                of prohibition may issue to arrest the proceedings of a district court
                exercising its judicial functions when such proceedings are in excess of the
                district court's jurisdiction.   See NRS 34.320; Smith v. Eighth Judicial
                Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). Whether a
                petition for writ relief will be considered is within this court's sole
                discretion, Smith, 107 Nev. at 677, 818 P.2d at 851, and it is petitioners'
                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).
                             Having considered the parties' arguments and the documents
                before this court, we conclude that writ relief is not warranted.
                Specifically, it appears that real party in interest Nevada Transportation
                Authority (NTA) filed its complaint below in the Second Judicial District
                Court on October 27, 2014, one day before NTA filed its complaint in the
                Eighth Judicial District Court on October 28, 2014. The two actions are
                substantially similar in that NTA is seeking to enjoin petitioners from
                engaging in their "ride-sharing" business without certain certificates and
                licenses. In the "Order After Hearing," Judge Freeman concluded that the
                complaint in the Second Judicial District Court was filed first, and
                therefore jurisdiction was proper to hear the merits of the complaint.
                            The first-to-file rule provides that "where substantially
                identical actions are proceeding in different courts, the court of the later-
                filed action should defer to the jurisdiction of the court of the first-filed
                action by either dismissing, staying, or transferring the later-filed suit."
                SAES Getters S.p.A. v. Aeronex, Inc.,   219 F. Supp. 2d 1081, 1089 (S.D. Cal.
                2002); see also Inherent.com v. Martindale-Hubbell, 420 F. Supp. 2d 1093,




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                1097 (N.D. Cal. 2006) (explaining that the two actions need not be
                identical, only substantially similar). The first-to-file rule is "not a rigid or
                inflexible rule to be mechanically applied," but is a matter of sound
                judicial administration and its application is left to the discretion of the
                trial court. Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 94-95 (9th
                Cir. 1982) (explaining that declining jurisdiction based on the first-to-file
                rule is discretionary, not mandatory, with the trial court).
                             NRCP 3 provides that "[a] civil action is commenced by filing a
                complaint with the court." Although NTA filed its application for a
                temporary restraining order or preliminary injunction in the Eighth
                Judicial District Court before it sought the same relief in the Second
                Judicial District Court, it is the filing of the complaint that commences an
                action. NRCP 3; Koplow v. City of Biddeford,          494 A.2d 175, 176 (Me.
                1985) (holding that the trial court lacks jurisdiction to enter a temporary
                restraining order without the existence of an underlying action that was
                commenced by the filing of a complaint). Both Judge Herndon and
                petitioners correctly acknowledged this rule in the October 29, 2014,
                hearing in Eighth Judicial District Court Case No. A-14-709002-C)- Our


                       'The transcript of that hearing is contained in petitioners' appendix.
                At that hearing, petitioners' counsel acknowledged that "[a]n action is
                commenced by the filing of a complaint under Rule 3," that counsel
                "[doesn't] think they are properly [before the court]," and that the failure
                to file the complaint before requesting the temporary restraining order
                was a "procedural and fatal defect." Thus, we question petitioners'
                apparent contradictory argument here that the Eighth Judicial District
                Court action was filed first. See Marcuse v. Del Webb Cmtys., Inc., 123
                Nev. 278, 287-88, 163 P.3d 462, 468-69 (2007) (explaining the doctrine of
                judicial estoppel).




