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     The Nevada Supreme Court calls its changes to the 2019 Nevada Rules of Civil Procedure (“NRCP”) “exhaustive.”  Although the changes do not take effect until March 1, 2019, since they are so comprehensive, a complete read would be advisable for all practitioners.  The amended rules (with the committee’s explanatory notes) are available in this post; a red-lined PDF version can be found here.  The amendments largely bring our rules into alignment with the Federal Rules of Civil Procedure (“FRCP”), while retaining some Nevada-centric practices.  Those familiar with the FRCP may find the version of NRCP red-lined against FRCP a most helpful document.  The changes are too many to summarize here, but I have noted some which may impact civil practice the most regularly.  They are presented in numerical order.  For a table of the new deadlines and due dates, see here.

Rule 4.1 Waiver of Service:

Rule 4.1 incorporates the federal waiver of service rule, and without FRCP 4(d)(2)’s penalty provision.  I’m uncertain what the rule committee intended, but the lack of penalty would seem to result in a defendant merely taking the full 30 days to delay the matter, refuse to waive service, and force the plaintiff to serve the old fashioned way, costing time and money.  I have reached out a member of the committee to get a better understanding of the intention and how practitioners can comply with Rule 4.1(a)(1)(4), which requires that the notice contain a discussion of the consequences of failing to waive service.

[1.28.19 EDIT]On 1.25.19, the Supreme Court issued an amendment to ADKT 522 which addresses this concerns and adds the federal-style penalties into the rule.  The amendment also alters the official form.  A copy of the Order can be found here.

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Jay Young | Nevada Business Attorney | Mediator | Arbitrator  702.850.0375 | info@yourlegalguides.com

I am a Nevada mediator, arbitrator, and  litigator with experience resolving hundreds of disputes through ADR. This Mediation Toolbox is designed to assist those involved in mediation in Nevada or federally to navigate the process. Please feel free to reach out to me if there are resources that should be added to this Toolbox.

What is Alternative Dispute Resolution (ADR)?
Nevada Supreme Court Defines Mediation
Why Mediation?
Three Things Mediation is NOT
Mediate Instead of Filing That Lawsuit: Trying to Compromise Before Starting a Lawsuit
(more…)

The Litigation Toolbox

The Litigation Toolbox

I am a Nevada business litigator, arbitrator, and mediator with experience litigating thousands of disputes as a litigator, arbitrator, Judge Pro Tem, and Special Master. This Litigation Toolbox is designed to assist those involved in litigation in Nevada or federally to navigate the process. My aim is for this Toolbox to be a knowledge resource center for litigants and advocates, and for those trying to understand the process better.  Please feel free to reach out to me if there are resources that should be added to this Toolbox. (more…)

The Arbitration Toolbox

The Arbitration Toolbox

I am a Nevada arbitrator, mediator, and  litigator with experience arbitrating hundreds of disputes.  This Arbitration Toolbox is designed to assist those involved in arbitration in Nevada or federally to navigate the process.  My aim is for this Toolbox to be a knowledge resource center for litigants and advocates who have a matter in arbitration, or for those trying to understand the arbitration process better.  Please feel free to reach out to me if there are resources that should be added to this Toolbox.

 

What is Alternative Dispute Resolution (ADR)?
Nevada Supreme Court Defines Arbitration
Nevada Law Defines “Arbitrator”
What Are Your Alternative Dispute Resolution Options in Las Vegas, Nevada? (more…)

“Those who cannot remember the past are condemned to repeat it.”[1]

It is the dawn of a new era in Nevada state civil court discovery. The Nevada Supreme Court has adopted the Federal Rules of Civil Procedure-style proportionality standard for determining the appropriate scope of discovery.  Gone are the days of discussions over whether discovery is “reasonably calculated to lead to the discovery of admissible evidence.”  But is the proportionality standard really new?  Or is it just in vogue again?  This article discusses cases decided in the Nevada U.S. District Court and elsewhere that should inform how practitioners implement Rule 26 of the Nevada Rules of Civil Procedure.  They read as a cautionary tale.

The 2019 amended Rule 26 says:

(b)     Discovery Scope and Limits.

(1)   Scope. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claims or defenses and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.[2] (more…)

Eighth Judicial District Court Rules are amended to comply with 2019 Nevada Rules of Civil Procedure

Chief Judge Linda Marie Bell issued Administrative Order 19-03 on behalf of the Eighth Judicial District Court on March 12, 2019.   It suspends many Eighth Judicial District Court Rules which are in conflict with the amended NRCP.  The purpose of the order is stated:

[f]or the benefit of the bar and to ease confusion until the EJDC amends its local rules to conform to the amended NRCP, NRAP, and NEFCR, the EJDC finds it necessary to suspend or modify certain District Court Rules.  Additionally, to the extent any other rule of the Eighth Judicial District Court conflicts with the revised NRCP, NRAP, and NEFCR, the NRCP, NRAP, and NEFCR control.  

The Order alters the rules as follows until the EDCR can be amended (the stricken language below is suspended by the Order):

Rule 1.14.  Time; judicial days; service by mail.

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As of today, counsel filing a complaint in Nevada must provide the court with a “short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support”.  NRCP 8(a)(1).   A reader inquired what a jurisdictional statement should look like.  I gave him some ideas, then promised I would follow up.  This is my effort to do that.

If you are familiar with the Federal Rules of Civil Procedure and practice in federal court, this concept is not new to you.  But if you only practice in Nevada’s state courts, the concept of providing the court with a jurisdictional statement may take some time.  The following is a non-exhaustive list of sample jurisdictional statements that you might find useful when pleading a claim in Nevada.   All circumstances vary and you should conduct your own research before determining that any of these apply to your claim.

This Court has jurisdiction over this matter pursuant to Nev. Const. art. VI, § 6, as this Court has original jurisdiction in all cases not assigned to the justices’ courts.

This Court has jurisdiction over this matter pursuant to Nev. Const. art. VI, § 6, as this Court has original jurisdiction over matters involving title to real property.

This Court has jurisdiction over this matter pursuant to Nevada’s Long Arm Statute, NRS 14.065.  Nonresident Defendant(s) [INSERT NAME(S)] availed [HIMSELF/HERSELF/ITSELF] of opportunities to conduct business in the State of Nevada, establishing minimum contacts with the forum, and [IS/ARE] therefore subject to personal jurisdiction in Nevada on claim(s) arising out of that contact.

This Court has subject matter jurisdiction over this matter pursuant to NRS 4.370(1), as the matter in controversy exceeds $15,000, exclusive of attorney’s fees, interest, and costs.

This Court has jurisdiction over this matter pursuant to NRS 118C.220, as Plaintiff combines an action for summary eviction of a tenant from commercial premises with a claim to recover contractual damages in an amount in excess of $15,000, exclusive of attorney’s fees, interest, and costs.

This Court has jurisdiction over this matter pursuant to NRS 38.243, as this matter seeks an order confirming an arbitration award and entry of a judgment on the confirmed award.

This Court has jurisdiction over this matter pursuant to NRS 3.0199, as the controversy concerns a matter arising from or relating to the administration of the Humboldt River Decree.  Venue is proper in the [SIXTH/ELEVENTH] Judicial District Court pursuant to NRS 3.0199.

This Court has jurisdiction over this matter pursuant to NRS 598A.090, as the controversy concerns violations of the provisions of NRS Chapter 598A for Unfair Trade Practices.

This Court has jurisdiction over this matter pursuant to NRS 78.605, as the controversy seeks the appointment of a trustee or custodian of a dissolved corporation.

This Court has jurisdiction over this matter pursuant to NRS 78.650, as plaintiff(s) hold(s) at least one-tenth of the issued and outstanding stock of [COMPANY NAME], and this matter seeks an injunction or appointment of a receiver over [COMPANY NAME].

This Court has jurisdiction over this matter pursuant to NRS 685B.040, as the controversy concerns violations of the provisions of NRS Chapter 685B.

Nevada Rules of Civil Procedure

Rule 86. Effective Dates

(a)      In General. These rules and any amendments take effect on the date specified by the Supreme Court. They govern all proceedings:

(1)      in actions commenced after the effective date; and

(2)      in actions then pending, unless:

(A)      the Supreme Court specifies otherwise, or

(B)     the court determines that applying them in a particular action would not be feasible or would work an injustice.

(b)     Effective Date of Amendments. The Nevada Rules of Civil Procedure became effective January 1, 1953. Subsequent amendments have been as follows:

(1)      Amendment of Rules 5(b) and (d), effective January 4, 1954.

(2)      Amendment of Rules 11 and 45(d)(1), effective May 15, 1954.

(3)      Amendment of Rule 51, effective February 15, 1955.

(4)      Amendment of Rules 3, 75(b), and 75(g), effective October 1, 1959.

(5)      Amendment of Rules 38(b), 38(d), 65(b), 73(c), and 73(d), effective September 1, 1960.

(6)      Amendment of Rules 4(d)(2), 5(a), 5(b), 6(a), 6(b), 7(a), 13(a), 14(a), 15(d), 24(c), 25(a)(1), 25(d), 26(e), 28(b), 30(f)(1), 41(b), 41(e), 47(a), 48, 50(a), 50(b), 50(c), 50(d), 52(b), 54(b), 56(c), 56(e), 59(a), 62(h), 77(c), 86, Forms 22-A and 22-B, 27, 30, 31, and 32, effective March 16, 1964.

(7)    Amendment of Rule 86 and Form 31, effective April 15, 1964.

(8)    Amendment of Rules 73(c), 73(d)(1), and 86, effective September 15,1965.

(9)    Amendment of Rules 4(b), 5(a), 8(a), 12(b), 12(g), 12(h), 13(h), 14(a), 17(a), 18(a), 19, 20(a), 23, 23.1, 23.2, 24(a), 26, 29, 30, 31, 32, 33, 34, 35, 36, 37(a), 37(b), 37(c), 37(d), 41(a), 41(b), 42(b), 43(f), 44(a), 44(b), 44(c), 44.1, 45(d)(1), 47(b), 50(b), 53(b), 54(c), 65(a), 65(b), 65(c), 65.1, 68, 69(a), 77(e), 86(b), and Form 24, effective September 27, 1971.

(10)    Amendment of Rules 6 and 81, effective July 1, 1973; the abrogation of Rules 72, 73, 74, 75, 76, 76A, and Form 27, effective July 1, 1973.

(11)    Amendment of Rules 1, 4, 5, 6, 8, 9, 10, 11, 13, 14, 15, 16, 16.1, 17, 18, 19, 20, 22, 23, 23.1, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 41, 43, 44, 44.1, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 58, 59, 60, 62, 63, 64, 65, 65.1, 67, 69, 71, 77, 78, 81, and 83 and Forms 3, 19, 31, and the Introductory Statement to the Appendix of Forms, effective January 1, 2005, and the adoption of new Form 33.

(12)    Adoption of Rules 4.1, 4.2, 4.3, 4.4, 5.1, 5.2, 62.1, and 71.1, the amendment of all other rules and the introduction to the Appendix of Forms, the deletion of the former forms, and the adoption of Forms 1 through 6, effective March 1, 2019.

Nevada Rules of Civil Procedure

Rule 62.1. Indicative Ruling on a Motion for Relief That Is Barred by a Pending Appeal

(a)    Relief Pending Appeal. If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may:

(1)     defer considering the motion;

(2)     deny the motion; or

(3)    state either that it would grant the motion if the appellate court remands for that purpose or that the motion raises a substantial issue.

(b)    Notice to the Appellate Court. The movant must promptly notify the clerk of the supreme court under NRAP 12A if the district court states that it would grant the motion or that the motion raises a substantial issue.

(c)    Remand. The district court may decide the motion if the appellate court remands for that purpose.

Advisory Committee Note—2019 Amendment

This new rule is modeled on FRCP 62.1 and works in conjunction with new NRAP 12A. Like its federal counterpart, Rule 62.1 does not attempt to define the circumstances in which a pending appeal limits or defeats the district court’s authority to act. See FRCP 62.1 advisory committee’s note (2009 amendment). Rather, these rules provide the procedure to follow when a party seeks relief in the district court from an order or judgment that the district court has lost jurisdiction over due to a pending appeal of the order or judgment, consistent with Huneycutt v. Huneycutt, 94 Nev. 79, 575 P.2d 585 (1978), and its progeny.

Nevada Rules of Civil Procedure

Rule 16.23. Physical and Mental Examinations of Minors in Family Law Actions

(a)      Applicability; Motion; Notice.

(1)     This rule governs a physical or mental examination of a minor in family law actions.

(2)     When ordering a physical or mental examination of a minor, the court may proceed under this rule or Rule 35. The court’s order must state the court’s reasoning for proceeding under either rule and must include findings as to the best interests of the child.

(3)     Upon motion and after notice to all parties and, if the minor is 14 years of age or older, to the minor to be examined, a court may for good cause order an examination of a minor’s mental or physical condition.

(b)      Order. The provisions of Rule 16.22(b) apply to orders under this rule.

(c)     Recording. In a motion requesting an examination or an opposition thereto, the parties may request that an examination be recorded by audio or audiovisual means. When considering whether to approve a recording, the court may appoint a guardian ad litem for the minor, hold a hearing, or both. The court may grant a request to record the examination if making the recording is in the child’s best interest. Any recording must be provided to the court and placed under seal. On motion, and for good cause, the court may permit distribution of the recording, which must include appropriate restrictions on its release and use.

