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.
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.
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,