                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                 CHARLES LEE CARTER, AN                                No. 66237
                 INDIVIDUAL,
                 Appellant,
                 vs.
                                                                            FILED
                 CONSTANCE ANDREWS, AN                                      JUN 1 0 2016
                 INDIVIDUAL; AND GUY ANDREWS,
                 III, INDIVIDUALLY,
                 Respondents.

                                         ORDER OF AFFIRMANCE

                             This is an appeal from an order granting respondent's motion
                 to quash service of process and motion to dismiss. Eighth Judicial District
                 Court, Clark County; Jerry A. Wiese, Judge.
                             This case arises out of an alleged hit and run accident on
                 October 7, 2011. Appellant Charles Carter (Carter) alleges that he was
                 injured when the driver of another vehicle, Guy Andrews (driver), hit his
                 car and fled the scene. On October 3, 2013, Carter filed his original
                 complaint for negligence and negligence per se. The caption named only
                 the owner of the car, Constance Andrews (owner), as a defendant, though
                 the body of the complaint referenced both the owner and the driver. On
                 January 27, 2014, after realizing that the caption omitted the driver,
                 Carter filed an amended complaint adding the driver to the caption. By
                 then, the statute of limitations had expired.
                             Carter served the owner but not the driver with the complaint.
                 The district court granted the owner's motion to dismiss for lack of
                 personal jurisdiction, an order Carter does not appeal. Carter did not
                 serve the driver with either the original or amended complaints. He tried
SUPREME COURT    to make substituted service of the amended complaint on the driver
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                 through the Department of Motor Vehicles (DMV), pursuant to NRS
                 14.070(2). However, Carter did not follow all the requirements of the
                 statute. On May 21, 2014, a "motion to quash service of process and
                 motion to dismiss" was filed on the driver's behalf. The district court
                 granted the motion because service of process was incomplete under NRS
                 14.070(2). Also, the district court concluded that since Carter's original
                 complaint named only the owner, not the driver, see NRCP 10(a) ("In the
                 complaint the title of the action shall include the names of all the
                 parties. ."), and Carter did not file the amended complaint adding the
                 driver as a defendant until after the statute of limitations in NRS
                 11.190(4)(e) expired, the complaint failed to state a claim against the
                 driver under NRCP 12(b)(5). On July 21, 2014, Carter filed a motion for
                 reconsideration seeking leave to amend his complaint to add the
                 administrator of the estate of the driver, whom he learned had died some
                 time in 2012, and a motion to stay the proceedings. The district court
                 denied reconsideration and Carter appeals.
                             We review an order granting an NRCP 12(b)(5) motion to
                 dismiss de novo, Buzz Stew, LLC v. City of N. Las Vegas,     124 Nev. 224,
                 227-28, 181 P.3d 670, 672 (2008), and an order dismissing a complaint for
                 failure to effectuate timely service of process for an abuse of discretion,
                 Saavedra-Sandoval v. Wal-Mart Stores, Inc., 126 Nev. 592, 595, 245 P.3d
                 1198, 1200 (2010).
                             The parties first debate whether the driver was a party
                 defendant to the original complaint, even though the caption did not name
                 him as a defendant as required by NRCP 10(a). This debate is beside the
                 point. NRCP 4(i) requires a party to serve the summons and complaint
                 upon a defendant within 120 days of filing the complaint or the district
                 court must dismiss the action. As Carter did not serve the driver with
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                   either the original or amended complaints, or move for an extension of
                   time to do so, dismissal was required, even assuming the driver was a
                   party defendant from the start.
                               We reject Carter's argument that he effectuated substituted
                   service of the amended complaint on the driver under NRS 14.070.' NRS
                   14.070(2) provides:
                               Service of process must be made by leaving a copy
                               of the process with a fee of $5 in the hands of the
                               Director of the Department of Motor Vehicles or in
                               the office of the Director, and the service shall be
                               deemed sufficient upon the operator if notice of
                               service and a copy of the process is sent by
                               registered or certified mail by the plaintiff to the
                               defendant at the address supplied by the
                               defendant in the defendant's accident report, if
                               any, and if not, at the best address available to the
                               plaintiff, and a return receipt signed by the
                               defendant or a return of the United States Postal
                               Service stating that the defendant refused to
                               accept delivery or could not be located, or that the