(d)     Observers.

(1)    In General. In a motion requesting an examination or an opposition thereto, the parties may request that an observer be present at the examination. When considering whether to approve a request for an observer, the court may appoint a guardian ad litem for the minor, hold a hearing, or both. The court may grant a request for an observer if the observer’s presence is in the child’s best interest and would not compromise the examination. The observer may not be a party, a party’s attorney, or anyone employed by a party or a party’s attorney. If the minor is of sufficient age and maturity, the court may consider the child’s preference in choosing the observer. The court must approve the observer before the examination, and the observer must not in any way interfere with, obstruct, or participate in the examination.

(2)    Parents. If ordered by the court, the parents or guardian of a minor may observe a physical examination, but may not interfere with, obstruct, or participate in the examination.

(e)    Examiner’s Report. The examiner’s report and access to it must comply with Rule 16.22(e)(1) and (3)-(6).

(f)     Stipulations. Any stipulation for a minor’s examination must comply with Rule 16.22(f).

Advisory Committee Note—2019 Amendment

Rule 16.23 is new and provides alternative procedures to Rule 35 for mental or physical examinations of minors in family law actions.

 

Nevada Rules of Civil Procedure

Rule 16.22. Custody Evaluations in Family Law Actions

(a)     Applicability; Motion; Notice.

(1)     This rule governs custody evaluations in family law actions.

(2)    On motion or on its own, and after notice to all parties, the court may for good cause order a custody evaluation.

(3)    The court may specify the individuals to be examined or permit the examiner to do so.

(b)     Order.

(1)    In General. The order must specify the time, place, manner, conditions, and scope of the examination, as well as each examiner who will perform it.

(2)    Examiner; Location. An examiner must be suitably licensed or certified. The examination must take place in an appropriate professional setting and in the judicial district in which the case is pending, unless the court orders the examination to occur in a different location.

(3)    Persons Examined. The court may require a party to produce for examination a person who is in the party’s custody or under the party’s legal control.

(4)    Costs. The court may assign the cost of the examination to one or more parties and may redistribute those costs as appropriate.

(5)    Modification. The court, for good cause, may alter the provisions of this rule.

(c)   Recording. A custody evaluation may be recorded only by the examiner, who must inform the parties if the examiner elects to record the examination. The examiner must keep the recording confidential. On motion, and for good cause, the court may order that a copy of the recording be provided to the court and placed under seal, be provided to the parties subject to appropriate restrictions upon its release and use, or both.

(d)    Observers. The parties may not have an observer present at a custody evaluation.

(e)     Examiner’s Report.

(1)    Providing the Report to the Court. The examiner must provide a custody evaluation report to the court, and the report must be placed under seal. The court must notify all parties when it receives the report. A party and the party’s attorney may review the report in court, but may not obtain a copy of the report except under Rules 16.22(e)(2) or (3).

(2)   Providing the Report to the Parties’ Attorneys. A party’s attorney may obtain a copy of the report, which the attorney must keep confidential and may not distribute without a court order under Rule 16.22(e)(3). The party may review the report if it is obtained by the party’s attorney, but the report must remain in the attorney’s possession and the attorney must not provide a copy of the report to the party without a court order under Rule 16.22(e)(3).

(3)   Distribution of the Report. On motion, and for good cause, the court may permit distribution of the report, which must include appropriate restrictions on its release and use.

(4)   Contents. The report must be in writing and must set out in detail the examiner’s findings, including diagnoses, conclusions, and the results of any tests.

(5)    Request by the Moving Party. After the examiner provides the report to the court, the party who moved for the examination may request—and is entitled to receive—from any party, like reports of all earlier or later examinations of the same condition, which are in the possession of that party. But those reports need not be delivered by a party with custody or control of the person examined if the party shows that it cannot obtain them. Any reports in the care or custody of a court, as specified in this rule, must be sought from that court. The grant of either review or receipt of those reports is subject to the court’s discretion and the conditions in this rule.

(6)   Scope. This rule does not preclude obtaining an examiner’s report or deposing an examiner under other rules, unless excluded by this rule.

(f)    Stipulations. The parties may, by stipulation approved by the court, agree upon the custody evaluation, the conditions or limitations of the evaluation, and the examiner. This rule applies to any examinations agreed to by stipulation, unless the court approves a stipulation stating otherwise.

Advisory Committee Note—2019 Amendment

Rule 16.22 is new and provides procedures for custody evaluations in family law actions.

Nevada Rules of Civil Procedure

Rule 16.215. Child Witnesses in Custody Proceedings

(a)     In General. The court must use these procedures and considerations in child custody proceedings. When determining the scope of a child’s participation in custody proceedings, the court should find a balance between protecting the child, the statutory duty to consider the wishes of the child, and the probative value of the child’s input while ensuring to all parties their due process rights to challenge evidence relied upon by the court in making custody decisions.

(b)     Definitions.

(1)    “Alternative Method.” As used in this rule, “alternative method” is defined as prescribed in NRS 50.520.

(2)    “Child Witness.” As used in this rule, “child witness” is defined as prescribed in NRS 50.530.

(3)    “Third-Party Outsourced Provider.” As used in this rule, “third-party outsourced provider” means any third party ordered by the court to interview or examine a child outside of the presence of the court for the purpose of eliciting information from the child for the court.

(c)     Procedure.

(1)    Identifying Witnesses. A party must identify and disclose any potential child witness whom the party intends to call as a witness during the case:

(A)   at the time of the case management conference/early case evaluation; or

(B)    by filing a Notice of Child Witness if the determination to call a child witness is made after the case management conference/early case evaluation.

(2)    Notice of Child Witness. A notice of child witness must be filed no later than 60 days before the hearing in which a child may be called as a witness unless otherwise ordered by the court. Such notice must detail the scope of the child witness’s intended testimony and provide an explanation as to why the child witness’s testimony would aid the trier of fact under the circumstances of the case. Any party filing a notice of child witness must also deliver a courtesy copy of the notice to the court.

(3) Testimony by Alternative Methods. If a party desires to perpetuate the testimony of a child witness by an alternative method, the party must file a Motion to Permit Child Testimony by Alternative Methods, under the Uniform Child Witness Testimony by Alternative Methods Act contained in NRS 50.500 et seq., at the same time as the notice of child witness, or no later than 60 days before the hearing in which the child witness may be called to testify or 14 days after the timely filing of a notice of child witness, whichever period last expires, unless otherwise ordered by the court. The court may also issue an order to show cause why a child witness should not testify by an alternative method or address the issue at any case management conference.

(d)     Alternative Methods.

(1) Available Alternative Methods. If the court determines under NRS 50.580 that an alternative method of testimony is necessary, the court must consider the following alternative methods, in addition to any other alternative methods the court considers appropriate under the Uniform Child Witness Testimony by Alternative Methods Act contained in NRS 50.500 et seq.

(A) If all parties are represented by counsel, the court may:

(i)   interview the child witness outside of the presence of the parties, with the parties’ counsel present;

(ii)         interview the child witness outside of the presence of the parties, with the parties’ counsel simultaneously viewing the interview via an electronic method; or

(iii)   allow the parties’ counsel to question the child witness in the presence of the court without the parties present.

(B) Regardless of whether the parties are represented by counsel, the court may:

(i)   interview the child witness with no parties present, but allow the parties to simultaneously view the interview via an electronic method if the court determines that the viewing is not contrary to the child’s best interest; or

(ii)   have the child witness interviewed by a third- party outsourced provider.

(2) Alternative Method Considerations. In determining which alternative method should be utilized in any particular case, the court should balance the necessity of taking the child witness’s testimony in the courtroom with the parties and attorneys present with the need to create an environment in which the child witness can be open and honest. In each case in which a child witness’s testimony will be taken, the court should consider:

(A)  where the testimony will be taken, including the possibility of closing the courtroom to the public or hearing from the child witness on the record in chambers;

(B)   who should be present when the testimony is taken, such as both parties and their attorneys, only the attorneys when both parties are represented by counsel, the child witness’s attorney and the parties, or only a court reporter;

(C)   how the child witness will be questioned, including whether only the court will pose questions that the parties have submitted, whether the parties or their attorneys will be permitted to cross-examine the child witness, or whether a child advocate or expert in child development will ask the questions in the presence of the court and the court reporter, with or without the parties or their attorneys; and

(D)    whether it will be possible to provide an electronic method so that testimony taken in chambers may be heard simultaneously by the parties and their attorneys in the courtroom.

(3) Protections for Child Witness. In taking testimony from a child witness, the court must take special care to protect the child witness from harassment or embarrassment and to restrict the unnecessary repetition of questions. The interviewer must also take special care to ensure that questions are stated in a form that is appropriate given the child witness’s age or cognitive level. The interviewer must inform the child witness in an age-appropriate manner about the limitations on confidentiality and that the information provided to the court will be on the record and provided to the parties in the case. In the process of listening to and inviting the child witness’s input, the interviewer may allow, but should not require, the child witness to state a preference regarding custody or visitation and should, in an age-appropriate manner, provide information about the process by which the court will make a decision.

(e)    Due Process Rights. Any alternative method must afford all parties a right to participate in the questioning of the child witness, which, at a minimum, must include an opportunity to submit potential questions or areas of inquiry to the court or other interviewer before the interview of the child witness.

(f)    Preservation of Record. Any alternative method of testimony ordered by the court must be preserved by audio or audiovisual recording to ensure that such testimony is available for review for future proceedings.

(g)    Review of Record. Any party may review the audio or audiovisual recording of testimony procured from a child witness by an alternative method upon written motion to the court or stipulation of the parties, unless the court finds by clear and convincing evidence that review by a party would pose a risk of substantial harm to the child witness.

(h)     Stipulation. The court may deviate from any of the provisions of this rule upon stipulation of the parties. The judicial districts of this state should promulgate a uniform canvass to be provided to the parties to ensure that they are aware of their rights to a full and fair opportunity for examination or cross-examination of a child witness before entering into any stipulation that would permit the interview or examination of a child witness by an alternative method, including a third-party outsourced provider.

(i)      Retention of Recordings. Original recordings of an interview or examination of a child witness must be retained by the interviewer for a period of 7 years from the date of their recording, or until 6 months after the child witness emancipates, whichever is later, unless otherwise ordered by the court.

Nevada Rules of Civil Procedure

Rule 16.21. Postjudgment Discovery in Family Law Actions

(a)     Except as provided by this rule, parties must not conduct postjudgment discovery in a family law action.

(b)      Parties may conduct postjudgment discovery in family law actions when:

(1)     the court orders an evidentiary hearing in a postjudgment custody matter; or

(2)     on motion or on its own, the court, for good cause, orders postjudgment discovery.

(c)     Postjudgment discovery is governed by Rule 16.2, by Rule 16.205 for paternity or custody matters, or as otherwise directed by the court.

Advisory Committee Note—2019 Amendment

The amendments to Rule 16.21 permit postjudgment discovery in certain situations. Rule 16.21(b)(1) automatically permits discovery under Rule 16.205 upon the court’s entry of a postjudgment order setting an evidentiary hearing in a custody action. Rule 16.21(b)(2) permits postjudgment discovery in any action if ordered by the court.

Nevada Rules of Civil Procedure

Rule 4.4. Alternative Service Methods

(a)     Statutory Service. If a statute provides for service, the summons and complaint may be served under the circumstances and in the manner prescribed by the statute.

(b)      Court-Ordered Service.

(1)     If a party demonstrates that the service methods provided in Rules 4.2, 4.3, and 4.4(a) are impracticable, the court may, upon motion and without notice to the person being served, direct that service be accomplished through any alternative service method.

(2)      A motion seeking an order for alternative service must:

(A)   provide affidavits, declarations, or other evidence setting forth specific facts demonstrating:

(i)   the due diligence that was undertaken to locate and serve the defendant; and

(ii)    the defendant’s known, or last-known, contact information, including the defendant’s address, phone numbers, email addresses, social media accounts, or any other information used to communicate with the defendant; and

(B)    state the proposed alternative service method and why it comports with due process.

(3)      If the court orders alternative service, the plaintiff must also:

(A)    make reasonable efforts to provide additional notice under Rule 4.4(d); and

(B)    mail a copy of the summons and complaint, as well as any order of the court authorizing the alternative service method, to the defendant’s last-known address.

(4)    The plaintiff must provide proof of service under Rule 4(d) or as otherwise directed by the court.

(5)     A plaintiff may serve a defendant by publication only if the requirements of Rule 4.4(c) are met and the procedures for publication are followed.

(c)    Service by Publication. If a party demonstrates that the service methods provided in Rules 4.2, 4.3, and 4.4(a) and (b) are impracticable, the court may, upon motion and without notice to the person being served, direct that service be made by publication.

(1)    Conditions for Publication. Service by publication may only be ordered when the defendant:

(A)      cannot, after due diligence, be found;

(B)      by concealment seeks to avoid service of the summons and complaint; or

(C)     is an absent or unknown person in an action involving real or personal property under Rule 4.4(c)(3).

(2)     Motion Seeking Publication. A motion seeking an order for service by publication must:

(A) through pleadings or other evidence establish that:

(i)      a cause of action exists against the defendant who is to be served; and

(ii)      the defendant is a necessary or proper party to the action;

(B)    provide affidavits, declarations, or other evidence setting forth specific facts demonstrating the efforts that the plaintiff made to locate and serve the defendant;

(C)     provide the proposed language of the summons to be used in the publication, briefly summarizing the claims asserted and the relief sought and including any special statutory requirements;

(D)     suggest one or more newspapers or other periodicals in which the summons should be published that are reasonably calculated to give the defendant actual notice of the proceedings; and

(E)     if publication is sought based on the fact that the defendant cannot be found, provide affidavits, declarations, or other evidence establishing the following information:

(i)      the defendant’s last-known address;

(ii)      the dates during which the defendant resided at that location; and

(iii)     confirmation that the plaintiff is unaware of any other address at which the defendant has resided since that time, or at which the defendant can be found.

(3)     Service by Publication Concerning Property Located Within Nevada.

(A)    The court may order service by publication in the actions listed in Rule 4.4(c)(3)(B) if a defendant:

(i)    resides in the United States and has been absent from this state for at least two years;

(ii)    resides in a foreign country and has been absent from the United States for at least six months;

(iii)      is an unknown heir or devisee of a deceased person; or

(iv)       is an unknown owner of real or personal property.

(B)    Rule 4.4(c)(3) applies only to the following actions involving real or personal property located within Nevada:

(i)    actions for the enforcement of mechanics’ liens or other liens against real or personal property;

(ii)      actions for foreclosure of mortgages and deeds of trust;

(iii)      actions for the establishment of title to real estate;

(iv)     actions to exclude the defendant from any interest in real or personal property; and

(v)       any other action for the enforcement, establishment, or determination of any right, claim, or demand, actual or contingent, to or against any real or personal property.

(C)    Service by publication on an unknown heir, devisee, or property owner may only be used when the unknown heir, devisee, or property owner must be a party to the action under Rule 19(b).

(D)    A plaintiff proceeding under Rule 4.4(c)(3) must provide the information required by Rule 4.4(c)(2), as applicable, in addition to providing affidavits, declarations, or other evidence establishing the facts necessary to satisfy the requirements of Rule 4.4(c)(3).

(4)     The Order for Service by Publication.

(A)    In the order for service by publication, the court must direct publication to be made in one or more newspapers or other periodicals published in Nevada; in the state, territory, or foreign country where the defendant is believed to be located; or in any combination of locations. The court’s designated locations must be reasonably calculated to give the defendant actual notice of the proceedings. The service must be published at least once a week for a period of four weeks.

(B)     If publication is ordered and the plaintiff is aware of the defendant’s last-known address, the plaintiff must also mail a copy of the summons and complaint to the defendant’s last-known address. The court may also order that additional notice be sent under Rule 4.4(d).

(C)     Service by publication is complete four weeks from the later of:

(i)     the date of the first publication; or

(ii)     the mailing of the summons and complaint, if mailing is ordered.

(d)      Additional Methods of Notice.

(1)    In addition to any other service method, the court may order a plaintiff to make reasonable efforts to provide additional notice of the commencement of the action to a defendant using other methods of notice, including certified mail, telephone, voice message, email, social media, or any other method of communication.

(2)    Unless otherwise ordered, the plaintiff or the plaintiff’s attorney may contact the defendant to provide notice of the action, except when the plaintiff or attorney would violate any statute, rule, temporary or extended protective order, or injunction by communicating with the defendant.

(3)   The plaintiff must provide proof of notice in the same manner as proof of service under Rule 4(d), or as otherwise directed by the court.

Advisory Committee Note—2019 Amendment

Subsection (a). Rule 4.4(a) incorporates former NRCP 4(e)(3). Subsection (b). Modeled on Rule 4.1(k) of the Arizona Rules of Civil Procedure, Rule 4.4(b) is new and authorizes the court to fashion a method of service consistent with due process when no other available service method remains besides publication, which should only be used as a last resort.

Subsection (c). Rule 4.4(c), publication, amends former NRCP 4(e)(1). Rule 4.4(c)(2) specifies the requirements for a motion seeking publication. The motion must contain specific facts demonstrating the plaintiffs efforts to find and serve the defendant; general allegations that a defendant cannot be found are insufficient to warrant publication. Rule 4.4(c)(3) governs service by publication concerning real and personal property in this state. In general, persons outside the state must be served under Rule 4.3. Given the State’s interest in resolving disputes concerning real or personal property located within this state, however, service by publication may be used for the specified defendant when that party’s presence is necessary for the action to be adjudicated. Rule 4.4(c)(4) governs the order for publication. When ordering publication, the court must designate the locations for publication and order any other steps to be taken to effect service that, in the court’s opinion, are calculated to satisfy due process. This may include publication in locations outside of Nevada or outside of the United States. The new rule adds “or other periodicals” to the rule to permit the court to authorize the summons in a periodical other than a newspaper, including an online periodical.

Subsection (d). Rule 4.4(d) is new and permits the court to order the plaintiff to make reasonable efforts to provide actual notice of the action to the defendant. In this modem era of electronic communication, a plaintiff may communicate with a defendant electronically, and thus know how to contact the defendant by phone, email address, social media, or other methods, but be unaware of the defendant’s current physical address. In this situation, a plaintiff should not be permitted to mail notice to a defendant’s long-outdated last-known address while ignoring other reliable means of providing actual notice. The rule does not specify any particular method of communication, recognizing that notice via nontechnological methods of communication or future technologies may both be used, depending on the individual case. This rule is intended to work in conjunction with other service rules that require the summons and complaint to be mailed to a defendant’s last-known address. Notice given under Rule 4.4(d) does not constitute service by itself, unless the notice provided complies with another service method.

Nevada Rules of Civil Procedure

Rule 4.3. Service Outside Nevada

(a)     Service Outside Nevada but Within the United States.

(1)   Serving Individuals. A party may serve process outside Nevada, but within the United States, in the same manner as provided in Rule 4.2(a) for serving such a defendant within Nevada, or as prescribed by the law of the place where the defendant is served.

(2)   Serving Minors and Incapacitated Persons. A party may serve process outside Nevada, but within the United States, in the same manner as provided in Rule 4.2(b) for serving such a defendant within Nevada.

(3)   Serving Entities and Associations. A party may serve process outside Nevada, but within the United States, in the same manner as provided in Rule 4.2(c)(1) for serving such a defendant within Nevada, or as prescribed by the law of the place where the defendant is served.

(4)   Serving Another State or Territory. Service upon another state or territory, its public entities and political subdivisions, and their officers and employees may be made in the manner prescribed by that state’s or territory’s law for serving a summons or like process on such a defendant.

(5)   Serving the United States. Service upon the United States and its agencies, corporations, officers, or employees may be made as provided by Rule 4 of the Federal Rules of Civil Procedure.

(6)    Authorized Persons. Service must be made by a person who is authorized to serve process under the law of the state or territory where service is made.

(b)     Service Outside the United States.

(1) Serving an Individual. Unless otherwise provided by these rules, an individual—other than a minor, an incapacitated person, or a person whose waiver has been filed—may be served at a place outside of the United States:

(A)   by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;

(B)    if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

(i)    as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction;

(ii)    as the foreign authority directs in response to a letter rogatory or letter of request; or

(iii)     unless prohibited by the foreign country’s law, by:

(a)    delivering a copy of the summons and of the complaint to the individual personally; or

(b)    using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or

(C)   by other means not prohibited by international agreement, as the court orders.

(2)   Serving a Minor or Incapacitated Person. A minor or an incapacitated person who is outside the United States must be served in the manner prescribed by Rule 4.3(b)(l)(B)(i) or (ii), or 4.3(b)(1)(C).

(3)   Serving Entities or Associations. An entity or association that is outside the United States may be served in any manner prescribed by Rule 4.3(b)(1) for serving an individual, except personal delivery under Rule 4.3(b)(l)(B)(iii)(a).

(4)      Serving a Foreign Country or Political Subdivision. A foreign country or a political subdivision, agency, or instrumentality thereof must be served under 28 U.S.C. § 1608.

Advisory Committee Note—2019 Amendment

Rule 4.3(a) governs service outside Nevada but within the United States and amends former NRCP 4(e)(2). Rule 4.3(b) governs service outside of the United States and is drawn from FRCP 4(f), (g), (h), and (j).

Nevada Rules of Civil Procedure

Rule 4.2. Service Within Nevada

(a) Serving an Individual. Unless otherwise provided by these rules, service may be made on an individual:

(1)   by delivering a copy of the summons and complaint to the individual personally;

(2)   by leaving a copy of the summons and complaint at the individual’s dwelling or usual place of abode with a person of suitable age and discretion who currently resides therein and is not an adverse party to the individual being served; or

(3)    by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.

(b)      Serving Minors and Incapacitated Persons.

(1)     Minors. A minor must be served by delivering a copy of the summons and complaint:

(A)      if the minor is 14 years of age or older, to the minor; and

(B)      to one of the following persons:

(i)    if a guardian or similar fiduciary has been appointed for the minor, to the fiduciary under Rule 4.2(a), (c), or (d), as appropriate for the type of fiduciary;

(ii)     if a fiduciary has not been appointed, to the minor’s parent under Rule 4.2(a); or

(iii)      if neither a fiduciary nor a parent can be found with reasonable diligence:

(a)      to an adult having the care or control of the minor under Rule 4.2(a); or

(b)      to a person of suitable age and discretion with whom the minor resides.

(2)     Incapacitated Persons. An incapacitated person must be served by delivering a copy of the summons and complaint:

(A)      to the incapacitated person; and

(B)      to one of the following persons:

(i)    if a guardian or similar fiduciary has been appointed for the incapacitated person, to the fiduciary under Rule 4.2(a), (c), or (d), as appropriate for the type of fiduciary; or

(ii)      if a fiduciary has not been appointed:

(a)     to a person of suitable age and discretion with whom the incapacitated person resides;

(b)     if the incapacitated person is living in a facility, to the facility under Rule 4.2, as appropriate for the type of facility; or

(c)      to another person as provided by court order.

(c)      Serving Entities and Associations.

(1)      Entities and Associations in Nevada.

(A) An entity or association that is formed under the laws of this state, is registered to do business in this state, or has appointed a registered agent in this state, may be served by delivering a copy of the summons and complaint to:

(i)      the registered agent of the entity or association;

(ii)      any officer or director of a corporation;

(iii)      any partner of a general partnership;

(iv)       any general partner of a limited partnership;

(v)         any member of a member-managed limited-liability company;

(vi)      any manager of a manager-managed limited-liability company;

(vii)      any trustee of a business trust;

(viii) any officer or director of a miscellaneous organization mentioned in NRS Chapter 81;

(ix) any managing or general agent of any entity or association; or

(x) any other agent authorized by appointment or by law to receive service of process.

(B) If an agent is one authorized by statute and the statute so requires, a copy of the summons and complaint must also be mailed to the defendant entity or association at its last-known address.

(2)    Other Foreign Entities and Associations. A foreign entity or association that cannot be served under Rule 4.2(c)(1) may be served by delivering a copy of the summons and complaint to any officer, director, partner, member, manager, trustee, or agent identified in Rule 4.2(c)(1) that is located within this state.

(3)     Service via the Nevada Secretary of State.

(A)    If, for any reason, service on an entity or association required to appoint a registered agent in this state or to register to do business in this state cannot be made under Rule 4.2(c)(1) or (2), then the plaintiff may seek leave of court to serve the Nevada Secretary of State in the entity’s or association’s stead by filing with the court an affidavit:

(i)   setting forth the facts demonstrating the plaintiffs good faith attempts to locate and serve the entity or association;

(ii)    explaining the reasons why service on the entity or association cannot be made; and

(iii)    stating the last-known address of the entity or association or of any person listed in Rule 4.2(c)(1), if any.

(B)     Upon court approval, service may be made by:

(i)    delivering a copy of the summons and complaint to the Nevada Secretary of State or his or her deputy; and

(ii)    posting a copy of the summons and complaint in the office of the clerk of the court in which such action is brought or pending.

(C)   If the plaintiff is aware of the last-known address of any person listed in Rule 4.2(c)(1), the plaintiff must also mail a copy of the summons and complaint to each such person at the person’s last-known address by registered or certified mail. The court may also order additional notice to be sent under Rule 4.4(d) if the plaintiff is aware of other contact information of the entity or association or of any person listed in Rule 4.2(c)(1).

(D)   Unless otherwise ordered by the court, service under Rule 4.2(c)(3) may not be used as a substitute in place of serving, under Rule 4.3(a), an entity or association through a person listed in Rule 4.2(c)(1) whose address is known but who lives outside this state.

(E)    The defendant entity or association must serve a responsive pleading within 21 days after the later of:

(i)   the date of service on the Nevada Secretary of State and posting with the clerk of the court; or

(ii)   the date of the first mailing of the summons and complaint to the last-known address of any person listed in Rule 4.2(c)(1).

(d)   Serving the State of Nevada, Its Public Entities and Political Subdivisions, and Their Officers and Employees.

(1) The State and Its Public Entities. The State and any public entity of the State must be served by delivering a copy of the summons and complaint to:

(A)   the Attorney General, or a person designated by the Attorney General to receive service of process, at the Office of the Attorney General in Carson City; and

(B)   the person serving in the office of administrative head of the named public entity, or an agent designated by the administrative head to receive service of process.

