The statute of frauds has its roots in an English law from 1677 called an Act for Prevention of Frauds and Perjuries. It declares that certain types of contracts encourage either fraud or perjury and the state should therefore refuse to recognize that they are enforceable unless they are in writing.
For example, if Bill owed money to Sam, they could together claim that Sally agreed to pay Bill’s debt. Both Sam and Bill might be encouraged to commit perjury in that circumstance, lying in order for Bill’s debt to be paid and for Sam to receive the money. Poor Sally, who might know nothing of the debt, might be forced to pay Bill’s debt. Since that type of arrangement encourages perjury, the statute of frauds requires that the agreement be in writing. (more…)
The Nevada Supreme Court calls its changes to the 2019 Nevada Rules of Civil Procedure (“NRCP”) “exhaustive.” Although the changes do not take effect until March 1, 2019, since they are so comprehensive, a complete read would be advisable for all practitioners. The amended rules (with the committee’s explanatory notes) are available in this post; a red-lined PDF version can be found here. The amendments largely bring our rules into alignment with the Federal Rules of Civil Procedure (“FRCP”), while retaining some Nevada-centric practices. Those familiar with the FRCP may find the version of NRCP red-lined against FRCP a most helpful document. The changes are too many to summarize here, but I have noted some which may impact civil practice the most regularly. They are presented in numerical order. For a table of the new deadlines and due dates, see here.
Rule 4.1 Waiver of Service:
Rule 4.1 incorporates the federal waiver of service rule, and without FRCP 4(d)(2)’s penalty provision. I’m uncertain what the rule committee intended, but the lack of penalty would seem to result in a defendant merely taking the full 30 days to delay the matter, refuse to waive service, and force the plaintiff to serve the old fashioned way, costing time and money. I have reached out a member of the committee to get a better understanding of the intention and how practitioners can comply with Rule 4.1(a)(1)(4), which requires that the notice contain a discussion of the consequences of failing to waive service. See the Official Form here.
[1.28.19 EDIT]: On 1.25.19, the Supreme Court issued an amendment to ADKT 522 which addresses this concerns and adds the federal-style penalties into the rule. The amendment also alters the official form. A copy of the Order can be found here.
Besides obtaining information from an adverse witness regarding the events which are the subject of the suit, you should also try understand how this witness will attack your claims. Finally, you should attempt to do what you can to turn the witness into a witness for your case. There is certain information you can get from each witness that allows you to attack the witness at trial. Explore lines of questioning designed to elicit the following:
- What information must the witness admit?
- What information shows bias or impeaches the witness’ credibility?
- On what items may the witness’ testimony be limited (didn’t hear or see or experience X, Y, and Z)?
- Where is the witness weak?
- What does the witness know that agrees with your case?
Can an Arbitrator be Removed During the Pendency of an Arbitration?
What do you do if you feel that the arbitrator appointed to hear your dispute isn’t providing a fair and impartial atmosphere in which your matter can be heard? Can you challenge the Arbitrator before he or she makes the final decision in the matter? What cause is sufficient to have an arbitrator removed? As is the case with so many questions in the law, the answer is: it depends. For the most part, parties to an arbitration who feel there is cause to remove an arbitrator are better off if it is a proceeding under the rules of the American Arbitration Association (“AAA”) or JAMS than if it a proceeding governed under the Federal Arbitration Act (“FAA”) or the Revised Uniform Arbitration Act (“RUAA”). (more…)
A Review of Nevada’s Corporate Law
Original Publication Date: 3.11.15
This article explores the advantages and disadvantages of various types of business entities in Nevada. Generally, the main advantage of a corporate entity is to shield its owners from placing their personal assets in jeopardy for the obligations of the business. If you are unsure which entity is right for you, call today 702.667.4828 for a consultation with one of our business attorneys.
Standard Alternative Dispute Resolution (Arbitration and Mediation) Clauses
I often hear litigators and clients complaining that the process of arbitration is flawed and does not deliver on its aspirations to provide a cheaper, quicker alternative to litigation in court. My response is that they are not really upset with the process of arbitration or mediation, but with the person who drafted the Alternative Dispute Resolution clause in their contract. The Arbitrator must administer the arbitration proceed pursuant to how the parties wrote the agreement. Therefore, as I wrote in this post, if you want a better process, write a better contract. I have endeavored to provide both my preferred standard ADR clause (with explanations), but also some alternative model arbitration, mediation, and ADR clauses from other trusted sources. The drafter should determine the process which will best benefit each client and draft the clause accordingly.
Confidential business information automatically becomes protected in the law once the statutory definition in NRS 600A.030 is met. There is no requirement that the parties expressly identify the information as a “trade secret”. Should a dispute arise as to the use of the information, determining whether the information used is protected is a matter of applying the statutory definition as a question of fact. Frantz v. Johnson, 116 Nev. 455, 465 n. 4, 999 P.2d 351, 358 n. 4 (2000).
Courts may consider, however, such factors as: (1) the extent to which the information is ascertainable from sources outside the business and the ease with which it can be obtained; (2) whether the information was confidential or secret or was treated as such by the business; and (3) the employee’s knowledge of the confidential information and whether the same was known by competitors. Id., 116 Nev. at 467, 999 P.2d at 358-59. The business is presumed to make reasonable efforts to maintain the secrecy of information that is marked “Confidential” or “Private” in a reasonably noticeable manner. This presumption may only be overcome by clear and convincing evidence that the owner did not take reasonable efforts to maintain the secrecy of the information. NRS 600A.032.
An LLC may be dissolved at any time specified in its articles of organization, upon the occurrence of an event specified in the operating agreement, the affirmative vote of all its members, or upon entry of decree of judicial dissolution. NRS 86.491. In circumstances of judicial dissolution of an LLC, “the District Court may decree dissolution of a limited liability company whenever it is not reasonably practicable to carry on the business of the company in conformity with the articles of organization or operating agreement.” NRS 86.495.
Dissolution requires distribution of an LLC’s assets in the following priority: (1) to creditors, including members who are creditors (does not include contributions); (2) to members in respect to their right to the profits and other compensation by way of income on their distribution; and (3) to members in respect of their contribution of capital. NRS 86.521. “Subject to any statement in the operating agreement, members share in the company’s assets in respect to their claims for capital and in respect to their claims for profit or for compensation by way of income on their contributions, respectively, in proportion to the respective amounts of the claims.” (more…)
Readiness Checklist for Mediation
Counsel should consider discussing the matters below with their client prior to mediating a litigated matter. Doing so will better prepare the client and counsel for the mediation itself and will improve the opportunity for resolution at mediation. For a printer-friendly version of this article, click here.
Explain the Process of Mediation
- What Is Mediation?
- What is the Role of the Mediator?
- What is Your Role at Mediation?
- How Does Mediation Compare to Litigation?
- Why Mediate?
- Who May Attend The Mediation?
- Is Mediation Confidential?
- What Will Happen At The Mediation?
- What Is A Separate Session?
- Can You Speak With Your Attorney Privately Any Time You Want?
- How Long With Mediation Last?
- What Helps To Get The Case Settled?
- Obtain client suggestions for non-monetary solutions, such as future business or payment in kind that may be desirable
- Decide whether an apology to or from the client might be appropriate
Selecting a Mediator
- Discuss the desired education, experience, and background of your mediator. Is subject matter expertise really necessary, or are mediator skills more important?
- Describe how the mediator selection process works (if specified by contract or otherwise)
- Determine whether an evaluative or facilitative mediator would be best for this case
Explain How the Status of the Dispute Influences the Mediation Process
- Has suit/arbitration been filed?
- Is trial/arbitration looming?
- How long will trial/arbitration take to a final resolution?
- Have there been any continuances?
- Is the tribunal likely to grant a request for a continuance from the other side, further delaying the matter?
- Are there pending dispositive motions before the court/arbitrator which create some risk?
- How should that risk inform the client’s decision-making?
- Discuss your honest assessment of chances of success on the pending motion
- Whether mediation is more likely to be successful with the risk hanging over the parties’ heads (creating uncertainty) or after a decision is made (may be too late or the client could spend more money for the court to “punt” on the matter until trial).
- Has the judge/arbitrator made any preliminary decision in the dispute?
- Has the judge/arbitrator indicated an early assessment of either party or their case?
- Either explicitly or implicitly?
- What is the status of discovery?
- How much is completed?
- Are party depositions completed?
- Discuss your honest assessment of the other party as a witness and likely impact they will have as a witness on decision by judge/jury;
- Discuss your honest assessment of your client as a witness and likely impact they will have as a witness on decision by judge/jury;
- What discovery needs to be completed?
- What is the estimated cost of completing discovery?
- Are expert witnesses needed?
- What is the estimated cost of the expert witness through the close of discovery?
- What is the estimated cost of the expert witness through the end of trial?
- Regarding previous settlement discussions:
- What are the impediments to settlement presently?
- How can the client and counsel best seek the assistance of the mediator to overcome those impediments?