                          'Carter argues that the district court erred in finding that his
                   amended complaint was filed beyond the statute of limitations because the
                   statute of limitations did not start to run until he learned of the driver's
                   identity in April 2012. Even if it was filed after the statute of limitations,
                   Carter alleges that the district court erred when it determined that the
                   amended complaint did not relate back to the original complaint under
                   NRCP 10(a). Carter contends that his amended complaint did not need to
                   relate back under NRCP 10(a), but could be amended under NRCP 15(a).
                   (Carter's citation of NRCP 15(a) is puzzling; he may have had an
                   argument under NRCP 15(c), see Costello v. Casler, 127 Nev. 436, 254 P.3d
                   631 (2011), but he waived it by not presenting it to the district court or
                   this court on appeal). As we conclude below that Carter never served the
                   driver with the amended complaint, and failed to timely move to extend
                   time to accomplish service, these arguments fail in any event.



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                               address was insufficient, and the plaintiffs
                               affidavit of compliance therewith are attached to
                               the original process and returned and filed in the
                               action in which it was issued.
                 (Emphases added.) NRS 14.070(2) is unambiguous and requires a party
                 to: 1) leave a copy of the process with a $5 fee with the Director of the
                 DMV; 2) send, by registered or certified mail, notice of service and a copy
                 of the process to the defendant; 3) file a return receipt signed by the
                 defendant (or a return of the United States Postal Service indicating that
                 defendant could not be located); and 4) file an affidavit of compliance with
                 the district court.
                               Carter argues that notwithstanding its mandatory terms, all
                 NRS 14.070(2) requires is substantial compliance, which he achieved. We
                 cannot agree. The most Carter establishes is that he complied with the
                 first of NRS 14.070(2)'s four requirements: he left copies of the summons
                 and amended complaint with the Director of the DMV and received, in
                 return, an affidavit acknowledging service upon the DMV and a letter
                 acknowledging that a summons and complaint was received in the
                 Director's office of the DMV along with the fee. However, there is no
                 evidence in the record that Carter attempted to comply with the statute's
                 other requirements. 2 Even though the driver had passed away, there is no
                 evidence showing that Carter tried to locate the driver's last-known




                       2 NRS  14.070(2)'s second requirement is constitutionally founded. See
                 Browning v. Dixon, 114 Nev. 213, 217, 954 P.2d 741, 743 (1998) (citing
                 Wachter v. Pizzutti, 276 U.S. 13 (1928)) (providing that "a nonresident
                 motorist statute that allowed service upon the secretary of the state, but
                 contained no provision for attempted notice to a nonresident defendant,
                 violated due process of law").
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                address to send the notice of the service or copy of the process to him or
                the representative of his estate. 3
                                Carter argues that the district court should have sua sponte
                determined that there was good cause to extend the time to serve under
                NRCP 4(i). However, unlike its federal counterpart, NRCP 4(i) requires a
                party to make a motion for an extension of time to effect service. NRCP
                4(i) drafter's note to 2004 amendment; Saavedra-Sandoval, 126 Nev. at
                596, 245 P.3d at 1200. Since Carter never made a NRCP 4(i) motion in
                the district court, the district court could not have extended the time to
                serve. Carter also failed to invoke the procedures for substitution of
                parties afforded by NRCP 25(a) in the event of a named defendant's death.
                                We therefore conclude that the district court did not abuse its
                discretion in dismissing the action against the driver for insufficient
                service of process. Abreu v. Gilmer, 115 Nev. 308, 312-13, 985 P.2d 746,
                749 (1999). Accordingly, we
                                ORDER the judgment of the district court AFFIRMED.



                                                                      ,J   .




                                            Hardesty


                                               J.
                Saitta




                         3 At
                          oral argument, Carter claimed that former counsel's affidavit
                indicated that Carter made diligent efforts to locate the best-known
                address of the driver, but could not. However, the affidavit makes no such
                statement.
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                cc: Hon. Jerry A. Wiese, District Judge
                     Janet Trost, Settlement Judge
                     Mainor Wirth
                     Katie E. Goldberg
                     Ray Lego & Associates
                     Hall Jaffe & Clayton, LLP
                     Eighth District Court Clerk




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