHANNOND.NORDSTROM
Nevada Bar No. 8211
9080 West Post Road, Suite 100
Las Vegas, Nevada 89148
(702) 382-1500
(702) 382-1512 - fax
jgarin@lipsonneilson.com
Attorneys for Defendants Washoe Legal Services,
Paul Elcano, Todd Torvinen, Karen Sabo, Kathy Breckenridge,
Jon Sasser, Melissa Mangiaracina, and Marc Ashley
IN THE SECOND JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA IN AND FOR THE
COUNTY OF WASHOE
ZACH COUGHLIN,
Plaintiff,
)
)
)
)
vs.
WASHOE LEGAL SERVICES, a Nevada
Corporation, KATHY BRECKENRIDGE, )
Individually and in her capacity as Board )
President of WLS, TODD TORVINEN, )
Individually and in his capacity as WLS )
Board Member, PAUL ELCANO, Individually)
and in his capacity as Executive Director of )
WLS, DOES 1-100, Individually and in their )
capacity as members of the BOARD OF )
DIRECTORS OF WASHOE LEGAL
SERVICES, CARYN STERN LIGHT,
Individually and in her capacity as WLS )
attorney, JON SASSER, Individually and in )
his capacity as WLS agent, KAREN SABO, )
Individually and in her capacity as WLS )
attorney, MELISSA MANGIARACINA, )
Individually and in her capacity as WLS )
attorney, MARC ASHLEY, Individually and )
in his capacity as WLS attorney, ZANDRA )
LOPEZ, Individually and in her capacity as )
WLS employee, DOES and ROES 1-100, )
COMMITTEE TO AID ABUSED WOMEN, )
TAHOE WOMEN'S SERVICES. )
Defendants.
)
CASE NO.: CV11-01955
DEPT. NO.: 10
DEFENDANTS WASHOE LEGAL
SERVICES AND PAUL ELCANO'S
MOTION FOR ATTORNEY'S FEES
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DEFENDANTS WASHOE LEGAL SERVICES AND PAUL ELCANO'S MOTION FOR
ATTORNEY'S FEES
Defendants Washoe Legal Services, a Nevada corporation, and Paul Elcano,
individually and in his capacity as Executive Director of WLS ("Defendants"), by and through
their attorneys of record, Lipson, Neilson, Cole, Seltzer & Garin, P.C., move this Court for an
Order awarding them attorney's fees incurred in this case as the prevailing party. This Motion
is made pursuant to NRS 18.010 and NRS 7.085, together with the attached Affidavit of
Joseph P. Garin, Esq., the pleadings and papers on file herein, the Memorandum of Points
and Authorities below, and any oral argument this Court permits.
DATED this 27th day of December, 2011.
By:
LIPSON NEILSON COLE SELTZER & GARIN P.C
Jo eph P. Garin (Bar o. 6653)
Sh nnon D. Nordstrom (Bar No. 8211)
9080 West Post Road, Suite 100
Las Vegas, Nevada 89148
(702) 382-1500
Attorneys for Defendants Washoe Legal Services,
Paul Elcano, Todd Torvinen, Karen Sabo, Kathy
Breckenridge, Jon Sasser, Melissa Mangiaracina,
and Marc Ashley
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MEMORANDUM OF POINTS AND AUTHORITIES
2 1. Introduction
3 Plaintiff Coughlin was formerly employed as an attorney for Washoe Legal Services
4 ("WLS"). Coughlin filed two lawsuits against WLS, et aI., attempting to assert claims for
5 wrongful termination:
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Zach Coughlin v. Washoe Lega/ Services, et. a/.
Case No.: CV11-01896
Hon. Brent Adams
Filed: June 27, 2011
and
Zachary Coughlin v Washoe Lega/ Services, et. a/.
Case No.: CV11-01955
Hon. Steven P. Elliott
Filed: June 30, 2011
11 Docket Reports, attached hereto as Exhibit "1." On August 29, 2011, Coughlin attempted to
12 complete service of the summons and complaint in the second case, Case No. CV11-01955,
13 by having someone leave copies at the front reception desk of WLS's offices. Since leaving
14 process at a reception desk is not an approved method of service under Nevada Rule of Civil
15 Procedure 4, Defendants sought dismissal of Plaintiff's Complaint pursuantto NRCP 12(b)(4).
16 This Court ordered dismissal of the case on December 8, 2011. Order, attached hereto as
17 Exhibit "2."
18 2.
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Washoe Legal Services and Paul Elcano are entitled to an award of attorney's
fees as the prevailing party in this matter pursuant to NRS 18.010.
NRS 18.010 states, in pertinent part:
1. The compensation of an attorney and counselor for his or her services is
governed by agreement, express or implied, which is not restrained by law.
2. In addition to the cases where an allowance is authorized by specific statute,
the court may make an allowance of attorney's fees to a prevailing party:
(a) When the prevailing party has not recovered more than $20,000; or
(b) Without regard to the recovery sought, when the court finds that the
claim, counterclaim, cross-claim or third-party complaint or defense of the
opposing party was brought or maintained without reasonable ground or to
harass the prevailing party. The court shall liberally construe the provisions
of this paragraph in favor of awarding attorney's fees in all appropriate
situations. It is the intent of the Legislature that the court award attorney's
fees pursuant to this paragraph and impose sanctions pursuant to Rule 11
of the Nevada Rules of Civil Procedure in all appropriate situations to
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punish for and deter frivolous or vexatious claims and defenses because
such claims and defenses overburden limited judicial resources, hinder the
timely resolution of meritorious claims and increase the costs of engaging
in business and providing professional services to the public.
This Court granted Defendants Motion based on improper service of process.
5 Defendants did not recover more than $20,0000. Accordingly, as the prevailing party, WLS
6 and Paul Elcano are entitled to receive their reasonable attorney's fees incurred in this action
7 pursuant to NRS 18.01 0(2)(a).
8 Furthermore, Plaintiff's Opposition to Defendant's Motion to Dismiss was made despite
9 not having any reasonable grounds to do so, entitling Defendants to their attorney's fees under
iON RS 18.01 0(2)(b). Plaintiff's Opposition was a twenty page diatribe that devoted little attention
11 to the issue before the Court. Opposition, attached hereto as Exhibit "3." Indeed, Plaintiff's
12 failure to dispute the law or facts underlying the Motion served only to overburden limited
13 judicial resources and hinder timely resolution of meritorious claims. In sum, WLS and Paul
14 Elcano are entitled to an award of attorney's fees as the prevailing party in this matter pursuant
15 to NRS 18.010.
16 3.
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Washoe Legal Services and Paul Elcano are entitled to an award of attorney's
fees in this matter pursuant to NRS 7.085
NRS 7.085 provides:
1. If a court finds that an attorney has:
(a) Filed, maintained or defended a civil action or proceeding in any court in
this State and such action or defense is not well-grounded in fact or is not
warranted by existing law or by an argument for changing the existing law
that is made in good faith; or
(b) Unreasonably and vexatiously extended a civil action or proceeding
before any court in this State, the court shall require the attorney personally
to pay the additional costs, expenses and attorney's fees reasonably
incurred because of such conduct.
2. The court shall liberally construe the provisions of this section in favor of
awarding costs, expenses and attorney's fees in all appropriate situations. It is the
intent of the Legislature that the court award costs, expenses and attorney's fees
pursuant to this section and impose sanctions pursuant to Rule 11 of the Nevada
Rules of Civil Procedure in all appropriate situations to punish for and deter frivolous
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or vexatious claims and defenses because such claims and defenses overburden
limited judicial resources, hinder the timely resolution of meritorious claims and
increase the costs of engaging in business and providing professional services to
the public.
4 As discussed above, Plaintifffailed to provide any true explanation forfailing to properly
5 serve Defendants. Instead, Plaintiff opted for a twenty page discussion of confusing and
6 inapplicable arguments that failed to address the issue before this Court. Plaintiff not only filed
7 an opposition that was groundless as evidenced by this Court's Order granting Defendant's
8 Motion to Dismiss, but unreasonably and vexatiously continued this proceeding, creating
9 unnecessary litigation costs to Defendants. Order, attached hereto as Exhibit "2." Therefore,
10 pursuant to NRS 7.085, this Court should award Defendants their attorney's fees and costs.
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4. The attorney's fees and costs incurred by Washoe Legal Services and Paul
Elcano are reasonable.
Lipson, Neilson, Cole, Seltzer, & Garin, P.C., counsel for Washoe Legal Services and
14 Paul Elcano, spent 11.5 hours defending against Plaintiff's Complaint. The total amount of
15 attorney's fees is $1,234.00. Attorney's Fees, attached hereto as Exhibit "i-A." WLS and
16 Elcano sought a dismissal of the complaint in a joint motion based on the same grounds,
17 insufficient service of process. The attorney's fees incurred for legal services, including the
18 preparation of motions to dismiss, were reasonable and necessary in both amount and time
19 spent. The Court should award WLS and Elcano the full amount incurred in reasonable
20 attorney's fees in the amount of $1 ,234.00.
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1 5. Conclusion
2 Based on the foregoing, Defendants Washoe Legal Services and Paul Elcano
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respectfully request that the Court enter an award in their favor and against Plaintiff for the
legal fees incurred by them in the amount of $1,234.00.
DATED this 27th day of December, 2011.
By:
LIPSON NEILSON COLE SELTZER & GARIN P.C
Jos ph P. Garin (Bar No. 6653)
Shannon D. Nordstrom (Bar No. 8211)
9080 West Post Road, Suite 100
Las Vegas, Nevada 89148
(702) 382-1500
Attorneys for Defendants Washoe Legal Services,
Paul Elcano, Todd Torvinen, Karen Sabo, Kathy
Breckenridge, Jon Sasser, Melissa Mangiaracina,
and Marc Ashley
AFFIRMATION
(Pursuant to NRS 239B.030)
The undersigned does hereby affirm that the proceeding document, DEFENDANTS
WASHOE LEGAL SERVICES AND PAUL ELCANO'S MOTION FOR ATTORNEY'S FEES,
filed in Case No. CV11-01955, does not contain the Social Security Number of any person.
Dated this 27th day of December, 2011
By:
LIPSON NEILSON COLE SELTZER


Joseph P. Garin (Bar No. 6653)
Shannon D. Nordstrom (Bar No. 8211)
9080 West Post Road, Suite 100
Las Vegas, Nevada 89148
(702) 382-1500
Attorneys for Defendants Washoe Legal Services,
Paul Elcano, Todd Torvinen, Karen Sabo, Kathy
Breckenridge, Jon Sasser, Melissa Mangiaracina,
and Marc Ashley
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CERTIFICATE OF MAILING
I certify that on the 27th day of December, 2011, I served a true and correct copy of
DEFENDANTS WASHOE LEGAL SERVICES AND PAUL ELCANO'S MOTION FOR
upon the following parties, via first class mail, postage prepaid,
Zach Coughlin, Esq.
817 N. Virginia St. #2
Reno, NV 89501
Attorney for Plaintiff In Pro Per
/s/ Nancy Cooper
An Employee of
Lipson, Neilson, Cole, Seltzer & Garin,P.C.
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AFFIDAVIT OF JOSEPH P. GARIN, ESQ.
2 STATE OF NEVADA
3 COUNTY OF CLARK
)
)
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ss:
4 JOSEPH P. GARIN, being first duly sworn deposes and says:
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1. I am an attorney licensed to practice law in the State of Nevada, and am a
6 partner with the law firm of LIPSON, NEILSON, COLE, SELTZER & GARIN, P.C., counsel
7 of record for Defendants, in the above-captioned matter.
8 2. I make this Affidavit in support of Washoe Legal Services and Paul Elcano's
9 Motion for Attorney's Fees. I have personal knowledge of the information contained in this
10 Affidavit and would qualify as a competent witness if called upon to testify to the facts
11 contained herein.
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3. I personally reviewed the firm's billing invoices in this matter and the rates
13 charged for the duration of this case were $180 for Partners and $85 for Associates and
14 Paralegals. These rates are reasonable for defending this action.
4. To date, I charged Defendants 11.5 hours which equals a total billed amount of
16 $1,234.00. A copy of the relevant bills have been redacted to preserve privilege and
17 attached as Exhibit "1-A."
18 5. In my opinion, all the aforementioned fees were reasonable and necessary to
19 defend Defendants in this matter.
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JOEPHP.GARIN
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1
EXHIBIT INDEX
2
No.1 Docket Reports on 2 pages
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CV1101955 and
CV1101896
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NO.1A Attorneys Fees 2 pages
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No.2 Order Granting Motion to 5 pages
6
Dismiss for Insufficient
Service of process and
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Other Relief
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NO.3 Opposition to Defendant's 21 pages
WLS and Paul Elcano's
Motion to Dismiss for
9 Insufficient Service of
Process and Other Relief;
10 Motion for Sanctions;
cj Motion to Consolidate
p.;
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."
Cases
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F I L E D
Electronically
12-27-2011:02:15:29 PM
Craig Franden
Clerk of the Court
Transaction # 2668540
." "1
I IT "1"
Docket Report Results
Repprt Selectipn Crjteria
CaselD: CV11-01896
Docket Start Date:
Docket Ending Date:
Case oescriptipn
Case ID: CV11-01896 - ZACH COUGHLIN VS. WASHOE LEGAL
Filing
Date:
SERVICES ETAL.(06)
Monday, June 27th, 2011
Type: WT - TORTS-WRONGFUL TERMINATION
Status: EVNTCLOSEO - Event Closed
Related Cases
No related cases V\.ere found.
Case Eyent SchedYle
No case events V\.ere found.
Case Parties
Seq# Assoc
Expn
Type ID
Date
1 Judge QQ
Name'
ADAMS,
HONORABLE
BRENT
HOme
.

l-iEvepfSCtieawe' W'MepMiM:
(e) Copyright2001 Aflilia1ed Corrpu1er Syst&rrs,lnc.ACSand1he ACS logo are registered traderrerks.
This contains uade secrets and Is subjectlo a confidentiality agreerrent The unauthorized
possession, UB, reproduction, distribution, display, or disclosure of this rre1erlal or the information contained herein Is prohibi1ed.
Ali rights reserved. UBr Not tor official use.
Report Selection Criteria
Case 10: CV11-01955
Docket Start Date:
Docket Ending Date:
Case Description
Case 10: CV11-01955-ZACHARYCOUGHLINVS. WASHOE LEGAL
SRVC, ET AL{D10)
Filing Thursday, June 30th, 2011
Date:
Type: WT - TORTS-WRONGFUL TERMINATION
Status: INITIAL - Case initiated.
Relgted Cases
No related cases V\ere found.
Case Event Schedyle
No case events Mere found.
Case Parties
Seq# Assoc
1


Expn
Type
Date
Judge

,.,'EyOOrSbtieaullt
10
D10
M3ooO'ilSweCtjOil'
.
Name
ELLIOTT,
HONORABLE
STEVEN P.
.
.
(c) Copyright 2001 Affiliated COl'l1luler SystelT6, Inc.ACS and the ACS logo are registered traderrarks.
Tills contains trade secrets and is subject to a confidentiality agreement The unauthorized
possession, use, reproduction, distrlbuHon, dlsplaY,or disclosure of this meterial or1l1e inforrration contained herein is prohibited.
JlJI.rights reserved. User Accepts/Agrees to Disclaimer. Not for official use.
F I L E D
Electronically
12-27-2011:02:15:29 PM
Craig Franden
Clerk of the Court
Transaction # 2668540
EXHIBIT "i-A"
LAW OFFICES
LIPSON, NEILSON, COLE} SELTZER & GARIN, P.C.
9080 WEST POST ROAD, #100
IELEPHONE (702) 382-1500
IELEFAX (702) 385-1512
LAS VEGAS, NV 89148
November 14, 2011
ZACH COUGHLIN VS. WASHOE LEGAL
PROFESSIONAL SERVICES
REDACTED
IfIIVIM'.LlPSONNEILSON.COM
TAX 10# 38-2574325
Billing through 10/31/2011
09/07/2011 JPG DRAFT I REVISE LETTER TO ZC REGARDING SERVICE. 0.30 hrs 180.00/hr 54.00
09/0812011 JPG APPLICATION OF RELEVANT LAW TO APPLICABLE 0.30 hrs 180.00 Ihr 54.00
FACTS REGARDING SERVICE RULES IN STATUTE VS.
COURT RULES.
09/1212011 JPG REVIEW OF NRCP 12. SERVICE 0.30 hrs 180.00 Ihr 54.00
AND MOTION TO QUASH SERVICE.
09/1412011 CH REVIEW OF FILE IN PREPARATION FOR DRAFTING 1.20 hrs 85.00/hr 102.00
I\J\t"lTION TO DISI\AIRR
09/1412011 CH 0.20 hrs 85.00 Ihr 17.00
MOll ON I u l ~ V l S S 12(S){4}
09/15/2011 CH DRAFT MOTION TO DISMISS PURSUANT TO NRCP 3.80 hrs 85.00 Ihr 323.00
12(6)(4)
09/1512011
eli
REVIEW OF NRS REGARDING INSUFFICIENT SERVICE 1.10 hrs 85.00 Ihr 93.50
OFPRbcESS .............................................................................
09/16/2011 JPG
...... __._ .......
0.20hrs 180.00 Ihr 36.00
09/16/2011 CH RESEARCH NEVADA CASE LAW ON CONSOLIDATION OF 0.50 hrs 85.00 Ihr 42.50
SIMILAR ACTIONS
09/16/2011 CH 0.80 hrs 85.00/hr 68.00
0911612011 CH REVISE AND DUPPLEMENT MOTION TO DISMISS 12(8)(4) 0.30 hrs 8S.00/hr 25.50
0911612011 CH REDACT TO LETTER TO PLAINTIFF DATED SEPTEMBER 0.20 hrs 85.00 Ihr 17.00
9, 2011 TO ATTACH AS AN EXHIBIT TO MOTION TO
DISMISS 12(B)(4)
09/19/2011 CH OAOhrs 85.00 Ihr 34.00
09/19/2011 CH 0.30 hrs 85.00/hr 25.50
09/2212011 JPG 0.80 hrs 180.00 Ihr 144.00
09/28/2011 JPG DRAFT I REVISE REPLY BRIEF. 0.80 hrs 180.00 Ihr 144.00
REDACTED
F I L E D
Electronically
12-27-2011:02:15:29 PM
Craig Franden
Clerk of the Court
Transaction # 2668540
EXHIBIT "2"
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F I LED
Electronically
12082011: 11 :22:08 AM
Craig Franden
Clerk of the Court
Transaction # 2634050
IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA
IN AND FOR THE COUNTY OF WASHOE
***
9 ZACH COUGHLIN,
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vs.
Plaintiff, Case No.: CV11-01955
Dept. No.: 10
WASHOE LEGAL SERVICES, et al;
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Defendants.
_____________________________________________
ORDER GRANTING MOTION TO DISMISS fOR INSUffICIENT SERVICE Of
PROCESS AND OTHER RELIEf
Presently before the Court is a Motion to Dismiss for Insufficient Service of Process
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1 October 10, 2011, Defendants filed a Request for Submission, thereby submitting the
2 matter for the Court's consideration.
1
3 II Factual &. Procedyral Backgroynd
4 This case arises out of an employment dispute. Plaintiff was formerly employed as
5 an attorney for Washoe Legal SelVices. Plaintiff alleges that, while he was an employee,
6 he became aware of several potential legal violations by his former employer. Plaintiff
7 claims that he was fired after he informed his former employer of the violations, and that
8 such firing was in retaliation for his informing the former employer of the violations.
9 Additionally, Plaintiff claims that he was subjected to a hostile work environment.
10 Plaintiff filed suit against his former employer and related entities and individuals on
11 June 27,2011, in Case No. CV11-01896. This suit is currently assigned to Department Six
12 of the 2
nd
Judicial District Court. Three days later, on June 30, 2011, Plaintiff filed a secon
13 action, which he admits asserts the same claims as those presented in his first action.
14 Plaintiff's second action is Case No. CVll-01955, and it is Plaintiff's second action that is
15 currently before this Court. Defendants now move the Court to dismiss Plaintiff's claim on
16 the basis that Plaintiff failed to selVe Defendants in the manner prescribed by Nevada law.
17 As such, Defendants assert that this Court lacks jurisdiction over Defendants.
18 II. Standard of Review
19 Pursuant to NRCP 12(b)(5) the standard of review for a motion to dismiss is
20 rigorous. Blackjack Bonding v. City of Las Vegas Municipal Court, 116 Nev. 1213; 14 P.3d
21 1275 (2000). As such, the Court will construe the pleadings liberally and draw every
22 reasonable inference in favor of the non-mOVing party. Vacation Village v. Hitachi America,
23 110 Nev. 481, 484, 874 P.2d 744, 746 (1994).
24 /II
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1 As a preliminary matter, the Court admonishes Plaintiff to conduct himself professionally and civilly in the
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proceedings before this court. Plaintiffs sarcastic, derogatory, and disrespectful remarks do not assist in
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resolving this litigation, and may result in sanctions if continued.
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1 The purpose of a motion to dismiss is to test the legal sufficiency of the complaint.
2 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). However, there is a strong
3 presumption against dismissing an action for failure to state a claim. See Gilligan v. lameo
4 Dell. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (citation omitted). Thus, upon being
5 adequately stated, a claim may be supported by showing "enough facts to state a claim to
6 relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1969
7 (2007) (citation omitted). However
t
the factual allegations included in a complaint "must
8 be enough to raise a right to relief above the speculative level." Id. at 1964-65. liThe
9 pleading must contain something more ... than ... a statement of facts that merely creates
10 a suspicion [of] a legally cognizable right of action." Id. at 1965.
11 III. begal Analysis
12 As noted above, Defendants seek to dismiss Plaintiff's claim for insufficient service 0
13 process pursuant to NRCP 12(b)(4). As explained below, the Court agrees that service of
14 process was insuffiCient as to both Defendants.
15
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NRCP 4(a) requires that:
Upon the filing of the complaint, the clerk shall forthwith issue a
summons and deliver it to the plaintiff or to the plaintiffs
attorney, who shall be responsible for service of the summons
and a copy of the complaint Upon request of the plaintiff,
separate or additional summons shall issue against any
defendantS.
21 Emphasis added. NRCP 4(b) describes the form that a summons must resemble to be
22 valid, and NRCP 4(c) identifies the type of parties that may serve process. SpeCifically,
23 NRCP 4( c) requires that: "Process shall be served by the sheriff of the county where the
24 defendant is found, or by a deputy, or by any person who is not a party and who is over 18
25 years of age." FinallYt NRCP 4(d) explains the proper methods of service for various
26 defendants.
27 As applied to the instant case, Plaintiff's Proof of Service shows that service was
28 insufficient in several respects. First, the Proof of Service indicates that Plaintiff did not
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1 serve Defendants with a copy of the summons, as required by NRCP 4(a). Rather,
2 Plaintiff's Proof of Service indicates that he only served Defendants with a copy of the
3 Complaint. For this reason alone, the Court must dismiss Plaintiff's claim on the basis of
4 insufficient service of process. See NRCP 4(a). However, the Court also notes that
5 Plaintiff's Proof of Service does not indicate whether the listed process server, whose name
6 is illegible on the Proof of Service, was eligible to serve process under NRCP 4( c). Indeed,
7
the Proof of Service does not include any identifying information relating to the process
8
server, the process server did not make any affirmations as to the details of the service,
9
and the process server's signature is not notarized. Accordingly, Plaintiff's service of
10
process is also insufficient under NRCP 4(c). Finally, the Court notes that Plaintiff's method
11
of service for Defendants was also insufficient under NRCP 4(d)(1) and 4(d)(6).2 For all
12
13 of these reasons, the Court will issue the following order:
14
NOW, THEREfORE, IT IS HEREBY ORDERED that Defendant's Motion to
15 Dismiss for Insufficient Service of Process and Other Relief is GRANTED.
16 IT IS fURTHER ORDERED that Plaintiff's Complaint against Defendants is
17 DISMISSED WITHOUT PREJUDICE.
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DATED this L day of December, 2011.
2 In light of the Court's decision to dismiss Plaintiff's Complaint against Defendants for insufficient service of
process, Defendants separate argument that Plaintiff's suit must be dismissed, stayed or consolidated with hi
other pending action is rendered moot.
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1
2
CERTIfiCATE Qf MAILING
I hereby certify that I electronically filed the foregoing with the Clerk of the Court by
3 using the ECF system which served the following parties electronically:
4
5 JOSEPH GARIN, ESQ. for MEUSSA MANGIARACINA, KATHY BRECKENRIDGE, BOARD PRES.
OF WLS, MARC ASHLEY, TODD TORVINEN, KATHY BRECKENRIDGE, TODD TORVINEN,
6 WLS BOARD MEMBER, PAUL ELCANO, PAUL ELCANO, EXECUTIVE DIRECTOR, WLS
BOARD, WASHOE LEGAL SERVICES
7
8 GARY FULLER, ESQ. for COMMmEE TO AIDE ABUSED WOMAN
9 ZACHARY COUGHUN, ESQ. for ZACH COUGHUN
10 BRIAN GONSALVES, ESQ for TAHOE WOMEN'S SERVICES
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DATED this --,>S",--_
Judicial Assistant
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F I L E D
Electronically
12-27-2011:02:15:29 PM
Craig Franden
Clerk of the Court
Transaction # 2668540
EXHIBIT "3"
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Document Code: 2645 Opposition to Mtn
Zach Coughlin, Esq.
121 River Rock St.
Reno, NV 89501
Tele: 775-338-8118
ZachCoughlin@hotmail.com
Pro se Plaintitf

