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Smith v. Eighth Judicial Dist. Court In and For County of Clark12/17/1997
counterclaim or cross-claim will generally be allowed, unless the opposing party would be prejudiced.
2 James Wm. Moore et al., Moore's Federal Practice section 7.02 (3d ed. 1997); see also Burns v. Lawther, 53 F.3d 1237, 1241 (11th Cir. 1995) (Federal Rule of Civil Procedure 7 clearly and precisely lists the documents that are pleadings, and explicitly excludes everything else from its definition of a pleading).
In this case, Chang's cross-claim asserting personal injuries was not a pleading, and was not properly filed. Therefore, the 120-day period for service of a complaint imposed by NRCP 4(i) does not apply to Chang's cross-claim. But it is also not true, as asserted by Chang, that there was no time limit for Chang to bring his cross-claim; the cross-claim should have been included in Chang's answer. The time limit for serving an answer is twenty days, unless that time is altered based on the filing of a motion. NRCP 12(a).
We do not suggest that dismissal of Chang's cross- claim was mandated because of a technical defect in pleading. "Nevada is a notice-pleading jurisdiction and pleadings should be liberally construed to allow issues that are fairly noticed to the adverse party." Nevada State Bank v. Jamison Partnership, 106 Nev. 792, 801, 801 P.2d 1377, 1383 (1990) (emphasis added There is, however, nothing technical about the defect in Chang s cross-claim; the document simply is not a pleading, and does not itself put the matters asserted therein at issue.
It appears from the documents before this court that the district court did not evaluate petitioners' motion to dismiss under the proper standard of law, as set forth in this opinion. It further appears that the district court may have a duty to strike Chang's improper cross-claim. If so, then under the circumstances of this case, an appeal following final judgment would be an inadequate remedy, because not only will petitioners have to defend Chang's personal injury cross-claim, Chang's claim will likely impact the resolution of Lee's claim against petitioners. Therefore, mandamus is an appropriate remedy. See AIRS 34.160 (mandamus will issue to compel act enjoined by law); NRS 34.170 (mandamus will issue if a petitioner has no other plain, speedy and adequate remedy in the ordinary course of law).
Accordingly, we grant this petition. The clerk of this court shall issue a writ of mandamus compelling the district court to vacate its order denying petitioners' motion to dismiss Chang's cross-claim, and to reconsider that motion in light of the views expressed in this opinion.
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