Archive for: 2019

Jay Young has published the third edition of his popular Nevada State Court Litigation Checklist.  The third edition not only reflects recent changes to the Nevada Rules of Civil Procedure, but also includes a new chapter on Alternative Dispute Resolution, as well as the elements of hundreds of causes of action, defenses, and remedies. The book contains over 275 pages of helpful practice hints for new and seasoned attorneys alike.  Many claim that Young’s Checklist belongs in every litigator’s library.  A sneak peak at its contents is included below.

 

Some praise for the checklist includes:

“An essential guide to state court practice for the newly admitted Nevada lawyer, and insight of traps-for-the-unwary for all other lawyers, Jay Young’s new checklist for state court litigation goes beyond expectations by offering helpful examples of the documents a lawyer needs to create the client relationship through the conclusion of a litigation matter,”

Von Heinz, Esq.

“Jay Young’s Litigation Checklist is an invaluable tool for any litigator. What might otherwise take a careful practitioner many years of trial and error to learn and master, Jay has managed to simplify in an easy-to- understand “soup to nuts” checklist. Not only does this checklist significantly shorten the learning curve for young litigators, it will also help even experienced lawyers avoid costly mistakes. This ideal combination of practical and technical advice will tremendously aid litigation partners in training associates. Jay’s checklist will be a must-read for the litigators in our firm.”

Nicholas Santoro, Esq.

“Mr. Young’s Guide to Nevada Rules of Evidence; Guide to Nevada Evidentiary Objections; and Nevada State Court Litigation Check List are geared specifically to Nevada practitioners and are useful books to anyone who is litigating or trying cases in Nevada state courts, I would recommend that anyone who is trying cases in Nevada state courts have these materials in his library.”

Steven M. Burris, Esq.

Frustration of Purpose Defense

The doctrine of commercial frustration applies to discharge a party’s contractual obligation when “[p]erformance remains possible but the expected value of performance to the party seeking to be excused has been destroyed by a fortuitous event, which supervenes to cause an actual but not literal failure of consideration.” Graham v. Kim, 111 Nev. 1039, 899 P.2d 1122 (1995) (quoting Lloyd v. Murphy, 25 Cal.2d 48, 153 P.2d 47, 50 (1944)).  The doctrine of commercial frustration does not apply to relieve party of contractual obligation, where contingency affecting expected value of party’s performance is one which party should have foreseen, and for which he should have provided.  Id.

Impossibility of Performance

Impossibility of performance is a defense to breach of contract or excuse of non-performance for events that occur after a contract is entered into.  Mere unexpected difficulty, expense, or hardship involved in the performance of a contract does not excuse performance.  Where the difficulty or obstacle does not make performance objectively impossible, and that the personal inability of a promisor to perform (frequently designated as subjective impossibility, being impossibility which is personal to the promisor and does not inhere in the nature of the act to be performed) does not excuse nonperformance of the contractual obligation.  84 A.L.R.2d 12, Modern status of the rules regarding impossibility of performance as defense in action for breach of contract (2005).

In Nebaco, Inc. v. Riverview Realty Co., the Nevada Supreme Court determined that one who contracts to render a performance for which government approval is required, assumed duty of obtaining such approval and risk of its refusal is on him.  87 Nev. 55, 57-58, 482 P.2d 305, 307.  Nebaco sought to set aside its obligations under a lease executed with Riverview Realty on the ground that performance became impossible because improvement contingent upon approval by a bank authority was denied.  The lease specified that Nebaco would have a period of time to obtain interim or long-term financing for the improvements.  If Nebaco failed to terminate the lease prior to the deadline or when it obtained financing the lease termination option expired.  The Court concluded that termination of the lease rested upon the inability to obtain the required permission of the banking authority, not upon failure to obtain financing.  The doctrine of impossibility becomes unavailable because the contingency which arose should have been foreseen.

Generally, the defense of impossibility of performance is available to promisor where his performance is made impossible or highly impractical by occurrence of unforeseen contingencies, but if the unforeseen contingency is one which the promisor should have foreseen, and for which he should have provided, the defense is unavailable to him.  Id. at 57.  Although, the Court did qualify that if the foreseeable consequence is provided for in the contract, its occurrence does provide an excuse for non-performance.  Id. at 57 (citing Williston on Contracts s. 1968 (1938)).  The distinction here involved the fact that the lease specified financing as a contingency and not approval by the banking authority.  Id. at 57.

Impossibility is a doctrine of contract interpretation. W.R. Grace and Co. v. Local Union 759, Intern. Union of United Rubber, Cork, Linoleum and Plastic Workers of America, 103 S.Ct. 2177 (1983).  Foreseeability of impossibility of performance is generally a relevant but not dispositive factor in determining applicability of impossibility defense.  There is no reason to look further when risk was foreseen to be more than minimally likely, goes to the central purpose of the contract, and can easily be allocated in different manner had parties chosen to do so. U.S. v. Winstar Corp., 116 S.Ct. 2432 (1996).

In the linked blog post below, Howard & Howard‘s Mike Braun explains a recent decision where a court denied an employer’s request for a preliminary injunction against the company’s former President and its IT manager who took flash drives with company information (containing the company’s vendors and suppliers list, sales data, pricing and cost information, and profit margins), then went to work for a competitor.

The Court found that the employer failed to take adequate steps to protect its supposed trade secrets and was therefore not entitled to protection under the law.  According to Braun, the case acts as “a virtual checklist of the steps a company should consider if it wants its important information to be treated as a trade secret.”

As this article suggests, if you want others to treat your information as a trade secret, you have to treat it like a trade secret, by:

  1. Using a confidentiality agreement;
  2. Clearly identify confidential information;
  3. Train your employees to treat the information as confidential;
  4. Restrict access to confidential information; and
  5. Address confidential information when employees terminate employment

When Is a Trade Secret Not a Trade Secret? When You Don’t Protect It Like One

What Constitutes a Material Breach of Contract?

In Nevada, to prevail on a claim for breach of contract action must show (1) the existence of a valid contract, (2) a breach by the defendant, and (3) damage as a result of the breach.[1]  For a breach of contract to be material, it must go to the root or essence of the agreement between the parties, or be one which touches the fundamental purpose of the contract.[2]

Stated another way, it is a breach which is so substantial or fundamental as to defeat the object or purpose of the entire transaction, or make it impossible for the other party to perform under the contract.[3]  In Nevada, material breach of contract “depends on the nature and effect of the violation in light of how the particular contract was viewed, bargained for, entered into, and performed by the parties”[4] (more…)

Is My Arbitration Confidential?

Most questions regarding the enforceability of arbitration obligations begin with the Federal Arbitration Act, 9 U.S.C. §1 et seq. (the “FAA”), which governs the enforcement of arbitration agreements.  9 U.S.C. §§ 1-2; Prima Paint Corp. v. Flood & Conklin Mfg. Co., 398 U.S. 395, 402 (1967).  The FAA was signed into law in 1925 and governs the enforcement of arbitration agreements, but does not require that the parties or the arbitrator hold the matter in confidence.

Nevada Revised Statutes, Chapter 38 is Nevada’s version of the Uniform Arbitration Act of 2000.  While it allows an arbitrator to issue a protective order against the disclosure of confidential and trade secret information (NRS 38.233(5)), it is silent on the issue of whether the parties to an arbitration or their arbitrator must keep the fact of the arbitration or its result a secret. (more…)

Howard & Howard attorney Jonathan Fountain discusses protecting clients from counterfeiters.

 

This article was originally published in the COMMUNIQUÉ, the official publication of the Clark County Bar Association. (May 2019).

(CAPTION)

The undersigned party hereby consents to service of documents by electronic means as designated below in accordance with Rule 5(b)(2)(E) of the Nevada Rules of Civil Procedure.

Party name(s):

_________________________________________________________________

_________________________________________________________________

Documents served by electronic means must be transmitted to the following person(s):

_________________________________________________________________

_________________________________________________________________

Facsimile transmission to the following facsimile number(s):

_________________________________________________________________

_________________________________________________________________

Electronic mail to the following email address(es):

_________________________________________________________________

_________________________________________________________________

Attachments to email must be in the following format(s):

_________________________________________________________________

_________________________________________________________________

Other electronic means (specify how the documents must be transmitted)

_________________________________________________________________

_________________________________________________________________

_________________________________________________________________

_________________________________________________________________

The undersigned party also acknowledges that this consent does not require service by the specified means unless the serving party elects to serve by that means.

Dated this __________ day of _______________, 20_____.

                                                                      Signed:_____________________________

                                                                                         Attorney for Consenting Party

                                                                                                  or Consenting Party

                                                                      Address:  __________________________

                                                                      Telephone:  ________________________

                                                                      Fax number:  ________________________

                                                                      Email address:  ______________________

      [Added; effective March 1, 2019.]

Form 2.  Rule 4.1 Waiver of Service of Summons

(Attorney or Plaintiff Information)

(Caption)

Waiver of Service of Summons under Rule 4.1 of the Nevada Rules of Civil Procedure

To (name the plaintiff’s attorney or the self-represented plaintiff):

I have received your request to waive service of a summons in this lawsuit along with a copy of the complaint, two copies of this waiver form, and a prepaid means of returning one signed copy of the form to you.

I, or the entity I represent, agree to save the expense of serving a summons and complaint in this lawsuit.

I understand that I, or the entity I represent, will keep all defenses or objections to the lawsuit, the court’s jurisdiction, and the venue of the lawsuit, but that I waive any objections to the absence of a summons or of service.

I also understand that I, or the entity I represent, must file and serve an answer or a motion under Rule 12 of the Nevada Rules of Civil Procedure within 60 days from _____________________, the date when this request was sent (or 90 days if it was sent outside the United States). If I fail to do so, a default judgment will be entered against me or the entity I represent.

Date: _____________________________

 

_________________________________________

(Signature of the attorney or unrepresented party)

 

_________________________________________

(Printed name)

_________________________________________

(Address)

_________________________________________

(Email address)

_________________________________________

(Telephone number)

      [Added; effective March 1, 2019.]

See the article here

Adam Ellis–Las Vegas, Nevada appellate and business litigation attorney

Many civil cases involve multiple parties and multiple causes of action.  Frequently, however, just one or few causes of action are central to the dispute.  Others are either plead in the alternative or out of an abundance of caution.  How can a party appeal a decision as to just one cause of action, when others remain?  Shouldn’t an appeal only lie after the entire case proceeds through judgment? NRCP 54(b) provides the answers:

When an action presents more than one claim for relief — whether as a claim, counterclaim, crossclaim, or third-party claim — or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.

Though the text may appear a bit confusing at first glance, the Rule’s purpose informs us.  Rule 54(b) was designed to promote judicial economy by limiting piecemeal appellate review of issues within a case, while simultaneously imposing a standard to determine when appellate review is appropriate though the case has not proceeded to judgment.

Generally, appellate courts disfavor piecemeal review of issues within a case.  And for good reason; it takes time, effort, and resources to hear an appeal, and appellate courts do not wish to hear individual appeals related to each decision by the district court in a matter.  More importantly, the appellate court lacks jurisdiction to hear an appeal where there is no final judgment in the underlying litigation.

Rule 54(b) certification is a determination from the district court that although the order or judgment under appeal disposes of fewer than all claims in the case, it is otherwise final, and that no just reason for delay exists for the appellate court to review the order.  Absent 54(b) certification, the appellate court lacks jurisdiction to hear the appeal, and the appeal will be dismissed.  See First Western Sav. & Loan Ass’n v. Steinberg, 89 Nev. 582 (1973).

But how does one obtain 54(b) certification?  Like most things, a party must move in the district court for Rule 54(b) certification.  The district court cannot grant certification unless it is  warranted and meets the necessary requirements discussed below. See Taylor Const. Co. v. Hilton Hotels Corp., 100 Nev. 207 (1984).  “The district court does not have the power, even when a motion for certification is unopposed, to transform” an inappropriate interlocutory order “into a final judgment.” Id.

To obtain Rule 54(b) certification, the order or judgment must dispose of either an entire claim or all claims against one party.  For example, the denial of a motion for summary judgment is not capable of 54(b) certification because the denial neither disposes of an entire claim nor all claims against a single party.  See id.  An order granting a motion to dismiss is certifiable under NRCP 54(b), as it operates to dismiss an entire claim, but fewer than all claims in the action.  See State v. AAA Auto Leasing & Rental, Inc., 93 Nev. 483 (1977).

Next, the district court must “expressly determine[] that there is no just reason for delay.”  NRCP 54(b).  The court need not provide any findings of fact or reasoning to support its determination that there is no reason for delay. See Mallin v. Farmers Ins. Exchange, 106 Nev. 606 (1990).  Though this sentence seems rather conclusory, that is all that is required.

NRCP 54(b) serves as a buffer against appeals being taken from interlocutory orders, and imposes a requirement on the district court to certify that its order is final and reviewable.  Failure to seek 54(b) certification when claims or parties remain in the district court proceeding will certainly be fatal to your appeal.  Save yourself time, and your client’s money.  Apply NRCP 54(b) the next time you wish to appeal a district court’s order.

 

According to Russell Korobkin, “Psychological Impediments to Mediation Success,” 21 Ohio St. J. on Disp. Resolution 281, 287 (2006), 80% of professional truckers believe they are safer than average and 94% of college professors think they are above average.
 