IN THE SECOND JUDICIAL DISTRICT COURT Of THE STATE OF NEVADA
IN AND FOR THE COUNTY OF WASHOE
) CASE NO: CVII-01955
Plaintiff, )
vs. ) DEPT. NO: 10
ASHOE LEGAL SERVICES a Nevada )
orporation, KATHY BRECKENRIDGE, )
ndividually and in her capacity as Board )
resident ofWLS. )
TODD TORVINEN, Individually and in his ) OPPOSITION TO DEFENDANT'S WLS
apacityas WLS Board Member, ) AND PAUL ELCANO'S MOTION TO "'.,
AUL ELCANO. Individually and in his ) DISMISS FOR INSUFFICIENT SERVICE '.
apacity as Executive Director ofWLS, DOES ) OF PROCESS AND OTHER RELIEF;
1-100, Individually and in their capacity as ) MOTION FOR SANCTIONS; MOTION TO
embers of the BOARD OF DIRECTORS OF ) CONSOLIDATE CASES
ASHOE LEGAL SERVICES, CARYN
TERNLlCHT, Individually and in her
apacity at WLS attorney. JON SASSER
ndividually and in his capacity at WLS agent.
TAREN SABO Individually and in her
19 'apacity at WLS attorney. MELISSA
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ANGIARACINA Individually and in her
apacity at WLS attorney, MARC ASHLEY
ndividually and in his capacity at WLS
ttollley. ZANDRA LOPEZ Individually and in
er capacity as WLS employee, DOES and
OES 1-100, COMMlnEE TO Am
BUSED WOMEN, TAHOE WOMEN'S
ERVICES.
Defendants.
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OPPOSITION TO DEFENDANT'S WLS AND PAUL ELCANO'S MOTION TO DISMISS
FOR INSUFFICIENT SERVICE 01<- PROCESS AND OTHER RELIEF; MOTION FOR
SANCTIONS; MOTION TO CONSOLIDATE CASES
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OPPOSITiON TO t10'L'ION TO DISMISS, ETC.
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PLAINTIff COUGHLIN'S OPPOSITION TO DEFENDANTS WASHOE LEGAL SERVICES
AND PAUL ELCANO'S MOTION TO DISMISS FOR INSUFFICIENT SERVICE OF PROCESS
AND OTHER RELIEF
PLAINTIFF COUGHLIN, BY HIMSELF AND WITH HIS PERIPHERAL ATTORNEYS,
submit PLAINTIFF'S OPPOSITION TO DEFENDANTS WASHOE LEGAL SERVICES AND
PAUL ELCANG'S MOTION TO DISMISS FOR INSUFFICIENT SERVICE OF PROCESS AND
OTHER RELIEF ("Motion") under NRCP 12(b)(4) and NRCP 4; AND MOTION FOR
SANCTIONS. This Motion is based upon the Memorandum of Points and Authorities, the exhibits
attached hereto, the pleadings and papers on file, and any oral argument that may be presented in this
matter.
ughlin, Esq. (Bar No. 9473)
iver Rock, SI.
Re 0, NV 8950 I
(775) 338-8118
One of the Plaintiff's Attorneys
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OPPOSITION TO MOTION TO DISMISS, src.


1
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MEMORANDUM OF POINTS AND AUTHORITIES
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1. Introduction
4 Plaintiff Coughlin was formerly employed as an attorney for WLS. Coughlin has filed two
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lawsuits against WLS, ct aI., asserting claims for wrongful termination: Zach Coughlin v. Washoe
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Legal Services, et al. Case No.: CV 110 1896 Hon. Brent Adams Filed: June 27, 2011 and Zachary
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Coughlin v Washoe Legal Services, et al. Case No.: CVll01955 Hon. Steven P. Elliott Filed: June
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30,2011.
10 The rationale behind filing two of what would seem to be the same case, lies in the way
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Petition's to Proceed In Forma Pauperis (IFP) are processed in the Second Judicial District Court for
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Washoe County and the effect the potential denial of such an IFP would have on a Title VII litigants
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filing date for statute of limitations purposes with respect to the 90 day deadline to tile suit from
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receipt of an EEOC Right To Sue Letter (RTSL). Should the IFP Coughlin filed in CV1101896
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have been denied, it was relayed to Coughlin by filing otlicer desk clerks and Assistant Clerk of
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Court Julie Wise, that Coughlin would subsequently need to return to the filing office and pay the
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filing fee, and would be accorded a filing date consistent with the date the filing fee was paid, and
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that there would be no opportunity to "cure" the failure to pay a filing fee and have the filing date
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"relate back" to the date the IFP and contemplated Complaint were submitted. Judge Steinheimer's
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Adminstrative Assistant confirmed this as well. However, while there does seem to be support for
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the contention that such a "relating back" should be accorded, it simply would not have been prudent
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for Coughlin to persist with such a tact in light of the numerous indications to the contrary given him
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by court personnel. As such, Coughlin filed one version ofthe instant case on June 27, 2011 (and,
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should it proved necessary, Coughlin can show that he made attempts to file this case on an earlier
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date, though he was refused even having his papers marked "received" by filing office personnel and
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OPPOSITION TO r-10TION TO DISMISS, ETC.


1 Ms. Wise. in direct contravention of the dictates found in Whitman and Sullivan) and another on June
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30''',2011 (wherein he did, in fact, pay the filing fee) given that the 90 day deadline to file the instant
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action would likely run in the interim between the filing of the IFP and Department 4's decision on
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the IFP. Indeed, despite using the very form which filing office personnel insisted Coughlin use for
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an IFP (after refusing to accept Coughlin's far more detailed IFP submission), Department 4 ordered
7 Coughlin to provide more information with respect to his financial condition. The IFP was
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subsequently granted to Coughlin in CVII'O 1896.
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Lest this court fcel any lack of dilligence on Coughlin's part contributed to this multiplicity of
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actions. be assured that the exigency of the situation and the concomitant multiples filings was not
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only brought on by the 2'd Judicial's policy regarding refusing to "relate back" filing dates for denied
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IFP's subsequently "'cured'" by a filing fee paying litigant, but further EEOC negligence exacerbated
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this situation in failing to mail the RTSL to Coughlin's current address, an address for which
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Coughlin had previously apprised the SF District Office of the EEOC of in writing. However, given
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that the 90 days to file a Title VII action is measure from "receipt" of the RTSL, and that
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"constructive receipt'" has sometimes been applied in decisions, palticularly where a claimant has
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moved, Coughlin felt the need to guard against even the most onerous interpretations with respect to
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his filing within the 90 days from "receipt'" of the RTSL.
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Given that the IFP was approved and that Coughlin has been adjudged indigent by
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Depaltment 4. Coughlin asks this Court to refund the $260 filing fee he paid in CVII01955 and
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consolidate these two cases into one, using the Complaint submitted in connection with CV 110 1955
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as Coughlin's Complaint, and thereby preserving for pro se litigant Coughlin the ability to file one
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Amended Complaint without first seeking leave of court.
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OPPOSITION TO rr.OTION TO DISMISS, ETC.


