Month: October 2018

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 (9^th 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).” Continue reading Nevada Statutes of Limitation and the Discovery Rule

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.

A conspiracy consists of an unlawful combination of two or more persons to do that which is contrary to law, or to do that which is wrongful and harmful towards another person. Carlton v. Manuel, 64 Nev. 570, 586, 187 P.2d 558 (1947).  To prevail in a civil conspiracy action, a plaintiff must prove an agreement between the tortfeasors, whether explicit or tacit. Eikelberger v. Tolotti, 96 Nev. 525, 528, 611 P.2d 1086, 1088 (1980). Proof of an agreement alone is not sufficient, however, because it is essential that the conduct of each tortfeasor be in itself tortious. See Restatement (Second) of Torts, § 876 (1979).  As such, the Plaintiff must at least allege the defendants acted in consort to commit acts they knew to be unlawful.  See Jordan v. State, 121 Nev. 44, 75, 110 P.3d 30 (2005).

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”).