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dissenting colleague concludes that the first-to-file rule may be triggered
by filings other than the complaint. We do not agree.          Schlesinger v.
Councilman, 420 U.S. 738 (1975), does not address our specific procedural
rule that clearly states that a civil action is commenced by the filing of the
complaint.    See NRCP 3. Furthermore, the court in Schlesinger was
addressing the trial court's jurisdiction, which is not at issue here, and
made its remarks in a footnote, which we do not find persuasive.
Schlesinger, 420 U.S. at 742 n.5; see also Kirkland v. Legion Ins. Co., 343
F.3d 1135, 1142 (9th Cir. 2003) (addressing the trial court's jurisdiction to
hear a dispute). Therefore, we conclude that, whether on the basis that
the Second Judicial District Court complaint was filed first or due to the
exercise of his discretion, Judge Freeman in the Second Judicial District
Court did not exceed his jurisdiction and was not required by law to
dismiss or stay the proceedings in deference to the Eighth Judicial District
Court.
              Petitioners also contend that NTA is engaging in forum
shopping. Forum shopping is "[t]he practice of choosing the most
favorable jurisdiction or court in which a claim might be heard." Black's
Law Dictionary 681 (8th ed. 2004). Although NTA's failure to follow the
relevant procedural rules demonstrates an inept effort to commence its
case, petitioners' contention that NTA is engaging in such behavior
impunes the neutrality of the three district court judges involved in the
dispute between the parties, and nothing in the record supports that
contention.
                             For the reasons explained above, we deny the petition. 2 See
                Smith, 107 Nev. at 677, 818 P.2d at 853.
                             It is so ORDERED.



                                                              /         do_4*            ,J
                                                            Hardest


                                                                         /7:1;#           J.
                                                            Douglas


                CHERRY, J., dissenting:
                             I believe this matter should be decided by the en banc court,
                and not a panel of justices. This petition raises an important issue of
                statewide concern regarding litigant practices and the appropriate forum
                to hear disputes when essentially the same matter is filed in multiple
                district courts.
                             I further dissent in this case because I would grant the writ
                petition. The action in the Eighth Judicial District Court was clearly filed
                first. I disagree with the majority that the first-to-file rule is triggered
                only by the filing of the complaint. Although NRCP 3 provides that "[a]
                civil action is commenced by filing a complaint with the court," there were
                significant procedural mistakes made below that warrant an exception to
                this general rule. In Schlesinger v. Councilman, the United States


                      2 Despite
                              the disposition of this petition, we do not condone the
                NTA's procedural errors made below.




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                 Supreme Court noted that where the court has subject matter jurisdiction
                 and that jurisdiction appears to exist from the papers filed, a defect in the
                 manner in which the action was instituted and processed is not itself
                 jurisdictional. 420 U.S. 738, 742 n.5 (1975). And in Kirkland v. Legion
                 Insurance Co., the court explained that the "fflailure to file a complaint is
                 not necessarily fatal to the action," so long as the filings made were
                 adequate to apprise the defendant of the nature of the claim and the relief
                 sought. 343 F.3d 1135, 1142 (9th Cir. 2003).
                               When NTA first filed its application for a temporary
                 restraining order or preliminary injunction in the Eighth Judicial District
                 Court, the clerk docketed the matter and assigned it a case number.
                 Although NTA's complaint was filed a few days later, the Eighth Judicial
                 District Court considered NTA's procedural error and allowed the case to
                 proceed. NTA cannot now argue that the Eighth Judicial District Court
                 case was not filed first. Notably, nothing in the majority's order prevents
                 the judge in the Eighth Judicial District Court from continuing to litigate
                 this matter. At the very least, the best practice in this case would have
                 been for the two judges involved to meet and confer and to exercise their
                 discretion and wisdom under the first-to-file rule's policy of sound judicial
                 administration, and determine who should hear this high-profile
                 litigation.
                               Additionally, NTA's filing of another request for relief and
                 complaint in the Second Judicial District Court after the matter was
                 already docketed in the Eighth Judicial District Court gives an
                 appearance of improper forum shopping. By denying this petition, the
                 majority may very well encourage such behavior in future matters in our




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                district courts, which I cannot condone. Therefore, I would grant the
                petition. For these reasons, I respectfully dissent.




                cc: Hon. Scott N. Freeman
                     Campbell & Williams
                     Pisanelli Bice, PLLC
                     Attorney General/Carson City
                     Attorney General/Las Vegas
                     Washoe District Court Clerk




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