Quiroz v. Jeffrey A. Dickerson

Filing 73

ORDER denying 70 Motion writ of attachment. See order for specifics. Signed by Judge Larry R. Hicks on 6/28/11. (Copies have been distributed pursuant to the NEF - EM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MANUEL QUIROZ, JR.,

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Plaintiff,

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v.

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JEFFREY A. DICKERSON.,

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Defendant.

3:10-cv-0657-LRH-RAM
ORDER

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Before the court is plaintiff Manuel Quiroz, Jr.’s (“Quiroz”) renewed motion for issuance of

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a writ of attachment. Doc. #70.1 Defendant Jeffrey A. Dickerson (“Dickerson”) filed an opposition

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(Doc. #71) to which Quiroz replied (Doc. #72).

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I.

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Facts and Background
This action arises out of defendant Jeffrey A. Dickerson’s (“Dickerson”) representation of

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Quiroz’s wife, Vivian Simon, and her relatives Donald and Ed Simon, in a separate action

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prosecuted in the District of Nevada (“the Simons action”).2 As part of the underlying litigation,

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Quiroz alleges that he advanced a large sum of money for litigation expenses which was supposed

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to be repaid from any settlement or damages award to the named plaintiffs. The Simons action

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Refers to the court’s docket number.

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See Simon v. United States Welding Co., 3:04-cv-0472-ECR.

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settled3 and Dickerson disbursed the settlement proceeds. However, Dickerson did not use any of

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the settlement proceeds to pay Quiroz.

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On June 1, 2010, Quiroz filed a complaint against Dickerson alleging three causes of action:

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(1) breach of contract; (2) breach of the covenant of good faith and fair dealing; and (3) breach of

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fiduciary duty. Doc. #1. Thereafter, Quiroz filed the present motion for issuance of a writ of

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attachment. Doc. #70.

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II.

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Discussion
Nevada Revised Statutes Section 31.010(1) provides that a plaintiff may “apply to the court

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for an order directing the clerk to issue a writ of attachment and thereby cause the property of the

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defendant to be attached as security for the satisfaction of any judgment that may be recovered.”

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NRS § 31.010(1). The court may order the clerk to issue a writ of attachment after notice under any

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of the following circumstances: (1) in an action “upon a judgment or upon a contract, express or

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implied, for the direct payment of money”; (2) in any case where “the attachment of the property of

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the defendant is allowed pursuant to this chapter or other provision of law”; or (3) in any case

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where the court “finds that extraordinary circumstances exists which will make it improbable for

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the plaintiff to reach the property of the defendant by execution after the judgment has been

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entered.” NRS § 31.013. Here, Quiroz argues that he is entitled to attachment under the first

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circumstance: that there is an express or implied contract for the direct payment of money.

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In assessing Quiroz’s motion, the court considers the allegations in the complaint and the

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affidavit filed in support of the motion to determine the “probable validity of the plaintiff’s

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underlying claim against the defendant.” NRS § 31.026. “If the court determines such claim is

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probably valid [the court] shall order the clerk to issue a writ of attachment.” Id.

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Here, Quiroz alleges three claims against Dickerson: (1) breach of contract; (2) breach of

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A complete copy of the settlement agreement is attached as Exhibit 3 to Quiroz’s reply to his motion
for writ of attachment. In the settlement agreement, $300,000 was set aside to cover litigation expenses incurred
by the plaintiffs in prosecuting the action. See Doc. #72, Exhibit 3.

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the covenants of good faith and fair dealing; and (3) breach of fiduciary duty. Doc. #1. The court

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has reviewed the documents and pleadings on file in this matter and finds that Quiroz has not

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demonstrated the “probable validity” of his underlying claims. See NRS § 31.026. First, Quiroz

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acknowledges that there is no express contract between him and Dickerson for the repayment of

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litigation expenses. Second, there is no mention of Quiroz or monies advanced by Quiroz within

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the settlement agreement. Although Quiroz argues that the named plaintiffs in the Simons action

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intended for him to be repaid from the settlement agreement, he does not provide any evidence or

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affidavits from the named plaintiffs in that action establishing such an intent to cover his litigation

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expenses form the settlement agreement. Thus, there is insufficient evidence before the court to

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establish that Quiroz was an intended third-party beneficiary of the settlement agreement.
Further, the court is informed that Vivian Simon, one of the named plaintiffs in the Simons

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action, has initiated a separate fee dispute action against Dickerson before the Nevada State Bar’s

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fee arbitration division. This action may have ramifications to the present action. However, there is

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no information before the court concerning the underlying basis for the fee dispute or its progress in

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arbitration. Therefore, based on the incomplete record before the court, the court finds that Quiroz

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has not demonstrated the “probable validity” of his claims. As such, the court declines to issue a

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writ of attachment at this time.

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IT IS THEREFORE ORDERED that plaintiff’s motion for a writ of attachment (Doc. #70)
is DENIED.

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IT IS SO ORDERED.

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DATED this 28th day of June, 2011.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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