The Impact of Opposing Counsel on the Case and the Mediation
- Discuss how opposing counsel presents in front of a judge/arbitrator/jury and the likely impact it may have on a decision
- Discuss how a mediator may assist the parties in dealing with opposing counsel
- Discuss the opposing counsel’s likely approach to the mediation
Settlement Authority at Mediation
- Determine your recommendation for a favorable settlement range (please do not discuss a client’s “bottom line” unless you want the client to “anchor” on that number and exhibit inflexibility to move beyond it at mediation)
- Discuss the pros and cons of settlement at certain dollar ranges
- What is the likely result for the client on its best day should the matter go to trial?
- What is the likely result for the client on its worst day should the matter go to trial?
- What is the likely result for the client on an average day should the matter go to trial?
Anticipated Costs of Litigation or Arbitration
- What is the likely cost to litigate to resolution (deposition costs, expert fees, attorney fees, etc?)
- The pre-trial costs
- The cost to try the case
- How much has the client spent to date on the litigation
- Is there a right to appeal an ultimate resolution by the court/arbitrator?
- Whether an appeal is available only at the end of the case
- What is the likelihood of either party to appeal should they lose at trial?
- An estimated of the cost to appeal
- An estimated time to complete appeal
- Whether the resolution of the appeal is likely to result in re-trying the matter or a portion of it
- Cost and Fee-shifting:
- Are the parties subject to a fee-shifting contractual provision, statute, or rule making an award of fees likely or possible
- Are litigation costs are recoverable from the other side
- The extent to which expert fees are recoverable (REMINDER: NRS 18.005 allows only “$1,500 for each witness, unless the court allows a larger fee after determining that the circumstances surrounding the expert’s testimony were of such necessity as to require the larger fee.”)
- How long it may take for the court or arbitrator to resolve the case
What Are the Chances of Success at Trial?
- What is the attorney’s honest assessment of the strength of the plaintiff’s claim, considering both liability and damages?
- If you obtain a judgment, does the defendant have assets available for collection?
- What is the attorney’s honest assessment of the strength of the opposing case?
- The likelihood that the trial will bring adverse publicity
- Discuss the risks of an adverse judgment, including:
- The availability of adequate liability insurance
- The availability of adequate funds or assets to satisfy a judgment
- Whether a judgment jeopardizes the survival of the client’s business
Jay Young is a mediator in Las Vegas, Nevada.
Download the PDF to discover the advantages to forming a Nevada Corporation over a Delaware Corporation.
In Nevada, the following actions require shareholder approval in the manner designated by the corporation’s governing documents or by a majority of shares if the documents are silent on the issue. The acts are required by Nevada’s corporate statutes linked below:
- Amending the corporation’s articles of incorporation;
- Election of directors;
- Removal of a director;
- Granting voting rights to “control shares” acquired by an “acquiring person” under the “acquisition of controlling interest” statutes;
- Merger, conversion, or exchange;
- The sale of all of the corporation’s property and assets; and
- Dissolution of the corporation.
In Nevada, both the officers and directors of a corporation owe it fiduciary duties. NRS 78.138. Those duties include the duty of care and the duty of loyalty. A fiduciary is a “person who is required to act for the benefit of another person on all matters within the scope of their relationship; one who owes to another the duties of good faith, trust, confidence, and candor” and loyalty. Black’s Law Dictionary (8th ed.2004). NRS 78.138 and 78.139 declare the duties specifically owed by a corporation’s fiduciaries. (more…)
The election of directors of a corporation must be held at the annual shareholders meeting by a “plurality of the votes cast at the election” unless the corporation’s articles of incorporation or bylaws require more than a plurality. NRS 78.330. If for any reason directors are not elected pursuant to NRS 78.320 or at the annual meeting, they may be elected at any fairly noticed special meeting of the shareholders. NRS 78.330(1). Moreover, shareholders owning at least 15% of the voting power may apply to the district court to order the election of directors if a corporation fails to hold a meeting within 18 months of its last meeting. NRS 78.345(1). (more…)
Corporate Annual Meetings: What They are and How to Hold and Document Them Correctly
A corporation in Nevada is recommended to hold an annual meeting of its shareholders or members. The meeting may be held anywhere, but must be held in the location and manner provided for in the articles of incorporation and/or bylaws of the corporation. Unless otherwise provided in the articles of incorporation or bylaws, the entire board of directors, any two directors, or the president may call annual and special meetings of the shareholders and directors. NRS 78.310. (more…)
One of the requirements to start a new corporation in Nevada is to complete and file an Annual List of Officers, Directors, and Resident Agent with the Secretary of State’s office “on or before the last day of the first month after filing the articles of incorporation.” NRS 78.150. (more…)
In legal terms, a Registered Agent (“RA”) is a person or business who is designated by a business entity registered with the state to receive service of process when that entity is sued. Service of process is the formal procedure for informing a company that legal action has been filed against it and requiring it to file a response to the same. NRS Chapter 77.
