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 (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).” (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.

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”).

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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