(2)   State Officers and Employees. Any current or former public officer or employee of the State who is sued in his or her official capacity or his or her individual capacity for an act or omission relating to his or her public duties or employment must be served by delivering a copy of the summons and complaint to:

(A)   the Attorney General, or a person designated by the Attorney General to receive service of process, at the Office of the Attorney General in Carson City; and

(B)   the current or former public officer or employee, or an agent designated by him or her to receive service of process.

(3)    Political Subdivisions and Their Public Entities. Any county, city, town, or other political subdivision of the State, and any public entity of such a political subdivision, must be served by delivering a copy of the summons and complaint to the presiding officer of the governing body of the political subdivision, or an agent designated by the presiding officer to receive service of process.

(4)    Local Officers and Employees. Any current or former public officer or employee of any county, city, town, or other political subdivision of the State, or any public entity of such a political subdivision, who is sued in his or her official capacity or his or her individual capacity for an act or omission relating to his or her public duties or employment must be served by delivering a copy of the summons and complaint to the current of former public officer or employee, or an agent designated by him or her to receive service of process.

(5)    Statutory Requirements. A party suing the State, its public entities or political subdivisions, or their current or former officers and employees must also comply with any statutory requirements for service of the summons and complaint.

(6)    Extending Time. The court must allow a party a reasonable time to cure its failure to:

(A)   serve a person required to be served under Rule 4.2(d)(1) or (2), if the party has served the Attorney General; or

(B)   serve the Attorney General under Rule 4.2(d)(1) or (2), if the party has served the required person.

Advisory Committee Note—2019 Amendment

Subsection (a). Rule 4.2(a) restyles NRCP 4(d)(6) to track FRCP 4(e)(2). Rule 4.2(a)(2) specifies that a summons and complaint may not be delivered to a person of suitable age and discretion who resides with the individual being served if the person is a party to the litigation adverse to the individual being served. This makes unavailing the practice of having a plaintiff in a divorce action accept service on behalf of the spouse with whom he or she still resides.

Subsection (b). Rule 4.2(b) amends former NRCP 4(d)(3) and (4) for service on minors and incapacitated persons. NRS Chapter 129 generally defines a “minor” to be a person under 18 years of age unless emancipated. To serve a minor who is 14 years of age or older, Rule 4.2(b)(1)(A) requires personal service of the summons and complaint on the minor and, also, service on the person designated by Rule 4.2(b)(1)(B).

Rule 4.2(b)(2) similarly amends the procedure for serving an incapacitated person. The rule requires personal service of the summons and complaint on the incapacitated person and, in addition, service of the summons and complaint on the incapacitated person’s guardian or fiduciary, if one has been appointed, or other person specified in the rule. Rule 4.2(b)(2) only applies when the person being served has already been declared incapacitated under applicable law; service on a person not yet declared incapacitated should be made under Rule 4.2(a). The change in terminology from “incompetent” to “incapacitated” is stylistic, not substantive.

Subsection (c). The amendments to Rule 4.2(c) encompass all business entities, associations, and other organizations. Rule 4.2(c)(1) generally restates former NRCP 4(d)(1), but also incorporates provisions from FRCP 4(h)(1)(B). Rule 4.2(c)(1) applies to any Nevada entity or association and any foreign entity or association that has registered to do business in Nevada or has appointed a registered agent in Nevada. Rule 4.2(c)(2) applies to foreign entities or associations generally.

Rule 4.2(c)(3) revises the second half of former NRCP 4(d)(1) and governs service on the Nevada Secretary of State when an entity or association cannot otherwise be served. Secretary of State service only applies when a Nevada or foreign entity or association is required by law to appoint a registered agent in Nevada or to register to do business in Nevada. Service on the Nevada Secretary of State now requires court approval and incorporates new alternative notice provisions in Rule 4.4(d).

Subsection (d). Rule 4.2(d) amends former NRCP 4(d)(5) and addresses service on government entities and their officers and employees. Waiver of service under Rule 4.1 does not apply to government entities and persons subject to service under Rule 4.2(d).

Nevada Rules of Civil Procedure

Rule 4.1. Waiving Service

(a) Requesting a Waiver. An individual, entity, or association that is subject to service under Rule 4.2(a), 4.2(c)(1) or (2), 4.3(a)(1) or (3), or 4.3(b)(1)
or (3) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and
request that the defendant waive service of a summons. The notice and request must:

(1) be in writing and be addressed:

(A) to the individual defendant; or

(B) for an entity or association, to a person designated by Rule 4.2(c)(1);

(2) name the court where the complaint was filed;

(3) be accompanied by a copy of the complaint, two copies of the waiver form, Form 2 in the Appendix of Forms or its substantial equivalent,
and a prepaid means for returning the form;

(4) inform the defendant, using the waiver form, of the consequences of waiving and not waiving service;

(5) state the date when the request is sent;

(6) give the defendant a reasonable time of at least 30 days after the request was sent—or at least 60 days if sent to the defendant outside the United States—to return the waiver; and

(7) be sent by first-class mail or other reliable means.

(b) Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff
located within the United States, the court must impose on the defendant:

(1) the expenses later incurred in making service; and

(2) the reasonable expenses, including attorney fees, of any motion required to collect those service expenses.

(c) Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the
complaint until 60 days after the request was sent—or until 90 days after it was sent to the defendant outside the United States.

(d) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint
had been served at the time of filing the waiver.

(e) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.

Advisory Committee Note-2019 Amendment

Rule 4.1 is new and mirrors FRCP 4(d). The waiver provisions apply to individuals, entities, and associations, wherever served, but do not apply to
minors, incapacitated persons, or government defendants. The Appendix of Forms at the end of these rules includes Form 1, a Request to Waive Service of
Summons; and Form 2, Waiver of Service of Summons. Use of the forms is not mandatory, but if the forms are not used the text of the request or waiver sent must be substantially similar to the text in Forms 1 and 2 to be valid.

For a word copy of this Sample Joint Defense Agreement, click here

JOINT DEFENSE AGREEMENT

            This Joint Defense (the “Agreement”) is made and entered into as of {DATE} by and among the undersigned counsel, for themselves and on behalf of their respective clients {LIST PARTIES} (each individually a “Party,” and collectively, “Parties”).

RECITALS

            WHEREAS, the Parties have been named as defendants in a lawsuit filed by {PLAINTIFF NAME} entitled {CAPTION}, which was initially filed on {DATE}, in the {COURT NAME} (the “Lawsuit”).

            WHEREAS, for purposes of this Agreement, the term “Counsel” means and includes any attorney representing any Party, including in-house attorneys, any and all paralegals, law clerks, and any outside vendors of the Parties’ respective outside counsel acting at the direction of outside counsel, and any other persons expressly agreed to in writing by the Parties.  The term “Outside Counsel” means and includes any attorney representing any Party at an outside law firm, as well as paralegals and law clerks working for such attorneys.  The term “Joint Defense Group” means and includes the Parties and Counsel. (more…)

The statute of frauds has its roots in an English law from 1677 called an Act for Prevention of Frauds and Perjuries.  It declares that certain types of contracts encourage either fraud or perjury and the state should therefore refuse to recognize that they are enforceable unless they are in writing.

For example, if Bill owed money to Sam, they could together claim that Sally agreed to pay Bill’s debt.  Both Sam and Bill might be encouraged to commit perjury in that circumstance, lying in order for Bill’s debt to be paid and for Sam to receive the money.  Poor Sally, who might know nothing of the debt, might be forced to pay Bill’s debt.  Since that type of arrangement encourages perjury, the statute of frauds requires that the agreement be in writing. (more…)

Since the publication of the article below, the Nevada Supreme Court has reconsidered its earlier version of Rule 4.1 (Waiver of Service) that specifically deleted the penalties found in the Federal Rules of Civil Procedure version of the same rule.  I inquired of a member of the committee about whether the lack of a penalty encourages a defendant to wait out the required 30 days and refuse to waive service, resulting in added expense and delay for the plaintiff, as the defendant knows there is no penalty.  I heard back from the committee member this morning that the Supreme Court issued an amendment to ADKT 522 that resolves the matter, adding the penalty provision into the rule and changing the official form accordingly.  A copy of the Order can be found here.

The Changes Coming to the Nevada Rules of Civil Procedure: an Overview

Jay Young, Top Nevada Arbitrator and Mediator

In a unanimous decision authored by Justice Kavanaugh, the U.S. Supreme Court held that under the Federal Arbitration Act (“FAA”), “when the parties’ contract delegates the arbitrability question to an arbitrator, a court may not override the contract even if the court thinks that the arbitrability claim is wholly groundless.”  The decision in Henry Shein, Inc. v. Archer & White Sales, Inc., issued January 8, 2019, addresses a split among the six circuit courts which have heard similar matters and vacates the decision of the Fifth Circuit which held that when a court determines that the request to have the matter arbitrated is “wholly groundless,” the court may deny a motion to allow an arbitrator to determine whether a matter is subject to arbitration.

(more…)

2019 Nevada Rules of Civil Procedure with Rules Committee Notes

Deadlines and Due Dates Under the 2019 Nevada Rules of Civil Procedure

Activity

Time allowed

Service of Summons and Complaint 120 days from issuance of the summons. Rule 4(e)(1)
Dismissal For Failure to Serve Summons and Complaint 120 days from issuance of the summons. Rule 4(e)(1)
Requesting Waiver of Service “[A] reasonable time of at least 30 days after the request was sent—or at least 60 days if sent to the defendant outside the United States—to return the waiver”. Rule 4.1(a)(6)
Time to Answer After a Waiver 60 days after the request was sent—or until 90 days after it was sent to the defendant outside the United States.” Rule 4.1(c); Rule 12(a)(1)(A)(ii)
Defendant Must Serve a Responsive Pleading After Service via the Nevada Secretary of State 21 days. Rule 4.2(c)(3)
A Written Motion and Notice of the Hearing 21 days before the time specified for the hearing. Rule 6(c)(1).
Affidavit in Opposition to Motion 7 days prior to the hearing on the matter. Rule 6(c)(2)
Service by Mail, Leaving With the Clerk, or By Other Means Consented to 3 days are added after the period would otherwise expire under Rule 6(a). Rule 6(d)
Motion For Rule 11 Sanctions Must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service. Rule 11(c)(2)
Answer a Complaint Within 21 days after being served with the summons and complaint. Rule 12(a)(1)(A)(1)
Answer a Counterclaim Or Crossclaim Within 21 days after being served with the pleading that states the counterclaim or crossclaim. Rule 12(a)(1)(B)
Reply to An Answer Within 21 days after being served with an order to reply. Rule 12(a)(1)(C)
Answer of a Complaint, Counterclaim, Or Crossclaim By The State of Nevada, Its Public Entities and Political Subdivisions, and Their officers and Employees Within 45 days after service on the party. Rule 12(a)(2)
Motion for a More Definite Statement Before filing a responsive pleading. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order. Rule 12(e)
Leave to File Third-Party Complaint Must be requested within 14 days of service of original answer. Rule 14(a)(1)
Amending a Pleading as a Matter of Course 21 days after serving it, or if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. Rule 15(a)(1)
Respond to an Amended Pleading Within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later. Rule 15(a)(3)
Scheduling Order Must be issued within 60 days after a Rule 16.1 case conference report has been filed or the date the court waives the requirement for the same. Rule 16(b)(2)
Initial Rule 16.1 Disclosures–Generally Generally, at or within 14 days after the parties’ Rule 16.1(b) conference. Rule 16.1(a)(1)(C)
Initial Rule 16.1 Disclosures For Parties Served Or Joined Later Within 30 days after filing an answer or a motion under Rule 12. Rule 16.1(a)(1)(D)
Time to Disclose Expert Testimony At least 90 days before the discovery cut-off

Date. Rule 16.1(a)(2)(E)(i)(a); Rule 16.1(c)(1)(N)

Rebuttal Expert Testimony Within 30 days after the other party’s disclosure. Rule 16.1(a)(2)(E)(i)(b); Rule 16.1(c)(1)(N)
Pretrial Disclosures 30 days before trial. Rule 16.1(a)(3)(B)(i)
Objections to Pretrial Disclosures 14 days after the disclosure is made. Rule 16.1(a)(3)(B)(ii)
Early Case Conference Must be held within 30 days of service of an answer of the first answering defendant. Rule 16.1(b)(2)(A). It may be continued for up to 180 days. 16.1(b)(2)(B)
Early Case Conference Report Within 30 days after each case conference, the parties (or a party individually) must file a joint case conference report. Rule 16.1(c)(1)(A)
Early Case Conference Report After Court-Annexed Arbitration Within 60 days from the date that the request for trial de novo is filed. Rule 16.1(c)(1)(C)
Motions to Amend Pleadings or Add Parties 90 days before the close of discovery. Rule 16.1(c)(2)(M)
Dispositive Motions 30 days after the discovery cut-off. Rule 16.1(c)(2)(O)
Objection to a Case Conference Report 7 days after service of the report. Rule 16.1(c)(2)
Substitution Upon Death of a Party 180 days after service of a statement noting the death. Rule 25(a)(1)
Beginning of Discovery At any time after the filing of a joint case conference report, or not sooner than 14 days after a party has filed a separate case conference report, or upon order by the court or discovery commissioner. Rule 26(a)
Notice of Deposition 14 days prior to deposition. Rule 30(b)(1)
Answers to Interrogatories Within 30 days after being served with the interrogatories. Rule 30(b)(2)
Response to Request to Produce Within 30 days after being served with the requests. Rule 34(b)(2)(A)
Response to Requests for admission Within 30 days after being served with the requests. Rule 36(a)(3)
Demand a Jury Before the entry of the order first setting the case for trial or within 14 days of another party’s service of a demand on only some issues. Rule 38(b) and Rule 38(c)
Notice of Subpoena Duces Tecum Serve all parties at least 7 days prior to serving the subpoena on the person to whom it is directed to allow for objections. Rule 45(a)(4)(A)
Objections to Subpoena Duces Tecum The earlier of the time specified for compliance or 14 days after the subpoena is served. Rule 45(a)(2)(B)
Motion For Judgment as a Matter of Law Or Motion For New Trial 28 days from written notice of entry of judgment. Rule 50(b)
Notice of Entry of Judgment 14 days from entry. Rule 58(e)
Motion for a New Trial, Or to Alter Or Amend 28 days from written notice of entry of judgment. Rule 59(b) and Rule 59(e)
Expiration of Temporary Restraining Order 14 days from entry. Rule 65(b)(2)
Motion to Dissolve Temporary Restraining Order May be heard 2 days from service. Rule 65(b)(4)
Service of offer of Judgment At any time more than 21 days before trial. Rule 68(a)
Acceptance of offer of Judgment Within 14 days after service of the offer. Rule 68(d)(1)

Parties subject to an arbitration agreement may challenge whether a particular arbitrator may hear a matter.  If the contract does not specify particular arbitral rules (AAA or JAMs, for instance), then the parties must rely on the laws of the place of the arbitration to determine the circumstances under which an arbitrator may challenged.

Under the Rules of the American Arbitration Association, and arbitrator may only be challenged for: 1) partiality or lack of independence; 2) inability or refusal to carry out his duties diligently and in good faith; or 3) any ground for disqualification specified by the applicable law.  Rule 18, American Arbitration Association Rules.

Under the Rules of JAMS, the parties must object to the service of an arbitrator within ten days of his or her appointment based on the disclosure of any circumstance likely to give rise to justifiable doubt about the arbitrator’s impartiality or independence. JAMS Rule 15(h).  Any party may challenge the continued service of the arbitrator at any time if  the party discovers information that was not available to the parties at the time the arbitrator was selected.  JAMS Rule 15(i).  JAMS arbitrators have an immediate and continuing obligation to disclose known or apparent conflicts of interest.  JAMS Arbitrators Ethics Guidelines,

 

Sample Nevada Affirmative Defenses*

* Not all defenses are appropriate for all matters or in all jurisdictions.  You should seek the advice of competent counsel in your jurisdiction before claiming any defense, as you may be responsible for the attorneys fees of your opponent if a claimed defense has no merit.  See Rule 11.

RULE 8 DELINEATED AFFIRMATIVE DEFENSES

NRCP 8(c)(1).     In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; discharge in bankruptcy; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver.

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Writ Petition for Denial of Motion to

Dismiss in Nevada

The Supreme Court will entertain writ petitions in the context of a denial of a motion to dismiss when (1) no factual dispute exists and the district court is obligated to dismiss an action pursuant to clear authority under a statute or rule; or (2) an important issue of law needs clarification and considerations of sound judicial economy and administration militate in favor of granting the petition.  Beazer Homes Nev., Inc. v. Dist. Ct., 120 Nev. 575, 97 P.3d 1132 (2004).

An NRCP 12(b)(5) motion to dismiss shall be reviewed as a summary judgment where the district court treated it as a Rule 56 motion for summary judgment by entertaining matters outside the pleadings.  NRCP 12(b).

This Court reviews the denial of dismissal in these circumstance as though it were an order denying summary judgment.  Witherow v. State Bd. of Parole Comm’rs, 123 Nev. 305, 308, 167 P.3d 408, 409 (2007) (citing Coblentz v. Union Welfare Fund, 112 Nev. 1161, 1167, 925 P.2d 496, 499 (1996)) (granting of motion to dismiss where matters outside the pleadings were considered will be reviewed as granting a motion for summary judgment).

Orders granting or denying summary judgment are reviewed de novo.  Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Therefore, as the Order was issued after consideration of matters outside the pleadings, it should be reviewed de novo.

Although reviewing denial of a motion to dismiss with summary judgment treatment is available to petitioners, this Court reserves its discretion to cases in where there is “no question of fact, and in which a clear question of law, dispositive of the suit, [is] presented for our review.”  Poulos v. Eighth Judicial Dist. Court of State of Nev. In & For Clark Cnty., 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982) (citing Bottorff v. O’Donnell, 96 Nev. 606, 614 P.2d 7 (1980)).

Pursuant to Article 6, Section 4 of the Nevada Constitution: “[t]he court shall also have power to issue writs of mandamus, certiorari, prohibition, quo warranto, and habeas corpus and also all writs necessary or proper to the complete exercise of its appellate jurisdiction.” NRS 34.160 provides that “[t]he writ [of mandamus] may be issued by the Supreme Court … to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station …” For more than a century, the Supreme Court has interpreted Nevada’s constitutional and statutory law to vest original jurisdiction in the Supreme Court to issue writs of mandamus.  See State v. Dist. Ct., 116 Nev. 127, 994 P.2d 692 (2000) (citing State ex rel. Curtis v. McCollough, 3 Nev. 202 (1867)).  Thus, the court has the constitutional and statutory authority to issue a writ of mandamus when, in the court’s discretion, circumstances warrant.

A writ of mandamus is available to compel the performance of an act which the law requires as a duty resulting from an office, trust or station, or to control a manifest abuse of discretion.  See Beazer Homes, Nev., Inc. v. Dist. Ct., 120 Nev. 575, 97 P.3d 1132, 1135 (2004); NRS 34.160.)  An abuse of discretion occurs if the district court’s decision is arbitrary and capricious or if it exceeds the bounds of law or reason.  Crawford v. State, 121 P.3d 582, 585 (Nev. 2005) (citation omitted). “Abuse of discretion” is defined as the failure to exercise a sound, reasonable, and legal discretion.  State v. Draper, 27 P.2d 39, 50 (Utah 1933) (citations omitted).  “Abuse of discretion” is a strict legal term indicating that the appellate court is of the opinion that there was a commission of an error of law by the trial court.  Id.  It does not imply intentional wrongdoing or bad faith, or misconduct, nor any reflection on the judge but refers to the clearly erroneous conclusion and judgment – one that is clearly against logic.  Id. (more…)

Rule 12(f) provides that a court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “[M]otions to strike should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.” Colaprico v. Sun Microsys., Inc., 758 F. Supp. 1335, 1339 (N.D. Cal. 1991).

“Courts will not grant motions to strike unless ‘convinced that there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the claim or defense succeed.’”  Novick v. UNUM Life Ins. Co. of America, 570 F.Supp.2d 1207, 1208 (C.D. Cal. 2008) (quoting RDF Media Ltd. v. Fox Broad. Co., 372 F. Supp. 2d 556, 561 (C.D. Cal. 2005)).  “When ruling on a motion to strike, this Court ‘must view the pleading under attack in the light most favorable to the pleader.” Id. (citing RDF Media Ltd., 372 F. Supp. 2d at 561).  “Motions to strike apply only to pleadings, and courts are unwilling to construe the rule broadly and refuse to strike motions, briefs, objections, affidavits, or exhibits attached thereto.” Foley v. Pont, No. 11cv1769-ECR-VCF, 2013 WL 782856, at *4 (D. Nev. Mar. 1, 2013); Caldwell v. Smith, No. 94-3066-CO, 1995 WL 555080, at *1 (D. Or. Sept. 1, 1995) (denying motion to strike since motion to dismiss is not a pleading). (more…)

What Constitutes Admissible Evidence

Under Rule 56?

Nevada law provides requires that all fact presented to a court by motion must be by sworn testimony.  Further, “[a]ffidavits/declarations must contain only factual, evidentiary matter, conform to the requirements of NRCP 56(e), and avoid mere general conclusions or argument.”  EDCR 2.21(c).  NRCP 56(e) requires “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

The first requirement of Rule 56(e) is that the sworn testimony must be made upon personal knowledge.  See generally Saka v. Sahara–Nevada Corp., 92 Nev. 703, 705, 558 P.2d 535, 536 (1976) (recognizing that affidavits must be based on “the affiant’s personal knowledge, and there must be an affirmative showing of his competency (more…)

Nevada Statutes of Limitation and the Discovery Rule

Statutes of limitation are designed to assure fairness to parties and prevent surprise lawsuits by determining the maximum time allowed after an event within which legal proceedings may be initiated.  As a practical matter, statutes of limitation avoid fraud on the court by disallowing claims to linger “until evidence has been lost, memories have faded, and witnesses have disappeared.”  In re Jim L. Shetakis Distrib. Co., 415 B.R. 791, 799 (D. Nev. 2009) aff’d, 401 F. App’x 249 (9th Cir. 2010) (quoting Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965) (as quoted in Oltman v. Holland America Line, Inc., 538 F.3d 1271, 1278 (9th Cir. 2008))).  The appropriate accrual date after which a claim may not be filed is a question of law if the facts are uncontroverted.  Winn v. Sunrise Hosp. & Med. Ctr., 277 P.3d 458, 463 (2012).

The time allowed to file a claim may be extended pursuant to the “discovery rule”, which is also known as the inquiry notice doctrine.  The discovery rule is available when fairness dictates that the plaintiff should be allowed more time to file her claim because the nature of the claim was hidden from her somehow.  Claimants must demonstrate the reasons or excuses why the statute should be tolled.  Siragusa v. Brown, 971 P.2d 801, 807 (Nev. 1998).  “This rule requires a plaintiff to use due diligence in determining the existence of a cause of action and delays the accrual of the cause of action until the plaintiff obtains inquiry notice. Bemis v. Estate of Bemis, 114 Nev. 1021, 1025, 967 P.2d 437, 440 (1998) (applying the inquiry notice standard to determine when the applicable statute of limitations ran).” (more…)

“The court looks with disfavor on motions to exceed page limits, so permission to do so will not be routinely granted.”  LR 7-3(c).

 

[INSERT CAPTION]

 

[PARTY NAME] hereby moves this Court, pursuant to Rule 7-3 of this Court’s Local Rules of Civil Procedure, for an Order granting [INSERT PARTY NAME] leave to file [NAME OF MOTION] in excess of twenty pages. In support of this motion, [INSERT PARTY NAME] states as follows:

  1. Local Rule 7-3 provides, in relevant part, that “[r]eply briefs and points and authorities shall be limited to twenty (20) pages, excluding exhibits.”
  2. [INSERT PARTY NAME] filed its [NAME OF MOTION] on [DATE] (Docket No. [NUMBER]). [INSERT PARTY NAME]’s [NAME OF MOTION] totals approximately [PAGES] pages.
  3. [INSERT PARTY NAME] has made every effort to be both brief and complete in its reply memorandum, as required by Local Rule 7-4. Because of [REASONS JUSTIFYING THE NEED FOR A LENGTHY PLEADING], [INSERT PARTY NAME] respectfully submits that a presentation of all the relevant facts and legal arguments requires greater length than permitted in a standard-length reply memorandum.  [INSERT FACTS AND REASONS FOR THE MOTION IN COMPLIANCE WITH LR 7-3(c)].

WHEREFORE, [INSERT PARTY NAME] respectfully requests

  1. That this Court allow [INSERT PARTY NAME] to file its [NAME OF MOTION] in excess of twenty (20) pages; and
  2. That this Court accept the [NAME OF MOTION] filed by [INSERT PARTY NAME] (Docket No. [NUMBER]), which is in excess of twenty (20) pages.

[DATE]

Respectfully submitted,

[COUNSEL NAME]

IT IS SO ORDERED:

________________________________

UNITED STATES MAGISTRATE JUDGE

DATED: ________________________

In Nevada, a claim for civil conspiracy requires: (1) two or more parties; (2) acting in concert; (3) with an intent to accomplish an unlawful objective for the purpose of harming another; and (4) damages. Consolidated Generator-Nevada Inc. v. Cummins Engine Co., Inc., 114 Nev. 1304, 1311, 917 P.2d 1251, 1256 (1998).  When alleging civil conspiracy between corporations, one must plead and prove that agent(s) of each corporation involved acted outside their employment and personally became a conspirator.