Since a business such as a corporation or limited liability company is not a person, the law requires that a single person be named to accept service of process. A business must therefore designate its RA by filing a form with the Secretary of State. Thereafter, once the RA is served with process papers, the entity is deemed to have received the same and its obligation to respond is triggered.
A joint venture is a contractual relationship in the nature of an informal partnership wherein two or more persons conduct some business enterprise, agreeing to share jointly, or in proportion to capital contributed, in profits and losses. A prime example we see often is a venture for the development of land. In this example, one venturer may own real property and may agree to allow a second venturer to build improvements (an office building, for instance) on the real property and that the venture will sell the real property with the improvements and share in the profits at an agreed-upon rate. (more…)
Partnership by Estoppel in Nevada
Partnership by estoppel is a statutory recognition that someone “represents himself or herself, or consents to another representing him or her to any one, as a partner” and should therefore be held responsible as a partnership under the law. NRS 87.160(1). A partner is an association of two or more persons doing business together for a profit. NRS 87.060(1).
In other words, if I tell someone that you are my partner and you agree or do not correct me, that person has the right to presume we are acting as a partnership. In a partnership, the partners have unlimited personal liability for the acts of the partnership and the acts of their partners, so holding oneself out as a partner can have huge legal implications. NRS 87.433. Nevada’s Supreme Court has held that the consent to be treated as a partnership may be reasonably implied from the conduct of the parties.
The Moral: unless you want to have unlimited liability for the acts of that person, don’t say they are your partner.
I hear people refer to those with whom they do business as their “partners” frequently. I even hear this from people who are really shareholders in a corporation or members in a limited liability company. I am fairly certain that if most of them understood the potential liability of forming a true partnership, they would never call themselves someone’s partner ever again. Partnerships are relatively easy to form (beware: some court decisions and Nevada’s statutes have held that a partnership can be formed just by telling those with whom you are doing business that you and another person are “partners”), requiring simply an association of two or more persons doing business together for a profit. NRS 87.060(1). Every partner is a fiduciary to the other partner(s). That means the partner has a legal duty to act in the best interests of his or her partners and of the partnership rather than acting in his or her own interest. NRS 87.210. (more…)
How Does a Party Prosecute an Action for Misappropriation of Trade Secrets?
NRS 600A.030(2) defines “misappropriation” as:
(a) Acquisition of the trade secret of another by a person by improper means;
(b) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
(c) Disclosure or use of a trade secret of another without express or implied consent by a person who:
(1) Used improper means to acquire knowledge of the trade secret;
(2) At the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was:
(I) Derived from or through a person who had used improper means to acquire it;
(II) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(III) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
(3) Before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.
NRS 600A.040 provides injunctive relief for the actual or threatened misappropriation of trade secrets, stating;
- Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction must be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time to eliminate commercial or other advantage that otherwise would be derived from the misappropriation.
* * *
- In appropriate circumstances, the court may order affirmative acts to protect a trade secret. As used in this subsection, “affirmative acts” includes, without limitation, issuing an injunction or order requiring that a trade secret which has been misappropriated and posted, displayed or otherwise disseminated on the Internet be removed from the Internet immediately.
In Frantz, the Nevada Supreme Court found misappropriation of trade secrets based on the fact that: (l) lists containing information were missing after the former employee left the job; (2) the former employee contacted the plaintiff’s customers to offer “more competitive pricing;” and (3) the former employee’s phone records and other evidence indicated calls to plaintiff’s customers. As a result, the former employee was liable for misappropriation of trade secrets. The Court further found that the competitor had misappropriated trade secrets when the competitor hired the former employee, announced that competitor intended to compete against plaintiff by taking all of plaintiff’s customers, and the competitor hired employees from other competitive companies and asked them to use their knowledge about their former employers’ pricing structure and customer base. Id.
To prove misappropriation under NUTSA, a plaintiff must plead and prove: (1) the existence of a valuable trade secret as defined by the statute; (2) misappropriation through use, disclosure, or nondisclosure of use of the trade secret; and (3) the misappropriation was wrongful because it was made in breach of an express or implied contract or by a party with a duty not to disclose. Frantz, 116 Nev. at 466, 999 P.2d at 358. The Court has wide discretion in calculating damages, subject only to a review for abuse of discretion. Id. (citing Diamond Enters., Inc. v. Lau, 113 Nev. 1376, 1379, 951 P.2d 73, 74 (1997) (citations omitted)).
Business Owner’s Toolbox
How to Start Your Business
So, You Want to Own Your Own Business in Nevada?
A Primer on Types of Business Formations In Nevada
Three Popular Nevada Business Entities and How to Structure Them
Thinking of Opening a Nevada Business? Here Are Some Things You Should Know About Licensing
Why You Should Never Refer to Someone as Your Partner
Nevada Partnership Formation and Law
Joint Venture versus Partnership: What is the Difference? (more…)
Sample Memorandum of Understanding of Settlement at Mediation
Ever get to the end of a mediation and realize that this may be your only chance to memorialize an agreement with the other side without them trying to change the terms of the deal afterward? Take this handy Memorandum of Understanding* to your mediation and you will have a ready-to-fill-out template that provides many of the boilerplate provisions seen in many settlement agreements.
*I am not the author of this agreement and take no credit for its provisions. Use at your own risk and only after seeking the advice of competent counsel.
N.R.S. CHAPTER 78 – PRIVATE CORPORATIONS
NRS 78.010 Definitions; construction.
NRS 78.015 Applicability of chapter; effect on corporations existing before April 1, 1925.
NRS 78.020 Limitations on incorporation under chapter; compliance with other laws.
We have all been there. During trial a witness testifies inconsistently with her prior testimony. So you dutifully pull out the transcript to impeach her. Here is a method I have found that works to limit the witness’ ability to wiggle out of prior testimony.
First, commit the witness to the testimony she gave under oath today. Say something like “on direct examination, you testified that the light was green for southbound traffic on Rainbow when you entered the intersection, correct?” Make sure you are quoting the prior testimony as closely as possible in order to avoid having the witness quibble. (more…)
(Discoverability of Conversations During Deposition Breaks)
Let’s pretend that your client needs a restroom break during a deposition and there is no question pending (thus, not triggering an In Re Stratosphere Corporation, 182 F.R.D. 614 (D. Nev. 1998) problem). You and your client requested a break. Before going back into the deposition, you remind your client about the training you gave him to answer only the question asked and not to volunteer information. You also tell him to beware if opposing counsel asks questions about that smoking gun document that he pay special attention to the second paragraph. Under a recent Nevada decision, no privilege would attach to that conversation, meaning your client could and would be forced to divulge the contents of that conversation if the examining attorney is aware of the decision. (more…)
How should one properly respond to a Nevada subpoena? As is so often the case in the law, the answer is “it depends.” Let’s first discuss the different types of subpoenas and then decide on the best way to respond to them.
The post assumes that you are not a party to the litigation and that the subpoena is not for trial testimony. If that is the case, the subpoena is served for the purpose of either compelling your attendance to testify or for gathering information one of the parties thinks they need to prove their case, and is called a discovery subpoena. A discovery subpoena may require the receiving party to turn over documents, allow for the inspection of physical premises, and/or provide testimony. Nevada Rules of Civil Procedure (“NRCP”), NRCP 45(b)(1), NRCP 30(b)(1). (more…)
In Nevada, there are very few restrictions on what name can be given to a corporation. First, a corporation may not be the name or initials of a natural person unless it also contains and additional designation such as “Incorporated,” “Limited,” “Inc.,” “Ltd.,” “Company,” “Co.,” “Corporation,” “Corp.,” or other word which identifies it as not being a natural person. NRS 78.035. Second, the name “must be distinguishable . . . from the names of all other” companies registered with the Nevada Secretary of State. NRS 78.039. Finally, the name may not insinuate that the corporation is a “bank” or “trust,” associated with a regulated industry unless it has approval to do so by the appropriate state agency which regulates that industry. NRS 78.045.
A more practical concern is whether a chosen name infringes on the trademark of another business. A prudent business owner will determine that the proposed business name does not infringe on that of another. There are both state and federal trademarks to consider.
In our last post, we discussed Articles of Incorporation. In this post, we discuss a corporation’s bylaws. A corporation’s bylaws are written rules by which the corporation, its officers, directors, and shareholders must abide. They establish how the company is ruled and what are the duties and obligations of its officers, directors, and shareholders. Unlike the articles of incorporation, there is no obligation to file the bylaws with the Nevada Secretary of State.
Most bylaws will contain (remembering that the officers and directors will be legally required to adhere to the standards. Importantly, if they are sued, the bylaws are the standard against which their actions will be judged): (more…)
Note: these are not official Nevada jury instructions. Many of them pre-date the 2011 official instructions and are a mix of internally-crafted instructions and those in the pre-2011 set. Use with caution.
