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.
Only materials which are a part of the complaint may be considered on a motion to dismiss. 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.
The court may consider matters of public record, 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. Further, the court may consider any exhibits attached to the complaint.
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.” 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.
Note: These holdings do not apply to a motion to dismiss for lack of jurisdiction.
 Wright & Miller Federal Practice & Procedure, § 1366 (3d Ed.) (citations omitted).
 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).
 Friedl v. New York, 210 F.3d 79, 84 (2d Cir. 2000); see also Wright & Miller Federal Practice & Procedure, § 1366 (3d Ed.).
 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).
 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).
 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).
 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).
 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. Black’s Law Dictionary defines force majeure as “[a]n event or effect that can be neither anticipated nor controlled.” 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.  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. While the economic recession in 2008 was found not to be a force majeure event, 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. If the clause is clear and unambiguous, the court must construe it from the language therein.
Please contact one of our attorneys to review your contract if it contains a force majeure clause. You may be excused from performance.
 https://www.merriam-webster.com/dictionary/force%20majeure, accessed March 19, 2020.
 https://www.lexology.com/library/detail.aspx?g=e44183ab-74cf-4f2d-906a-7d7850427953, accessed March 19, 2020.
 One World Trade Ctr., LLC v. Cantor Fitzgerald Sec., 789 N.Y.S.2d 652, 655 (N.Y. Sup. Ct. 2004).
 https://www.venable.com/insights/publications/2011/02/understanding-force-majeure-clauses, accessed March 19, 2020.
 See Elavon, Inc. v. Wachovia Bank, Nat’l Ass’n, 841 F. Supp. 2d 1298 (N.D. Ga. 2011).
 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).
 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.
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
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– Equifax, Experian, 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.
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.
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).
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.
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
Accounting, a Remedy
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)
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 In The Inducement
Interference With Contractual Relations
Interference With Prospective Economic Advantage or Prospective Contractual Relationship
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
Nevada State Forms
The elements of the prima facie tort are:
- an intentional, otherwise lawful act by the defendant;
- an intent to injure the plaintiff;
- injury to the plaintiff;
- action does not give rise to any other recognized tort;
- absence of justification, or insufficient justification for the defendant’s actions;
- causation; and
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:
- previous transactions between the parties establishing the relationship of debtor and creditor;
- an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; and
- a promise by the debtor, express or implied, to pay the amount due.