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F I L E D Electronically
02-01-2012:04:46:41 PM Joey Orduna Hastings
Document Code: 2645 Clerk of the Court Zach Coughlin, Esq. Transaction # 2736761
Nevada Bar No: 9473 1422 E. 9th St. #2 Reno, NV 89512 Tele: 775-338-8118 Fax: 949-667-7402 [email protected] Attorney for Appellant
IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA
IN AND FOR THE COUNTY OF WASHOE
ZACH COUGHLIN; ))
Appellant, ))
vs. ) CASE NO: CR11-2064 )
CITY OF RENO ) DEPT. NO: 10 )
Respondents. ))
SUPPLEMENT TO MOTION TO DISMISS
COMES NOW, Appellant Zach Coughlin, by and through his attorney, Zachary Barker
Coughlin, Esq , and offers his SUPPLEMENT TO MOTION TO DISMISS. The undersigned was
instructed by the Second Judicial District Court to submit a cd/dvd for filing as an exhibit to a filing
in this manner.
McCrary v. McCrary, 764 P.2d 522, 1988 OK 122 (Okla. Nov 01, 1988) (NO. 62,814)
judgment is deemed rendered only when its *527 terms are announced to the parties by the judge,
and a judgment in absentia is not “rendered” until notice of its entry is mailed to the parties.
McCullough v. Safeway Stores, Inc., Okl., 626 P.2d 1332 (1981); Rules of Appellate Procedure, 12
O.S.1981, Ch. 15, App. 2, Rule 1.11(b). See: Peralta v. Heights Medical Center, Inc., 485 U.S. 80,
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108 S.Ct. 896, 99 L.Ed.2d 75 (1988). We also note that after the trial court's ruling the intervenors
attempted to obtain extraordinary relief from this Court to prohibit the court from proceeding
further, and we denied relief. There undersigned believes, under penalty of perjury, that Pam
Roberts was not even in the courtroom when Judge HOward brought the undersigned back in chains
to correct that which he has been "remiss" in not doing earlier (ie, making rulings related to the Stay
of the Contempt punishment, and the deadline to file a notice of appeal, or even informing the
underisgned of his right to file an appeal and the requirments). Judge Howard did say some stuff
about how he "is sure you know this" or that about the procedural technicalities that Judge Howard
encounters everyday in his job, yet the undersigned really does not know such things. 10 days to file
a notice of appeal? didn't know that. NRCP 6(a) and (e) don't apply to such matters? Its straight
days? Rendition, not notice of entry? Didn't know none of that. Thats what the Sixth Amendment
is for. Further that rule sucks. You get more protection in a civil matter to appeal a lawsuit over a
box of widgets. WE are talking about my law license here, Judge Howard makes the trial a
lynching. But like 2 million Irish people betwen 1848 and 1850 who starved to death while
surrounded by a sea of fish, Judge Howard makes like the English and tries to arrest one for fishing.
The rule shoudl be changed. But, at the least the RMC shoudl have to follow it, and they didn't.
Further, Roberts may have violated prosecutorial conduct rules related to suborning perjury,
propounding or disclosing exculpatory evidence, etc. ,and arguably she should be required to put
such into evidence or refrain from offering that which contradicts such evidence in her possession or
that which she should be required to find upon a reasonably diligent inquiry. Roberts apparently
didn't discover and footage from this behemoth retailer with cameras everywhere in the store
relevant to any of the accused acts. Nope, its all he said she said here, except the interrogation room
videos, which show the 3 witness Roberts offered lied. In the following cases it was held that an
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attorney's contemptuous conduct cannot be excused or justified by the fact that the attorney believed
his conduct to be necessary to the proper and thorough representation of his client, and that an
attorney may summarily be held to be in contempt notwithstanding such good-faith belief. The court
held that a trial attorney's belief that certain action is necessary to protect the record for appellate
review, and to represent his client's interests, does not excuse his deliberate defiance of the trial
judge's orders in Pennsylvania v International Union of Operating Engineers (1977, CA3 Pa) 552
F2d 498, cert den 434 US 822, 54 L Ed 2d 79, 98 S Ct 67, where the court affirmed two summary
orders of criminal contempt entered against a defense attorney. The contempt holdings had been
based on the attorney's insistence upon stating the reasons for his objections to certain holdings by
the trial court, and his refusal to comply with the court's direction pertaining to the cross-
examination of a witness. In essence, said the court, the attorney asserted that he was free to violate
a direct order of a trial judge if he believed that the protection of his client's interests on appeal
required such action. The court recognized an attorney's right to be conscientious, fearless, and
zealous in representing his client's interests, but held that a direct order of the trial judge fixes the
limits of proper advocacy; the vigor permissible in representing a client's interest does not include
the flouting of a judge's rulings. The necessity of preserving the record for appeal, said the court, is
not a talisman which absolves a lawyer from his usual obligation to comply with a trial judge's direct
orders. The attorney also argued that his disregard of the judge's order was necessary to persuade the
judge to retract his restriction on the attorney's method of cross-examination. An appeal, it was said,
would provide an inadequate means of challenging the restriction since the witness was said to have
been cornered, and since the attorney had achieved a momentum which probably never could be
resumed at a new trial after an appeal. The court held, however, that the attorney could not
permissibly defy the judge's order in the interests of seizing an allegedly irrecoverable opportunity.
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An attorney's good-faith belief in the necessity of his actions, in order properly to represent his
client, was held not to justify contumacious behavior in United States v Offutt (1956, DC Dist Col)
145 F Supp 111, mod on other grounds 101 App DC 97, 247 F2d 88, cert den 355 US 856, 2 L Ed
2d 64, 78 S Ct 85, where, on remand, the court held that the trial court properly had summarily held
an attorney to be in contempt based upon insulting and offensive remarks made to the court. The
attorney asserted that what he said was true, and that he said it in order to make a record for appeal,
and in order to comply with the advice given him by counsel with whom he had consulted.
However, the court held that advice of counsel is not a defense to a charge of contempt, stating that
neither such advice, nor ignorance, nor zeal for his client, could alter the contumacious character of
the attorney's conduct. The courts in the following cases, while not holding that good-faith vigorous
advocacy may preclude the summary punishment of an attorney for contempt, recognized that an
attorney must be given broad latitude in his representation of his client, and that this factor must be
taken into account in determining whether conduct of an attorney amounts to contempt which is
summarily punishable by the court. In United States v Schiffer (1965, CA6 Tenn) 351 F2d 91, cert
den 384 US 1003, 16 L Ed 2d 1017, 86 S Ct 1914, reh den 385 US 890, 17 L Ed 2d 121, 87 S Ct 12,
the court, in upholding the trial court's summary punishment of an attorney for contempt under Rule
42(a) of the Federal Rules of Criminal Procedure, said that in contempt cases against lawyers the
evidence must be carefully scrutinized in order that there be no undue interference with their right
properly to represent their clients; nevertheless, it was held that the punishment imposed was
warranted in view of the deliberate, continuous, and repeated contumacious acts of the attorney,
extending throughout the trial, which were said to have been wholly unwarranted. The court in Re
Dellinger (1972, CA7 Ill) 461 F2d 389, on remand (ND Ill) 357 F Supp 949 and on remand (ND Ill)
370 F Supp 1304, affd (CA7 Ill) 502 F2d 813, cert den 420 US 990, 43 L Ed 2d 671, 95 S Ct 1425,
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stated that attorneys must be given great latitude in the area of vigorous advocacy, and that an
attorney may with impunity take full advantage of the range of conduct that our adversary system
allows. Nevertheless, said the court, the fact that an attorney is representing his client in good faith
does not immunize all conduct undertaken in that cause, although the court reversed the trial court's
summary imposition of punishment upon two defense attorneys for contempt, and remanded the
numerous specifications of contempt for a hearing before a different judge, on the ground that the
trial judge was required to disqualify himself from hearing the contempt proceedings because he had
been the recipient of numerous and unprecedented attacks and insults by the attorneys charged
during the course of the trial. Where the trial judge is arbitrary or affords counsel inadequate
opportunity to ar-gue his position, counsel must be given substantial leeway in pressing his
contention, said the court, for in this manner the court may recognize its mistake and prevent error
from infecting the record. Appellate courts, the court said, must insure that trial judges are not left
free to manipulate the balance between vigorous representation and obstructions of justice so as to
chill effective advocacy when deciding lawyer contempts. It was said that where the conduct
complained of in a summary contempt proceeding is that of an attorney engaged in the
representation of a litigant, the search for the essential elements of the crime of contempt must be
made with full appreciation of the role of trial counsel and his duty of zealous representation of his
client's interests in United States ex rel. Robson v Oliver (1972, CA7 Ill) 470 F2d 10. Furthermore,
said the court, in close cases where the line between vigorous advocacy and actual obstruction defies
strict delineation, doubts should be resolved in favor of vigorous advocacy. The attorney represented
one of a number of defendants in a criminal prosecution in which the defendants were charged with
mutilating draft records. In cross-examining a codefendant, the attorney referred to a photograph of
a hallway, apparently through which the defendants had passed to reach the office in which the
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records were contained, and asked him if he could make out a little sign stating "abandon ye all hope
who enter here." In view of the extreme liberality afforded trial counsel in their representation of
clients, and resolving any doubts in favor of vigorous advocacy, the court concluded that such
conduct did not rise to the level of misbehavior necessary to support
a contempt citation. Commenting that the attorney's question was related to the defendants'
proffered theory of defense and touched on the insane "preceptions" and "delusions" which the
defendants claimed to have held prior to making the raid on the draft board files, the court reversed
the trial court's holding of contempt. But in the following case, it was held that where an attorney in
good faith believes that his duty of advocacy requires his conduct, a summary contempt conviction
based upon such conduct cannot withstand challenge, at least where the attorney believed that the
court did not understand his position. Thus, it was held in Re Dellinger (1973, ND Ill) 370 F Supp
1304, affd (CA7 Ill) 502 F2d 813, cert den 420 US 990, 43 L Ed 2d 671, 95 S Ct 1425, that an
attorney could not properly be summarily punished for contempt in the presence of the trial court
where the attorney sincerely believed that his acts were necessary because the trial court did not
understand the argument which the attorney was asserting. The trial court had sustained a
government objection to testimony by a witness concerning a certain speech given by a person who
was not a witness at the trial. After the court's ruling, the attorney continued to argue that the speech
was relevant, despite repeated directions from the judge to discontinue that argument, in that such
testimony allegedly would have demonstrated the nonviolent intent of the defendants, who were
charged with violation of the Federal Anti-Riot Act. The court, in hearing the contempt question
upon remand from an appeal[33] of the trial court's action in that regard, held that the attorney was
not guilty of the specification, pointing out that the attorney sincerely believed that the judge had not
given him a reasonable opportunity to be heard and that the judge did not fully understand his
- 6SUPPLEMENT TO MOTION TO DISMISS
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position. Judge Howard played football at UNR, and, perhaps, like ther undersigned's father, who
played tailback for Tulane in the SEC on scholarship from Dayton Ohio (third fastest white boy in
Ohio circa 1963), Judge Howard's approach here "hits the A gap a little too hard". The undersigned