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On August 29, 20 II, Coughlin attempted to complete service of the summons and complaint
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in the second case, Case No. CVII -01955, by having an independent process server of Reno, Nevada
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serve copies to two employees of'WLS, Jessica Garzae and Senior Paralegal Berta Mann at the
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reception desk ofWLS's oHices. Coughlin's Complaint reveals Ms. Garzae's meteoric rise from
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receptionist who hardly ever answers to phone to, obstensibly, someone being groomed for a
7 promotion, the likes of which would utilize the salary formerly taken up by licensed attorney
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Coughlin, and thereby reward Ms. Garzae for doing the job of Zandra Lopez, as had been detailed in
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numerous attorney only staff meetings, a situation to which Coughlin once asked the collection of
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WLS attorneys and Executive Director Elcano "now, if Jessica is too busy to ever answer the phone
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because she is doing Zandra's job, and deserves a raise (in addition to the rather high hourly wage she
13 is paid to be a receptionist who doesn't know how to change the font in a document in MS Word and
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the monies she collects for custodial services provided to WLS-though she had been known to
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belligerently challenge Coughlin to "never leave a dish in the office sink for her to wash"), well, then,
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what exactly is if that Zandra does? I mean, when she is not at Court doing something with someone
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that is not a client of mine, nor a client of Caryn's, and where she is, assuredly, not engaging in the
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unauthorized practice of law?" Indeed, Coughlin, a licensed attorney. and Garzae had, for a period of
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approximately two months, been summoned to WLS early, at 8:00 a.m., once or twice a week, for
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joint training sessions on how to approach the law from a theoretical and highly conceptual
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perspective sometime in 2008. Coughlin called WLS sometime in approximately early 2011 and
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found that a new receptionist had been hired, an African-American male. Even before leaving WLS
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it was apparent to Coughlin that Garzae had become so much more than a receptionist. Additionally,
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Berta Mann was standing beside Garzae when the process server served them the Summons in this
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Case. Ms. Mann is a Senior Paralegal for WLS, having been there, perhaps, even longer than Eleano.
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OPPOSIT10N TO MOTION TO DISMISS, ETC.


1 Since leaving process at a reception desk is not an approved method of service under Nevada Rule of
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Civil Procedure 4, Defendants seek dismissal of Plaintiffs Complaint pursuant to NRCP 12(b)(4).
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FACTS
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I. Garin, counsel for, depending upon which statement you take to be true from Mr. Garin, apparent!
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Mr. Elcano and WLS (though is is. perhaps not entirely clear if Garin represents Elcano personally,
7 or merely in Elcano's capacity as Executive Director of WLS ... ) wrote to Coughlin, in a letter dated
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September 22"J "'Please refrain from contacting my cliem Washoe Legal Services. its employees,
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otTtcers and directors (collectively "WLS"). You have Jiled two (2) complaints against WLS and you
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include allegations against unidentified Does as defendants. As such. you are ethically prohibited
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from contacting anyone at WLS. Furthermore. there are many in WLS who feel threatened by your
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actions. If you need any information about my client. please direct written inquiry to my office and
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we will respond accordingly. ClearlY'LI ___ is the best option for all involved. There is a very
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limited fund available to. However. as my fees are incurred, that fund is exhausted. I urge you
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to respond to in my last letter to you." Mr. Garin failed to, however, provide
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anything in the way of legal support for his position that Coughlin is "ethically prohibited from
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contacting anyone at WLS, or whether the "ethically" language Garin uses is connected to any actual
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codified rules applicable to attorneys, or applicable to pro se ligitants, or applicable to pro se litigants
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who happen to be attorneys.
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2. In a September 9, 2011 letter to Coughlin, Garin writes "Rule 4 of the Nevada Rules of Civil
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Procedure specifically controls service of process. On August 29,20 I I, various documents which
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apparently relate to Case No. CY 11-0 1955 were left at the front reception desk of WLS's offices. At
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no time has WLS authorized the receptionist to accept service of process of a summons and
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complaint. Since leaving documents with a receptionist is not an approved method of service under
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Rule 4. it is unclear whether you directed this action intentionally or if it was an attempt at service of
process. No affidavit of service has been filed in either case. As a licensed attorney, you know that if
you intend to serve the summons and complaint in either or both cases, your obligation is to comply
with Rule 4. If you believe you have complied with the mandate of Rule 4, please send me a letter
explaining your position. In addition. please provide me with a copy of any affidavit of service."
3. In Garin's Motion to Dismiss for Insufficient Service of Process, an Affidavit in Support is signed
by Elcano, though is contains quite curiously evasive language with respect to the issues at hand.
This is the same Elcano who curiously "did not receive" the written email, the successful
transmission of which is rather easily verified, from Coughlin in the day or so prior to suspending
Coughlin from his position as a Domestic Violence Attorney for WLS. In his September 19'h, 2011
A ffidavit, Executive Director Elcano swears that "4. On August 29, 20 II, Plaintiff left various
documents which appeared to relate to this matter at the front receptionist desk ofWLS's offices. 5.
At no time have I or WLS authorized the receptionist to accept service of process ofa summons and
complaint on my or WLS's behalf". Elcano's Affidavit contains no mention of whether Jessica
Garzae is still to be considered the receptionist at WLS, or whether Berta Mann was served and that
fact that Ms. Mann is clearly not the receptionist. but, rather, at last check, a Senior Paralegal with a
very, very long tenure at WLS.
ANALYSIS
Despite Garin's September 22, 20 II contention that "clearly, _ is the best option for
all involved. There is a very limited fund available to. However, as my fees are incurred, that
25 fund is exhausted. I urge you to respond to
in my last letter to you".", and the fac
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that he represents a lall' firm, a legal aid organization, Garin chooses to use this precious fund he has
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constantly referred to, a fund wherein a zero sum game is played between Garin lining his wallet with
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OPPOSITION TO HOT ION TO DISHISS, ETC.

1 attorney's fees billed to his client and funds which could
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Not to mention that this attorney
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fired under circumstances that even the most cut-throat corporate law firm run, essentially, by a CFa
S
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without a law degree. would blush at. Further, given Garin's declarations of concern "for everyone
7 involved" it is unclear why Garin is choosing to use this "limited fund" from which his fees for
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defending this action are drawn on something so easily overcome as the instant Motion to Dismiss.
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is unclear why Garin feels a dismissal would be appropriate prior to the expiration of 120 days, the
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which litigants have to properly serve defendants pursuant to NRCP 4. Would not this "limited
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Garin refers to be better spent on the all important Summary Judgment motion sure to come? Where
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will WLS be left once Garin's "limited fund" is exhausted? Is this "limited fund" some kind of
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statutory cap on damages as well? Garin has a talent for making pronouncements that sound like law
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but are unadorned with any troublesome citations to actual precedent. Perhaps that works with some
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people.
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Since Coughlin's process server did so much more than merely leaving a copy of the
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Summons and Complaint "at a reception desk" service should be deemed sufficient under Nevada
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Rule of Civil Procedure 4. As Defendant's counsel did not seem to cite even one case in support of
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his contentions and requests, a request which seeks to DISMISS the right of an individual to seek
redress for something so primary as the right to avoid being retaliated against and discriminated
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against on the basis of one's race, sex, etc ... Plaintifl seeks this court to order sanctions against
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Defendants, and, pursuant to NRS 7.085, against Mr. Garin himself, personally, in addition to
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providing stern written reproach to Garin regarding his attempts to prevent Coughlin from
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interviewing key witnesses via Garin's September 22"', 2011 letter, in which Garin seeks to, in
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domestic violence parlance "blame the victim", vaguely citing to how "threatened" various non-
managing-speaking test employees feel in regard to Coughlin's milquetoast written request to
interview them. [f any of these employees actually do feel "threatened", and if this is not just another
of Garin's dilatory litigation tactics, the kind practiced with such alacrity by so many employment la
defense attorneys over the years before Garin, then perhaps these employees should com,ider whether
there feelings are based in a fundamental concern with whether saying something other than, or not
quite, the truth to the EEOC may be discoverable upon the proper execution of a FO[A request to the
San Francisco District Office, whereupon the typical Determination Letter would yield the classic
exemptions from disclosure (the various "internal memorandum, work product" etc, etc. basis), upon
which a properly perfected appeal pursuant to 29 C.F.R. Sec 1610.11 would ensue, whereupon
statements made by those employees. under oath, to an EEOC investigator, and documentary
evidence supplied by WLS, would see the cold light of day, juxtaposed next to who knows what, be i
audio recordings, written materials, testimonial evidence or any number of other items which might
contradict those employees earlier statements. I am sure cold blooded murderers feel threatened by
prosecuting attorneys too, but that does not mean that equity should care.
Restrictions on right oflegal services corporation or "public interest" law firm to practice. 26
A.L.RAth 614. Action of private organization providing legal aid with public funds as state action
within 42 U.S.CA. 1983.49 ALR. Fed. 955.
I, WLS's MOTION IS FATALLY FLAWED AND SHOULD BE SMITED. OR. AT THE
VERY LEAST. DENIED
Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir.
I 988)(citations omitted). [n that case, the court held that service on a receptionist was sufficient
where she was '"the only employee in the office when the process server arrived, demonstrating that
more than minimal responsibility was assigned to her:" ld. at 689. A secretary to a corporation's vice
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OPPOSITIoN TO [10TION TO DISMISS, ETC.


