Archive for: January, 2020

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.
%d bloggers like this: