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.
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.
Deadlines and Due Dates Under the 2019 Nevada Rules of Civil Procedure
|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. 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.
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,