It’s Not My Job to do Your Job

If the plaintiff sues the wrong defendant, does that defendant have an obligation to say anything?  Put another way, is it defense counsel’s fault when plaintiff’s counsel errs?  One local court decided it was, but then was reversed.

In Trotman v. Dist. Ct. Plaintiff sued Wife for a car accident, except Husband was driving the car when the accident happened.[1]   Wife’s answer to the complaint denied being the driver.  Wife testified at deposition that she was not the driver.  At the arbitration hearing this fact was raised.  “The arbitrator gave [Plaintiff] six days to amend her complaint to name [Husband] or the arbitrator would find for the defendant [Wife]. [Plaintiff] failed to amend her complaint in that time and the arbitrator entered an order in favor of [Wife].”

Plaintiff then sought trial de novo and leave to amend to name Husband.  Wife moved to strike the request for trial de novo and opposed leave to amend.  The district court granted both of Plaintiff’s motions.  Husband, now substituted as a party, petitioned for a writ.

The district court apparently concluded Nevada Rule of Professional Conduct 8.4(d) “required [Wife] to affirmatively notify [Plaintiff] that [Husband] needed to be named pursuant to NRCP 16.1.”  Husband responded NRPC 8.4(d) “does not create an affirmative duty for counsel to notify plaintiff of its error in naming a party.”

The district court’s decision asserts that [Wife]’s counsel’s failure to instruct [Plaintiff]’s counsel pursuant to NRCP 16.1(a)(1)(A) that [Plaintiff] should have named [Husband] as a party is a violation of the rules of professional conduct.  The plain language of NRCP 16.1 does not require a defendant to instruct a plaintiff on who and how to name a party.  And this court finds no Nevada case law, statute, or other support for the affirmative duty the district court implies, a proposition [Plaintiff] put forth with no supporting legal authority.  It is a manifest abuse of discretion to require an action that is not identified in NRPC 8.4 or NRCP 16.1.

Wife did the right thing.  She consistently and repeatedly stated she was not the driver.  She did not hide that fact, but Plaintiff just ignored it.  Had Wife concealed that fact or been less forthright about it, perhaps the result would have been different.  However, she disclosed it but Plaintiff apparently paid no attention to that issue and just pressed forward.  That error was solely Plaintiff’s, not Wife’s.

[1] No. 74497, 2018 Nev. App. Unpub. LEXIS 269 (Ct. App. April 24, 2018).