is no stranger to getting fouled by the fine competitors Hug High School produces, like Charles,
Claude, Duke, Armon, Trey, Shondor, Tye, and Tommy, though: Reno High Basketball Clippings
1897-2008ish: http://cid22e2ebee5aa79fdf.skydrive.live.com/browse.aspx/.Public
http://www.nfhs.org/recordbook/Records.aspx?CategoryId=1073 Impertinence, attacks upon
competency or impartiality, or the like—Conduct held not to warrant summary punishment Under
the particular circumstances of each of the following cases, it was held that remarks by an attorney,
considered by the trial court to be an attack upon its conduct of the trial and therefore to be
contemptuous, did not warrant that court's summary punishment of the attorney. In Parmelee
Transp. Co. v Keeshin (1961, CA7 Ill) 292 F2d 806, a case arising out of a trial court's summary
punishment of an attorney for contempt, and apparently governed by Rule 42(a) of the Federal Rules
of Criminal Procedure,[43] the court held that the record did not support the trial court's action, even
though the trial court had regarded certain conduct of the attorney to be impertinent and
disrespectful. In one of the specifications of contempt, the trial court cited the fact that, upon that
court's sustaining of objections to certain questions put by the attorney to a witness, the attorney had
remarked "that is crazy," but the court, noting that the remark was not intended to be heard by either
the trial court or jury, and that the record failed to show that the trial judge took any notice of the
remark at the time, held that contumacious conduct had not been proved under the specification. The
court also held that the attorney's remark that the trial court had "a sardonic sense of humor," in
commenting upon certain actions taken by that court, did not constitute contempt for which the trial
court had the authority to impose summary punishment.[44] And see United States ex rel. Robson v
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Oliver (1972, CA7 Ill) 470 F2d 10, where the court stated that an attorney's remarks may have
suggested disrespect for the trial court's rulings, but nevertheless reversed the trial court's summary
imposition of punishment upon the attorney for contempt, under Rule 42(a) of the Federal Rules of
Criminal Procedure, on the ground that such remarks did not cause an actual disruption of the trial
proceedings. In Hampton v Hanrahan (1979, CA7 Ill) 600 F2d 600, revd, in part on other grounds
446 US 754, 64 L Ed 2d 670, 100 S Ct 1987, reh den 448 US 913, 65 L Ed 2d 1176, 101 S Ct 33
and reh den 448 US 913, 65 L Ed 2d 1177, 101 S Ct 33 and on remand (ND Ill) 499 F Supp 640 and
on remand (ND Ill) 522 F Supp 140, the court reversed the trial court's summary holding that an
attorney was in contempt on the ground that the attorney's conduct did not obstruct justice, but the
court also pointed out that the attorney's remark, upon which the contempt holding was based, was
misinterpreted by the trial judge as being intended to reflect improperly upon him, where in fact the
remark was made by the attorney in an attempt to clarify a previous statement.[45] An attorney's
mere statement that the trial court's sustaining of an objection to a question of the attorney precluded
the attorney from cross-examining the witness was held in Phelan v Guam (1968, CA9 Guam) 394
F2d 293, not to warrant the summary imposition of punishment upon the attorney for criminal
contempt, under Rule 42(a) of the Federal Rules of Criminal Procedure (U.S.C.A., FRCrP Rule
42(a)). The court pointed out that the attorney had asked for an exception to the court's ruling,
whereupon the court voluntarily took it upon itself to tell the attorney why the court had sustained
the objection. The attorney then defended the properness of his question. In reversing the trial court's
holding of contempt, the court pointed out that there was nothing in the language used by the
attorney which could be construed as hostile or defiant, or in any manner obstructing the procedure
of the trial. Improper questioning [Cumulative Supplement] In the following cases, it was held that
an attorney's persistent improper questioning of witnesses constitutes ground for the imposition of
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summary punishment for contempt by a federal trial court. An attorney's persistence in cross-
examining witnesses with regard to irrelevant matters, after objections had been sustained with
respect to such questioning, was held in Hallinan v United States (1950, CA9 Cal) 182 F2d 880, cert
den 341 US 952, 95 L Ed 1375, 71 S Ct 1010, reh den 342 US 956, 96 L Ed 710, 72 S Ct 623 and
reh den 343 US 931, 96 L Ed 1341, 72 S Ct 756, to justify the trial court's imposition of summary
punishment for contempt under Rule 42(a) of the Federal Rules of Criminal Procedure. The
questioning upon which the trial court's contempt holding was based related to a prior deportation
proceeding against the defendant, which in no way was related to the present prosecution, to alleged
wiretapping of the defendant's telephones in order to obtain evidence in such prior deportation
proceeding, and to the practices of a prosecution witness with regard to his duties as an attorney for
the Bureau of Immigration and Naturalization. Noting that the attorney's proper course of action, if
the trial court erroneously had held that the matters inquired into were irrelevant, was to appeal
those holdings rather than to continue to attempt to introduce irrelevant evidence, the court upheld
the punishment imposed by the trial court. An attorney's improper questioning of witnesses,
including the use of questions which obviously were intended to besmirch those witnesses, was held
to justify a summary holding of criminal contempt, under Rule 42(a) of the Federal Rules of
Criminal Procedure, in Offutt v United States (1953) 93 App DC 148, 208 F2d 842, revd on other
grounds 348 US 11, 99 L Ed 11, 75 S Ct 11, where the court affirmed such a holding by the trial
court, although reducing the punishment imposed. It was noted that on several occasions the
attorney had asked the witnesses questions that were highly prejudicial to those witnesses and for
which there was no foundation. For example, he had asked the victim of an abortion, charged
against the defendant, "when" she was arrested in the case, whereas in fact she never had been
arrested. It was held that such conduct supported the trial court's summary finding of contempt.