Lawyers and litigants tend to suffer from the same fate–having overconfidence in their likelihood of success.  In fact, 44% of attorneys who were asked in one study to predict outcomes at trial were overconfident in their prediction of their success.  Goodman-Delahunty, “Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes,” 16 Psych., Pub. Policy & Law 133 (2010).  Most of my attorney friends who just read that statistic are thinking, “I would be one of the 79% who predicted my success correctly.”[1]
At the same time, psychologists tell us that we humans (some lawyers have been known to be humans) also automatically discount any opinion or offer made by an opponent.  If you don’t believe in this confirmation bias, just think about the last time a friend defended a politician aligned with their political leanings who did the same thing that the friend found disgusting when committed by a politician not aligned with their political leanings.  Likewise, we tend to overvalue our own assessment of the case and undervalue the assessment made by the other side.

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 fail to do better than the Plaintiff’s 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.

Mediators assist often entrenched parties who each have a greater belief in the value of their position than they ought to have, to reach a middle position. The uncertainty of a litigated outcome alone justifies considering alternatives to a litigated result.  Every experienced and honest 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.

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 may 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.  A mediated result gives you certainty without the risk of litigation.

[1] Attorneys are also not known to be terribly good at math.

nevada law blogIn many states, courts will enforce a written promise that one will not compete with another party to the agreement, such as a key executive promising not to compete with her employer if she leaves the company.   What would happen if the executive left the company, then helped someone else to compete with the executive’s former company?  Courts can keep the executive from continuing to compete by enjoining the activity, but what can be done about the party who has no agreement (“the non-signatory”) with the company?  Can a court enjoin the non-signatory from competing with the company?  The answer is yes.

A court may enjoin someone one who does not sign a non-compete covenant when the non-signatory “breaches the covenant in active concert with the principal party enjoined and with knowledge of the covenant.” Las Vegas Novelty, Inc. v. Fernandez, 106 Nev. 113, 116-117 (1990) (citing McCart v. H & R Block, Inc., 470 N.E.2d 756 (Ind.Ct.App. 1984)).   The plain language of NRCP 65(d) further supports the notion, as it requires an injunction to bind the parties, as well as their agents and any other persons participating or acting in concert with the parties. See NRCP 65(d).

Enjoining a non-signatory preserves the purposes of the covenant; otherwise, permitting someone to intentionally end-run around a non-competition provision essentially renders that provision useless. See Day Cos. V. Patat, 440 F.2d 1343 (5th Cir. 1971), cert. denied, 404 U.S. 830, 92 S.Ct. 71, 30 L.Ed.2d 59 (reasoning a non-signatory to a covenant will be bound because a covenantor will not be allowed to do through others what he or she could not do directly); H&R Block Tax Servs., LLC v. Strauss, 2015 WL 470644, at *6 (N.D.N.Y. Feb. 4, 2015) (enjoining non-signatories where evidence showed the non-signatories were acting in active concert with the covenantor); Dad’s Properties, Inc. v. Lucas, 545 So.2d 926 (Fla. Dist. Ct. App. 1989) (even though wife was the sole owner of competing business, she was properly enjoined from competing because she was aiding and abetting her husband to violate his covenant).

Accordingly, those “who benefit[] from the covenantor’s relationship with a competing business must abide by the same restrictive covenant agreed to by the covenantor.” Tantopia Franchising Co., LLC v. W. Coast Tans of PA, LLC, 918 F.Supp.2d 407, 416–17 (E.D.Pa.2013) (citing Total Car Franchising Corp. v. L & S Paint Works, Inc., 981 F.Supp. 1079, 1082 (N.D.Tenn.1997) (not only covenantor and new company bound but also his “servants or agents and those acting in collusion or combination with him”).  The lesson here is that people who have a covenant not to compete should not try to nevertheless compete through a straw person.  Both could end up as defendants in a very expensive lawsuit.

 

PERSONAL INJURY FREQUENTLY ASKED QUESTIONS

I Was Injured In An Accident.  What Should I do?

Hurt in an Auto Accident

For starters, check yourself for injuries and call the police or ask someone else to call for you if you, your passengers, or occupants of the other vehicle(s) are injured.  If you or someone else is seriously injured, try not to move the injured person while waiting for an ambulance.  Even if nobody is injured, and regardless of who you think was at fault, call the police so they can issue an accident report.  Your insurance company may require it in order to cover damages to your vehicle or to the other vehicle.

Turn on your hazard lights if they are working or put out road flares if you have them.  If the vehicles are causing a hazard, consider pulling yours to the side of the road.  Otherwise, leave them where they are and get to the side of the road or a safe distance from traffic if you can. (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.

(more…)

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

     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, 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.  See the Official Form here.

[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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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,