1 president may be considered an authorized agent for accepting process by virtue ofthe fact that she
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has been habitually allowed to accept it. In some cases, service made on a receptionist is valid
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because it is the equivalent of serving the receptionbl's boss directly. Fashion Page, Ltd. v. Zurich
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Ins. Co., 69 A.D.2d 787, 415 N.Y.S.2d 416 (I st Dep't 1979), order affd, 50 N.Y.2d 265,428
\ 6
N.Y.S.2d 890,406 N.E.2d 747 (1980). Sternberg v. Citicorp Credit Services, Inc., 110 Misc. 2d 804,
7 442 N.Y.S.2d 1017 (Sup 1981). Implied authority to accept service of process on behalfofa
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corporation generally will be found where the character of the agency is such as to render it fair,
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reasonable, and just to imply the authority on the part of the agent to receive service. The apparent
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authority of an agent is to be determined by the acts of the principal, and not by the acts of the agent.
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Tullis v. Federated Mut. Ins. Co., 570 N.W.2d 309 (Minn. 1997). Kingvision Pay-Per-View, Ltd. v.
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Ayers, 2003 WL 22753170 (Ala. 2003). See, also, Thompson v. Lied Animal Shelter, 2009 WL
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3303733, *2 (D, Nev. 2009) (evaluating validity of service of process under Nevada law); Grand
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Canyon Resort Corp. v. Drive-Yourself Tours, Inc., D.C.Ariz.2006, 2006 WL 1722314 (court
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analyzed whether agent was authorized to receive process under federal standard, as well as under
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Arizona law, where court was located, and Nevada law, where service was effected).
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While by "Nevada law", the Lied case is likely concerned with Federal Courts in Nevada's
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interpretation of FRCP 4, the decision may be instructive in this state court context just the same, In
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Lieu Animal Shelter, the defendant argued that because the U.S, Marshall served an office manager
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at VCA Animal Hospital, that it has not been properly served. Service of a domestic or foreign
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corporation may be effected pursuant to the laws of the state where the court is located or where
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service is sought. 1 Moore's Federal Practice 4,51[1] (3d ed. 2008) (citing Fed. R. Civ. P. 4(h)(I)
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(A); Fed. R. Civ. P. 4(e)(I" Under Rule 4(h)(1)(B), service may also be effected "by delivering a
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copy of the summons and of the complaint to an officer, a managing or general agent, or any other
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OPPOSITION TO ["lOTION TO DISMISS, ETC.

1 agent authorized by appointment or law to receive service of process .... " Fed. R. Civ. P. 4(h)(I)(B).
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The court reasoned that if the office manager was an officer, managing agent, or general agent of
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VCA. then service upon her was sufficient to serve VCA. The Ninth Circuit uses the following
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analysis: Despite the language of the Rule, service of process is not limited solely to officially
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designated officers, managing agents, or agents appointed by law for the receipt of process. The rules
7 are to be applied in a manner that will best effectuate their purpose of giving the defendant adequate
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notice. Thus, the service can be made "upon a representative so integrated with the organization that
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he will know what to do with the papers. Generally, service is sufficient when made upon an
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individual who stands in such a position as to render it fair, reasonable and just to imply the authority
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on his part to receive service." Generally, "[tJhe determination of whether a given individual is a
'managing or general agent' depends on a tactual analysis of that person's authority within the
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organization." Direct Mail Specialists. Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688
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(9th Cir. 1 988)(citations omitted). In that case, the court held that service on a receptionist was
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sufficient where she was "(he only employee in the office when the process server arrived,
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demonstrating that more than minimal responsibility was assigned to her." Id. at 689. In Lied, the
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person served was an office manager for YCA at its Las Vegas animal hospital. This position is ofa
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high enough level of responsibility under the Ninth Circuit's test to effect valid service. The manager
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of an office certainly "know[sJ what to do with the papers," if the receptionist in Eclat did. Id. at 688.
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If a receptionist can satisfY the lest based on more than minimal responsibility, the manager of an
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office should satisfy the test in most cases. The Ninth Circuit noted in Eclat that "Rule 4 is a flexible
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rule that should be liberally construed"o long as a party receives sufficient notice of the complaint."
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Id. (quoting United Food Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th
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Cir. 1984)). It cannot be said that VCA did not receive sufficient notice of the complaint. The service
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was effected on August 27. 2009. (#21). yeA filed the present motion on September 21. (#23). VCA
had sufficient notice of he SAC based on service of Ms. Smith, who was of appropriate
responsibility. Therefore. the Court denies the motion to dismiss based on improper service of
process.
Wow. so. certainly, the fact that WLS is a law firm may indeed, auger toward deeming servic
sufficient. The fact that E1cano is a hunt and peck with two fingers typist might also lend a hand to
the argument that his subservients stamp such a deep imprint on everything he does that they should
be deemed agents capable of accepting service of process for Eleano.
More commonly service is allowed on any "agent." Not every employee is considered an
agent under such statutes, but only employees who are not mere subordinates or who are likely to
inform the appropriate officers that service has been made. Thus such employees as janitors,
dispatchers, and typists have not been considered agents, but an office manager and the highest
ranking employee at a construction site have been considered agents. A corporation cannot evade
jurisdiction when it has created the impression that the person served was the proper person to
receive service. See, Chancellorv. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983). Megan v. L. B.
Foster Co .. I III. App. 3d 1036.275 N.E.2d 426 (2d Dis!. 1971). Scott v. Atlanta Dairies Co-op., 239
Ga. 721, 238 S.E.2d 340 (1977). Eggi v. Fleetguard, Inc., 1998 NO 166, 583 N.W.2d 812 (N.D.
1998). Adair Realty Co. v. Greenbriar-Fulton, Inc., 149 Ga. App. 669, 255 S.E.2d 128 (1979).
Southeastern Fidelity Ins. Co. v. Heard, 123 Ga. App. 635, 182 S.E.2d 153 (1971). Cousby v. J. T.
Bickers Realty Co . 139 Ga. App. 250. 228 S.E.2d 214 (1976). Burris Chemical, Inc. v. Daniel
5 S "'- kc; '" .r
Const. Co., 251 S.c. 483, 163 S.E.2d 618 (1968). C-",,,p HHn{ fi;;cx,'';r!> 7"r CIt-s r r
C.><"---k" fJ'r:A v!;;o,r tte r v( "'""'-'-"-""-I' c:;
Now, for some reason Garin has barked out at Coughlin that Coughlin is not to even think of
interviewing, speaking to, or otherwise collecting evidence to support his claims insofar as that woul
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OPPOSITION TO TO DISMISS, ETC.


