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Question about Default Judgment

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mo42186

Member
What is the name of your state (only U.S. law)? Las Vegas, Nevada

This is small claims action and there's 3 defendants:

2 defendants never responded and I'm in the stages of filing the last form for order of default judgment against them. The other defendant filed a motion to dismiss and there will be a hearing in 5 weeks.

If I get a default judgment against the two defendants for the full amount of the claim (which happens to be the limit of small claims for my jurisdiction, $7,500), do I lose the ability to pursue the 3rd defendant in any court?

Ideally I'd like to get the full claim from these 2 defendants, and then withdraw the case against the 3rd one who filed a motion to dismiss, and refile against him in District Court. Can I do this if I get $7,500 from the other 2 Ds?
 


Zigner

Senior Member, Non-Attorney
No - you're not going to get $22,500.00 out of this.

If you get the default judgement against 2 of the 3 defendants, then you won't be able to sue the 3rd for the same thing. And, you're not getting $7,500 from each defendant. You're simply getting the $7,500.00 from one or the other (or a portion from both, your choice).
 

mo42186

Member
Hi - thanks for your response.

Sorry, I did not phrase my words clearly - I meant in aggregate get $7500 from the 2 defendants (they are broker-salesperson). I did not have the expectation of getting $22,500. The main question is, can I withdraw my claim from the third party and refile in district court even if I get awarded default judgment of $7500 from the other 2 defendants?

The reason I ask this question is because I lowered my damages to the max limit of small claims - The damages are potentially more, but the claim was somewhat tenuous and I didn't want to risk paying the adverse party's attorneys fees if I lost (can't get attorney's fees in my small claims jurisdiction). The third party I want to refile against is a big hitter that could dump a lot of fees on me if I lost. I've recently gotten evidence that my claim is stronger than I thought when I initially filed.I Just don't want to lose the ability to bring the claim against the third party
 

tranquility

Senior Member
It would depend on the facts.

RULE 19.  JOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION

(a) Persons to Be Joined if Feasible.  A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff.

[As amended; effective January 1, 2005.]



(b) Determination by Court Whenever Joinder Not Feasible.  If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

[As amended; effective January 1, 2005.]



(c) Pleading Reasons for Nonjoinder.  A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a)(1)-(2) hereof who are not joined, and the reasons why they are not joined.

[As amended; effective September 27, 1971.]



(d) Exception of Class Actions.  This rule is subject to the provisions of Rule 23.

[Added; effective September 27, 1971.]
 

latigo

Senior Member
What is the name of your state (only U.S. law)? Las Vegas, Nevada

This is small claims action and there's 3 defendants:

2 defendants never responded and I'm in the stages of filing the last form for order of default judgment against them. The other defendant filed a motion to dismiss and there will be a hearing in 5 weeks.

If I get a default judgment against the two defendants for the full amount of the claim (which happens to be the limit of small claims for my jurisdiction, $7,500), do I lose the ability to pursue the 3rd defendant in any court?

Ideally I'd like to get the full claim from these 2 defendants, and then withdraw the case against the 3rd one who filed a motion to dismiss, and refile against him in District Court. Can I do this if I get $7,500 from the other 2 Ds?
Hi - thanks for your response.

Sorry, I did not phrase my words clearly - I meant in aggregate get $7500 from the 2 defendants (they are broker-salesperson). I did not have the expectation of getting $22,500. The main question is, can I withdraw my claim from the third party and refile in district court even if I get awarded default judgment of $7500 from the other 2 defendants?

The reason I ask this question is because I lowered my damages to the max limit of small claims - The damages are potentially more, but the claim was somewhat tenuous and I didn't want to risk paying the adverse party's attorneys fees if I lost (can't get attorney's fees in my small claims jurisdiction). The third party I want to refile against is a big hitter that could dump a lot of fees on me if I lost. I've recently gotten evidence that my claim is stronger than I thought when I initially filed.I Just don't want to lose the ability to bring the claim against the third party
You seem to be taking it for granted that as plaintiff you can - at will -dismiss your action as to “deep pockets”. Which, because he has made an appearance you cannot do without the court ordering it. Moreover, the defendant is going to insist that it be done with prejudice.

What you need to do is to concentrate on being prepared to resist the pending motion ln hopes that the court won’t grant it and dismiss with prejudice.

Your rationale in dismissing against NO. 3 and re-filing seems inconsistent. That is, you selected the small claims division because of NRS 73.040 (no attorney fees to be awarded) and now you are contemplating dismissing/re-filing against “deep pockets” in a forum where the court can award attorney fees to the prevailing party (NRS 18.010 (2). Makes no sense.

What makes sense is to stay put!
 
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