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CUMULATIVE SUPPLEMENT Cases: Attorney's conduct in continuing to cross-examine police
officer after judge had ruled that police log was not admissible was not contempt where attorney
claimed that he was trying to impeach witnesses' memory, not lay foundation for admission of log,
so that his conduct could not be said to be willful. United States v Giovanelli (1990, CA2 NY) 897
F2d 1227. In criminal prosecution, trial court properly meted out judgments of criminal contempt to
defense counsel for misconduct in cross-examining witnesses where trial judge on several occasions
warned counsel that he would not allow them to pursue lines of questioning that he later held to be
contemptuous, on one occasion he allowed them to explain at length why they thought questioning
was proper, and where judge made full and convincing explanation of actions in written orders
issued shortly after adjuging counsel in contempt. United States v Lowery (1984, CA7 Ill) 733 F2d
441, cert den (US) 83 L Ed 2d 264, 105 S Ct 327. Resort to summary disposition of criminal
contempt proceeding under Rule 42(a), Federal Rules of Criminal Procedure, is permissible only
when express requirements of rule are met and when there is compelling reason for immediate
remedy or when time is of essence. Thus, attorney's conviction for criminal contempt
in pursuing line of questioning forbidden by court would be reversed, since record showed that
there was no compelling need for immediate remedy provided by Rule 42(a), Federal Rules of
Criminal Procedure, and that trial court, by its own actions, did not consider time to be of essence;
trial court should have observed "normal" procedure" of notice and hearing, provided by Rule 42(b),
Federal Rules of Criminal Procedure. U.S. v. Moschiano, 695 F.2d 236, 12 Fed. R. Evid. Serv. 124
(7th Cir. 1982). See United States v Turner (1987, CA11 Ala) 812 F2d 1552, § 14. The undersigned
"continuing lines of inquiry" was not sanctionable. Legitimate rationale exists and or was offered
for all inquiry pursued. Further, Judge Howard admitted in the last part of the audio record that he
had (at the time of making his Summary Contempt finding announcement) be mistaken in believeing
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that the November 14, 2011 original trial date did not go off due to the undersigned's fault, which
was not the case. the undersigned showed up for that trial, its was somebody else fault that it did not
go off. Tardiness or failure to appear—Conduct held not to warrant summary punishment
[Cumulative Supplement] The courts in the following cases have held that an attorney's absence or
tardiness did not justify the trial court's summary punishment of the attorney for contempt. An
attorney's failure to appear at a judicial hearing was held not to warrant the summary imposition of
punishment for contempt, under Rule 42(a) of the Federal Rules of Criminal Procedure, in Jessup v
Clark (1973, CA3 Pa) 490 F2d 1068. The attorney had begun a trial in a state court 2 days prior to
the date scheduled for the federal court trial at which he failed to appear. The state court trial
continued through the day of the scheduled beginning of the federal court trial. The attorney stated
that he had continued to conduct the state court trial believing that he was obligated to do so, and
that he had brought the matter to the attention of the state court judge and was instructed by that
judge to remain at the state court trial. The federal court's finding of contempt was reversed, it being
held that the attorney's conduct did not take place in the presence of the court, as required for
summary punishment under Rule 42 (a), and that there had been no need for immediate penal
vindication of the dignity of the court.[50] And see Re Monroe (1976, CA5 Tex) 532 F2d 424,
where it was held that an out-of-state attorney's failure to appear at trial did not amount to contempt
under the circumstances. It is not clear whether the case falls within the scope of this annotation
since, although the trial court recited as authority Rule 42(a) of the Federal Rules of Criminal
Procedure, that court stated that it was not going to charge the attorney with criminal contempt but
only civil contempt, whereas Rule 42(a) applies only to summary criminal contempt proceedings.
Nevertheless, the appellate court stated that, as a matter of law, there was no contempt, the court
pointing out that the attorney was unable to appear before the trial court because of his participation
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in a murder trial in another state which had begun several months previously. Further, the attorney's
failure to file a motion for continuance at least 10 days before the trial date, as required by local
rules, was in part caused by a delay in the mails and a delay in his ability to obtain replacement local
counsel after his local counsel had withdrawn from the case. His motion for continuance had in fact
arrived at the trial court 1 week before the trial date. Noting that it was not established that the
attorney had actual knowledge of the 10-day rule, or that local counsel had advised him of it, the
court concluded that the attorney's conduct was at most negligent, stating that such conduct did not
contain the elements of intentional or willful action or flagrant disregard of the court's rules or orders
necessary for contempt. Tardiness or failure to appear at a court hearing was held not to justify the
imposition of summary punishment upon attorneys for contempt, under Rule 42(a) of the Federal
Rules of Criminal Procedure, at least where such failure or tardiness is unintentional, in United
States v Delahanty (1973, CA6 Ky) 488 F2d 396. One attorney was approximately 10 minutes late
for a pretrial conference because of his unfamiliarity with the city, traffic congestion, and difficulty
in finding a parking space. A second attorney, who was cocounsel with the first attorney,
intentionally did not appear, because he had other matters to attend to in a different city, but he had
requested the first attorney to represent both of them at the hearing. In reversing the summary
punishment imposed by the trial court, the court held that the conduct complained of, the absence of
the attorneys from the courtroom, did not occur within the actual presence of the court as required
under Rule 42(a), and that the essential element of criminal intent was absent. [51] And see Re Allis
(1976, CA9 Cal) 531 F2d 1391, cert den 429 US 900, 50 L Ed 2d 185, 97 S Ct 267, supra § 11,
where the court, in holding that an attorney's tardiness is not summarily punishable by a court, under
Rule 42(a) of the Federal Rules Criminal Procedure, since it is not conduct committed in the actual
presence of the court, commented that tardiness alone is not contempt, since the reasons for such
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tardiness are important in determining the existence of the requisite wrongful intent on the part of
the attorney. The notice of appeal does and should apply to the Summary Contempt ORder as well,
that order was ridiculous and shameful.33 ALR 3rd 448, Appealability of Contempt Adjudication or
Conviction. Right to counsel The need for appointed counsel in a civil contempt proceeding for
nonpayment of child support turns on an initial determination of indigency, for unless a party is truly
indigent, the State need not provide representation; if an indigent party faces the threat of possible
incarceration for the nonpayment of child support, the court should then seek to balance the private
liberty interest at stake, the government's interest, and the risk of an erroneous finding, taking into
account the complexity of the legal and factual issues and the party's ability to effectively
communicate on his own behalf. Rodriguez v. Eighth Judicial Dist. Court ex rel. County of Clark,
2004, 102 P.3d 41, 120 Nev. 798, certiorari denied 125 S.Ct. 2905, 545 U.S. 1116, 162 L.Ed.2d 298.
Child Support 491 In determining whether an indigent party in a contempt proceeding based on
nonpayment of child support has a due process right to appointment of counsel, after balancing each
of the due process elements against the other, they as a whole are measured against the presumption
that a right to appointed counsel arises only when the indigent party may lose his personal freedom.
Rodriguez v. Eighth Judicial Dist. Court ex rel. County of Clark, 2004, 102 P.3d 41, 120 Nev. 798,
certiorari denied 125 S.Ct. 2905, 545 U.S. 1116, 162 L.Ed.2d 298. Constitutional Law 4494 N. R. S.
22.010, NV ST 22.010 ABout 10 minutes into the "Trial" Judge Howard Found the undersigned in
contempt, whereupon the sixth amendment righ to counsel was invoked, which Judge Howard curtly
dismissed. the Summary Contempt ORder is void, avaingst public policy, prevented a fair trial,
demonstrated evident impartialit, and severly curtailed the undersigned faith in the court and belief
that any evidence he offered or testimony would be given fair treatment, but rather, the undersigned
was givne the message that he would be clubbed with anything he said, as such, testimony and
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evidence (that which was not being withheld illegally by Richard HIll, Esq. pursuant to an unlawful
rent distraint) was not given a legitimate opporutnity to be admitted or offered.For purposes of
statute governing summary contempt proceedings for direct contempt committed in judge's
presence, which requires court to “enter an order,” while a trial court's oral contempt order is
immediately enforceable, a written order including the statute's required elements must be promptly
entered. Houston v. Eighth Judicial Dist. Court ex rel. County of Clark, 2006, 135 P.3d 1269, 122
Nev. 544. Contempt 52 6. ---- Sufficiency Appropriate remedy for attorney who had been found in
direct contempt of court in divorce proceeding in which he represented wife, where contempt order
had been found to be insufficient by Supreme Court, in that it did not contain a sufficient statement
concerning what conduct was held to be contemptuous, was to permit trial court to enter amended
order, given that Supreme Court's opinion addressed issue of first impression and announced
standard for contents of written contempt order. Houston v. Eighth Judicial Dist. Court ex rel.
County of Clark, 2006, 135 P.3d 1269, 122 Nev. 544. Contempt 66(8) A written summary contempt
order, issued pursuant to statute governing summary contempt proceedings for direct contempt
committed in judge's presence, must set forth specific facts concerning the conduct found to be
contemptuous. Houston v. Eighth Judicial Dist. Court ex rel. County of Clark, 2006, 135 P.3d 1269,
122 Nev. 544. Contempt 52 Written summary contempt order finding attorney for wife in divorce
proceeding in direct contempt of court failed to indicate what particular comments by attorney were
held to be contemptuous, and, thus, order was insufficient, under statute governing summary
contempt proceedings for direct contempt committed in judge's presence. Houston v. Eighth Judicial
Dist. Court ex rel. County of Clark, 2006, 135 P.3d 1269, 122 Nev. 544 Judge Howard's Summary
Contempt ORder is laughably conclusory and generic. It must be set aside on that an other basis.
Further, the record on appeal demonstrates that the Contempt ORder does
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not seem to have been served, their is no Proof of Service as far as I can tell so far....to either the
undersigned or the City Attorney. AS such, a Notice of Entry is required and the District Court may
not even have jurisdiction yet on this A "pleading" is not a "motion", but... RULE 15. AMENDED
AND SUPPLEMENTAL PLEADINGS Text (a) Amendments. A party may amend the party’s
pleading once as a matter of course at any time before a responsive pleading is served or, if the
pleading is one to which no responsive pleading is permitted and the action has not been placed
upon the trial calendar, the party may so amend it at any time within 20 days after it is served.
Otherwise a party may amend the party’s pleading only by leave of court or by written consent of
the adverse party; and leave shall be freely given when justice so requires. A party shall plead in
response to an amended pleading within the time remaining for response to the original pleading or
within 10 days after service of the amended pleading, whichever period may be the longer, unless
the court otherwise orders. [As amended; effective January 1, 2005.] (b) Amendments to Conform to
the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the
parties, they shall be treated in all respects as if they had been raised in the pleadings. Such
amendment of the pleadings as may be necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party at any time, even after judgment; but
failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at
the trial on the ground that it is not within the issues made by the pleadings, the court may allow the
pleadings to be amended and shall do so freely when the presentation of the merits of the action will
be subserved thereby and the objecting party fails to satisfy the court that the admission of such
evidence would prejudice the party in maintaining the party’s action or defense upon the merits. The
court may grant a continuance to enable the objecting party to meet such evidence. [As amended;
effective January 1, 2005.] (c) Relation Back of Amendments. Whenever the claim or defense
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asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, the amendment relates back to the date of the
original pleading. (d) Supplemental Pleadings. Upon motion of a party the court may, upon
reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading
setting forth transactions or occurrences or events which have happened since the date of the
pleading sought to be supplemented. Permission may be granted even though the original pleading is
defective in its statement of a claim for relief or defense. If the court deems it advisable that the
adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.
Nevada NRCP 60(b)(3) allows a party to move for relief from a judgment which is void, and while
motions made under NRCP 60(b) are generally required to "be made within a reasonable time" and
to be adjudicated according to the district court's discretion, this is not true in the case of a void
judgment. Necessarily a motion under this part of the rule differs markedly from motions under the
other clauses of Rule 60(b). There is no question of discretion on the part of the court when a motion
is made under [this portion of the Rule]. Nor is there any requirement, as there usually is when
default judgments are attacked under Rule 60(b), that the moving party show that he has a
meritorious defense. Either a judgment is void or it is valid. Determining which it is may well
present a difficult question, but when that question is resolved, the court must act accordingly. By
the same token, there is no time limit on an attack on a judgment as void. . . . [E]ven the requirement
that the motion be made within a "reasonable time," which seems literally to apply . . . cannot be
enforced with regard to this class of motion. Understandably, the parties were not attuned to our
recent Jacobs decision during oral argument. Accordingly, it was determined at that time to allow
the parties to supplement their briefs in order to determine with certainty whether, in fact, no default
had been entered against Garcia prior to the entry of the default judgment. Garcia's supplemental
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material supplied additional evidence that no default was ever entered, including an affidavit by
Clark County Court Clerk Loretta Bowman attesting that no such filing exists in the case file.