1 consist of speaing with any employes of WLS. Garin seems to cite to some vague proposition that by
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including DOES 1-100 in the caption of his Complaint (something made necessary by WLS's
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repeated refusal to provide the names of any of the members of its Board of Director's despite
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Coughlin's numerous written requests in that regard) Coughlin is "ethically" prevented from
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questioning any employee's, even those traditionally available to him under the managing-speaking
7 lest set out by the Nevada Supreme Court. Perhaps, Garin might take some pointers from the
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tribulations the City of Reno attorney ran into regarding allegation's of witness tampering in the
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recent Eoff/Pitsnogle proceedings. Well, anyways, it is not clear who exactly Garin represents and
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whether he is invoking some sort of attorney-client, no contact with represented parties line or
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argument to prevent any evidence gathering vis a vis employee interview by Coughlin. IN Garin's
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September 9.2011 to Coughlin, Garin writes "As you know, my oftlce represent Washoe Legal
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Services, its directors, oftlcers, and employees (collectively "WLS") .... " No, Joe, I don't know that.
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Actually, if you could just provide me a copy of the liability insurance from which your employment
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as defense counsel stems I could ascertain better who exactly it is you represent, and in what capacity
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(in the employees capacity as an employee or director, or personally?). Because, Joe, in some of you
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pleadings you describe your role as "attorney for Defendants, WLS and Eleano, Now, it would seem
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that is what they called an "appositive" in my 9
th
grade honors English class right here at Reno High
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School, where that comma after the word "Defendants" is indicative of that fact that you are about to
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identify them further and more specifically, such as by name. You did, following that comma with
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"WLS" and "Elcano". So, how does that jibe with your September 9, 20 II letter wherein you go on
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about how I "know" that your office represents "Washoe Legal Services, its directors, officers, and
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employees (collectively "WLS") .... " Is this what is called a dilatory litigation practice wherein you
27
hope to broaden the scope of the blanket of silence you wish to enforce to those who do not qualify
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OP?OSITWN TO MOTION TO DISMISS, ETC.

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under the managing speaking agent test with respect to the ethics of contacting represented parties
2
and or their employees'? Garin's words sure sound like he "threatening or seeking sanctions without a
3
basis to do so, which is, in itself, sanctionable conduct." See, e.g., Nakash v. United States Dept. OJ
4
5
Jm.tice, 708 F.Supp. 1354 (S.D.N.Y. 1998).
6
So, anyways, not really being able to tell exactly who it is Garin's office represents (does he
7 represent Zandra Lopez, personally? In her capacity as an employee?) it is hard to venture forward
8
figuring out whether personal service on a defendant such as Elcano was sufficiently carried out by
9
Coughlin's process server. Construction and Application of Terms "Abode," "Dwelling," and the
10
Like; Place of employment or business. 62B Am. Jur. 2d Process 203. Construction of phrase
11
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"usual place of abode," or similar terms referring to abode. residence, or domicile, as used in statutes
13
relating to service of process, 32 A.L.R.3d 112.
Under some state statutes, substituted service of process may be effected by serving a person
15
of discretion at a defendant's residence "or" place of business. In some states, when the defendant is
16
an individual, the summons may be served by handing a copy thereof at any office or usual place of
17
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business oftbe defendant to his or her agent or to the person for the time being in charge thereof. A
19
statute may authorize service by delivery ofthe summons to a defendant's actual place of business,
20
followed by mailing of the summons to him or her at his or her last known residence. Under such a
21
statute, service is proper where the summons and complaint are delivered to a receptionist at the
22
defendant's actual place of business, followed by mailing. A statute may authorize service by
23
2.4
delivery of the summons to a defendant's Collins Music Co .. Inc. v. Lord, 289 S.c:. 458,346 S.E.2d
724 (1986). Martin v. Gerner, 332 Pa. Super. 507, 481 A.2d 903 (1984). Townsend v. Hanks, 140
26
A.D.2d 162.527 N.Y.S.2d 415 (1st Dep't 1988). Townsend v. Hanks. 140 A.D.2d 162,527 N.V.S.2d
27
415 (I st Dep't 1988).
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As to the sufficiency of service of process, see 62B Am. Jur. 2d, Process 105 et seq. Answer--
Defense--Improper service ofprocess--Person served not agent or
employee of defendant, AMJUR PP Forms Fed. Prac. & Proc. s 113 (2009). Actions by and Against
Corporations D. Process L Persons Who May Be Served b. Particular Persons Who May Be Served.
19 Am. Jur. 2d Corporations 1906.
B. WLS AND GARIN SHOULD BE SANCTIONED FOR THIS FRIVOLOUS AND
VEXATIOUS FILING AND MAINTENANCE OF THIS MOTION AND OTHER
DILATORY LITIGATION TACTICS
NRS 7.085:
"Payment of additional costs, expenses and attorney's fees by attorney who files,
maintains or defends certain civil actions or extends civil actions in certain
circumstances I. If a court finds that an attorney has: (a) Filed, maintained or
defended a civil action or proceeding in any court in this State and such action or
defense is not well-grounded in fact or is not warranted by existing law or by an
argument for changing the existing law that is made in good faith; or (b)
Unreasonably and vexatiously extended a civil action or proceeding before any court
in this State, the comi shall require the attorney personally to pay the additional costs,
expenses and attorney's fees reasonably incurred because of such conduct. 2. The
court shali liberally construe the provisions of this section in favor of awarding costs,
expenses and attorney's fees in all appropriate situations. It is the intent of the
Legislature that the court award costs, expenses and attorney's fees pursuant to this
section and impose sanctions pursuant to Rule II of the Nevada Rules of Civil
Procedure in all appropriate situations to punish for and deter frivolous or vexatious
claims and defenses because such claims and defenses overburden limited judicial
resources, hinder the timely resolution of meritorious claims and increase the costs of
engaging in business and providing professional services to the public."
While those with a shallow understanding of Sellers v. Fourth Judicial Dist. Ct., 119 Nev.
256,71 P .3d 495 (2003), might argue attorney's rees of any sort are not available to a pro se litigant,
even one who is an attorney, see: NOTE: Awarding Attorney's Fees to Pro Se Litigants Under Rule
II, June, 1997.95 Mich. L. Rev. 2308, Jeremy D. Spector. To wit:
"states that have considered whether an attorney proper person litigant may be
awarded attorney fees are divided, with a slight majority permitting such fees.
Decisions approving fee awards to attorney proper person litigants generally do so
on the basis that an attorney is paid ror rendering legal services, and ifhe renders
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OPPOSITION TO ~ 1 T I O N TO DISMISS, ETC.
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such services on his own behalf, it results in as much pecuniary loss to him as ifhe
paid another attorney to render the same services. So. if a losing party must pay
attorney fees anyway, it should make no difference whether the fees are to be paid
to an attomey representing himself or another attorney employed by him. In short,
"a lawyer's time and advice are his stock in trade." ... We interpret NRS 69.030 to
require that all proper person litigants. whether attomey or non-attorney. be
obligated to pay attorney fees as a for an award of prevailing party
attorney fees. This interpretation gives effect to the Legislature's clear intent that the
prevailing party in justice's court be reimbursed by the losing party for out-of-
pocket costs incurred to prosecute the suit. To interpret the statute otherwise would
require us to redefine what is meant by an attorney fee, which is commonly
understood to be the sum paid or charged for legal services. Because Matthews
represented himselfand did not payor incur any obligation to pay attorney fees. the
justice's court exceeded its jurisdiction by awarding such fees. We therefore grant,
in part, the petition for a writ of certiorari." Sellers v. Fourth Judicial Dist. Ct., 119
Nev. 256, 71 P .3d 495 (2003).
Palmer v. Pioneer Inn Assocst. 59 P.3d 1237 (Nev. 2002) clearly contradicts Garin's ominous
writing and directives to Coughlin and this court should not countenance such quasi witness
tampering. In Palmer v. Pioneer Inn Associates. Ltd., 59 P.3d 1237 (Nev. 2002), the Nevada
Supreme Court engaged in an extensive interpretation of Nevada SCR 182 and determined to apply it
to organizational entities according to a "managing-speaking agent" test. in which an attorney is
precluded trom ex parte contact with a person affiliated with the adverse entity only if the person
qualifies as a managing-,peaking agent (defined by the Court as someone with supervisory control or
authorization to speak for the entity as to the matter that is the subject of the conflict). See 59 PJd at
1238, 1244-45 and 1248 (test applies to "those representatives who are in a position to speak for and
bind the organization during the course of litigation"). Nevada Supreme Court Rule 182. Official
comment to Model Rule 4.2. Palmer VS. Pioneer Inn Associates, 59 P.3d 1237 (Nev. 2002). Nevada
Supreme Court Rule 182, which governs the issue. states: In representing a client, a lawyer shall not
communicate about the subject ofthe representation with a party the lawyer knows to be represented
by another lawyer in the matter. unless the lawyer has the consent of the other lawyer or is authorized
by law to do so. Nevada SCR 182 is based on ABA Model Rule 4.2. Comments to the Model Rules
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OPPOSITION TO MOTION TO DISMISS, ETC.