NEV. J.I. 1.0 DUTY OF JUDGE AND JURY
NEV. J.I. 1.01 USE OF INSTRUCTIONS
NEV. J.I. 1.02 MASCULINE FORM OF PRONOUN INCLUDES FEMININE OR CORPORATION
NEV. J.I.1.03 WHAT IS AND WHAT IS NOT EVIDENCE (more…)
In Nevada, a corporation is formed when one or more persons, called “incorporators”, sign and file articles of incorporation with the Nevada Secretary of State. Roughly stated, the articles of incorporation state the intention of the incorporators to transact business as a separate legal entity
Rule 33. Interrogatories to Parties
(a) In General.
(1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 40 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(1) and (2).
(2) Scope. An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.
(b) Answers and Objections.
(1) Responding Party. The interrogatories must be answered:
(A) by the party to whom they are directed; or
(B) if that party is a public or private corporation, a partnership, an association, a governmental agency, or other entity, by any officer or agent, who must furnish the information available to the party.
(2) Time to Respond. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.
(3) Answering Each Interrogatory. Each interrogatory must be set out, and, to the extent it is not objected to, be answered separately and fully in writing under oath.
(4) Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure. The interrogating party may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory.
(5) Signature. The person who makes the answers must sign them, and the attorney who objects must sign any objections.
(c) Use. An answer to an interrogatory may be used to the extent allowed by Nevada law of evidence.
(d) Option to Produce Business Records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party’s business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:
(1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and
(2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.
Advisory Committee Note—2019 Amendment
Rule 33 resembles FRCP 33 but preserves Nevada’s 40-interrogatory limit in Rule 33(a)(1) and in Rule 33(b)(4) specifies that Rule 37 applies to unfounded objections and failures to answer.
Form 3. Complaint on a Promissory Note
1. Defendant on or about June 1, 1935, executed and delivered to plaintiff a promissory note [in the following words and figures: (here set out the note verbatim)]; [a copy of which is hereto annexed as Exhibit A]; [whereby defendant promised to pay to plaintiff or order on June 1, 1936 the sum of ten thousand dollars with interest thereon at the rate of six percent per annum].
2. Defendant owes to plaintiff the amount of said note and interest.
Wherefore plaintiff demands judgment against defendant for the sum of ten thousand dollars, interest, and costs.
Attorney for Plaintiff
NOTES TO FORM 3
1. The pleader may use the material in one of the three sets of brackets. His choice will depend upon whether he desires to plead the document verbatim, or by exhibit, or according to its legal effect.
2. Under the rules free joinder of claims is permitted. See Rules 8(e) and 18. Consequently the claims set forth in each and all of the following forms may be joined with this complaint or with each other. Ordinarily each claim should be stated in a separate division of the complaint, and the divisions should be designated as counts successively numbered. In particular the rules permit alternative and inconsistent pleading. See Form 10.
In a civil setting, a statute of limitation sets a time limit on when one must file a civil lawsuit or lose the opportunity to do so. In other words, if the statute of limitations places a 2 year expiration on a personal injury claim, one must file the claim within two years of the injury or be subject to dismissal. The concept dates back to Roman law and is designed to prevent fraudulent or stale claims from being brought after a reasonable period of time when evidence and memories disappear regarding the events surrounding the claim. The amount of time differs depending on the nature of the claim and is set by our legislature.
In WPH Architecture, Inc. v. Vegas VP, __ P.3d __, 131 Adv. Op. 88 (Nev. Nov. 5, 2015), the Nevada Supreme Court held that Rule 68 Offers of Judgment, together with statutes allowing offers of judgment in Nevada, “are substantive laws that apply to the arbitration proceedings in the current case.” In this case, the contract between the litigants required arbitration of any disputes pursuant to the American Arbitration Association’s Construction Arbitration Rules, and applying Nevada substantive law. Prior to arbitration, the claimant made a statutory and Rule 68 offer of judgment. The respondent rejected the offer of judgment, then lost at arbitration.
Nevada’s Rules Governins Alternative Dispute Resolution defines a Settlement Conference as:
“Settlement conference” is a process whereby, with the approval of the district judge to whom the case is assigned, a district court judge not assigned to the particular case, senior judge, special master, referee or other neutral third person, conducts, in the presence of the parties and their attorneys and person or persons with authority to resolve the matter, a conference for the purpose of facilitating settlement of the case.
Nevada’s Rules Governing Alternative Dispute Resolution define Mediation as:
“Mediation” means a process whereby a neutral third person, called a mediator, acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.
Nevada’s Rules Governing Alternative Dispute Resolution defines Arbitration as:
“Arbitration” means a process whereby a neutral third person, called an arbitrator, considers the facts and arguments presented by the parties and renders a decision, which may be binding or nonbinding as provided in these rules.