Under the Intracorporate Conspiracy doctrine, members of a corporation, such as officers or employees, cannot be held to have conspired among themselves, because the corporation and its agents constitute a single actor for purposes of law. Therefore, the plurality of actors requirement needed to constitute a conspiracy is not satisfied.  “Agents and employees of a corporation cannot conspire with their corporate principal or employer where they act in their official capacity on behalf of the corporation not as individuals for their individual advantage.” Collins v. Union Federal Savings and Loan Association, 99 Nev. 284, 304, 662 P.2d 610, 622 (1983). “[I]n order to sustain a claim for civil conspiracy for agents of a corporation are involved, it is necessary to show that one or more of the agents acted outside of the scope of their employment to render them a separate “person” for purposes of the conspiracy.” Faulkner v. Arkansas Children’s Hospital, 69 S.W. 3d, 393, 407 (Ark. 2002). Thus, it is incumbent upon the Plaintiff to allege sufficient facts that corporations which are alleged to be agents of one another received “a benefit wholly separable from the more general and indirect corporate benefit always present under the circumstances surrounding virtually any alleged corporate conspiracy.” Seleman v. Am. Sports Underwriters Inc., 697, F. Supp. 225, 239 (W. D. VA 1988). See also Trau-Med of Am. Inc. v. Allstate Ins. Co., 71 SW 3d 691, 704 (Tenn. 2002) (affirming dismissal of a conspiracy claim and noting “in this case, the plaintiff does not even intimate much less expressly allege in the complaint that the corporate agents involved in conspiratorial conduct were acting outside the scope of their employment or that they were pursuing their own personal objectives”).

The law in Nevada has consistently held that a superseding intervening cause is an interfering act that overcomes the original culpable act, and where the intervening act is an unforeseeable, independent, non-concurrent cause of the injury. Thomas v. Bokelman, 86 Nev. 10, 13, 462 P.2d 1020, 1022 (1970) (a negligence action will not stand when there is an intervening cause that in and of itself is “the natural and logical cause of the harm.”).  In effect, the intervening cause must break the chain of causation.

In the case of Milwaukee and St. Paul Ry. Co. v. Kellogg, 94 U.S. 469, 24 L. Ed. 256, Mr. Justice Strong, speaking for the supreme Court of the United States, said:  “In the nature of things, there is in every transaction a succession of events more or less dependent upon those preceding, and it is the province of a jury to look at this succession of events or facts and ascertain whether they are naturally and probably connected with each other by a continuous sequence or are dissevered by new and independent agencies, and this must be determined in view of the circumstances existing at the time.”

Konig v. C.C.O. Ry., 36 Nev 181, 212, 135 P. 141, (1913).

Complying with the Meet and Confer Requirement in Nevada Discovery Disputes

Nevada law requires that counsel, before filing a motion regarding a discovery dispute, meet and confer in an attempt to resolve the matter without court intervention.  This article discusses the requirements of that obligation, together with the mechanics of how the parties must be prove compliance with the requirement to the court.

The Eighth Judicial Court Rule (“EDCR”) 2.34 provides, in relevant part:

(d) Discovery motions may not be filed unless an affidavit of moving counsel is attached thereto setting forth that after a discovery dispute conference or a good faith effort to confer, counsel have been unable to resolve the matter satisfactorily. A conference requires either a personal or telephone conference between or among counsel. Moving counsel must set forth in the affidavit what attempts to resolve the discovery dispute were made, what was resolved and what was not resolved, and the reasons therefor. If a personal or telephone conference was not possible, the affidavit shall set forth the reasons.

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Can the Confidential Documents of a Non-Party be Subpoenaed?

If you have documents which require that you hold them in confidence, but receive a subpoena requiring the disclosure of those documents, can you withhold the documents?  In this situation, non-parties served with a subpoena can file a timely objection and ask the court to quash or modify the subpoena to protect them from disclosing privileged or protected matter, trade secrets or confidential commercial information.  See Fed.R.Civ.P. 45(3); see also United States v. Fed’n of Physicians & Dentists, Inc., 63 F. Supp. 2d 475, 479 (D. Del. 1999).

A confidentiality requirement alone is generally not sufficient to warrant a protective order. “[P]rivate confidentiality agreements do not preclude the production of documents for the purpose of discovery.”  In re C.R. Bard, Inc. Pelvic Repair Systems Products Liability Litigation, 287 F.R.D 377, 384 (S.D. W.Va. 2012) (citing Zoom Imaging, L.P. v. St. Luke’s Hosp. and Health Network, 513 F.Supp.2d 411, 417 (E.D.Pa.2007); Niester v. Moore, No. 08–5160, 2009 WL 2179356, at *3 (E.D.Pa. July 22, 2009)). (more…)

Rule 45 Requires That a Party Imposing an Undue Financial Burden on a Third Party Must    Reimburse its Costs

Rule 45 provides that “[a] party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.”  Fed. R. Civ. P. 45(d)(1).  Discoverable information from a non-party is construed more narrowly, and is weighed against the potential prejudice to the non-party.  See Laxalt v. McClatchy, 116 F.R.D. 455, 458 (D.Nev.1986) (“The standards for non-party discovery … require a stronger showing of relevance than for simple party discovery.”); Litton Indus., Inc. v. Chesapeake & Ohio Railway Co., 129 F.R.D. 528, 529-30 (E. D. Wis. 1990) (providing that “records of non-party shipbuilder concerning ship construction” were germane to establishing ship construction costs for damage purposes and would not prejudice the producing non-party; however, the other vast categories of  documents sought regarding business operations were not discoverable from the non-party).  The rules require that the courts be sensitive to the costs imposed on third parties, protecting them against significant cost.  Watts v. S.E.C., 482 F.3d 501, 509, 375 U.S.App.D.C. 409, 417 (D.C. Cir. 2007). (more…)

Jay Young is a top mediator in Las Vegas, Nevada.  ADR Certified since 1994.  Additional 40 hour certification and graduate of Pepperdine Law’s Strauss Institute for Dispute Resolution’s  “Advanced Mediation: Skills and Techniques” program.  Jay is a Nevada Supreme Court Settlement Judge (mediator), a Judge Pro Tem, a Special Master, and a National Mediation Panelist for the American Arbitration Association and Advanced Resolution Management.  Contact him at 702.960.4494. Go here for Jay’s full bio.

Praise for Jay:

“Jay Young did a truly spectacular job.  The parties had tried countless times to reach a resolution and never got anywhere close prior to Jay’s involvement.  He is as good a mediator as I have encountered anywhere in the country.”  Anonymous Attorney participating in Nevada Supreme Court Settlement Program.

“He is extremely professional, fully prepared, strategic and effective.”  Anonymous evaluation from Advanced Resolution Management Mediation.

“Simply put, Jay Young is a person you can trust.”  Anonymous evaluation from Advanced Resolution Management Mediation.

What Is Mediation?

Simply put, mediation is a process where a person called a mediator helps people resolve a dispute in a non-confrontational setting.  It is more akin to marriage counseling than litigation.  The mediator will not be deciding any outcome but will try to get the parties to come to an agreement with which they can both live.  According to the Nevada Rules Governing Alternative Dispute Resolution, Rule 1(B), the mediator:

acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives. 

Since no two disputes are alike, no two solutions will be the same.  The process of how mediation proceeds will therefore depend largely on the needs of those involved.  I will attempt to illustrate some of the possible ways a mediation might proceed.

What is the Role of the Mediator?

As a mediator, I believe my first role is to understand the dispute between the parties.  The parties to the suit have the most information about the issues that they currently face.  To help them reach a resolution, I need to understand the genesis of the dispute through its current status.  Therefore, before the parties and their counsel meet with me, I ask each of them to provide me with a “mediation brief,” which is essentially a summary of your dispute.  Your brief should not be a trial advocacy brief or contain bundles of pleadings and deposition transcripts unless those are absolutely necessary to educate me.  You should simply provide me general information regarding the types of claims filed, as well as the strengths and weaknesses of the evidence regarding those claims.  Briefs should be civil and professional in tone, without personal attacks. The goal your brief should be to inform me, not to inflame your opponent.

A good brief will contain:

  • A factual summary, including any factual disputes;
  • A short statement outlining the type of work/business of every party, if relevant;
  • A chronology of events, if relevant;
  • A glossary of technical terms, if relevant;
  • A list of the important parties and their relation to the dispute;
  • An outline of the legal issues;
  • A history of the settlement negotiations between the parties, if any (consider submitting this information in a separate confidential submission);
  • A candid evaluation of the relative strengths and weaknesses of each party’s case;
  • A procedural history of the litigation, and any upcoming deadlines, including a trial date;
  • A fair settlement proposal to which you would be willing to agree (consider submitting this information in a separate confidential submission);
  • Any non-monetary settlement terms you would like to explore (consider submitting this information in a separate confidential submission); and
  • Any terms or conditions that the party or parties believe should be included in a settlement agreement.

Second, attorneys sometimes want all mediation briefs to be confidential.  There are many times when parties could have saved hours of negotiations during the mediation session had counsel shared their briefs with each other.  If the other side has an over-inflated view of their case, sharing that information early will assist in settling the matter and advance your cause.

While it is not recommended to disclose truly confidential information in your brief, sharing your brief is not an accommodation to other side.  Retired judge and mediator Alexander H. Williams III is fond of pointing out that a shared brief is an enhancement of your presentation as well as your influence on the mediation. And even if the other side decides not to share its brief, and therefore chooses not to strengthen its presentation, that does not mean you should refuse to strengthen yours.

Third, I will not decide who wins your dispute.  I do not “take sides”— I am not a judge, jury, or an advocate.  My job is to help each side come to an agreement. You are the one who decides if you are willing to accept any offer made by the other party.  I may provide the parties with some food for thought and even play devil’s advocate at times to challenge how each party sees both the dispute as well as the way forward.  At times, I may act as an “agent of reality,” telling each party things that they don’t want to hear.  I do so that the parties can see things that they may not have considered before, but you will be the one who makes the final decision whether you agree to a settlement.  Most parties to mediation at one time or another express unrealistic goals or settlement offers.  Rest assured that I will discuss “reality” with both side of the dispute.

Fourth, I will try to help the parties find common ground.  As I do so, my goal is to guide the process in a fair fashion.  Sometimes that means discussing money being paid from one side to another.  Other times that will entail crafting a business relationship going forward that benefits both parties more than litigation does.

Finally, understand that I will often be asked to “carry water” for a party—that is, a party will ask that I deliver a message to the other party.  These messages could be positive in nature—a willingness to express a sincere apology, or a more negative approach—if you don’t accept our offer, we intend to file a motion for fees, etc.

What is Your Role at Mediation?

             In litigation, your attorney does most of the heavy lifting, and as a party, you are mostly watching the presentation.  Much of that presentation, if not all, focuses on the past.  In mediation, your attorney will still be an important advocate for your cause and will certainly be a very important adviser to you, but you play a more central role.  I will sometimes speak with your attorney and I will sometimes speak directly to you in order to help find the best way forward.  I will have learned about the past from your counsel’s brief and will look forward to understanding its impact on you when we meet.  Please be engaged in the process and share with me your feelings both about what occurred as well as what you would like to see for the future.  Even though I have been involved in thousands of disputes, I guarantee that I have never had one “just” like yours. Therefore, I need your help to understand your unique situation.

How Does Mediation Compare to Litigation?

Litigation is about proving your case and having a judge, or an arbitrator declare a winner; one party wins and another loses.  In contrast, at mediation the law and your likelihood of success is a very important aspect of your case, but it is not the only factor.  Mediation allows other factors to be considered and developed without being limited to just what the law might provide if everything at trial goes the way that you hope it will.  Mediation is designed to try to find a resolution that is a win-win.  Unless parties insist, I normally do not normally suggest that counsel give an opening statement at mediation.  Doing so is, more often than not, counterproductive as they tend to devolve into a chest pounding session about who will win the litigation.

In litigation, one often listens to the other side, not for understanding and a search for common ground, but for the exposure of inconsistencies, weaknesses, and opportunities to score points.  Because of this adversarial process, litigants almost always have an exaggerated view of the strength of their own case and the weakness of the other side, which means that you probably have an exaggerated view of your case, just as the other side does.  Litigants tend to experience what psychologists call “confirmation bias” — the tendency to interpret new evidence and information as confirmation of one’s existing beliefs and theories.  I therefore encourage you to be open to a conversation that requires parties to listen as well as to speak.  Be honest about your “bad facts”.  All cases have bad facts and neither yours nor your opponent’s case is an exception.  Discuss your bad facts with your counsel before the mediation so that you will be prepared to understand how they motivate the other side and/or how they should influence you.

Lastly, in litigation, someone else determines your future.  It might be a judge, a jury, or an arbitrator, but someone else will decide who is right and who is wrong.  You will lose all control over the outcome.  Conversely, by mediating your dispute, you can maintain control over the outcome.

Why Mediate?

The uncertainty of a litigated outcome alone justifies considering alternatives to a litigated result.  Every experienced litigator can point to cases they won when they didn’t think they had a chance winning.  They can also point to times when if there was any justice, they would have won, but lost.  There simply is no way to accurately predict with certainty the outcome of a litigated case whether decided by a judge, a jury, or an arbitrator.  A mediated result gives you certainty without the risk of litigation.

The Randall Kiser Study, released in the Journal of Empirical Legal Studies, found that parties who reject the last and best offer at mediation overwhelmingly regret the decision.  The study surveyed thousands of cases in California and New York over a five-year period.  It found that plaintiffs who rejected the last settlement offer and proceeded to trial do worse a whopping 61% of the time, while defendants did worse than their last offer 24% of the time.  In only 15% of the cases did both sides obtain a better result at trial.

All is not good news for defendants, however.  Although they seem to do better at predicting outcomes, the 24% of the time they are wrong ends up being much more costly to them.  Defendants who fared worse at trial than the last demand, ended up with a verdict that was on average $1.1 Million more than the Plaintiff’s last demand. On the other hand, plaintiffs received on average $43,000 less than the last offer given before trial.  Some studies suggest that 95% or more of lawsuits settle rather than go to trial.  Assuming that is true, your case seems destined to settle; therefore, why not resolve it now rather than later?  Doing so will save time, aggravation, stress, and money.  That said, mediation will not be an easy process.  At times, you may feel uncomfortable, pressured, and perhaps even emotional.  If the process were easy, the parties wouldn’t need a mediator’s assistance to settle the matter.

There may come a time during mediation when you may feel like giving up and you might feel like settlement is impossible.  It is likely that in order to settle, both parties will be urged to step beyond the original “bottom line” limit they determined for themselves before the process started, in order to make a deal.  Once the parties have come this close to a settlement, the last thing they should do is to give up.  The easy answer will be to walk out the door in frustration.  But remember what awaits you if you choose to leave: more attorney fees, stress, frustration, and an uncertain result through litigation.  If you are inclined to say, “I offered my last dollar and they rejected it,” I would also urge you to avoid drawing a line in the sand.  Instead, explore if there is something of non-monetary value that you can give or get that might make the deal more palatable.  If not, I would recommend that instead of walking out the door, you tell the mediator that you are ready to quit and allow the mediator a chance to give you a reason to stay.  If you give the process a chance, you may walk away with a settlement you can live with, rather than an uncertain future where the decision will be made by someone else.

Who May Attend The Mediation?

All parties directly involved in the dispute should attend the mediation.  You and your attorney, as well as the other party and their counsel need to appear.  Anyone who would be responsible to pay or to approve the amount paid or received should be in attendance or, at a minimum, be available by telephone.  If an insurance company will be paying for any settlement, a representative of that insurance company who has full settlement authority should be there in person.  If a company is a party to the litigation, an individual with final settlement authority should be present. My preference is that parties not participate via telephone, as it is easier to be dispassionate and disassociated with the process.  Anecdotal evidence suggests that having a party appear by telephone increases the chances that the mediation fails to end in a settlement, so I prefer to have all decision makers present for my mediations.

Is Mediation Confidential?

Yes, mediation proceedings are confidential.  There are several aspects of mediation confidentiality that are explained in greater detail below, which you should understand:  1) confidential submissions to the mediator; 2) confidentiality of the settlement itself; 3) admissibility of the negotiations should the matter not settle; and 4) the obligation of the mediator keep confidential, the information shared with him or her by a party.

As I indicated above, counsel may submit truly confidential matters to me without sharing it with the other side.  I will absolutely hold those in confidence unless you later authorize me to share that information with someone.  The settlement reached at a mediation is not necessarily confidential unless the parties make confidentiality a term of the agreement.  The parties will have to determine whether they should allow one or both parties to be able to speak openly about the fact that the case settled, or about the amount of the settlement.

Things that happen and information exchanged at mediation cannot be used against a party to that litigation or in other court proceedings so long as the information is not discoverable by other means.  This point is so important that it is written into the law.  First, an offer to compromise one’s position by way of negotiation “is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.”  Nevada Revised Statutes 48.105.  Federal Rule of Evidence, Rule 408 provides the same protection for matters in Federal Court.  Second, a mediator in Nevada cannot be forced by any court to disclose any matter discussed during mediation proceedings.  Nevada Revised Statutes 48.109(3).  Finally, in order to encourage parties to be open, honest, and to achieve a mediated resolution, our legislature has declared that “no admission, representation or statement made during the [mediation] session, not otherwise discoverable or obtainable, is admissible as evidence or subject to discovery.”  Nevada Revised Statute 48.109(2).

Mediators may not share confidential information you provide to him or her to your opponent.  Some mediators will tell you they hold everything you tell them in confidence and only divulge what you specifically tell them is not confidential.  Other mediators (me included) feel that sharing of information is so essential to the process that nothing is treated as confidential unless they are specifically instructed that the matter is confidential.  I will assume you want me to be able to share information if and when I feel it may assist with settlement unless you tell me it is confidential.  There is no right or wrong approach, but you should make sure you understand your mediator’s philosophy before you share sensitive information.  Finally, communications between you and your counsel are attorney-client privileged communications protected by law.

What Will Happen At The Mediation?

First, I prefer to have a pre-mediation discussion by telephone with counsel a few days before we meet.  I find that these conversations give me a flavor for the dispute that I cannot always get from the written briefs and help me to jumpstart the actual mediation by getting to know the attorneys and their issues better.  Attorneys often choose to use this phone call as an opportunity to deliver an ”opening statement,” laying out their client’s case in a safe environment where they are not likely to enflame emotions as sometimes happens when opening statements are given with litigants present.  I appreciated the candid exchange, as well as the advocacy in an environment that is not likely to set negotiations back because someone is offended.

Second, I like to start the day with a short joint session.  In the joint session, all participants will be introduced and will sign a confidentiality agreement before proceeding.  Next, I will take a moment to introduce myself and my background as a professional neutral, and outline the process of holding separate sessions.  I will ask for a commitment to the process of the mediation.  You should be prepared to commit to making a good faith effort to settle your differences at mediation.

What Is A Separate Session?

A separate session is sometimes referred to as a caucus or a private session.  It is simply a private meeting between a mediator and one party (with that party’s counsel).  I place the parties in separate rooms, and far enough apart that they won’t run into each other easily and uncomfortably in the hall and will not be able to hear one another’s separate session.  I then meet separately with each party.  These sessions can be as short as a few minutes and as long as necessary to make progress.

The time spent in separate sessions will certainly not be equal between the parties, but you should not read any significance into that fact.  Understand that each person processes information, offers, and emotions differently, so a mediator may have to spend more time with one party than another.  It does not mean that I am in the other room “drinking the kool-aid” being served by the other side.  Rather, think of it as me taking the amount of time I believe is necessary to move that party closer to a resolution.  During a separate session, a mediator may simply gather information before even asking either party to make any offer.  Thereafter, a mediator may engage in shuttle diplomacy, moving from one room to another, delivering information, exploring options, and making offers and counteroffers.

Can You Speak With Your Attorney Privately Any Time You Want?

Yes!  All you have to do, whether in a joint session or separate session, is tell me and I will make arrangements for privacy so that you can speak freely with your counsel.

How Long Will the Mediation Last?

No two mediations are alike, but you should be prepared for a long, sometimes tedious, tiresome, trying, and emotional process.  The more complex the problem, the more likely that the mediation will take some time to come to a conclusion.  I have spent as little as an hour and as long as 40 hours (over multiple days of course) mediating a single matter.  Most business mediations take at least a half a day, but complex matters can go a full day or longer.  Bring any item with you that you need to be comfortable.  Some people bring a good book or a hobby to work on during down time when the mediator is in a separate session with the other party.

What Helps To Get The Case Settled?

Everything I have covered in this article is designed to assist you in trying to resolve your dispute.  The more you prepare, the more likely you are to reach a settlement.  Perhaps the most important factor in you being able to settle your case is having a realistic expectation regarding the value of your case and what is means to really compromise.  If you think you could get $1,000,000 from a jury on your very best day, do not expect the other side to be willing to pay you that $1,000,000, as they will be looking at how little they could pay you if the jury believes them more than it believes you.  If you are an injured party, you may likely feel that no amount of money can really make the past go away.  Likewise, if you are defending that case, do not expect to walk away paying the amount you think you would at trial if you did everything right and the jury agreed with all of your analysis and presentation.  The sweet spot for settlement is somewhere between those two extremes.

Ultimately, if your case is not settled at mediation, a judge or jury will decide the case value.  Jurors are strangers to your case and may have differing beliefs and attitudes toward you.  Jurors are often suspicious of people who bring lawsuits and of their attorneys.  They also tend to wonder why they shouldn’t get the $1,000,000 that you are seeking and sometimes resent the person asking for money.  This is especially true where there are minimal property damages and soft tissue injuries that cannot be verified objectively or where damages in a business matter are caused to a new business and are hard to quantify.  On the other hand, juries tend to be unforgiving if they feel a plaintiff has been treated unfairly or if they feel the acts of the defendant are particularly harmful that they need to be punished.  Further, some jurors have religious or moral objections to filing a lawsuit and therefore hold some bias.  Some jurors, for reasons they may not even understand, will simply like one party more than the other party. You should come prepared to discuss a realist case value in light of all of these risks.

Abuse of Process Claim Requires an Allegation of Abusive Acts After the Filing of a Claim

An abuse of process claim in Nevada has two fundamental elements: (1) an ulterior purpose, and (2) a willful act in the use of the process not proper in the regular conduct of a proceeding.  Executive Mgmt. Ltd. v. Ticor Title Ins. Co., 114 Nev. 823, 843, 963 P.2d 465, 478 (1998).  The action for abuse of process hinges on the misuse of regularly-issued process.  Nevada Credit Rating Bureau, Inc. v. Williams, 88 Nev. 601, 606, 503 P.2d 9 (1972).

The mere filing of a complaint itself is insufficient to establish the tort of abuse of process.  Hampton v. Nustar Managment Financial Group, Dist. Court, (D. Nev. 2007); Laxalt v. McClatchy, 622 F. Supp. 737, 752 (D. Nev. 1985).  Instead, the complaining party must include some allegation of abusive measures taken after the filing of the complaint in order to state a claim.  Id.  Merely alleging that an opposing party has a malicious motive in commencing a lawsuit does not give rise to a cause of action for abuse of process.  Id.; Curiano v. Suozzi, 469 N.E.2d 1324, 1326 (N.Y. 1984). (more…)

A Subpoena Seeking Documents from a Third Party That Could be Obtained from a Party is Unduly Burdensome

The discovery standards and case law applied when seeking documents or information from non-parties differ from those of a party to the litigation. The limits on discovery should be more narrowly construed when non-parties are the target of discovery. Dart Indus. Co., Inc. v. Westwood Chemical Co., 649 F.2d 46, 649 (9th Cir. 1980) (recognizing that although there is a strong policy in favor of liberal discovery, there is potential for abuse in applying that policy to nonparties); In re Subpoena to Apple, Inc., No. 5:14-cv-80139-LHK-PSG, 2014 WL 2798863, *2 (N.D. Cal., June 19, 2014) (“Discovery may be limited to ‘protect third parties from harassment, inconvenience, or disclosure of confidential documents.'” quoting Dart, supra); Edwards v. California Dairies, Inc., 2014 WL 2465934 at *2 (“While discovery should not be unnecessarily restricted, discovery is more limited to protect third parties from harassment, inconvenience, or disclosure of confidential documents.” citing Dart, supra).  Pursuant to Rule 45(c)(2)(B), which allows the answering party to timely object to the Subpoena, once a party raises a timely objection to a Subpoena, it is not required to produce documents, or even search for them, until the subpoenaing party obtains an order compelling the same.  Id. (citing Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, at 494 & n. 5 (9th Cir. 1983)); see also Forsythe v. Brown, 281 F.R.D. 577, 587 (D.Nev.2012) report and recommendation adopted, 3:10–CV–00716–RCJ, 2012 WL 1833393 (D. Nev. May 18, 2012). (more…)

Once you have exhausted the witness’ knowledge regarding their knowledge of the subject matter of the dispute, filled in the gaps, and created usable testimony by gaining recapitulation and are about to conclude the deposition, you want to do all that you can to make sure the witness cannot later change testimony without looking biased or lacking in veracity.  Consider asking the following questions which will provide you with some good testimony in the event the witness attempts to materially change his or her testimony at the time of trial:

  • Witness, do you agree that I have given you every opportunity to tell me what you want the court to know about the incident leading to this suit?
  • Do you agree that you have given me truthful testimony today?
  • Is there anything that you think is important about the incidents related to this lawsuit that I have not asked you about?
  • If there is, please tell me about that now.
  • So, you have told me everything that you believe is important about this lawsuit?

Gaining this testimony will not prevent the witness from changing testimony, but it will allow you to highlight the fact that the witness didn’t think the “new” testimony was important at the time of the deposition, and allow you to argue that the trier of fact should discount the testimony for that reason.

Royal Oak, Michigan, August 28, 2018: Howard & Howard Attorneys PLLC is pleased to announce that twenty-nine of our attorneys were selected by their peers for inclusion in The Best Lawyers in America® 2019. Since it was first published in 1983, Best Lawyers®has become universally regarded as the definitive guide to legal excellence. Best Lawyers® lists are compiled based on an exhaustive peer-review evaluation. 83,000 industry leading attorneys are eligible to vote (from around the world), and almost 10 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world were received. For the 2019 Edition of The Best Lawyers in America®, 7.8 million votes were analyzed, which resulted in almost 60,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers® is considered a singular honor. Corporate Counsel magazine has called Best Lawyers® “the most respected referral list of attorneys in practice.”
(more…)

Besides obtaining information from an adverse witness regarding the events which are the subject of the suit, you should also try understand how this witness will attack your claims.  Finally, you should attempt to do what you can to turn the witness into a witness for your case.  There is certain information you can get from each witness that allows you to attack the witness at trial.   Explore lines of questioning designed to elicit the following:

  1. What information must the witness admit?
  2. What information shows bias or impeaches the witness’ credibility?
  3. On what items may the witness’ testimony be limited (didn’t hear or see or experience X, Y, and Z)?
  4. Where is the witness weak?
  5. What does the witness know that agrees with your case?