1
were not adopted, but may be used as guidance for interpretation. See Nevada SCR 150(2). Personal
2
interviews of witnesses by counsel arc the time honored means by which an attorney develops and
3
refines his case. Sec IBM v. Edelstein, 526 F.2d 37 (S.D.N.Y., 1975). Interviews are one method of
4
5
satisfying an attorney's obligations under Rule II to conduct a reasonable inquiry to ensure Ihal a
6
claim is well grounded in fact. See Nev. R, Civ. P. II. The purpose of Rule 182 is to protect
7 laypersons from being taken advantage of by lawyers, to protect the attorney-client relationship, and
8
to prevent the inadvertent disclosure ofprivileged information. See In re Discipline o/Schaeffer, 25
9
P.3d 191,198 (Nev. 200 I). The issue arises in connection with contacting non-managerial corporate
10
employees. Ex parte contact with managerial employees of a corporation is prohibited by the Rule.
11
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See Cronin v. Eighth Judicial District Court. 105 Nev. 635. 781 P.2d 1150 (1989). The issue in the
13
case of corporations, and other organizational entities as well, is: Which individuals constitute the
14
represented party? Some courts embrace the position that no corporate employees, even lower level
15
employees. should be contacted ex parte when that corporation is represented. See, e.g., Public
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Service Elec. & Gas Co. v. Associated Elec. & Gas Ins. Svcs., Ltd., 745 F. Supp. 1037 (D.N.J. 1996)
17
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(superseded by Rule and Reg.). The majority take the position that some communication may take
19
place. See Niesig v. Team 1,76 N.Y.S. 2d 363, 558 N.E. 2d 1030 (1990). The scope of corporate
20
employees covered by the Rule has been broadened by courts over the years. The narrowest test is
21
the control group test. Those courts which adopt the control group test, reason that the maximum
22
amount of information should be readily available through informal discovery. See Fair Automotive
23
24
Repair, Inc. v. Car-X Service Systems, Inc .. 128 III. App. 3d 763, 471 N.E.2d 554 (III. App. 1984). In
25
Wright v. Group Health Hospital, 691 P.2d 564 (Wash 1984), the Court used a "managing-speaking"
26
agent test that defines a manager as one who in words or actions bind the corporation ("speaker-
27
manager"). By identifying a speakermanager as the party, the Court reasoned that the purpose of the
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OPPOSITION TO MOTiON TO DISMISS, ETC.

1 Rule was satisfied by preventing an adverse attorney from contacting someone who could bind the
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corporation. See 691 P.2d at 569. The Wright Court refused to distinguish between employees who
3
witnessed the damaging act from the employees who caused it, reasoning that the Rule is not meant
4
5
to shield a corporation from discovery of the facts ofa matter, even if they are prejudicial. See 691
6
P.2d at 569. The Nevada Supreme Court has addressed the application ofSCR 182 in detail in
7 Palmer v. Pioneer Inn Associates, ,Ltd., 59 P.3d 1237 (Nev. 2002). The Palmer court adopted the
8
"managing-speaking agent" test of the Washington Supreme Court in Wright v. Group Health, supra,
9
to define who is meant as a person with managerial responsibility.
10
In answering the certified question, the Nevada Supreme Court in Palmer v. Pioneer Inn
11
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adopted a "managing-speaking agent" test for applying Nevada SCR 182 to corporate persons. Under
13 this test, an attorney may not engage in ex parte communication (absent consent or authorization
14
pursuant to other substantive law) if the person is a managing agent who is authorized to speak for
15
the company about the subject matter of the litigation or dispute. The Nevada Supreme Court's
16
analysis meant that the Sous Chef, although a supervising employee, was not a representative ofthe
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Hotel in the Palmer dispute for purposes of the managingspeaking agent test. Consequently, Palmer's
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counsel did not violate Rule 182 as interpreted by the Nevada Supreme Court. After the Palmer v.
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Pioneer Inn decision, it is now clear that Nevada SCR 182 utilizes a "managing-speaking agent" test
21
for determining which adverse entity employees are off limits to counsel and that neither the
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Restatement-Niesig "ability to bind the company" test nor the "admission by a party-opponent" test
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applies to Nevada SCR 182. Despite the pedigree supporting the party-opponent and New York-
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Niesigtests, the Nevada Supreme Court rejected them in favor of the managing-speaking agent test
26
because it best balances the policies at stake when considering what contact with an organization's
27
representatives is appropriate. The test protects from overbearance by opposing counsel those
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OPPOSITION TO MOTION TO DISMISS, ETC.


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representatives who are in a position to speak for and bind the organization during the course of
2
litigation, while still providing ample opportunity for an adequate Rule 11 investigation. In particular,
3
the managing-speaking agent test best fulfills this purpose by not being over-inclusive. In particular,
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the managing-speaking agent test adopted by this court does not protect the organization at the
6
expense of the justice system's truth-finding function by including employees whose conduct could
7 be imputed to the organization based simply on the doctrine of respondeat superior. Finally, while
8
any non-blanket rule has some uncertainty, we conclude that the test is sufficiently clear to provide
9
signiticant guidance to counsel. See 59 P.3d at 1248 (footnotes omitted). The Court also noted that it
10
was not adopting ABA Model Rule 4.2's comment and was not adopting the ABA's 2002 comment,
11
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"which essentially tracks the New York tcst. Rather. SCR 182 should be interpreted according to the
13
managingspeaking agent test as set forth by the Washington Supreme Court in Wright by Wright v.
14
Group Health Hospital." See 59 P.3d at 1248 (footnotes omitted). See also Wright v. Group Health
15
Hosp., 691 P.2d at 569 (Wash. 1984): [The function of anti-contact rule 1 is to preclude the
16
interviewing of those corporate employees who have the authority to bind the corporation.
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[Employees should be viewed as within the anti-contact rule where they have 1 managing authority
19
sufficient to give them the right to speak for. and bind, the corporation .... an employee does not
20
"speak for" the organization simply because his or her statement may be admissible as a party-
21
opponent admission. Rather, the inquiry is whether the employee can bind the organization with his
22
or her statement.
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Conclusion
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Plaintiff has properly eflectuated service on Defendants Washoe Legal Services and
26
Paul Elcano, and. perhaps, on most of the other Defendants. save CAAW and Tahoe
27
Women's Services. Plaintiffs success in complying with NRCP 4 warrants a denial fo
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OPPOSITION TO MOTION TO DISMISS, ETC.


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Defendant's motion for dismissal of the Complaint pursuant to NRCP 12(b)(4).
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Accordingly, Plaintiff respectfully request this Court dismiss the Complaint and provide
3
other relief as warranted. WLS and Garin's dilatory tactics should be punished.
4
AFFIRMA TlON Pursuant to NRS 239B.030
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Also. this document does not contain any social security number or other inappropriate material
7 pursuant to NRS 2398.030.
8
DA TED this 23'" day of September. 20 II
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/s/ Zach Coughlin
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Zach Coughlin
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Plaintiff
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PROOF OF SERVICE
I, Zach Coughlin, declare:
Joe Garin, Esq. NV Bar 6653
Shannon Nordstrom, Esq. NV Bar 8211
9080 West Post Road, Suite 100
Las Vegas, Nevada 89148
Attorneys for Defendants, WLS and Paul Elcano
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ch Coughlin
OPPOSITIoN TO MOTlON TO DISMISS, ETC.