Archive for: 2020

The Doctrine of Forum Non Conveniens in Nevada

The term “forum non conveniens” is Latin for “an inconvenient forum”.[1]  Under the circumstances discussed below, a court may grant a motion to dismiss a complaint that is filed in a court that is inconvenient to a defendant.

In Buckholt v. District Court,[2] the Petitioners sued a Nevada corporation, seeking damages for injuries allegedly resulting from a single vehicle accident occurring near Cheyenne, Wyoming in 1976. The Nevada Supreme Court held the doctrine of forum non conveniens is inapposite where the defendant is a Nevada corporation and does business here.

The Buckholt court suggests that although the location of a defendant corporation in this state is significant, and should weigh heavily against the granting of such a motion, the doctrine of forum non conveniens is not limited to a single factor.  The doctrine involves a balancing approach using several other factors, including public and private interests, access to sources of proof, and the availability of a view of the premises, if necessary.  If an adequate alternative forum does exist, the Court must then weigh public and private interest factors to determine whether dismissal is warranted.[3]

Relevant public interest factors include the local interest in the case, the district court’s familiarity with applicable law, the burdens on local courts and jurors, court congestion, and the costs of resolving a dispute unrelated to the plaintiffs chosen forum.[4]

Private interest factors favor dismissal for forum non conveniens.  Relevant private interest factors may include the location of a defendant corporation, access to proof, the availability of compulsory process for unwilling witnesses, the cost of obtaining testimony from willing witnesses, and the enforceability of a judgment.[5]  The court should also consider whether failure to apply the doctrine would subject the defendant to harassment, oppression, vexatiousness, or inconvenience.[6]

[1] The Law.com Dictionary.

[2] 94 Nev. 631, 584 P.2d 672 (1978).

[3] Id.

[4]Lueck, 236 F.3d at 1147 (citing Piper Aircraft, 454 U.S. at 259-61).

[5] Lueck, 236 F.3d at 1145; see also Eaton, 96 Nev. at 774, 616 P.2d at 401; Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947).

[6] See Swisco, Inc. v. District Court, 79 Nev. 414, 385 P.2d 772 (1963).

Independent Contractors, Read How You Can Apply for the Pandemic Unemployment Assistance Program

By: Robert L. Rosenthal, Esq.  Guest Blogger

Have you heard about the  new COVID-19 law for Nevadans that provides benefits similar to unemployment to independent contractors?  It’s referred to as the Pandemic Unemployment Assistance program (“PUA”), and provides up to 39 weeks of benefits.  Payments are set to commence within the next week or so.  Keep in mind that independent contractors remain ineligible for traditional unemployment benefits because they’re not employees.  Below is an overview of the new PUA law.

Introduction/Background:

In response to COVID-19, the Nevada Division of Employment, Training and Rehabilitation (“DETR”) just implemented and launched a new filing system for Nevada residents who have been affected by the pandemic to receive benefits. This is completely separate from filing; for traditional unemployment insurance benefits. Please read the important information on this page before filing a PUA claim on the designated platform.

What is Pandemic Unemployment Assistance (PUA)?

PUA is a new temporary federal program that is part of the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act. The PUA program is available retroactive to February 2, 2020 through December 26, 2020 and provides up to 39 weeks of benefits to eligible individuals. PUA is separate from unemployment insurance and provides coverage only to individuals who are not eligible for regular unemployment insurance.

Who is Eligible for PUA?

PUA is available to Nevada workers who are unemployed, partially unemployed, unable to work or unavailable for work due to the COVID-19 pandemic and who are not eligible for unemployment insurance benefits. This includes many different groups of people:

  • Self-employed;
  • 1099 contract workers;
  • Gig workers;
  • Employees whose wages are not reported for unemployment insurance;
  • Employees who have not earned enough wages or worked enough hours for regular unemployment benefits; and
  • Individuals who were going to start work but could not due to COVID-19 pandemic.

What does it mean to be affected by COVID-19?

To be eligible for PUA, the individual’s ability or availability to work must be affected by COVID-19. There are several different ways this could happen:

  • The person has been diagnosed with or are experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  • A member of the household has been diagnosed with COVID-19;
  • The person is providing care for a family member or a member of the household who has been diagnosed with COVID-19;
  • The person’s child or other persons in the household for whom the person is the primary caregiver is unable to attend school or another facility that is closed due to the COVID-19 pandemic, and directly prevents the person from working;
  • The person is unable to reach his/her place of employment because of a quarantine or stay-at-home order due to the COVID-19 pandemic;
  • The person is unable to reach his/her place of employment because he/she has been advised by a health care provider to self-isolate or quarantine because he/she is positive for or may have had exposure to someone who has or is suspected of having COVID-19;
  • The person was scheduled to start a new job and does not have an existing job or are unable to reach the job as a direct result of the COVID-19 pandemic;
  • The person had to quit his/her job due to being diagnosed with COVID-19 and being unable to perform his/her work duties;
  • The person’s place of employment is closed as a direct result of the COVID-19 pandemic; or
  • The person is self-employed or an independent contractor and a slowdown in business due to COVID-19 has forced him/her to suspend operations.

Who is not eligible for PUA?

Eligibility for PUA requires that an individual be unemployed, partially unemployed, or unable or unavailable to work in Nevada due to COVID-19, and that the person not be eligible for any other unemployment insurance benefits. For example, an applicant is not eligible for PUA if:

  • He/she is eligible for a regular UI claim, PEUC or SEB;
  • He/she is I able to work remotely without reduced pay;
  • He/she is receiving paid sick leave or other leave benefits;
  • He/she is unemployed, but not due to COVID-19; or
  • He/she was not working in Nevada at the time he/she became unemployed due to COVID-19 and do not have a bona fide job offer to work in Nevada that the person was unable to start due to COVID-19.

How to Apply for PUA

Those who wish to apply should visit Nevada’s Department of Employment, Training & Rehabilitation (“DETR”) website and fill out the required form, which can be found at:

https://detr.nv.gov/Page/Pandemic_Unemployment_Assistance

DETR anticipates tens of thousands or even hundreds of thousands of applications being submitted and will take between 7-14 days to arrive. Payments for PUA weekly claims are scheduled to begin by the end of May.

Applicants must provide documents that show total income for the entire year such as tax documents are preferable, as these will allow a quicker review of total earnings. Acceptable documentation you can provide may include but is not limited to:

  • W-2 or 1099 forms
  • Tax returns
  • Pay stubs
  • Bank receipts
  • Ledger
  • Invoices
  • Billing statements

For more information how you and your business can navigate through this process, contact Robert Rosenthal, Esq. at 702.667.4809

Moving to Dismiss Under the First-to-File Rule

The first-to-file rule is a doctrine of comity providing that “where substantially identical actions are proceeding in different courts, the court of the later-filed action should defer to the jurisdiction of the court of the first-filed action by either dismissing, staying, or transferring the later filed suit.”[1]  The two actions need not be identical—only substantially similar.[2]  The first-to-file rule is “not a rigid or inflexible rule to be mechanically applied,” but is a matter of sound judicial administration and its application is left to the discretion of the trial court.[3]  The purpose of the rule is to promote efficiency and to avoid duplicative litigation, and, thus, it should not be lightly disregarded.[4]

A doctrine of comity “is a principle of courtesy by which the courts of one jurisdiction may give effect to the laws and judicial decisions of another jurisdiction out of deference and respect.”[5]  Comity is appropriately invoked according to the sound discretion of the trial court,[6] and may even be raised sua sponte.[7]

When applying the first-to-file rule, courts look to three threshold factors: “(1) the chronology of the two actions; (2) the similarity of the parties, and (3) the similarity of the issues.”[8]  “[T]he first-to-file rule does not require strict identity of the parties, but rather substantial similarity.”[9] Likewise, the sameness requirement does not mandate that the two actions be identical; it is satisfied if they are sufficiently similar.[10]

 

[1] SAES Getters S.P.A. v. Aeronex, Inc., 219 F.Supp.2d 1081, 1089 (S.D. Cal. 2002).

[2] Inherent.com v. Martindale–Hubbell, 420 F.Supp.2d 1093, 1097 (N.D. Cal. 2006).

[3] Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 94–95 (9th Cir. 1982) (explaining that declining jurisdiction based on the first-to-file rule is discretionary, not mandatory, with the trial court).

[4] Alltrade, Inc. v. Uniweld Prod., Inc., 946 F.2d 622, 625 (9th Cir. 1991).

[5] Gonzales–Alpizar v. Griffith, 130 Nev. Adv. Op. 2, 317 P.3d 820, 826 (2014) (internal quotation omitted).

[6] Mianecki v. Second Judicial Dist. Court, 99 Nev. 93, 97–98, 658 P.2d 422, 424–25 (1983).

[7] See Stone v. City & County of San Francisco, 968 F.2d 850, 855 (9th Cir. 1992).

[8] Global Experience Specialists, Inc. v. Cunniffe, 2:14–cv–00421–JCM–NJK, 2014 WL 3748931, at *4 (D. Nev. July 30, 2014) (quoting Nesbit v. Fornaro, 2011 WL 1869917, at *2 (D. Nev. Mar. 31, 2011)).

[9] Id. (quoting Nesbit, 2011 WL 1869917, at *3).

[10] Id.

By Jonathan Fountain, Esq.

Jonathan’s excellent article discusses the dangers of unilaterally declaring that a party will not appear at a deposition because counsel cannot agree to a mutually convenient date and time to hold the deposition.

This article was originally published in the May 2020 Nevada Lawyer, a publication of the Nevada State Bar.

This article was originally published in the May 2020 Nevada Lawyer, an official publication of the Nevada State Bar.

Nevada’s Payday Loan Laws

By Michael Kind, Esq., Guest Blogger

Kind Law
8860 S. Maryland Parkway, Suite 106, Las Vegas, Nevada 89123
(702) 337-2322
(844) 399-KIND (5463)

With over two times as many payday loan stores than there are casinos, you’ll find a payday loan storefront at almost every major intersection in Las Vegas.  The payday loan industry in Nevada is about a half a billion dollars a year.   This post provides a general overview of the current version Nevada’s payday loan statute, NRS 604A.

     Payday loans are intended to fill a short-term need.   But because of the high interest rates, borrowers (more…)

Summary of the Amendments to the Local Civil Rules of the United States District Court for the District of Nevada

By Jonathan W. Fountain, Esq., Guest Blogger

On April 17, 2020, the U.S. District Court for the District of Nevada published its amended Local Civil Rules.  A red lined document comparing the amendments to the prior version can be found at the bottom of this article.   Guest Blogger Jonathan Fountain provides us with this summary of the changes.  As always, a summary is no substitute for studying the rules yourself, but this one is sure to help you get a jump start on understanding the amendments. (more…)

How to Set Aside a Default Judgment

By Michael Kind, Esq., Guest Blogger

Kind Law
8860 S. Maryland Parkway, Suite 106, Las Vegas, Nevada 89123
(702) 337-2322
(844) 399-KIND (5463)

This post discusses the rules and caselaw relating to consumers filing a motion to set aside a default judgment in Las Vegas, Nevada.  When a consumer has a default judgment entered against him or her, the company who got the judgment can try to collect the money judgment by garnishing wages, levying bank accounts, taking cars, among other methods of collecting the judgment.

     The rule to set aside a default judgment applies regardless of whether the debt is for credit cards, car loan, HOA debt, payday loans, personal loans, or other debts.  If a default judgment has been granted against you, there is still hope.

Applicable Rules of Civil Procedure

     Rule 60(b) of the Nevada Rules of Civil Procedure (“NRCP”) and the Justice Court Rules of Civil Procedure (“JCRCP”) provides that, upon a motion to set aside, the court may relieve a party from a final judgment or order for the following reasons: “(1) mistake, inadvertence, surprise, or excusable neglect; . . . (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment is void; or, (5) the judgment has been satisfied. . . .”  The JCRCP apply in Nevada’s Justice Courts, while the NRCP apply in Nevada’s District Courts.

      The Nevada Supreme Court has ruled Nevada’s public policy requires cases be adjudicated on their merits where possible.  E.g.Kahn v. Orme, 108 Nev. 510, 516, 835 P.2d 790, 794 (1992).   “The salutary purpose of Rule 60(b) is to redress any injustices that may have resulted because of excusable neglect or the wrongs of the opposing party. Rule 60 should be liberally construed to effectuate that purpose.” Nev. Indus. Dev. v. Benedetti, 103 Nev. 360, 364, 741 P.2d 802, 805 (1987) (citing Mendenhall v. Kingston, 610 P.2d 1287, 1289 (Utah 1980)).

     Setting aside a judgment rests within the sound discretion of the district court.  Bennett v. Fid. & Deposit Co., 396 F.2d 909, 911 (9th Cir. 1968) (citing Smith v. Stone, 308 F.2d 15, 17-18 (9th Cir. 1962)); Cicerchia v. Cicerchia, 77 Nev. 158, 161, 360 P.2d 839, 841 (1961); Bryant v. Gibbs, 69 Nev.  167, 243 P.2d 1050.

Consumers do not Need to Show a Winning Case to Have a Judgment Set Aside

     In some states, a consumer who is trying to have a judgment set aside must show that they have a meritorious case.  That means that the consumer needs to show that once the judgment is set aside, she will be able to present a defense on the merits in the case (for example, “it’s not my debt” or “I already paid the credit card bill”).  In Nevada, a consumer does not need to make such a showing.  “[A] party need not show a meritorious defense in order to have a court set aside a default judgment.” Epstein v. Epstein, 113 Nev. 1401, 1405, 950 P.2d 771, 773 (1997).

Judgments Should be Set Aside When the Default is Not the Consumer’s Fault

     The court may set aside the default judgment if the consumer can show that the default judgment was not her fault.  Cicerchia v. Cicerchia, 77 Nev. 158, 160, 360 P.2d 839, 840 (1961) (finding the court’s setting aside of default judgment was proper when the default was not the fault of the defendant); Velasco v. Mis Amigos Meat Mkt., Inc., 2009 U.S. Dist. LEXIS 20604, at *6 (E.D. Cal. Mar. 16, 2009) (setting aside default since it was “clear that defendants intend to proceed in the defense of this action, thus promoting the overriding public policy that cases be decided on their merits.”); see also Velasco v. Mis Amigos Meat Mkt., Inc., 2009 U.S. Dist. LEXIS 20604, at *14 (E.D. Cal. Mar. 16, 2009) (“Even a final judgment of default may be successfully challenged based upon a showing of the defaulting party’s ‘mistake, inadvertence, surprise, or excusable neglect.’”).

Plaintiffs are Generally Not Prejudiced (Harmed) by a Short Delay

     When the case involves a breach of contract claim based on a defaulted debt, courts have found those matters not time sensitive.  See Velasco v. Mis Amigos Meat Mkt., Inc., 2009 U.S. Dist. LEXIS 20604, at *16 (E.D. Cal. Mar. 16, 2009) (“[A] mere delay in satisfying plaintiff’s claim, if he should ultimately succeed at trial, is not sufficient prejudice to require denial of a motion to set aside default.”).

 

For more information regarding setting aside a default in a consumer debt matter, contact Mike.

The Rule 30(b)(6) Deposition in Nevada

     The law recognizes a legal fiction—that a corporation or other legal entity is a separate “person” who acts independent of the owners of the entity.[1]  Because the entity is a separate person, the law also allows a deposition of the entity under Rule 30(b)(6), which reads:

(b) Notice of the Deposition; Other Formal Requirements.

(6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

Some practitioners inaccurately refer to a Rule 30(b)(6) entity deposition as a deposition of the “PMK” or “Person Most Knowledgeable”.

It is All About the Spokesperson . . . .

The law under Rule 30 does not require the entity to provide the person with the “most” knowledge on any particular topic.  It only requires the entity to provide a spokesperson whose testimony on a designated topic will bind the company.  The company could present its janitor to testify if it educates the janitor on the topics and “represents the knowledge of the corporation, not the individual deponent’s.”  Great Am. Ins, Co. of N.Y. v. Vegas Const. Co., 251 F.R.D. 534, 538 (D. Nev. 2008) (Rule 30(b)(6) designee binds company regardless of designee’s personal knowledge on the subject).[2]

The Notice

As a practical matter, the party wishing to take the deposition uses Rule 30(b)(6) to name the company (not an individual) as a witness whose testimony it desires.  The deposing party must designate (as part of the deposition notice), with “reasonable particularity”, the subject matters of the deposition.  There is no limit to the number of subjects.  Wise practitioners keep the topics broad enough to allow them to follow where the topic leads during the deposition, but specific enough to reasonably put the company on notice that it may expect questions about that topic.

Objections; Protective Orders

The company may object to topics outlined in a Rule 30(b)(6) notice, but some authorities suggest the company must also seek a protective order from the court before going forward with the deposition.  U.S. E.E.O.C. v. Caesars Entm’t, Inc., 237 F.R.D. 428, 436 (D. Nev. 2006) (discussing the circumstances under which a protective order to Rule 30(b)(6) topics may be appropriate); Beach Mart, Inc. v. L & L Wings, Inc., 302 F.R.D. 396, 406 (E.D. N.C. 2014) (“The proper procedure to object to a Rule 30(b)(6) deposition notice is not to serve objections on the opposing party, but to move for a protective order.”).  Moreover, the filing of a motion does not relieve a deponent from appearing at a deposition—that obligation is only relieved by a protective order.  Nationstar Mortg., LLC v. Flamingo Trails No. 7 Landscape Maint. Ass’n, 316 F.R.D. 327, 336–37 (D. Nev. 2016) (citing Pioche Mines Consol., Inc. v. Dolman, 333 F.2d 257, 269 (9th Cir. 1964) (“unless [the movant] has obtained a court order that postpones or dispenses with his duty to appear, that duty remains”); see also In re Toys “R” Us–Delaware, Inc. Fair & Accurate Credit Transactions Act (FACTA) Litig., No. ML 08–1980 MMM (FMOx), 2010 WL 4942645, at *3 & n. 2 (C.D.Cal. July 29, 2010) (collecting cases, and finding failure to attend *337 deposition was unexcused despite the pendency of a motion for protective order)).

The Testimony

Magistrate Judge Leen explains the obligation to prepare a witness to testify:

The duty to prepare a Rule 30(b)(6) designee goes beyond matters personally known to the witness or to matters in which the designated witness was personally involved. Buycks-Roberson v. Citibank Federal Savs. Bank, 162 F.R.D. 338, 343 (N.D. Ill.1995); Securities and Exchange Commission v. Morelli, 143 F.R.D. 42, 45 (S.D. N.Y.1992). The duty to produce a prepared witness on designated topics extends to matters not only within the personal knowledge of the witness but on matters reasonably known by the responding party. Alexander v. Federal Bureau of Investigation, 186 F.R.D. 137, 141 (D. D.C.1998). By its very nature, a Rule 30(b)(6) deposition notice requires the responding party to prepare a designated representative so that he or she can testify on matters not only within his or her personal knowledge, but also on matters reasonably known by the responding entity.” Alliance v. District of Columbia, 437 F.Supp.2d 32, 37 (D.D.C.2006), citing Alexander, supra, at 141.

Great Am. Ins., 251 F.R.D. at 539.

[1] Assuming the owners uphold corporate formalities.  Failing to do so could invite a claim for piercing the corporate veil.

[2] Magistrate Judge Peggy Leen provided a great overview of the obligations of the parties relative to Rule 30(b)(6) in the Great American case.  It is a worthwhile read for every practitioner.

Matters Outside the Pleadings are Allowed on a Motion to Dismiss for Lack of Personal Jurisdiction and Forum Non Conveniens.

A motion to dismiss a complaint for lack of personal jurisdiction and forum non conveniens may properly attach matters outside the pleadings.   The Ninth Circuit has long held that for the purposes of considering a motion to dismiss on the grounds of subject matter jurisdiction, a court may consider matters outside the pleadings.  See generally Association of American Medical Colleges v. U.S., 217 F.3d 770, 778 (9th Cir. 2000).  “There never has been any serious doubt as to the availability of extra-pleading material on these motions.”  Michel v. Am. Capital Enterprises, Inc., 884 F.2d 582 (9th Cir. 1989) (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1366, at 676 (1969) (footnote omitted)).

That fact does not allow the Court to thereafter consider those same documents on a Rule 12(b)(6) motion, however.  The Court may similarly entertain a motion for injunctive relief and thereafter consider a Rule 12(b)(6) without considering the matters once before the Court.  See Santa Monica Community College v. Mason, 952 F.2d 407, 1991 WL 270727, *3 (9th Cir. 1991) (concluding that the submission of declarations and exhibits from a motion for preliminary injunction to the court on a motion to dismiss constitutes submission of matters outside the pleadings).

In fact, several courts have entertained such motions at the same time (motion to dismiss for lack of jurisdiction and for failure to state a claim) and have allowed the outside documents for the jurisdictional analysis, but refused to allow them for the Rule 12(b)(6) purposes.  U.S. E.E.O.C. v. Pioneer Hotel, Inc., No. 2:11-CV-1588-LRH-RJJ, 2013 WL 129390, at *2 (D. Nev. Jan. 9, 2013) reconsideration denied, No. 2:11-CV-1588-LRH-GWF, 2013 WL 3353389 (D. Nev. July 2, 2013) (considered matters outside pleadings when determining Motion to Dismiss for lack of jurisdiction, but refused to consider regarding Rule 12(b)(6) for failure to state a claim upon which relief may be granted); Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990); Stewart v. Screen Gems-EMI Music, Inc., 81 F. Supp. 3d 938, 951 (N.D. Cal. 2015) (citing Righthaven, LLC v. Va. Citizens Def. League, Inc., No. 1:10–cv–01783–GMN, 2011 WL 2550627, at *6 & n. 1 (D. Nev. June 23, 2011) (considering a declaration in the context of determining personal jurisdiction but not to determine the sufficiency of the complaint); High v. Choice Mfg. Co., No. C–11–5478– EMC, 2012 WL 3025922, at *4–6 (N.D. Cal. July 24, 2012) (where both personal jurisdiction and the sufficiency of the complaint both turned on the question of alter ego, considering extra-pleading evidence with respect to the 12(b)(2) challenge but excluding the extra-pleading evidence from the 12(b)(6) analysis); Abosakem v. Royal Indian Raj Int’l Corp., No. C–1001781 MMC, 2011 WL 635222, at *10 n. 7 (N.D. Cal. Feb. 11, 2011) (considering a declaration in the context of determining personal jurisdiction but not to determine the sufficiency of the complaint)).

Considering Matters Outside the Pleadings

on a Motion to Dismiss

Rule 12(d) requires that if

matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

As a rule, a court may not consider matters outside the challenged pleading on a motion to dismiss.  As is noted by leading commentators, Wright & Miller:

Most federal courts… have viewed the words “matters outside the pleading” as including any written or oral evidence introduced in support of or in opposition to the motion challenging the pleading that provides some substantiation for and does not merely reiterate what is said in the pleadings.[1]

Only materials which are a part of the complaint may be considered on a motion to dismiss.[2]  When matters outside the challenged document are presented, the Court must either: 1) exclude the additional material and decide the matter based on the Complaint alone; or 2) convert the matter to a motion for summary judgment under Rule 56 and afford Plaintiff the opportunity to present supporting materials.[3]

The court may consider matters of public record,[4] orders, items present in the record of the case when ruling on a motion to dismiss for failure to state a claim upon which relief can be granted.[5]  Further, the court may consider any exhibits attached to the complaint.[6]

Additionally, “if the documents are not physically attached to the complaint, they may be considered if the documents’ authenticity is not contested and the plaintiff’s complaint necessarily relies on them.”[7]  This rule applies to documents that form the basis of a plaintiff’s case or documents that are quoted extensively in the complaint, on the theory that these documents are not truly “outside” the complaint.[8]

 

Note: These holdings do not apply to a motion to dismiss for lack of jurisdiction.

 

[1] Wright & Miller Federal Practice & Procedure, § 1366 (3d Ed.) (citations omitted).

[2] See Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994) (overruled on other grounds by Galbraith v. Santa Clara, 307 F.3d 119 (9th Cir. 2002)); see also Gibb v. Scott, 958 F.2d 814, 816 (8th Cir. 1992) (any written or oral evidence in support of or in opposition to the pleading that provides some substantiation for and does not merely reiterate what is said in the pleadings constituted matters outside the pleadings); MacArthur v. San Juan, 309 F.3d 1216, 1221 (10th Cir. 2002) (court should not look beyond the confines of the complaint itself in deciding motion to dismiss); Schmitz v. Mars. Inc., 261 F.Supp.2d 1226, 1229 (D. Or. 2003) (citing Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1997) for the proposition that a Court must limit its review of the contents of the complaint itself on a motion to dismiss); Biospherics, Inc. v. Forbes, Inc., 989 F.Supp. 748, 749 (D. Md. 1997) (generally, when documents not appended to the complaint are submitted to the court, the documents are either stricken or the motion is converted to summary judgment with proper notice given); Schoolhouse, Inc. v. Anderson, 2001 WL 1640081, 6 (D. Minn).

[3] Friedl v. New York, 210 F.3d 79, 84 (2d Cir. 2000); see also Wright & Miller Federal Practice & Procedure, § 1366 (3d Ed.).

[4] See Gray v. Receivables Performance Mgmt., 2:10-CV-01240-GMN, 2011 WL 2433812 (D. Nev. June 13, 2011) (Under Fed. R. Evid. 201, a court may take judicial notice of “matters of public record.” (quoting Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir.1986)); See also Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage Leasehold and Easement in the Cloverly Subterranean Geological Formation, 524 F.3d 1090, 1096 (9th Cir. 2008).

[5] Breliant v. Preferred Equities Corp., 109 Nev. 842, 847, 858 P.2d 1258, 1260 (1993) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, Civil 2D § 1357 (2d ed. 1990); see also Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.1986); Ferring B.V. v. Watson Laboratories, Inc. – (FL), 3:11-CV-00481-RCJ, 2012 WL 607539 (D. Nev. Feb. 24, 2012) order clarified, 3:11-CV-00481-RCJ, 2012 WL 3231005 (D. Nev. Aug. 3, 2012).

[6] See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.), cert. denied, 484 U.S. 944, 108 S.Ct. 330, 98 L.Ed.2d 358 (1987).

[7] Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).

[8] Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994).  See also Hollymatic Corp. v. Holly Sys., Inc., 620 F.Supp. 1366, 1367 (D. III. 1985) (considering contract attached to complaint and admissions in answer and in reply to counterclaim); Berk v. Ascott Inv. Corp., 759 F.Supp. 245, 249 (D. Pa. 1991) (determining court may consider document incorporated by reference into the complaint).

Litigators, Is it Time (Yes, Even As You Are Practicing Social Distancing) to Add Video Conference Mediations to Your Practice?

Last Friday I mediated a matter involving 8 parties, with two attorneys in New York, one in California, and four in Nevada.  Not even one of them came to my office.  We held the entire mediation remotely via video conference.  We held joint sessions with all participants, attorneys-only sessions, and we held caucuses in virtual “rooms” for each group of parties or individual and their counsel.  I did my normal thing, shuffling ideas, reality testing, and communicating demands and offers throughout the day.  While I was in another “room”, those in a virtual room had their privacy and were able to speak among themselves securely, knowing that neither I nor the other parties could hear their deliberations.  Some participated with video and others only through audio.

With today’s video-conferencing capability, anyone with a smart phone can participate in a mediation remotely.  I held a mediation last month with two parties in Moscow and others in my office.  The world is shrinking, and we can use technology to conduct resolve disputes even as we are working from home during the COVID-19 shutdown.  Think about the cases on your docket right now that could be resolved while everyone is at home.  Put those smart phones to work and let’s get resolving your cases!  Call me to find out more.

Force Majeure Clauses and the COVID-19 Pandemic

The term “force majeure” translates literally from French as superior force.[1] Black’s Law Dictionary defines force majeure as “[a]n event or effect that can be neither anticipated nor controlled.”[2]  In the law, it is the term for a contract provision that allocates the risk of specified events including natural and man-made events.  If that unlikely event occurs, the impacted party is excused from performance. [3] The events can include acts of God, floods, fires, earthquakes, tornadoes, etc., war, terrorism, government orders, embargoes, organized labor strikes, etc.

A force majeure clause relieves a party from performing contractual obligations when certain circumstances beyond their control arise, making performance inadvisable, commercially impracticable, illegal, or impossible.[4]  While the economic recession in 2008 was found not to be a force majeure event,[5] government orders to shut down non-essential businesses in favor of social distancing due to the COVID-19 pandemic may constitute force majeure.

As is so often the case in the law, the answer will depend on the language in your contract.  If your contract does not have a force majeure clause, you have not bargained for its protection, and the argument will be much harder to make.  If you do have the language in your contract, a judge will have to determine whether this event fits the parameters you bargained for and wrote in your contract.  Nevada courts have held that when a party makes a contract and reduces it to writing, he must abide by its terms as plainly stated therein.[6]  If the clause is clear and unambiguous, the court must construe it from the language therein.[7]

Please contact one of our attorneys to review your contract if it contains a force majeure clause.  You may be excused from performance.

 

[1] https://www.merriam-webster.com/dictionary/force%20majeure, accessed March 19, 2020.

[2] https://www.lexology.com/library/detail.aspx?g=e44183ab-74cf-4f2d-906a-7d7850427953, accessed March 19, 2020.

[3] One World Trade Ctr., LLC v. Cantor Fitzgerald Sec., 789 N.Y.S.2d 652, 655 (N.Y. Sup. Ct. 2004).

[4] https://www.venable.com/insights/publications/2011/02/understanding-force-majeure-clauses, accessed March 19, 2020.

[5] See Elavon, Inc. v. Wachovia Bank, Nat’l Ass’n, 841 F. Supp. 2d 1298 (N.D. Ga. 2011).

[6] See Chiquita Mining Co. V. Fairbanks, Morse & Co., 60 Nev. 142, 104 P.2d 191 (1940); Ellison v. California State Auto Ass’n, 106 Nev. 601, 797 P.2d 975 (1990).

[7] Southern Trust Mortg. Co. v. K&B Door Co., Inc., 104 Nev. 564, 763 P.2d 353 (1988).

Using Offers of Judgment in Family Court

By: Jay Young and Guest Blogger Rock Rocheleu

A reader asked me about the use of Offers of Judgment in family court disputes.  Since I rarely darken the halls of our family courts, I have enlisted the help of my friend and family law attorney Rock Rocheleau to assist with this blog post.

Right Lawyers
Divorce & Business Attorneys
600 S. Tonopah Dr., Suite 300 Las Vegas, NV 89106
702.914.0400

What is an Offer of Judgment?

An offer of judgment, sometimes called an OOJ, is a tool to help settle litigation providing a strong economic incentive for the receiving party to accept the offer. It allows a litigant to share an offer to settle the entire case on terms outlined in the offer.  If the offer is accepted, the case is resolved by the offer either being paid or being reduced to judgment.  If the offer is rejected and the offering party later obtains a better result than the offer, the party who rejected the offer may be required to pay the attorney fees and costs incurred by the party making the offer.

Those fees and costs are calculated from the date the offer was made.  In other words, an offer effectively says, “either take this offer or when I get a better result at trial, you will have to pay my fees and costs incurred from today until the end of this dispute.”  A wise party will analyze the strengths and weaknesses of its own case against the value of the offer before rejecting an offer that may subject them to penalties.  Since many parties and their attorneys suffer from overconfidence bias, this is a good opportunity to take stock of the dispute.

The rule at the same time provides a strong economic incentive for the offering party to make an attractive offer.  If the offer is outside the practical realm of possible outcomes at trial, the other side will not accept the offer, and the penalty of having to pay attorney fees and costs will not be triggered.  An offer must be close enough to a possible result at trial to place the other side in fear of the penalty.  Therefore, the rule serves to encourage both a reasonable offer and a reasonable acceptance.

Offers of Judgement for Family Law 

Nevada Rules of Civil Procedure, Rule 68 and newly enacted Nevada Revised Statutes (“NRS”) 17.117 generally govern offers of judgment.  Nevada’s legislature has also carved out special procedures for offers of judgment in specific areas of law.  For example, an OOJ in a construction defect case is controlled by NRS 40.665.  The statute allows, for example, a contractor may settle a claim by repurchasing the claimant’s residence.  The statutory offer is considered an OOJ if it includes specific language required by the statute.

For family law cases, our Nevada Supreme Court found NRCP 68 inapplicable to divorce proceedings.  “To hold NRCP 68 applicable to divorce matters would be incompatible with the pattern and policy of our law, for several reasons.”  Leeming v. Leeming, 87 Nev. 530, 533, 490 P.2d 342, 344, 345 (1971).  There are several social considerations supporting this holding.  For one, there is an overarching public policy that the best interest of the child is paramount to all custody matters.  If a parent becomes too concerned about the possibility of paying the other parent’s attorney fees, it may deter a parent’s good faith claim.  The rule could have a chilling effect on determining what is in the interest of the child.

In response, our legislature created NRS 125.141 to specifically allow a different type of offer of judgment in a divorce case.  The law allows an offer of judgement in a divorce matter to be made as long as terms regarding child custody, child support, and alimony are not included in the offer.   This mechanism provides each parties the opportunity to settlement asset and debt issues.   The receiving party has ten days to accept the offer.  The NRS 125.141 offer of judgment carries the same potential penalty for rejecting an offer as is found in NRCP 68 and NRS 17.117.  NRS 125.141(4)(c).

Additionally, the family court judge is given discretion when determining an award based on the rejection of an offer of judgment.   The family court judge may consider, inter alia: 1) whether each party had an attorney; 2) whether the offer was made or rejected in good faith; and 3) whether the rejecting party increased the costs of litigation.  NRS 125.141(5).

Awarding Attorney Fees

The effective purpose of an OOJ is to deter unreasonable litigation.  In our American system of justice,  attorney fees are not awarded to the prevailing party unless required by contract or statute.   Moreover, judges have discretion when awarding fees to the prevailing party under contract or statute.

NRS 18.010 provides an award of attorney fees to a prevailing party, and NRS 7.085, provides for an award of attorney fees when a party takes an unreasonable legal position.  Family law motions even have a rule for awarding attorney fees if a motion was filed without first attempting to resolve the issue with the other party. EDCR 5.501. Each allows for judge discretion when answering the questions of “who prevailed?” or “was the position unreasonable?”  A NRS 125.141 OOJ is more binary and does not allow as much discretion.   With a NRS 125.141 OOJ, the question is simple–“Were you awarded more assets than the offer provided?”   If the answer is no, then you may owe attorney fees.

Under NRS 18.010 analysis, the court may decide both parties prevailed, and thus refuse to award attorney fees.   The Supreme Court has stated that a party faced with the offer of judgment penalty provisions cannot recover any attorney fees based upon some other statute. Albios v. Horizon Communities, Inc., 122 Nev. 409, 418, 132 P.3d 1022, 1028 (2006).