Respondents also acknowledged that no default was ever entered but argue in their supplemental
brief that Jacobs should not be applied retroactively, noting that the default judgment at issue herein
was entered prior to our Jacobs decision. This argument is without merit. The court in Jacobs
determined, consistent with law from other jurisdictions, that the default judgment entered in Jacobs
was void. We accordingly ordered the district court to grant relief from the void judgment, despite
the fact that the ruling in Jacobs was, of course, preceded by entry of the default judgment against
Jacobs. If this case, rather than Jacobs, were before us as a case of first impression, we would have
reached the same conclusion. A void judgment is void for all purposes and may not be given life
under a theory based upon lack of legal precedent. Garcia v. Ideal Supply Co., 110 Nev. 493, 874
P.2d 752 (Nev. 5/19/1994). The defective service rendered the district court's personal jurisdiction
over Gassett invalid and the judgment against her void. For a judgment to be void, there must be a
defect in the court's authority to enter judgment through either lack of personal jurisdiction or
jurisdiction over subject matter in the suit. Puphal v. Puphal, 669 P.2d 191 (Idaho 1983). In Price v.
Dunn, 106 Nev. 100, 787 P.2d 785 (1990). We now hold that the filing of a motion to set aside a
void judgment previously entered against the movant shall not constitute a general appearance. See,
e.g., Dobson v. Dobson, 108 Nev. 346, 349, 830 P.2d 1336, 1338 (1992). Nonetheless, since the
order was void, a judgment based thereon would likewise be void.. Nelson v. Sierra Constr. Corp.,
77 Nev. 334, 364 P.2d 402. Under NRCP 60(b) a motion to set aside a void judgment is not
restricted to the six months' period specified in the rule. NRCP 54(a) provides that the word
"judgment" as used in these rules includes any order from which an appeal lies. Therefore there is no
merit to appellants' contention that the motion to vacate the judgment was not timely made. Foster v.
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Lewis, 78 Nev. 330, 372 P.2d 679 (Nev. 6/19/1962). A void judgment is subject to collateral attack;
a judgment is void if the issuing court lacked personal jurisdiction or subject matter jurisdiction; See
49 C.J.S. Judgments § 401, at 792 (1947 & supp. 1991); 46 Am.Jur.2d Judgments §§ 621-56 (1969
& supp. 1991). New Mexico If a court's decision is plainly contrary to a statute or the constitution,
the court will be held to have acted without power or jurisdiction, making the judgment void for
Rule 1-060(B) purposes, even if the court had personal and subject-matter jurisdiction. See, e.g.,
United States v. Indoor Cultivation Equip., 55 F.3d 1311, 1317 (7th Cir. 1995) (forfeiture statute
required that complaint be filed within sixty days of certain action; failure to meet that deadline
meant that court had no power to order forfeiture, and its order was void); Watts v. Pinckney, 752
F.2d 406, 409 (9th Cir. 1985) (after judgment awarded, defendant paid, then found out this was
action in admiralty that should have been brought solely against United States; court held that
judgment was void); Compton v. Alton S.S. Co., 608 F.2d 96, 104 (4th Cir. 1979) (judgment by
default awarded penalty wages under inapplicable statute; court held that judgment was void, not
just erroneous); see also V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224-25 (10th Cir. 1979) (noting
that judgment can be void if court's action involves a "plain usurpation of power"); Crosby v.
Bradstreet Co., 312 F.2d 483, 485 (2d Cir. 1963) (court had no power to impose unconstitutional
prior restraint on publication of true statements, so thirty-year-old consent judgment was void). In
APCA, APCA as a defendant filed a cross-claim against defendant Martinez, but it was void
because not served on Martinez. On February 28, 1968, entry of judgment was made on APCA's
cross-claim against Martinez. Four years later, Martinez' heirs moved to set aside the APCA
judgment under Rule 60(b) and in December, 1972, the 1968 judgment was set aside because it was
void. No time limit applies where a void judgment is entered. Albuquerque Prod. Credit Ass'n v.
Martinez, 91 N.M. 317, 573 P.2d 672 (1978). Since the 1973 judgment was void, the 1976 district
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court was required to set it aside pursuant to N.M.R. Civ.P. 60(b)(4) [§ 21-1-1(60)(b)(4)], N.M.S.A.
1953 (Repl. Vol.1970). There is no discretion on the part of a district court to set aside a void
judgment. Such a judgment may be attacked at any time in a direct or collateral action. Chavez v.
County of Valencia, 86 N.M. 205, 521 P.2d 1154 (1974). At this point we call attention also to
language found in the opinion in Moore v. Packer, 174 N.C. 665, 94 S.E. 449, 450, noticed by us
and quoted with approval in the Ealy case. It was there said: "A void judgment is without life or
force, and the court will quash it on motion, or ex mero motu. Indeed, when it appears to be void, it
may and will be ignored everywhere, and treated as a mere nullity." All the appellees rely upon this
general rule in answer to appellants' challenge that they never took an appeal from the order and
judgment setting
aside the June, 1937 default judgment and decree. The court being without jurisdiction to set aside
its earlier judgment and decree, quieting title, appellees might ignore it as a void order or judgment,
they say, and for this reason were not required to take an appeal therefrom, and may question the
jurisdiction of the court and the validity of the order or judgment at any time. Board of County
Commissioners of Quay County v. Wasson, 37 N.M. 503, 24 P.2d 1098; Fullen v. Fullen, 21 N.M.
212, 153 P. 294; Baca v. Perea, 25 N.M. 442, 184 P. 482; De Baca v. Wilcox, 11 N.M. 346, 68 P.
922. In the case of Upjohn Co. v. Board of Commissioners of Socorro County (Stephenson,
Intervener) 25 N.M. 526, 185 P. 279, 280, we held a judgment against a garnishee void where
service of the writ of garnishment was made by a person other than the sheriff, where we said: "The
proceeding is wholly statutory, and compliance with the statute is essential to confer upon the court
jurisdiction of the res." And held that the court was vested with power to set aside and vacate such
void judgment at any time. A void judgment is one that has merely semblance, without some
essential element or elements, as where the court purporting to render it has not jurisdiction. An
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irregular judgment is one entered contrary to the course of the court, contrary to the method of
procedure and practice under it allowed by law in some material respect, as if the court gave
judgment without the intervention of a jury in a case where the party complaining was entitled to a
jury trial, and did not waive his right to the same. Vass v. Building Association, 91 N. C. 55; McKee
v. Angel, 90 N. C. 60. An erroneous judgment is one rendered contrary to law. The latter cannot be
attacked collaterally at all, but it must remain and have effect until by appeal to a court of errors it
shall be reversed or modified. An irregular judgment may originally and generally be set aside by a
motion for the purpose in the action. This is so because in such case a judgment was entered
contrary to the course of the court by inadvertence, mistake, or the like. A void judgment is without
life or force, and the court will quash it on motion, or ex mero motu. Indeed, when it appears to be
void it may and will be ignored everywhere, and treated as a mere nullity." Moore v. Packer, 174 N.
