Posts by: Jay Young, Mediator and Arbitrator

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] 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], accessed March 19, 2020.

[2], 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], 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

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. 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).


     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


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?

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; 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
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


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.

Good news!  The Nevada Supreme Court has finally approved the amendments to the Eighth Judicial District Court Rules (“EDCR”).  The proposed amendments were sent to the Court on July 12, 2019 and approved on November 27, 2019 by the Order.  The Order is effective January 1, 2020.

While all practitioners should carefully read the rules and their amendments, here are some of the highlights from the amendments:

Deadlines regarding motion practice are as follows:

  • 2.20(d) – Joinders must be filed within 7 days after service of a motion
  • 2.20(e) – An Opposition or Notice of Nonopposition must be filed within 14 days after service of the motion or 5 days after service of a joinder
  • 2.20(g) – a Reply may be filed no later than 7 days before the matter is set for hearing, or 7 days after service of an opposition if a hearing has not been requested or set by the court

EDCR 1.90 Caseflow Management

  • 1.90(b)(3) – District Court Judges, not the Discovery Commissioner, issue scheduling orders
  • 1.90(b)(4) – Cases must be set for trial no later than 6 months after the close of discovery

EDCR 2.20 Motions; Contents; responses and replies; calendaring a fully briefed matter

  • 2.20(b)
    • all motions must include the designation “Hearing Requested” or “Hearing Not Requested” in the caption of the first page “directly below the Case Number and Department Number.”
    • Motions filed with the designation “Hearing Not Requested” will be set for a decision on the court’s “Chambers” calendar unless the court orders or an adverse party makes a request for a hearing. And adverse party may make such a request by including the designation “Hearing Requested” in the caption on the first page of the opposition “directly below the Case Number and Department Number.”
    • Motions to be heard by a Discovery Commissioner must include the designation “Discovery Hearing Requested” in the caption of the first page of the motion “directly below the Case Number and Department Number.”

EDCR 2.20(h) – A courtesy copy of the motion, all related briefing, affidavits, and exhibits shall be delivered “to the appropriate department” by “the movant” for any contested matter at least 7 days prior to the date of the hearing

  • If no hearing is set, the materials must be delivered “after the time for filing of the last briefing paper has run.” No other deadline is provided, but the logical conclusion is that the matter will not be decided until the courtesy copy is delivered
  • The rule does not require the parties opposing the matter to provide briefing, leading to a possible interpretation that the movant is responsible to provide the above-required material for all of the parties
  • Further, since a Reply brief may be due 7 days prior to a hearing, the courtesy copy must be delivered on that same date, meaning parties must be careful not to file a reply after hours if they cannot deliver a copy at the same time

EDCR 2.34 Discovery disputes; conferences; motions; stays.

  • 2.34(f)(1) – A party may object to a commissioner’s report and recommendation within 14 days after being served with a report
  • 2.34(f)(1) – Points and authorities are not required for filing an objection to a commissioner’s report and recommendation but may be filed
  • 2.34(f)(1) – If a party files points and authorities, any other party may file and serve responding points and authorities within 7 days after being served with the objections
  • 2.34(f)(2) – Upon receipt of a commissioner’s report, any objections, and any response, the District Court shall: (1) affirm, reverse, or modify the ruling without a hearing; (2) set the matter for a hearing; or (3) remand the matter to the commissioner for reconsideration or further action
  • 2.34(g) – A party submitting matters for in camera review by the commissioner must provide a copy of the same without redactions and a set with proposed redactions

EDCR 7.20(d) – any document filed after the complaint shall refer to the first party on each side and may refer generally to the other parties.


ABC, LLC, et. al.



FBH, Inc. et. al.


 Case No.:

Dept. No.:

And related matters



Nevada State Court Litigation Checklist: Get the Third Edition of this popular book that belongs in the library of every serious Nevada litigator. It has been called an “essential tool” in the arsenal of any attorney.  This checklist is as comprehensive as possible so that any attorney or person representing themselves can use it as a resource to at least find the applicable rule or statute that governs most situations, but more importantly, to understand what it takes, “A to Z” to get a case ready for trial. I approach preparation for every lawsuit as if it will go to trial. Although a majority of cases settle, an advocate who prepares each case as though it is going to trial better understands his or her case, and is likely to craft better written discovery and to take better depositions. That litigant is ultimately better equipped to achieve a more favorable settlement than they otherwise would.

  • 274 pages
  • Includes the elements for almost 200 Nevada causes of action (including annotations to caselaw and statutory authority)
  • New chapters on ADR and preparing witnesses to testify

Paperback Edition  69.99


Kindle Edition  59.99


A Litigator's Guide to Nevada Evidence and Objections by Jay YoungA Litigator’s Guide to Nevada Evidence and Objections: While Nevada’s statutory rules of evidence generally follow the Federal Rules of Evidence, the Federal system is not adopted wholesale.  Perhaps as important and confusing, Nevada does not follow the Federal numbering system, making it difficult to easily analogize to known Federal principals while in the heat of the battle in State court.  This guide is designed to allow litigators in Nevada who are accustomed to the Federal rules to quickly cross reference with Nevada’s rules, and to serve as a general guide on the contents of our rules of evidence.  The second section provides a handy guide to objections, prompting the user on how to lodge the objection, the source of law for the objection, and a short explanation of the objection.

Paperback Edition $44.99


Federal Court Civil Litigation Checklist: Get the Second Edition of this popular checklist.  It is a comprehensive “A to Z” approach to coach you from client intake to the first day of trial.   Although a majority of cases settle, a litigant who prepares each case as though it is going to trial better understands his or her case, and is likely to craft better written discovery and to take better depositions.  That litigant is ultimately better equipped to achieve a more favorable settlement than they otherwise would.

Paperback Edition $49.99


Kindle Edition $49.99


A Litigator’s Guide to Federal Evidence and Objections: This pocket guide is designed to allow litigators to quickly reference to the Federal Rules of Evidence (“FRE”). It is presented in three parts. First is a quick reference guide to the FRE. Second is a guide to objections. It provides a tag line for the objection (i.e., “Objection! Assumes facts not in evidence”), followed rule(s) on which the objection relies and a short explanation of the rule/statute should you need additional support or rationale for the objection. Third, is a complete copy of the 2019 FRE.

Paperback Edition $44.99

Checklist: Move for the Admission of EvidenceJay Young, top business lawyer

  1. Present the court with competent witness (witness has the mental capacity, and the ability to perceive, remember, and testify in an understandable manner)
  2. The witness must testify from his or her personal knowledge
  3. Mark the desired Exhibit with the clerk. “Your Honor, may I have permission to approach the Clerk for the purpose of marking this document as proposed Exhibit 12?”
  4. Provide a copy to opposing counsel (unless pre-marked and agreed to, which you should always attempt) “Your Honor, may the record reflect that I am handing a copy of proposed Exhibit 12 to Defense Counsel?”
  5. Ask for permission to approach the witness, “Your Honor, may I approach the witness?”
  6. Record the fact that the witness has the proposed exhibit, “Your honor, may the record reflect that I have handed the witness what has been marked as Exhibit 12 for identification purposes?”;
  7. Have the witness identify the document
    • “Do you recognize Exhibit 12?”
    • “What is it?”
    • “Is that your signature on the 4th page of Exhibit 12?
  8. Ask the court to admit the evidence.  “Your honor, we move for the admission of Exhibit 12 into evidence”
  9. Now that the document has been admitted, seek relevant testimony about the document.  “Now, turning to the second paragraph on page one of Exhibit 12, why did . . . ”

Does it meet the test?

  1. Competent witness (FRE 602; NRS 50.025)
  2. Relevant evidence (FRE 401; NRS 48.015): tendency to make a fact more or less probable
  3. Admissible evidence (FRE 402; NRS 48.025): personal knowledge and the witness saw, felt, touched, or experienced it
  4. Tested for hearsay? (FRE 801-805; NRS 51.045-51.096)
  5. Authentication (FRE 901/902; NRS 52.015-52.165)

Attorney Mark Gardberg


The chart below reviews the statutorily-recognized types of partnerships in Nevada.




Sample Form Nevada Answer to Complaint

There are few circumstances in which the law requires that a party must file a complaint under oath.  The requirement is called “verification.”  NRS 15.010 requires that where verification is required, a pleading shall contain “the affidavit of the party shall state that the same is true of the party’s own knowledge, except as to the matters which are therein stated on the party’s information and belief, and as to those matters that the party believes it to be true.”  The affidavit may be in substantially the following form and need not be subscribed before a notary public:

Under penalties of perjury, the undersigned declares that he or she is the ………………………….. (plaintiff, defendant) named in the foregoing ………………………….. (complaint, answer) and knows the contents thereof; that the pleading is true of his or her own knowledge, except as to those matters stated on information and belief, and that as to such matters he or she believes it to be true.

NRS 15.010(5).

The law requires a verified complaint in the following circumstances:

  1. A derivative action by a shareholder against a corporate entity.  NRCP 23.1
  2. A petition to perpetuate testimony prior to filing a suit.  NRCP 27(a)(1)
  3. A petition for an ex parte temporary restraining order.  NRCP 65(b)(1)
  4. Petition for eminent domain, or public taking.  NRS 37.060
  5. Complaint for adverse possession.  NRS 40.090
  6. Quiet Title.  NRS 40.090; 40.091
  7. Eviction.  NRS 40.370
  8. Petition to establish the termination of a life estate.  NRS 40.515
  9. Petition for the termination of the interest of a deceased person in real property.  NRS 40.525
  10. Compromise the claim of a minor.  NRS 41.200
  11. Petition to determine and establish facts relative to vital statistics.  NRS 41.220
  12. Petition for a name change.  NRS 41.270
  13. Emancipation of a minor.  NRS 41.295
  14. Complaint by shareholder against corporation or association to enforce secondary rights.  NRS 41.520
  15. Divorce.  NRS 125.020
  16. Expedited relief for unlawful removal or exclusion of tenant from premises.  NRS 118A.390

Litigator's Guide to Nevada Evidentiary ObjectionsA motion in limine (Latin: [ɪn ˈliːmɪˌne]; “at the start”, literally, “on the threshold”) is a motion filed for the purpose of making an evidentiary decision outside the presence of the jury and before trial begins.  There are generally two types of motions in limine in a civil setting.  The first is to procure a definitive ruling on the admissibility of certain evidence, often on the basis that the evidence is prejudicial, irrelevant, or otherwise inadmissible.  Born v. Eisenman, 114 Nev.  854, 962 P.2d 1227 (1998).  The second is a prophylactic Motion that seeks to prevent counsel for the other party from mentioning inadmissible evidence or limiting the use of the evidence.  NRS 47.080.

The use of a motion in limine is not specifically authorized by  NRCP, but it is authorized by EDCR 2.47 after counsel has made a good faith effort to “meet and confer” and resolve the matter prior to filing the motion.  Further, the Nevada Supreme Court approved the practice in State ex. Rel. Dept. of Highways v. Nevada Aggregates & Asphalt Co., 92 Nev. 370, 551 P.2d 1095 (1976).  Trial judges are authorized to rule on motions in limine pursuant to their inherent authority to manage trials. See Luce v. U.S., 469 U.S. 38, 41 n.4 (1984) (citing Fed. R. Evid. 103(c) (providing that trial should be conducted so as to “prevent inadmissible evidence from being suggested to the jury by any means”)) (as cited by  Demaree, Lindsay and Hostetler, Jennifer K.,  Making the Most of Motions In Limine, COMMUNIQUÉ (April 2014, Vol. 35, No. 4).

Consider filing a motion in limine to exclude certain testimony or witness, to exclude evidence, publicity, obtain approval of demonstrative exhibits, PowerPoint presentations, to declare a witness unavailable, and to determine which portions of testimony are to be read to the jury, etc.  

Top Las Vegag Arbitrator

The Federal Arbitration Act (“FAA”), which has been the law in the United States since 1925, preempts any state law that disfavors the ability of two parties to contractually bind themselves to arbitrate a dispute.  Since 2013, Nevada law has required that any contract containing an arbitration provision must include a “specific authorization for the provision which indicates that the person has affirmatively agreed to the provision”.  Not surprisingly, the Nevada Supreme Court recently held that the Nevada law is preempted by the FAA.  (For an overview of the FAA, see this post)

MMAWC (then doing business as the World Series of Fighting) and its affiliates (collectively “MMAWC”), together with the Zion Wood Obi Wan Trust and its affiliates (collectively “Zion Wood”), were involved in litigation that resolved by negotiated settlement agreement.  That settlement agreement incorporated and restated portions of two other agreements, including a requirement that any dispute between the parties be resolved by litigation.  Zion Wood alleged that MMAWC breached the settlement agreement and sued.  MMAWC, LLC v. Zion Wood Obiu Wan Trust, 135 Nev. Adv. Op. 38, __ P.3d __ (Sep. 5, 2019).

MMAWC filed a motion to dismiss the suit and to compel arbitration pursuant to the incorporated arbitration clause.  The Honorable Nancy L. Allf denied the motion on the basis that the arbitration clause failed to include the “specific authorization” required by NRS 597.995 and was therefore unenforceable.  MMAWC appealed.

In coming to its decision, the Nevada Supreme Court relied heavily on Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 683, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996), which explained “that under the FAA. courts may not ‘invalidate arbitration agreements under state laws applicable only to arbitration provisions,’ as Congress has ‘precluded [s]tates from singling out arbitration provisions for suspect status’ and requires arbitration provisions to be placed on ‘the same footing as other contracts.’”  The Court concluded that NRS 597.995 similarly imposes a special requirement on arbitration clauses that is not applicable to other contracts, “it singles out arbitration provisions as suspect and violates the FAA.”  The Court therefore held the FAA preempts NRS 597.995.

For some history on this statute, see Is Your Arbitration Agreement Enforceable in Nevada? and Is Your Arbitration Agreement Void, or Enforceable in Nevada?

What is a Notice of Breach and Opportunity to Cure?

Many contracts contain a clause requiring a notice of default and opportunity to cure prior to filing suit or demanding arbitration.  For a contract with such a clause, before an action can be taken, the party claiming the other has breached an agreement must: 1) send a notice describing the way(s) in which the party is in default of the agreement; 2) provide an opportunity to cure the default; 3) wait the ascribed period of time for the defaulted party to cure; and 4) file suit or demanding arbitration only if the other party fails to cure its default.

“The common meaning of ‘cure’ is to remedy, restore, remove, or rectify … and as the term relates to defaults, ‘cure’ means to restore matters to the status quo ante.”[1] The object of a notice of breach and opportunity to ‘cure’ is to give a party another chance to perform substantially and a second chance to perform according to the contract.  The cure requires performance to the level of substantial performance under the contract.[2]

Fairness dictates that the opportunity to “cure” be more than illusory.  A party must be given time and a real opportunity to cure prior to termination.[3]  “The right of a breaching party to be given an opportunity to cure its alleged material breach is an ancient equitable principle intended to: (1) prevent forfeiture by termination; (2) allow the breaching party to mitigate damages, (3) avoid similar future deficiencies in performance, and (4) promote the informal settlement of disputes.”[4]  In fact, where a party is not given more than an illusory opportunity to cure, there is no breach.[5]

In a contract with a cure requirement, the opportunity to actually cure the default is essential to the contract.  Therefore, when one party prevents another from performing an essential task under an Agreement—like the cure—the other party is excused from performing.[6]  The opportunity to cure becomes illusory and unattainable, and the complaining party may not maintain an action for breach for its own failure to allow the other to perform.

[1] Matter of Clark, 738 F.2d 869, 871 (7th Cir. 1984).
[2] 8 Catherine M.A. McCauliff, Corbin on Contracts, § 36.7 at 349 (1999).
[3] See Restatement Second, Contracts § 241; II Farnsworth on Contracts §§ 8.17, 8.18 (2d ed 1998).
[4] 5 Bruner & O’Connor Construction Law § 18:15 Principle Of Cure And Its Implications Upon Materiality (June 2016).
[5] Burras v. Canal Const. and Design Co., 470 N.E.2d 1362, 1367 (Ind. Ct. App. 1st Dist. 1984) (because the subcontractor “was not given an opportunity to remedy any alleged defects, any incidence of defective performance did not constitute a breach of the construction contract”).
[6] Chamani v. Mackay, 124 Nev. 1457, 238 P.3d 800 (2008) (citing Cladianos v. Friedhoff, 69 Nev. 41, 45–46, 240 P.2d 208, 210 (1952)).

Jay Young has published the third edition of his popular Nevada State Court Litigation Checklist.  The third edition not only reflects recent changes to the Nevada Rules of Civil Procedure, but also includes a new chapter on Alternative Dispute Resolution, as well as the elements of hundreds of causes of action, defenses, and remedies. The book contains over 275 pages of helpful practice hints for new and seasoned attorneys alike.  Many claim that Young’s Checklist belongs in every litigator’s library.  A sneak peak at its contents is included below.


Some praise for the checklist includes:

“An essential guide to state court practice for the newly admitted Nevada lawyer, and insight of traps-for-the-unwary for all other lawyers, Jay Young’s new checklist for state court litigation goes beyond expectations by offering helpful examples of the documents a lawyer needs to create the client relationship through the conclusion of a litigation matter,”

Von Heinz, Esq.

“Jay Young’s Litigation Checklist is an invaluable tool for any litigator. What might otherwise take a careful practitioner many years of trial and error to learn and master, Jay has managed to simplify in an easy-to- understand “soup to nuts” checklist. Not only does this checklist significantly shorten the learning curve for young litigators, it will also help even experienced lawyers avoid costly mistakes. This ideal combination of practical and technical advice will tremendously aid litigation partners in training associates. Jay’s checklist will be a must-read for the litigators in our firm.”

Nicholas Santoro, Esq.

“Mr. Young’s Guide to Nevada Rules of Evidence; Guide to Nevada Evidentiary Objections; and Nevada State Court Litigation Check List are geared specifically to Nevada practitioners and are useful books to anyone who is litigating or trying cases in Nevada state courts, I would recommend that anyone who is trying cases in Nevada state courts have these materials in his library.”

Steven M. Burris, Esq.

Frustration of Purpose Defense

The doctrine of commercial frustration applies to discharge a party’s contractual obligation when “[p]erformance remains possible but the expected value of performance to the party seeking to be excused has been destroyed by a fortuitous event, which supervenes to cause an actual but not literal failure of consideration.” Graham v. Kim, 111 Nev. 1039, 899 P.2d 1122 (1995) (quoting Lloyd v. Murphy, 25 Cal.2d 48, 153 P.2d 47, 50 (1944)).  The doctrine of commercial frustration does not apply to relieve party of contractual obligation, where contingency affecting expected value of party’s performance is one which party should have foreseen, and for which he should have provided.  Id.

Impossibility of Performance

Impossibility of performance is a defense to breach of contract or excuse of non-performance for events that occur after a contract is entered into.  Mere unexpected difficulty, expense, or hardship involved in the performance of a contract does not excuse performance.  Where the difficulty or obstacle does not make performance objectively impossible, and the personal inability of a promisor to perform (frequently designated as subjective impossibility, being impossibility which is personal to the promisor and does not inhere in the nature of the act to be performed) does not excuse nonperformance of the contractual obligation.  84 A.L.R.2d 12, Modern Status of the Rules Regarding Impossibility of Performance as Defense in Action for Breach of Contract (2005).

In Nebaco, Inc. v. Riverview Realty Co., the Nevada Supreme Court determined that one who contracts to render a performance for which government approval is required, assumed duty of obtaining such approval and risk of its refusal is on him.  87 Nev. 55, 57-58, 482 P.2d 305, 307.  Nebaco sought to set aside its obligations under a lease executed with Riverview Realty on the ground that performance became impossible because improvement contingent upon approval by a bank authority was denied.  The lease specified that Nebaco would have a period of time to obtain interim or long-term financing for the improvements.  If Nebaco failed to terminate the lease prior to the deadline or when it obtained financing the lease termination option expired.  The Court concluded that termination of the lease rested upon the inability to obtain the required permission of the banking authority, not upon failure to obtain financing.  The doctrine of impossibility becomes unavailable because the contingency which arose should have been foreseen.

Generally, the defense of impossibility of performance is available to promisor where his performance is made impossible or highly impractical by occurrence of unforeseen contingencies, but if the unforeseen contingency is one which the promisor should have foreseen, and for which he should have provided, the defense is unavailable to him.  Id. at 57.  Although, the Court did qualify that if the foreseeable consequence is provided for in the contract, its occurrence does provide an excuse for non-performance.  Id. at 57 (citing Williston on Contracts sec. 1968 (1938)).  The distinction here involved the fact that the lease specified financing as a contingency and not approval by the banking authority.  Id. at 57.

Impossibility is a doctrine of contract interpretation. W.R. Grace and Co. v. Local Union 759, Intern. Union of United Rubber, Cork, Linoleum and Plastic Workers of America, 103 S.Ct. 2177 (1983).  Foreseeability of impossibility of performance is generally a relevant but not dispositive factor in determining applicability of impossibility defense.  There is no reason to look further when risk was foreseen to be more than minimally likely, goes to the central purpose of the contract, and can easily be allocated in different manner had parties chosen to do so. U.S. v. Winstar Corp., 116 S.Ct. 2432 (1996).

In the linked blog post below, Howard & Howard‘s Mike Braun explains a recent decision where a court denied an employer’s request for a preliminary injunction against the company’s former President and its IT manager who took flash drives with company information (containing the company’s vendors and suppliers list, sales data, pricing and cost information, and profit margins), then went to work for a competitor.

The Court found that the employer failed to take adequate steps to protect its supposed trade secrets and was therefore not entitled to protection under the law.  According to Braun, the case acts as “a virtual checklist of the steps a company should consider if it wants its important information to be treated as a trade secret.”

As this article suggests, if you want others to treat your information as a trade secret, you have to treat it like a trade secret, by:

  1. Using a confidentiality agreement;
  2. Clearly identify confidential information;
  3. Train your employees to treat the information as confidential;
  4. Restrict access to confidential information; and
  5. Address confidential information when employees terminate employment

When Is a Trade Secret Not a Trade Secret? When You Don’t Protect It Like One

What Constitutes a Material Breach of Contract?

In Nevada, to prevail on a claim for breach of contract action must show (1) the existence of a valid contract, (2) a breach by the defendant, and (3) damage as a result of the breach.[1]  For a breach of contract to be material, it must go to the root or essence of the agreement between the parties, or be one which touches the fundamental purpose of the contract.[2]

Stated another way, it is a breach which is so substantial or fundamental as to defeat the object or purpose of the entire transaction, or make it impossible for the other party to perform under the contract.[3]  In Nevada, material breach of contract “depends on the nature and effect of the violation in light of how the particular contract was viewed, bargained for, entered into, and performed by the parties”[4] (more…)

Is My Arbitration Confidential?

Most questions regarding the enforceability of arbitration obligations begin with the Federal Arbitration Act, 9 U.S.C. §1 et seq. (the “FAA”), which governs the enforcement of arbitration agreements.  9 U.S.C. §§ 1-2; Prima Paint Corp. v. Flood & Conklin Mfg. Co., 398 U.S. 395, 402 (1967).  The FAA was signed into law in 1925 and governs the enforcement of arbitration agreements, but does not require that the parties or the arbitrator hold the matter in confidence.

Nevada Revised Statutes, Chapter 38 is Nevada’s version of the Uniform Arbitration Act of 2000.  While it allows an arbitrator to issue a protective order against the disclosure of confidential and trade secret information (NRS 38.233(5)), it is silent on the issue of whether the parties to an arbitration or their arbitrator must keep the fact of the arbitration or its result a secret. (more…)

Howard & Howard attorney Jonathan Fountain discusses protecting clients from counterfeiters.


This article was originally published in the COMMUNIQUÉ, the official publication of the Clark County Bar Association. (May 2019).


The undersigned party hereby consents to service of documents by electronic means as designated below in accordance with Rule 5(b)(2)(E) of the Nevada Rules of Civil Procedure.

Party name(s):



Documents served by electronic means must be transmitted to the following person(s):



Facsimile transmission to the following facsimile number(s):



Electronic mail to the following email address(es):



Attachments to email must be in the following format(s):



Other electronic means (specify how the documents must be transmitted)





The undersigned party also acknowledges that this consent does not require service by the specified means unless the serving party elects to serve by that means.

Dated this __________ day of _______________, 20_____.


                                                                                         Attorney for Consenting Party

                                                                                                  or Consenting Party

                                                                      Address:  __________________________

                                                                      Telephone:  ________________________

                                                                      Fax number:  ________________________

                                                                      Email address:  ______________________

      [Added; effective March 1, 2019.]

Form 2.  Rule 4.1 Waiver of Service of Summons

(Attorney or Plaintiff Information)


Waiver of Service of Summons under Rule 4.1 of the Nevada Rules of Civil Procedure

To (name the plaintiff’s attorney or the self-represented plaintiff):

I have received your request to waive service of a summons in this lawsuit along with a copy of the complaint, two copies of this waiver form, and a prepaid means of returning one signed copy of the form to you.

I, or the entity I represent, agree to save the expense of serving a summons and complaint in this lawsuit.

I understand that I, or the entity I represent, will keep all defenses or objections to the lawsuit, the court’s jurisdiction, and the venue of the lawsuit, but that I waive any objections to the absence of a summons or of service.

I also understand that I, or the entity I represent, must file and serve an answer or a motion under Rule 12 of the Nevada Rules of Civil Procedure within 60 days from _____________________, the date when this request was sent (or 90 days if it was sent outside the United States). If I fail to do so, a default judgment will be entered against me or the entity I represent.

Date: _____________________________



(Signature of the attorney or unrepresented party)



(Printed name)




(Email address)


(Telephone number)

      [Added; effective March 1, 2019.]

See the article here

According to Russell Korobkin, “Psychological Impediments to Mediation Success,” 21 Ohio St. J. on Disp. Resolution 281, 287 (2006), 80% of professional truckers believe they are safer than average and 94% of college professors think they are above average.
Lawyers and litigants tend to suffer from the same fate–having overconfidence in their likelihood of success.  In fact, 44% of attorneys who were asked in one study to predict outcomes at trial were overconfident in their prediction of their success.  Goodman-Delahunty, “Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes,” 16 Psych., Pub. Policy & Law 133 (2010).  Most of my attorney friends who just read that statistic are thinking, “I would be one of the 79% who predicted my success correctly.”[1]

The Randall Kiser Study, released in the Journal of Empirical Legal Studies, found that parties who reject the last and best offer at mediation overwhelmingly regret the decision.  The study surveyed thousands of cases in California and New York over a five-year period.  It found that plaintiffs who rejected the last settlement offer and proceeded to trial do worse a whopping 61% of the time, while defendants did worse than their last offer 24% of the time.  In only 15% of the cases did both sides obtain a better result at trial.

All is not good news for defendants, however.  Although they seem to do better at predicting outcomes, the 24% of the time they are wrong ends up being much more costly to them.  Defendants who fail to do better than the Plaintiff’s last demand, ended up with a verdict that was on average $1.1 Million more than the Plaintiff’s last demand.  On the other hand, plaintiffs received on average $43,000 less than the last offer given before trial.

Mediators assist often entrenched parties who each have a greater belief in the value of their position than they ought to have, to reach a middle position. The uncertainty of a litigated outcome alone justifies considering alternatives to a litigated result.  Every experienced and honest litigator can point to cases they won when they didn’t think they had a chance winning.  They can also point to times when if there was any justice, they would have won, but lost.  There simply is no way to accurately predict with certainty the outcome of a litigated case whether decided by a judge, a jury, or an arbitrator.

Some studies suggest that 95% or more of lawsuits settle rather than go to trial.  Assuming that is true, your case seems destined to settle; therefore, why not resolve it now rather than later?  Doing so may save time, aggravation, stress, and money.  That said, mediation will not be an easy process.  At times, you may feel uncomfortable, pressured, and perhaps even emotional.  If the process were easy, the parties wouldn’t need a mediator’s assistance to settle the matter.  A mediated result gives you certainty without the risk of litigation.

[1] Attorneys are also not known to be terribly good at math.

nevada law blogIn many states, courts will enforce a written promise that one will not compete with another party to the agreement, such as a key executive promising not to compete with her employer if she leaves the company.   What would happen if the executive left the company, then helped someone else to compete with the executive’s former company?  Courts can keep the executive from continuing to compete by enjoining the activity, but what can be done about the party who has no agreement (“the non-signatory”) with the company?  Can a court enjoin the non-signatory from competing with the company?  The answer is yes.

A court may enjoin someone one who does not sign a non-compete covenant when the non-signatory “breaches the covenant in active concert with the principal party enjoined and with knowledge of the covenant.” Las Vegas Novelty, Inc. v. Fernandez, 106 Nev. 113, 116-117 (1990) (citing McCart v. H & R Block, Inc., 470 N.E.2d 756 (Ind.Ct.App. 1984)).   The plain language of NRCP 65(d) further supports the notion, as it requires an injunction to bind the parties, as well as their agents and any other persons participating or acting in concert with the parties. See NRCP 65(d).

Enjoining a non-signatory preserves the purposes of the covenant; otherwise, permitting someone to intentionally end-run around a non-competition provision essentially renders that provision useless. See Day Cos. V. Patat, 440 F.2d 1343 (5th Cir. 1971), cert. denied, 404 U.S. 830, 92 S.Ct. 71, 30 L.Ed.2d 59 (reasoning a non-signatory to a covenant will be bound because a covenantor will not be allowed to do through others what he or she could not do directly); H&R Block Tax Servs., LLC v. Strauss, 2015 WL 470644, at *6 (N.D.N.Y. Feb. 4, 2015) (enjoining non-signatories where evidence showed the non-signatories were acting in active concert with the covenantor); Dad’s Properties, Inc. v. Lucas, 545 So.2d 926 (Fla. Dist. Ct. App. 1989) (even though wife was the sole owner of competing business, she was properly enjoined from competing because she was aiding and abetting her husband to violate his covenant).

Accordingly, those “who benefit[] from the covenantor’s relationship with a competing business must abide by the same restrictive covenant agreed to by the covenantor.” Tantopia Franchising Co., LLC v. W. Coast Tans of PA, LLC, 918 F.Supp.2d 407, 416–17 (E.D.Pa.2013) (citing Total Car Franchising Corp. v. L & S Paint Works, Inc., 981 F.Supp. 1079, 1082 (N.D.Tenn.1997) (not only covenantor and new company bound but also his “servants or agents and those acting in collusion or combination with him”).  The lesson here is that people who have a covenant not to compete should not try to nevertheless compete through a straw person.  Both could end up as defendants in a very expensive lawsuit.



I Was Injured In An Accident.  What Should I do?

Hurt in an Auto Accident

For starters, check yourself for injuries and call the police or ask someone else to call for you if you, your passengers, or occupants of the other vehicle(s) are injured.  If you or someone else is seriously injured, try not to move the injured person while waiting for an ambulance.  Even if nobody is injured, and regardless of who you think was at fault, call the police so they can issue an accident report.  Your insurance company may require it in order to cover damages to your vehicle or to the other vehicle.

Turn on your hazard lights if they are working or put out road flares if you have them.  If the vehicles are causing a hazard, consider pulling yours to the side of the road.  Otherwise, leave them where they are and get to the side of the road or a safe distance from traffic if you can. (more…)

“Those who cannot remember the past are condemned to repeat it.”[1]

It is the dawn of a new era in Nevada state civil court discovery. The Nevada Supreme Court has adopted the Federal Rules of Civil Procedure-style proportionality standard for determining the appropriate scope of discovery.  Gone are the days of discussions over whether discovery is “reasonably calculated to lead to the discovery of admissible evidence.”  But is the proportionality standard really new?  Or is it just in vogue again?  This article discusses cases decided in the Nevada U.S. District Court and elsewhere that should inform how practitioners implement Rule 26 of the Nevada Rules of Civil Procedure.  They read as a cautionary tale.

The 2019 amended Rule 26 says:

(b)     Discovery Scope and Limits.

(1)   Scope. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claims or defenses and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.[2] (more…)

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