Peremptory Challenges in Consolidated Cases - The Writ

PEREMPTORY CHALLENGES IN CONSOLIDATED CASES

The right to a peremptory challenge found in SCR 48.1 becomes more complicated when two cases get consolidated. Interpreting various subsections of that rule, the Nevada Supreme Court recently denied writ relief from a district court order that struck a peremptory challenge. Reggio v. Eighth Jud. Dist. Ct., 139 Nev. Adv. Op. 4, 525 P.3d 350, 352 (2023). The Court held that: (a) if a party waives their right to a peremptory challenge under SCR 48.1(5), that waiver also applies to any other party on the same side of a later-consolidated action; and (b) when a second case is transferred into a first case as a result of consolidation, there is no “reassignment” within the meaning of SCR 48.1(9) to create a right to a peremptory challenge.

Factual Background

In Reggio, the Plaintiff filed suit against various individuals and entities (“Case 1”). The judge in Case 1 ruled on several matters, including motions for a preliminary injunction, to disqualify the defendants’ lawyer, and for attorney fees. Before those rulings, no party filed a peremptory challenge, which constituted a waiver under SCR 48.1(5).

Over a year later, the Plaintiff filed a second lawsuit (“Case 2”) against two new defendants, neither of whom had been named as defendants in Case 1. The Plaintiff moved to consolidate the two cases pursuant to NRCP 42(a), to which the Case 2 Defendants did not object.

 After Case 2 was consolidated into Case 1, the Case 2 Defendants filed a peremptory challenge. The Plaintiff filed a motion to strike the peremptory challenge, which the district court granted on the basis that the Case 1 Defendants’ waiver applied to the Case 2 Defendants, thereby barring their peremptory challenge.

 The Case 2 Defendants then petitioned for a writ of mandamus or prohibition, requesting that the Supreme Court direct the district court to accept their peremptory challenge.

 The Court’s Analysis

 On review, the Court concluded that the district court correctly determined that, post-consolidation, Case 1 and Case 2 merged into a single action under SCR 48.1 such that the Case 1 Defendants’ waiver barred the Case 2 Defendants from exercising a peremptory challenge. Rejecting the argument that each case maintained its separate character, the Court read SCR 48.1(1) to contemplate that, upon consolidation, the second case becomes part of the first.

 Under SCR 48.1(1), “each side” of a civil case pending in district court “is entitled, as a matter of right, to one change of judge by peremptory challenge.” The Court deemed significant the language that “[e]ach action or proceeding, whether single or consolidated, shall be treated as having only two sides,” and “[i]f one of two or more parties on one side of an action files a peremptory challenge, no other party on that side may file a separate challenge.” Id.

 Reaffirming Panko v. Eighth Jud. Dist. Ct., 111 Nev. 1522, 908 P.2d 706 (1995), which barred plaintiffs in a consolidated action from exercising a second peremptory challenge after they had already exercised that right before consolidation, the Court emphasized that upon consolidation, the second case becomes part of the first. And pointing to Gallen v. Eighth Jud. Dist. Ct., 112 Nev. 209, 911 P.2d 858 (1996), the Court deemed a party’s waiver of their peremptory challenge to be a waiver for parties who are on the same side of the case.

 SCR 48.1(9), the Court concluded, did not resurrect the right. That rule provides a party with an additional peremptory challenge, even if the party previously exercised a peremptory challenge under SCR 48.1(1), “in the event that the action is reassigned for any reason other than the exercise of a peremptory challenge.” SCR 48.1(9). Because the same judge hears the first case before and after consolidation, the Court determined that there is no “reassignment” within the meaning of SCR 48.1(9) to overcome the earlier waiver.