Nevada Standards of Review on Appeal—A Digest

Abuse of Discretion

In General

“An abuse of discretion is a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.”  Rabkin v. Oregon Health Sciences Univ., 350 F.3d 967, 977 (9th Cir. 2003) (citation and internal quotation marks omitted); In re Korean Air Lines Co., Ltd., 642 F.3d 685, 698 n.11 (9th Cir. 2011).

Under the abuse of discretion standard, a reviewing court cannot reverse absent a definite and firm conviction that the district court committed a clear error of judgment in the conclusion it reached upon a weighing of relevant factors.  McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 953 (9th Cir. 2011); Valdivia v. Schwarzenegger, 599 F.3d 984, 988 (9th Cir. 2010) (citing SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir. 2001)); Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000) (noting reversal under abuse of discretion standard is possible only “when the appellate court is convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances”). (more…)

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Federal Court Litigation Checklist (Your Legal Guides 2016). This invaluable checklist guides attorneys through all the steps they need to take as a litigator from client intake to verdict. Even attorneys who have practiced for many years find this guide streamlines their practice and allows them to mentor younger attorneys, saving countless hours while teaching their attorneys the valuable lessons that normally take decades to learn.  Buy here.

 

A Litigator’s Guide to Federal Evidentiary Objections (Your Legal Guides 2016).  This guide allows attorneys to instantly find the right objection to make in the heat of battle during trial. Buy here.

 

 

 

A Litigator’s Guide to the Federal Rules of Evidence (Your Legal Guides 2016). A Pocket book for every busy trial attorney practicing in Federal Court. With this pocket book, litigators will be able to instantly translate their knowledge of Federal Rules to courtroom use or look up the rule/statute based on the concept. Buy here.

 

 

Nevada State Court Litigation Checklist (2nd Edition) (Your Legal Guides 2016).  This invaluable checklist guides attorneys through all the steps they need to take as a litigator from client intake to verdict. Even attorneys who have practiced for many years find this guide streamlines their practice and allows them to mentor younger attorneys, saving countless hours while teaching their attorneys the valuable lessons that normally take decades to learn.  Buy here.

 

A Litigator’s Guide to Nevada Evidentiary Objections (2nd Edition) (Your Legal Guides 2016).  This guide allows attorneys to instantly find the right objection to make in the heat of battle during trial. Organized logically, it is cross-referenced to the Federal Rules of Evidence as well as Nevada’s evidence statutes.  Buy here.

 

 

A Litigator’s Guide to Nevada Rules of Evidence (2nd Edition) (Your Legal Guides 2016).  A Pocket book for every busy trial attorney whether practicing in Federal Court or in State Court. Tracks both Nevada and the Federal Rules of evidence in one source! With this pocket book, litigators will be able to instantly translate their knowledge of Federal Rules to Nevada’s statutes, or look up the rule/statute based on the concept.  Buy here.

 

The Self Help Federal Court Litigation Checklist (Your Legal Guides 2016). This invaluable checklist guides lay litigants through all the steps they need to take from initial filing to verdict. Even attorneys who have practiced for many years find this guide streamlines their practice and allows them to mentor younger attorneys, saving countless hours while teaching their attorneys the valuable lessons that normally take decades to learn.  A must for anyone representing themselves in federal court (pro per, pro se, self-represented, etc).  Buy here.

 

The Self Help Guide to Federal Evidentiary Objections (Your Legal Guides 2016).  This guide allows lay litigants to instantly find the right objection to make in the heat of battle during trial.  A must for anyone representing themselves in federal court (pro per, pro se, self-represented, etc).  Buy here.

 

 

The Self Help Guide to the Federal Rules of Evidence (Your Legal Guides 2016). A Pocket book for every every lay litigant in Federal Court. With this pocket book, litigants can find the correct Federal Rules based on the concept.  A must for anyone representing themselves in federal court (pro per, pro se, self-represented, etc).  Buy here.

Can a Party to Litigation Object to a Subpoena Issued to a Non-Party Witness for Documents?

It happens often.  A subpoena is issued to a third party who isn’t part of litigation because that party might have documents that are useful in a lawsuit.  When responding to the subpoena, can a party to the litigation step in and object on behalf of the non-party witness?  The law is clear that a party has standing to challenge a subpoena issued to a non-party only “when it alleges a personal right or privilege with respect to, or has possession of, the materials subpoenaed.” See Platinum Air Charters, LLC v. Aviation Ventures, Inc., No. 205CV-01451-RCJ-LRL, 2007 WL 121674, at *2 (D. Nev. Jan. 10, 2007) (citing Jez v. Dow Chemical Co., Inc., 402 F.Supp.2d 783, 784–85 (S.D.Tex.2005)); First Am. Title Ins. Co. v. Commerce Assocs., LLC, No. 2:15-CV-832-RFB-VCF, 2017 WL 53704, at *1 (D. Nev. Jan. 3, 2017).  In other words, because the party is not the recipient of the subpoena, it has standing to challenge only where its challenge asserts that the information is privileged or protected to itself.  See Diamond State Ins. Co. v. Rebel Oil Co., 157 F.R.D. 691, 695 (D. Nev. 1994) (Jerry T. O’Brien, Inc. v. Securities and Exchange Commission, 704 F.2d 1065, 1068 (9th Cir.1983), rev’d on other grounds, 467 U.S. 735, 104 S.Ct. 2720, 81 L.Ed.2d 615 (1984), citing Donaldson v. United States, 400 U.S. 517, 523, 91 S.Ct. 534, 538, 27 L.Ed.2d 580 (1971)). (more…)

 Readiness Checklist for Mediation:

Eight Things You Should Discuss With Your Client Before Mediation

The Mediation Process

  • For a printer-friendly version of this checklist, click here
  • What is mediation and how is it different from court or arbitration?
  • Why should the client consider mediation?
  • What is the mediator’s role?
  • What is the client’s role in mediation?
  • Who may attend the mediation?
  • Confidentiality in mediation
  • Discuss joint and separate sessions (also called caucuses)
  • Discuss whether an apology to or from a party might be appropriate
  • Discuss whether the client will speak directly with the mediator and/or the other party
  • Discuss whether an opening presentation at mediation is desirable or appropriate
  • Are there desirable non-monetary solutions, such as future business or payment in-kind?

(more…)

Cases Interpreting NRS 38.241; Vacatur of Arbitration Award—A Digest

In General

Mere error in the application of the law is not grounds to vacate an arbitration award.  Bohlmann v. Byron John Printz and Ash, Inc., 96 P.3d 1155, 120 Nev. 543 (2004).

An arbitrator manifestly disregards the law, so as to require vacation of arbitration award, when he or she recognizes that the law absolutely requires a given result and nonetheless refuses to apply the law correctly.  Bohlmann v. Byron John Printz and Ash, Inc., 96 P.3d 1155, 120 Nev. 543 (2004).

Arbitrator’s manifest disregard of the law, so as to require vacation of arbitration award, is something beyond and different from a misinterpretation or error in applying the law.   Bohlmann v. Byron John Printz and Ash, Inc., 96 P.3d 1155, 120 Nev. 543 (2004). (more…)

Royal Oak, Michigan, July 12, 2018: Howard & Howard Attorneys PLLC is pleased to announce that five of our attorneys have been named to Nevada Business Magazines 2018 Legal Elite and Best Up and Coming Attorneys lists.

The Howard & Howard attorneys named to the 2018 Legal Elite list are as follows:

  • W. West Allen
  • Robert W. Hernquist
  • Matthew J. Kreutzer
  • Jay Young
The Howard & Howard attorney named to the 2018 “Best Up and Coming Attorneys” list is as follows:
  •  Jason Weiland

Legal Elite, published since 2008, recognizes the top attorney’s in the state as nominated by their peers. The exclusive list includes only the top 4 percent of licensed attorneys in the state. This years list features over 300 attorneys on the Northern and Southern Nevada lists. In addition, there are breakout lists for the Best Up and Coming and Best Government attorneys. In order to be included, attorneys passed several levels of scrutiny. After nominations closed, ballots were reviewed for eligibility and each voting attorney was vetted through the State Bar of Nevada to confirm their good standing.

Nominated lawyers were scored based on the number and type of votes they received. Nominations from attorneys at other firms received a scoring of three points and nominations from the same firm received one point. After final scores were tabulated, the top scorers were then verified again and contacted to finalize the Legal Elite list.

Founded in 1869, Howard & Howard is a full-service law firm with a national and international practice that provides legal services to businesses and business owners. The firm has offices in Michigan (Ann Arbor and Royal Oak); Illinois (Chicago and Peoria); Las Vegas, Nevada; and Los Angeles, California. Howard & Howards major areas of practice include: bankruptcy and creditors rights; business and corporate; commercial litigation; employee benefits; environmental; estate planning; franchising; intellectual property; labor, employment and immigration; mergers and acquisitions; real estate; securities; and tax. Our distinguished backgrounds provide us with a solid understanding of the industries we serve, including, automotive and industrial; cannabis; commodity futures; construction; energy and utilities; financial services; gaming; healthcare; and hospitality. For more information, please visit the firms website at www.howardandhoward.com.


  • Stacey M. Parzuchowski
    Marketing & Communications Manager
    Howard & Howard Attorneys PLLC
    450 West Fourth Street, Royal Oak, MI 48067
    (248) 723-0412
    SParzuchowski@howardandhoward.com

(more…)

Can an Arbitrator be Removed During the Pendency of an Arbitration?

What do you do if you feel that the arbitrator appointed to hear your dispute isn’t providing a fair and impartial atmosphere in which your matter can be heard?  Can you challenge the Arbitrator before he or she makes the final decision in the matter?  What cause is sufficient to have an arbitrator removed?  As is the case with so many questions in the law, the answer is: it depends.  For the most part, parties to an arbitration who feel there is cause to remove an arbitrator are better off if it is a proceeding under the rules of the American Arbitration Association (“AAA”) or JAMS than if it a proceeding governed under the Federal Arbitration Act (“FAA”) or the Revised Uniform Arbitration Act (“RUAA”). (more…)

HOWARD & HOWARD CONGRATULATES OUR TWELVE ATTORNEYS NAMED TO MOUNTAIN STATES SUPER LAWYERS AND RISING STARS 2018 (WEDNESDAY, JUNE 27, 2018)

Royal Oak, Michigan, June 27, 2018: Twelve of Howard & Howards attorneys were recently named to the 2018 Mountain States Super Lawyers and Rising Stars lists as a result of a patented selection process. This process includes peer evaluation and independent research. Mountain States Super Lawyers covers the states of Nevada, Utah, Montana, Idaho and Wyoming. Only five percent of the lawyers in each of these states are named to Super Lawyers and two and one half percent to Rising Stars.

The Howard & Howard attorneys and the practice areas under which they are listed in 2018 Mountain States Super Lawyers and Rising Stars are as follows:

Nevada Office Super Lawyers:

Nevada Office Rising Stars:

Founded in 1869, Howard & Howard is a full-service law firm with a national and international practice that provides legal services to businesses and business owners.The firm has offices in Michigan (Ann Arbor and Royal Oak); Illinois (Chicago and Peoria); Las Vegas, Nevada; and Los Angeles, California. Howard & Howards major areas of practice include: bankruptcy and creditors rights; business and corporate; commercial litigation; employee benefits; environmental; estate planning; franchising; intellectual property; labor, employment and immigration; mergers and acquisitions; real estate; securities; and tax. Our distinguished backgrounds provide us with a solid understanding of the industries we serve, including, automotive and industrial; cannabis; commodity futures; construction; energy and utilities; financial services; gaming; healthcare; and hospitality. For more information, please visit the firms website at www.howardandhoward.com.


  • Stacey M. Parzuchowski
    Marketing & Communications Manager
    Howard & Howard Attorneys PLLC
    450 West Fourth Street, Royal Oak, MI 48067
    (248) 723-0412
    SParzuchowski@howardandhoward.com

(more…)

The Secrets of Power Negotiating

The Mediation Process

  • For printer-friendly version of this article, click here
  • What is the client’s role in the mediation?
  • Discuss whether the client will speak directly with mediator and/or the other party
  • Discuss whether an apology to or from a party might be appropriate
  • Discuss whether an opening presentation at mediation is desirable or appropriate
  • Are there desirable non-monetary solutions, such as future business or payment in-kind?

(more…)

REFERENCE TO JAMS RULES IN CONTRACT ALLOWS ARBITRATOR TO DECIDE ARBITRABILITY

by Guest Blogger Michael R. Lied

Usually, it is up to a court to determine if parties to an agreement have decided to let an arbitrator decide disputes under that agreement. But not always.

Simply Wireless sells cellular telephone goods and services to consumers and provides advertising, marketing, and distribution services to other businesses in the telecommunications industry. Simply Wireless is the registered owner of multiple trademarks using the name SIMPLY WIRELESS. Simply Wireless is also the originator and owner of the trademark SIMPLY PREPAID in connection with the sale of cellular telephone goods and services.

T-Mobile also provides cellular services. Although T-Mobile and Simply Wireless compete, they have partnered on several projects.  T-Mobile and Simply Wireless partnered on a project by executing a contract referred to as the “HSN/QVC Agreement”. (more…)

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