NEVADA ARBITRATION RULES
Rule 1. The court annexed arbitration program. The Court Annexed Arbitration Program (the program) is a mandatory, non-binding arbitration program, as hereinafter described, for certain civil cases commenced in judicial districts that include a county whose population is 100,000 or more. Judicial districts having a lesser population may adopt local rules implementing all or part of the program.
[Added; effective July 1, 1992; amended effective January 1, 2005.]
Rule 2. Intent of program and application of rules.
(A) The purpose of the program is to provide a simplified procedure for obtaining a prompt and equitable resolution of certain civil matters.
(B) These rules shall apply to all arbitration proceedings commenced in the program.
(C) These arbitration rules are not intended, nor should they be construed, to address every issue which may arise during the arbitration process. The intent of these rules is to give considerable discretion to the arbitrator, the commissioner and the district judge. Arbitration hearings are intended to be informal, expeditious and consistent with the purposes and intent of these rules.
(D) These rules may be known and cited as the Nevada Arbitration Rules, or abbreviated N.A.R.
[Added; effective July 1, 1992; amended effective January 1, 2005.]
RULES GOVERNING ALTERNATIVE DISPUTE RESOLUTION
(Arbitration and Mediation)
A. GENERAL PROVISIONS
Rule 1. Definitions. As used in these rules:
(A) “Arbitration” means a process whereby a neutral third person, called an arbitrator, considers the facts and arguments presented by the parties and renders a decision, which may be binding or nonbinding as provided in these rules.
(B) “Mediation” means a process whereby a neutral third person, called a mediator, acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.
(C) “Settlement conference” is a process whereby, with the approval of the district judge to whom the case is assigned, a district court judge not assigned to the particular case, senior judge, special master, referee or other neutral third person, conducts, in the presence of the parties and their attorneys and person or persons with authority to resolve the matter, a conference for the purpose of facilitating settlement of the case.
[Added; effective March 1, 2005.]
ARBITRATION OF ACTIONS IN DISTRICT COURTS AND JUSTICE COURTS
NRS 38.250 Nonbinding arbitration of certain civil actions filed in district court required; nonbinding arbitration of certain civil actions filed in justice court authorized; effect of certain agreements by parties to use other alternative methods of resolving disputes.
1. Except as otherwise provided in NRS 38.310:
(a) All civil actions filed in district court for damages, if the cause of action arises in the State of Nevada and the amount in issue does not exceed $50,000 per plaintiff, exclusive of attorney’s fees, interest and court costs, must be submitted to nonbinding arbitration in accordance with the provisions of NRS 38.250 to 38.259, inclusive, unless the parties have agreed or are otherwise required to submit the action to an alternative method of resolving disputes established by the Supreme Court pursuant to NRS 38.258, including, without limitation, a settlement conference, mediation or a short trial.
(b) A civil action for damages filed in justice court may be submitted to binding arbitration or to an alternative method of resolving disputes, including, without limitation, a settlement conference or mediation, if the parties agree to the submission.
2. An agreement entered into pursuant to this section must be:
(a) Entered into at the time of the dispute and not be a part of any previous agreement between the parties;
(b) In writing; and
(c) Entered into knowingly and voluntarily.
Ê An agreement entered into pursuant to this section that does not comply with the requirements set forth in this subsection is void.
3. As used in this section, “short trial” means a trial that is conducted, with the consent of the parties to the action, in accordance with procedures designed to limit the length of the trial, including, without limitation, restrictions on the amount of discovery requested by each party, the use of a jury composed of not more than eight persons and a specified limit on the amount of time each party may use to present the party’s case.
(Added to NRS by 1991, 1343; A 1993, 556, 1024; 1995, 1419, 2537, 2538; 1999, 852, 1379; 2003, 851; 2005, 391)
UNIFORM ARBITRATION ACT OF 2000
NRS 38.206 Short title. NRS 38.206 to 38.248, inclusive, may be cited as the Uniform Arbitration Act of 2000.
(Added to NRS by 2001, 1274)
NRS 38.207 Definitions. As used in NRS 38.206 to 38.248, inclusive, the words and terms defined in NRS 38.208 to 38.213, inclusive, have the meanings ascribed to them in those sections.
(Added to NRS by 2001, 1274)
NRS 38.208 “Arbitral organization” defined. “Arbitral organization” means an association, agency, board, commission or other entity that is neutral and initiates, sponsors or administers an arbitral proceeding or is involved in the appointment of an arbitrator.
(Added to NRS by 2001, 1274)
NEVADA REVISED STATUTES
CHAPTER 38 – MEDIATION AND ARBITRATION
UNIFORM ARBITRATION ACT OF 2000
NRS 38.206 Short title.