An offer of judgement is a valuable tool used by skilled divorce attorneys.  The next time you need leverage to settle the assets and debts portion of your case, think about sending an OOJ.  If you need further assistance, please contact Rock.

How to get a free copy of your credit reports (once a year)

By Michael Kind, Esq., Guest Blogger

Kind Law
8860 S. Maryland Parkway, Suite 106, Las Vegas, Nevada 89123
(702) 337-2322
(844) 399-KIND (5463)

A quick guide on how to get a free copy of your consumer report.

     AnnualCreditReport.com is a website maintained by the three biggest credit reporting agencies– EquifaxExperian, and TransUnion.  The site was created in order to comply with their obligations under the Fair and Accurate Credit Transactions Act (FACTA) to provide a way for people to receive their free credit reports once per year.

     You can download your credit reports directly from that website once a year for free, or you can call 1-877-322-8228.

Can I Sue Under the Fair Debt Collection Practices Act?

By Michael Kind, Esq., Guest Blogger

     Many people are scared of debt collectors.  And for good reason: debt collectors are often accused of using unfair and deceptive tactics. These tactics may include making improper threats or harassing people who allegedly owe money.

Kind Law
8860 S. Maryland Parkway, Suite 106, Las Vegas, Nevada 89123
(702) 337-2322
 (844) 399-KIND (5463)

Effects of Unfair Debt Collection Practices

 

     In the 1970s, the U.S. government conducted a study about debt collection throughout the country. It was determined that abusive debt collection practices contribute to bankruptcies, marital instability, the loss of jobs, invasions of peoples’ privacy, and other unwanted results.

     Congress enacted the Fair Debt Collection Practices Act (FDCPA) to eliminate abusive debt collection practices by debt collectors.  The FDCPA creates guidelines under which debt collectors may conduct business, defines the rights of consumers involved with debt collectors, and prescribes penalties and remedies for violations of the rules.

Prohibited acts under the FDCPA

     The FDCPA generally prohibits unfair and deceptive collection practices, restricts communication by debt collectors, and requires transparency through disclosures.  For example:

 

  • a debt collector is not allowed to communicate with someone when the collector knows that the person is represented by an attorney.  15 U.S. Code Section 1692c(a)(2)
  • a debt collector’s ability to communicate with a debtor who disputes the debt is restricted.  Section 1692c(c)
  • a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.  Section 1692e
  • a collector may not falsely represented the amount or the legal status of a debt. Section 1692e(2)
  • a collector cannot threaten to take action against a person which could not be legally taken (arrests, etc.).  Section 1692e(5)
  • a collector may not use any false representation or deceptive means to collect or attempt to collect any debt. Section 1692e(10)
  • the false representation or implication that documents are not legal process forms or do not require action by the consumer is prohibited. Section 1692e(15)
  • a debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Section 1692f
  • a collector may not collect or attempt to collect an amount not expressly authorized by the agreement creating the debt or permitted by law.  Section 1692f(1)
  • debt collectors must provide certain disclosures when attempting to collect debt from people. Section 1692g

What is considered a “misleading” statement under the FDCPA?

     The FDCPA’s prohibition on misleading statements poses the question, “Misleading to whom?”  Does the answer depend on whether the collector meant for the statement to be misleading?  Does the answer lie in whether the person was actually misled?  Does it matter if that person happens to be extra gullible or uniquely sophisticated about debt collection issues?  Or does the judge look to see if the person could have been misled?  This approach isn’t easy because some people are more easily tricked than others.

     In Nevada (which is in the Ninth Circuit), courts use the third approach: they evaluate the tendency of language to deceive.  That means, courts don’t assess whether the person was actually deceived but whether she could have been misled.  The test used is whether the least sophisticated reader would be misled or deceived by the language.  Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1061-62 (9th Cir. 2011) (The standard is designed to protect consumers of below average sophistication or intelligence, or those who are uninformed or naive; “The ‘least sophisticated debtor’ standard is lower than simply examining whether particular language would deceive or mislead a reasonable debtor”).

The FDCPA is a strict liability statute

     Is the debt collection company excused if they can prove that the violation was a mistake?

     No.   The FDCPA is a strict liability law, meaning that a plaintiff does not need to prove that an FDCPA violation was intentional in order to prevail.   E.g.Reichert v. Nat’l Credit Sys., 531 F.3d 1002, 1004 (9th Cir. 2008); Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162 (9th Cir. 2006)); McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 948 (9th Cir. 2011).

Remedies

     Under the FDCPA, a victim of unfair to deceptive collection practices may recover any damages proven, up to $1,000, plus reasonable attorney’s fees and costs.

 

For more information about FDCPA claims, contact Mike.

Discovery DigestDiscovery

General

The Rules of the Game: Comprehensive Amendments to the Nevada Rules of Civil Procedure
The Changes Coming to the Nevada Rules of Civil Procedure:  An Overview
Deadlines and Due Dates Under the 2019 Nevada Rules of Civil Procedure
What Can Nevada State Court Attorneys Learn About Proportionality From Federal Court Decisions?
NRCP 26 – GENERAL PROVISIONS GOVERNING DISCOVERY
NRCP 29 – STIPULATIONS ABOUT DISCOVERY PROCEDURE
NRCP 35 – PHYSICAL AND MENTAL EXAMINATIONS
NRCP 37 – FAILURE TO MAKE DISCLOSURE OR TO COOPERATE IN DISCOVERY; SANCTIONS (more…)

Commercial (Business) Litigation Causes of Action

While not exhaustive, the following is a list of possible claims/remedies that you may consider making in your commercial litigation matters, linked to the elements for each claim.

Abuse of Process
Account Stated
Accounting, a Remedy
Anticipatory Repudiation
Appointment Of A Receiver
Breach of Contract
Breach of Duty of Loyalty
Breach of Express Warranty
Breach of Fiduciary Duty
Breach of Fiduciary Duty; Aiding and Abetting Another’s
Breach of Fiduciary Duty; Breach of the Duty of Loyalty; Usurpation of Corporate Opportunity; the Corporate Opportunity Doctrine
Breach of Implied Warranty of Habitability
Breach of Implied Warranty of Merchantability
Breach of the Covenant of Good Faith and Fair Dealing—Contract
Breach of the Covenant of Good Faith and Fair Dealing—Tort
Breach of the Covenant Not To Compete; Anti-Competition Covenant; Restrictive Covenant
Breach of Warranty of Fitness for a Particular Purpose
Civil Racketeering Influenced and Corrupt Organizations Act (RICO)
Conversion (Theft)
Declaratory Relief
Defamation
Defamation; Business Disparagement
Defamation by Libel
Defamation by Slander
False Advertising; Lanham Act Violation; Unfair Competition
False Designation of Origin, Description, and Dilution; Lanham Act Violation; Unfair Competition
False Light, Disclosure of; Invasion of Privacy
Fraud (Intentional Misrepresentation)
Fraud; Promise Without Intent To Perform
Fraud, Constructive
Fraud In The Inducement
Fraudulent Concealment
Fraudulent Transfer
Indemnity
Interference With Contractual Relations
Interference With Prospective Economic Advantage or Prospective Contractual Relationship
Malicious Prosecution
Misappropriation of Trade Secrets; Uniform Trade Secrets Act Violation; NRS Chapter 600A
Prima Facie Tort
Promissory Estoppel; Equitable Estoppel
Quantum Meruit; Quasi Contract; Unjust Enrichment
Receiver, Appointment of
Trademark Infringement

Nevada State Forms

Abandoned Vehicle
Nevada Commission on Judicial Discipline
Nevada Real Estate Division
Nevada Supreme Court – Appellate Practice Forms
Nevada Supreme Court Law Library

Official Form 2. Rule 4.1 Waiver of Service of Summons
Official Form 3. Consent to Service by Electronic Means Under Rule 5

(more…)

The elements of the prima facie tort are:

  1. an intentional, otherwise lawful act by the defendant;
  2. an intent to injure the plaintiff;
  3. injury to the plaintiff;
  4. action does not give rise to any other recognized tort;
  5. absence of justification, or insufficient justification for the defendant’s actions;
  6. causation; and
  7. damages.

Compelling Identification of Previously Bates Stamped Documents in Response to Discovery Requests

Opposing counsel responded to my interrogatories and requests for production of documents by stating that the responsive documents are among “all documents filed thus far in this case, and bates stamped 0001-3974.”  Unfortunately, even after an effort to meet and confer (including sharing with counsel the law included in this article), counsel refused to identify which of the bates stamped documents related to each individual interrogatory response, etc.  I was forced to file a motion and seek sanctions for having to do so.  This article contains the caselaw included in that persuasive motion.

The Rules of Civil Procedure provide a means by which a party can seek an order compelling answers to interrogatories or production of documents that an opposing party has failed to disclose in response to timely discovery requests. Rule 37(a)(3)(B).  Further, “an evasive or incomplete disclosure, answer or response is to be treated as a failure to disclose, answer or respond.”  Rule 37(a)(4).

NRCP 37(a) authorizes the Court to issue orders compelling discovery when a party fails to respond to a request for production of documents submitted under NRCP 34.  See Fire Ins. Exchange v. Zenith Radio Corp., 103 Nev. 648, 650, 747 P.2d 911, 913 (1987). NRCP 34 is limited to matters within the scope of NRCP 26(b), which permits the discovery of non-privileged material relevant to the claim or defense of any party. See NRCP 26(b) and 34(a); State ex rel. Tidvall v. Eighth Judicial Dist. Court, 91 Nev. 520, 527, 539 P.2d 456, 460 (1975).

Under EDCR 7.60(b)(4), the Court may impose “any and all sanctions which may, under the facts of the case, be reasonable, including the imposition of fines, costs or attorney’s fees when an attorney or a party without just cause . . . [f]ails or refuses to comply with these rules.”  Moreover, NRCP 37(a)(4) requires the offending party to reimburse reasonable attorney fees and other expenses incurred in bringing a motion to compel, since the wrongful conduct (failure to respond and/or failure to completely and accurately respond to  discovery requests) necessitated the expenditure of fees.  One can only avoid such payment only if she can show that her failure was “substantially justified or that other circumstances make an award of expenses unjust.”  NRCP 37(a)(4).

Where a party has already disclosed documents and Bates stamped them, courts have routinely rejected the notion that they may simply list in their interrogatory answer, the bates stamped range of all previously-disclosed documents.  Such a response constitutes an evasive and incomplete response which is treated as a failure to respond to a valid discovery request.  Buchanan v. Las Vegas Metro. Police Dep’t, 2012 WL 1640516, *1 (D. Nev. May 9, 2012) (citing USF Ins. Co. v. Smith’s Food and Drug Center, Inc., 2011 WL 2457655 at *3 (D. Nev. 2011)).  A discovering party is “entitled to know which documents are responsive to which responses.” Queensridge Towers, LLC v. Allianz Glob. Risks US Ins. Co., 2014 WL 496952, *6 (D. Nev. Feb. 4, 2014).  Accordingly, courts require parties to “supplement [her] responses to indicate which of the previously disclosed documents are responsive to each request for production.” Buchanan, 2012 WL 1640516 at *1; see also Wilson v. Greater Las Vegas Ass’n of Realtors, No. 214CV00362APGNJK, 2016 WL 1734082, at *3–4 (D. Nev. May 2, 2016); Koninklijke Philips Elecs. N.V. v. KXD Tech., Inc., No. 2:05CV01532RLH-GWF, 2007 WL 879683, at *4 (D. Nev. Mar. 20, 2007).

An account stated is “a writing which exhibits the state of account between parties and the balance owing from one to the other, and when it assented to… becomes the new contract.” See Gardner v. Watson, 170 cal. 570, 574 (1915).

An account stated claim has three elements:

  1. previous transactions between the parties establishing the relationship of debtor and creditor;
  2. an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; and
  3. a promise by the debtor, express or implied, to pay the amount due.
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