C. 665, 94 S. E. 449, at page 450. [T]he applicable ground [for relief] would be Rule 60(B)(4), void
judgment, under which the failure to move to vacate within one year after the entry of judgment
would not be controlling. Classen v. Classen, 119 N.M. 582, 893 P.2d 478, 34 N.M. St. B. Bull. 24
(N.M.App. 02/27/1995). The appellants contend that the court lost jurisdiction over the action thirty
days after the judgment was vacated. They argue that the appellees never appealed the order which
vacated the judgment, consequently, thirty days later the court was divested of authority to entertain
any motion concerning these parties and the same cause of action, and that for these reasons the
motion to amend the cross-claim was improperly granted. This point is not well-taken. The pertinent
portions of Rule 60(b) state: On motion and upon such terms as are just, the court may relieve a
party or his legal representative from a final judgment, order, or proceeding for the following
reasons:... (4) the judgment is void.... An order granting a motion for relief under 60(b) must be
tested by the usual principles of finality; and when so tested will occasionally be final, although
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probably in most cases it will not be. Thus where the court, in addition to determining that there is a
valid ground for relief under 60(b), at the same time makes a re-determination of the merits, its order
is final since it leaves nothing more to be adjudged.... Since Martinez never received notice of the
cross-claim, the stipulated judgment was void as to him. Therefore, it was completely proper for his
heirs to move to set aside that void judgment under Rule 60(b)(4). When the original judgment was
vacated as to Martinez, the status of the case was as though no judgment had been entered as to him.
Wuenschel v. New Mexico Broadcasting Corp., 84 N.M. 109, 500 P.2d 194 (1972); Benally v.
Pigman, 78 N.M. 189, 429 P.2d 648 (1967); Arias v. Springer, 42 N.M. 350, 78 P.2d 153 (1938).
Rule 60(b) of the Rules of Civil Procedure abolishes the common law writ of coram nobis but
authorizes relief from a "final judgment, order, or proceeding" on six specified grounds. Ground (2)
involves newly discovered evidence; ground (4) involves a void judgment; and ground (6) involves
"any other reason justifying relief". Although Rule 60(b) is a civil rule, State v. Romero, supra, held
that where a prisoner had served his sentence and had been released, this civil rule could be utilized
to seek relief from a criminal judgment claimed to be void. This result was based on an intent to
retain all substantive rights protected by the old writ of coram nobis. See State v. Raburn, supra;
Roessler v. State, 79 N.M. 787, 450 P.2d 196 (Ct. App. 1969), cert. denied, 395 U.S. 967, 89 S. Ct.
2115, 23 L. Ed. 2d 754 (1969). Continuing jurisdiction over final judgment. The judgment entered
on April 25 was a final judgment. The City argues that Brooks could obtain relief from the writ
issued on May 1 only under SCRA 1986, 3-704(B) (Repl. Pamp. 1990), which limits relief to (1)
mistake, inadvertence, surprise or excusable neglect; (2) fraud, misrepresentation or other
misconduct; (3) a void judgment; or (4) satisfaction, release or discharge of the judgment or the
reversal or vacation of a prior judgment upon which it is based. However, NMSA 1978, Section 34-
8A- 6(E) (Repl. Pamp. 1990), states that "All judgments rendered in civil actions in the metropolitan
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court shall be subject to the same provisions of law as those rendered in district court." Under
NMSA 1978, Section 39-1-1 (Repl. Pamp. 1991), final judgments and decrees entered by the district
courts remain under the control of such courts for thirty days after entry thereof. Therefore, the
metropolitan court retained control of its judgment and had the right to set it aside after granting a
rehearing on the matter. See, e.g., Nichols v. Nichols, 98 N.M. 322, 326, 648 P.2d 780, 784 (1982)
(district court is authorized under Section 39-1-1 to change, modify, correct or vacate a judgment on
its own motion) (citing Desjardin v. Albuquerque Nat'l Bank, 93 N.M. 89, 596 P.2d 858 (1979)).
The fact that the void judgment has been affirmed on review in an appellate court or an order or
judgment renewing or reviving it entered adds nothing to its validity. Such a judgment has been
characterized as a dead limb upon the judicial tree, which may be chopped off at any time, capable
of bearing no fruit to plaintiff but constituting a constant menace to defendant." WALLS v.
ERUPCION MIN. CO. 6 P.2d 1021 November 3, 1931. Judge Howards Judgment and Summary
Contempt ORder are both void for all the reasons listed above in view of all the pleadings and
papers and attachments on file in this matter, especially when one adds in all the filing and materials
that should be in the Record on Appeal, but strangely are not. correcting clerical errors in judgments:
Nevada Alamo Irr. Co. v. U.S., 81 Nev. 390, 404 P.2d 5 (1965) — Supp Channel 13 of Las Vegas,
Inc. v. Ettlinger, 94 Nev. 578, 583 P.2d 1085 (1978) — Supp Finley v. Finley, 65 Nev. 113, 189
P.2d 334 (1948) — Supp Gottwals v. Rencher, 60 Nev. 35, 98 P.2d 481, 126 A.L.R. 1262 (1940) —
Supp Iveson v. Second Judicial Dist. Court, 66 Nev. 145, 206 P.2d 755 (1949) — Supp Kirkpatrick
v. Temme, 98 Nev. 523, 654 P.2d 1011 (1982) — Supp Koester v. Administrator of Estate of
Koester, 101 Nev. 68, 693 P.2d 569 (1985) — Supp McKissick v. McKissick, 93 Nev. 139, 560
P.2d 1366 (1977) — Supp Opaco Lumber & Realty Co. v. Phipps, 75 Nev. 312, 340 P.2d 95 (1959)
— Supp Silva v. Second Judicial Dist. Court in and for Washoe County, 57 Nev. 468, 66 P.2d 422
- 22SUPPLEMENT TO MOTION TO DISMISS
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(1937) — II, IX, XII, XIII, XV, XVIi, XIX Smith v. Epperson, 72 Nev. 66, 294 P.2d 362 (1956) —
Supp
CONCLUSION
Regardless, the "Judgment" or "Order" here was not appropriately served on the undersigned
on November 30th, 2011. Further, the undersigned made many, many calls and written attempts
and trips to the RMC to obtain a copy of the Contempt Order, the Guilty Judgment, and the audio
recording of the Trial and all were either not granted, not provided, or provided in such a delayed
manner as to create an unduly prejudicial situation adversely effecting the undersigneds rights
sufficient to impermissibly compromise fundamentals notions of fairness and due process.
Further, the Order is "rendered" when Judge Howard says it is "rendered", and Judge Howard
clearly indicated, on the record, as demonstrated in the audio record, which will be available to the
District Court ultimately, the 10 day deadline for filing a Notice of Appeal would not begin running
until after the 3 day Summary Contempt Order's three day jail sentence concluded. Damn, this
stuff is complicated. Sure it nice to see the government goign hard as a mother to protect lil ol'
Wal-Mart whom is rumored to be the subject of a documentary about how they have a intricate
system of weasling out of their "Return Policy" and retaliating against those who call them on it.
AFFIRMATION Pursuant to NRS 239B.030
Also, this document does not contain any social security number or other inappropriate material
pursuant to NRS 239B.030.
Dated this February 1, 2012
/s/ Zach Coughlin_________________ Zach Coughlin, Esq.
Pro Se Attorney Appellant
- 23SUPPLEMENT TO MOTION TO DISMISS
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-----------------------------
PROOF OF SERVICE
I, Zach Coughlin, declare:
On february 1, 2012, I, Mr. Zach Coughlin served the foregoing document by faxing and delivering and serving upon registered efilers and depositing a true and correct copy in the US Mail addressed to:
PAM ROBERTS, ESQ JOHN KADLIC, ESQ Reno City Attorney's Office - Criminal Division P.O. Box 1900 Reno , NV 89505
Phone Number: 7753342050 Fax number: 7753342420 Attorney for Respondent, City of Reno
Zach Coughlin AGENT OF APPELLANT
- 24SUPPLEMENT TO MOTION TO DISMISS
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Document Code: 2645 Zach Coughlin, Esq. FILED Nevada Bar No: 9473
• 2UI2 FEB - I PM 5: 0, I1422 E. 9th St. #2 Reno. NY 89512 Tele: 775-338-8118 Fax: 949-667-7402 Zaclle ough I i [email protected] Attomey for Appellant
IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEY ADA
IN AND FOR THE COUNTY OF WASHOE
ZACH COUGHLIN; ) )
Appellant. ) )
vs. ) CASE NO: CRII-2064 )
CITY OF RENO ) DEPT. NO: 10 )
Respondents. ) )
SUPPLEMENT TO MOTION TO DISMISS
COMES NOW, Appellant Zach Coughlin, by and through his attomey, Zachary Barker
Coughlin. Esq. and offers his_SUPPLEMENT TO MOTION TO DISMISS. The undersigned was
instrucled by the Second Judicial District Court to submit a cd/dvd for filing as an exhibit to a filing
in this manner.
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SUPPLEMENT TO MOTION TO DISMISS 00605
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AFFIRMATION Pursuant to NRS 239B.030
Also. this document does not contain any social security number or other inappropriate material
pursuant to NRS 2398.030.
Dated this February 1.2012 ,
---'"'
/s/ Zach Cou in//" Zach Cou m, J5iSq.
~rp Se Attorney Appellant .J
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PROOF OF SERVICE
I, Zach Coughlin. declare:
On february 1. 2012. I, Mr. Zach Coughlin served the foregoing document by faxing and delivering and serving upon registered eiilers and depositing a true and correct copy in the US Mail addressed to:
PAM ROBERTS, ESQ JOHN KADLIC, ESQ Reno Clty Attorney's Offlce - Cnmmal 01vls10n
P.O. Box 1900 Reno. NV 89505
Phone Number. 7753342050
fax number: 7753342420
Attorney for Respondent, City of Reno
/--------:J d ) ___J/~-- C --- --
-------- -::: - "'-.- - -----~ Zach C ghlm AGE OF APPELLANT
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SUPPLEMENT TO MOTION TO DISMISS 00607
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NDEX TO EXHIBITS:
. EXHIBIT 1 cd OF AUDIO OF II 30 11 TRIAL IN RMC 11 CR 22176 FROM RMC; ONE cd
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SUPPLEMENT TO MOTION TO DISMISS 00608
****** IMPORTANT NOTICE - READ THIS INFORMATION *****PROOF OF SERVICE OF ELECTRONIC FILING
A filing has been submitted to the court RE: CR11-2064
Judge: STEVEN ELLIOTT
Official File Stamp: 02-01-2012:16:46:41
Clerk Accepted: 02-02-2012:08:31:50
Court: Second Judicial District Court - State of Nevada
Case Title: ZACH COUGHLIN VS. CITY OF RENO (D10)
Document(s) Submitted: Supplemental ...
Filed By: ZACHARY COUGHLIN, ESQ.
You may review this filing by clicking on the following link to take you to your cases.
This notice was automatically generated by the courts auto-notification system.
If service is not required for this document (e.g., Minutes), please disregard the below language.
The following people were served electronically:
ZACHARY COUGHLIN, ESQ. for ZACH COUGHLIN
PAMELA ROBERTS, ESQ. for CITY OF RENO
The following people have not been served electronically and must be served by traditional means (see Nevada electronic filing rules):
00609
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