NRS 38.207 Definitions.
NRS 38.208 “Arbitral organization” defined.
NRS 38.209 “Arbitrator” defined.
NRS 38.211 “Court” defined.
NRS 38.212 “Knowledge” defined.
NRS 38.213 “Record” defined.
NRS 38.214 Notice.
NRS 38.216 Applicability.
NRS 38.217 Waiver of requirements or variance of effects of requirements; exceptions.
NRS 38.218 Application for judicial relief; service of notice of initial motion.
NRS 38.219 Validity of agreement to arbitrate.
NRS 38.221 Motion to compel or stay arbitration.
NRS 38.222 Provisional remedies.
NRS 38.223 Initiation of arbitration.
NRS 38.224 Consolidation of separate arbitration proceedings.
NRS 38.226 Appointment of arbitrator; service as neutral arbitrator.
NRS 38.227 Disclosure by arbitrator.
NRS 38.228 Action by majority.
NRS 38.229 Immunity of arbitrator; competency to testify; attorney’s fees and costs.
NRS 38.231 Arbitration process.
NRS 38.232 Representation by lawyer.
NRS 38.233 Witnesses; subpoenas; depositions; discovery.
NRS 38.234 Judicial enforcement of preaward ruling by arbitrator.
NRS 38.236 Award.
NRS 38.237 Change of award by arbitrator.
NRS 38.238 Remedies; fees and expenses of arbitration proceeding.
NRS 38.239 Confirmation of award.
NRS 38.241 Vacating award.
NRS 38.242 Modification or correction of award.
NRS 38.243 Judgment on award; attorney’s fees and litigation expenses.
NRS 38.244 Jurisdiction.
NRS 38.246 Venue.
NRS 38.247 Appeals.
NRS 38.248 Uniformity of application and construction. (more…)
EMPLOYMENT DISCRIMINATION AND WRONGFUL TERMINATION
In Nevada, the elements for a claim of retaliatory discharge (sometimes called employment discrimination, wrongful discharge, or tortious discharge) are:
- Employee engaged in protected activity while employed (such as filing a discrimination charge or opposing unlawful employer practices);
- Employee suffered an adverse employment action by the employer;
- The protected activity was a motivating factor in the adverse employment action;
- Causation and damages; and
- Punitive damages.
Burlington N. v. White, 126 S. Ct. 2405 (2006); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994); Allum v. Valley Bank of Nevada, 114 Nev. 1313, 970 P.2d 1062, 1066 (1998); D’Angelo v. Gardner, 107 Nev.704, 819 P.2d 206, 212 (1991); Hansen v. Harrah’s, 100 Nev. 60, 675 P.2d 394 (1984); 42 U.S.C. § 2000e-3(a).
See elements for other claims at the Nevada Law Library
In Nevada, the elements for a claim of civil RICO violations (Racketeering Influenced and Corrupt Organizations Act) are:
- Defendants engaged in racketeering activities as defined in NRS 207.390 and a racketeering enterprise as is defined in NRS 207.380;
- Defendants acting directly, and in conspiracy with one another or through their syndicate, participated directly in racketeering activity by engaging in at least two crimes related to racketeering;
- Defendant’s activities have the same or similar pattern, intent, results, accomplices, victims, or methods of commission, or otherwise interrelated by distinguishing characteristics and are not isolated events;
- Defendant acquired or maintained directly or indirectly an interest in, or control of, any enterprise, or defendants are employed by or associated with any enterprise to conduct or participate directly or indirectly in the affairs of the enterprise through a racketeering activity;
- Plaintiff’s injuries flow from the defendant’s violation of a predicate Nevada RICO act;
- Plaintiff’s injury was be proximately caused by the defendant’s violation of the predicate act;
- Plaintiff did not participate in the commission of the predicate act; and
- Plaintiff is entitled to institute a civil action for recovery of treble damages proximately caused by the RICO violations. NRS 207.470(1).
NRS 207.470; Stoddart v. Miller, 2008 WL 6070835 (Nev. 2008 ); Siragusa v. Brown, 114 Nev. 1384, 971 P.2d 801 (1999); Gordon v. Eighth Judicial Dist. Ct., 12 Nev. 216, 231, 913 P.2d 240, 250-51 (1996); Cummings v. Charter Hosp. of Las Vegas, Inc., 111 Nev. 639, 896 P.2d 1137 (1995); Allum v. Valley Bank of Nevada, 109 Nev. 280, 849 P.2d 297 (1993); Hale v. Burkhardt, 104 Nev. 632, 634, 764 P.2d 866, 867 (1988).
See elements for other claims at the Nevada Law Library