Dallman v. Merrell

In Dallman v. Merrell, 106 Nev. 929, 803 P.2d 232 (1990), the Court affirmed an order dismissing one of two defendants under NRCP 4(i) where service was effected 108 days late. Dallman sued a car dealership and its employee, Merrell. Dallman's original counsel promptly served the dealership, but did not serve Merrell because counsel had trouble locating him. Dallman later retained new counsel, who noted that Merrell had not been served, and used a private investigator to obtain Merrell's address through driver's license records and other car salesmen. The district court dismissed the complaint as to Merrell without prejudice, holding that Dallman had not shown good cause for the failure to serve within 120 days of filing the complaint. It is unclear whether the dismissal was effectively with prejudice; nevertheless, the district court dismissed only one of the two defendants and therefore did not dismiss Dallman's entire action. Id. at 930-31, 803 P.2d at 232-33. The Court held that Dallman's claim that he could not locate Merrell (despite having tried the telephone directory, a city directory, and a process server) did not establish good cause since Merrell's address was readily available from the DMV and the county assessor's office. The fact that service was tardy by 108 days was also a consideration. In addition, the district court had concluded that Merrell had suffered some prejudice from the delay. Id. at 930, 803 P.2d at 232-33.