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). In pleading to a preceding pleading, a party shall set forth affirmatively 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, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. (more…)
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)).