Archive for: 2019

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.

      (a) In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event or default from which the designated period of time begins to run must not be included. The last day of the period so computed must be included, unless it is a Saturday, a Sunday, or a non-judicial day, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a non-judicial day, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the district court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. The County Clerk shall memorialize and maintain in a written log all such inaccessible days. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and non-judicial days must be excluded in the computation.

      (b) If any day on which an act required to be done by any one of these rules falls on a Saturday, Sunday or legal holiday, the act may be performed on the next succeeding judicial day.

      (c) Except as otherwise provided in paragraph (d) of this rule, whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper, other than process, a motion for a new trial, a motion to vacate judgment pursuant to NRCP 59 or a notice of appeal, and the notice or paper is served upon the party by mail, either U.S. Mail or court authorized electronic mail, or by electronic means, three (3) days must be added to the prescribed period.

Rule 1.90.  Caseflow management.

      (a) Delay reduction standards.

             . . .

             (2) Time limits for discovery commissionerdistrict judge. Except in complex litigation as defined in NRCP 16.1(f), the discovery commissioner shall ensure that pretrial discovery is completed within 18 months from the filing of the joint case conference report. Discovery in complex litigation shall be completed within 24 months from the filing of the joint case conference report.

. . .

      (b) Civil caseflow management.

             . . .

             (3) Scheduling orders. The discovery commissioner shall issue a scheduling order in a civil case no later than 30 days from the filing of the joint case conference report. The scheduling order shall indicate whether the case is likely to take more than 4 weeks to try and at least 5 dates consistent with the settlement program on which the parties are requesting that a settlement conference be scheduled when all counsel plus those persons with settlement authority are available to attend at 10:30 a.m. Tuesday through Friday.

             (4) Trial setting. Upon receipt of a scheduling order from the discovery commissioner, the trial judge shall issue a trial setting order within 60 days, setting the matter for trial no later than 12 months from the date of the discovery cut-off date set forth in the scheduling order.

Rule 2.20.  Motions; contents; responses and replies; calendaring a fully briefed matter.

     . . .

      (b) All motions must contain a notice of motion setting the same for hearing on a day when the district judge to whom the case is assigned is hearing civil motions in the ordinary course. The notice of motion must include the time, department, and location where the hearing will occur.  

“Motions requiring a hearing must include the designation “Hearing Requested” in the caption on the first page of the motion as follows:

Case No.

Dept. No

HEARING REQUESTED”

Rule 2.34.  Discovery disputes; conferences; motions; stays.

     . . .

      (f) Following the hearing of any discovery motion, the commissioner must prepare and file a report with a recommendation for the court’s order. The commissioner may direct counsel to prepare the commissioner’s report, including findings and recommendations in accordance with Rules 7.21 and 7.23. The clerk of the court or the discovery commissioner designee shall forthwith serve a copy of the report on all parties. The report is deemed received 3 days after the clerk of the court or discovery commissioner designee places a copy in the attorney’s folder in the clerk’s office or 3 days after mailing to a party or the party’s attorney. Within 5 days after being served with a copy, any party may serve and file specific written objections to the recommendations with a courtesy copy delivered to the office of the discovery commissioner. Failure to file a timely objection shall result in an automatic affirmance of the recommendation.

    . . .

      (h) If when counsel meet and confer pursuant to NRCP 16.1, they discover that the parties would benefit from participating in a settlement conference, that information along with 5 dates consistent with the settlement program on which it can be held should be included in the case conference report prepared pursuant to NRCP 16.1(c). The discovery commissioner will then pass said information on to the department managing the settlement conference program which department will contact counsel to get the case so scheduled.

Rule 2.35.  Extension of discovery deadlines.

      (a) Stipulations or motions to extend any date set by the discovery scheduling order must be in writing and supported by a showing of good cause for the extension and be received by the discovery commissioner district judge within 20 days before the discovery cut-off date or any extension thereof. A request made beyond the period specified above shall not be granted unless the moving party, attorney or other person demonstrates that the failure to act was the result of excusable neglect.

‘[T]he district judge will handle stipulations and motions to extend discovery deadlines.”  Admin. Order 19-03

Rule 5.602.  Discovery disputes, conferences, motions, stays.

      . . .

      (g) Following the hearing of any discovery motion, the hearing master must prepare and file a report with a recommendation for the court’s order. The hearing master may direct counsel to prepare the hearing master’s report, including findings and recommendations. The clerk of the court or the discovery hearing master designee shall forthwith serve a copy of the report on all parties. The report is deemed received 5 calendar days after the clerk of the court or discovery hearing master designee places a copy in the attorney’s folder in the clerk’s office or 5 calendar days after mailing to a party or the party’s attorney. Within 7 calendar days after being served with a copy, any party may serve and file specific written objections to the recommendations with a courtesy copy delivered to the office of the discovery hearing master. Failure to file a timely objection may result in an automatic affirmance of the recommendation. All time periods set forth in this rule are inclusive of the 3 days provided by EDCR 8.06(a) and NRCP 6(e) (i.e., 2 or 4 days, plus 3 days after service).

The following rules are suspended in their entirety:

Rule 2.55.  Discovery scheduling order.

          PART VIII. ELECTRONIC FILING AND SERVICE

          Rule 8.01.  Definitions of words and terms.

Rule 8.03.  Time of filing.

Rule 8.04.  Services provided by the E-Filing System.

Rule 8.05.  Electronic service of pleadings and other documents.

Rule 8.06.  Service on parties; time to respond or act.

Rule 8.07.  Requirements for signatures on documents.

Rule 8.08.  Official Court record.

Rule 8.09.  Conventional filing of documents.

Rule 8.10.  Technical problems that preclude electronic filing.

Rule 8.11.  Electronic filing providers.

Rule 8.12.  Electronic mail addresses.  Electronic filers must furnish one or more electronic mail addresses that the Court and the Service Provider will use to send notice of receipt and confirmation of filing.

Rule 8.14.  Endorsement.

Rule 8.15.  Voluntary E-Filing.

Rule 8.16.  Court fees.

 

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)

     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.

(more…)

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,

 

%d bloggers like this: