Justice Starts With Jay

N.R.S. CHAPTER 78 – PRIVATE CORPORATIONS

GENERAL PROVISIONS

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.

NRS 78.025             Reserved power of State to amend or repeal chapter; chapter part of corporation’s charter. (more…)

N.R.S. CHAPTER 33 – INJUNCTIONS

GENERAL PROVISIONS

NRS 33.010             Cases in which injunction may be granted.

NRS 33.015             Injunction to restrain unlawful act against witness or victim of crime.

NRS CHAPTER 32 – RECEIVERS

NRS 32.010             Cases in which receiver may be appointed.

NRS 32.015             Additional cases in which receiver may be appointed.

NRS 32.020             Reversion and disposition of unclaimed dividends in receivership.

(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…)

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…)

Nevada Jury Instructions

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…)

Nevada Rules of Civil Procedure

Form 25.  Request for Admission Under Rule 36

       Plaintiff A. B. requests defendant C. D. within _____ days after service of this request to make the following admissions for the purpose of this action only and subject to all pertinent objections to admissibility which may be interposed at the trial:

       1.  That each of the following documents, exhibited with this request, is genuine.

       (Here list the documents and describe each document.)

       2.  That each of the following statements is true.

       (Here list the statements.)

                                                                   Signed: _____________________________

                                                                         Attorney for Plaintiff

                                                                Address: _____________________________

Nevada Rules of Civil Procedure

Form 23.  Motion to Intervene as a Defendant Under Rule 24

(Title of Court)

                                                                                Civil Action, File Number __________

A. B., Plaintiff                                }

        v.                                               }        Motion to Intervene as a Defendant

C. D., Defendant                            }

E. F., Applicant for Intervention }

      E. F. moves for leave to intervene as a defendant in this action, in order to assert the defenses set forth in his proposed answer, of which a copy is hereto attached, on the ground that __________ and as such has a defense to plaintiff’s claim presenting both questions of law and of fact which are common to the main action.2

                                                             Signed: ________________________________

                                                                    Attorney for E. F., Applicant for Intervention

                                                          Address: ________________________________

_______________________

      2For other grounds of intervention, either of right or in the discretion of the court, see Rule 24(a) and (b).

 

Notice of Motion

(Contents the same as in Form 19)

(Title of Court)

                                                                                Civil Action, File Number __________

A. B., Plaintiff                                }

        v.                                               }        Intervener’s Answer

C. D., Defendant                            }

E. F., Intervener                             }

First Defense

      Intervener admits the allegations stated in paragraphs 1 and 4 of the complaint; denies the allegations in paragraph 3, and denies the allegations in paragraph 2 in so far as they assert the

Second Defense

      (Set forth defenses.)

                                                                   Signed: _____________________________

                                                                         Attorney for E. F., Intervention

                                                                Address: _____________________________

Nevada Rules of Civil Procedure

Form 22-A.  Summons and Complaint Against Third-Party Defendant

(Title of Court)

                                                                                 Civil Action, File Number __________

 A. B., Plaintiff                                }

        v.                                               }

C. D., Defendant and                    }        Summons

Third-Party Plaintiff                      }

        v.                                               }

E. F., Third-Party Defendant       }

To the above-named Third-Party Defendant:

       You are hereby summoned and required to serve upon __________, plaintiff’s attorney whose address is __________, and upon __________, who is attorney for C. D., defendant and third-party plaintiff, and whose address is __________, an answer to the third-party complaint which is herewith served upon you within 20 days after the service of this summons upon you exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the third-party complaint. There is also served upon you herewith a copy of the complaint of the plaintiff which you may but are not required to answer.

                                                                                 ______________________________

                                                                      Clerk of Court

 [Seal of the District Court]

 Dated _______________

 (Title of Court)

                                                                                 Civil Action, File Number __________

 A. B., Plaintiff                                }

        v.                                               }

C. D., Defendant and                    }        Third-Party Complaint

Third-Party Plaintiff                      }

        v.                                               }

E. F., Third-Party Defendant       }

       1. Plaintiff A. B. has filed against defendant C. D. a complaint, a copy of which is hereto attached as “Exhibit A.”

       2. (Here state the grounds upon which C. D. is entitled to recover from E. F., all or part of what A. B. may recover from C. D. The statement should be framed as in an original complaint.)

       Wherefore C. D. demands judgment against third-party defendant E. F. for all sums1 that may be adjudged against defendant C. D. in favor of plaintiff A. B.

                                                                    Signed: _____________________________

                                                                         Attorney for C. D., Third-Party Plaintiff

                                                                 Address: _____________________________

      [Added; effective March 16, 1964.]

_______________________

      1Make appropriate change where C. D. is entitled to only partial recovery-over against E. F.

Nevada Rules of Civil Procedure

Form 20.  Answer Presenting Defenses Under Rule 12(b)

First Defense

      The complaint fails to state a claim against defendant upon which relief can be granted.

Second Defense

      If defendant is indebted to plaintiffs for the goods mentioned in the complaint, he is indebted to them jointly with G. H. G. H. is alive; is subject to the jurisdiction of this court; and has not been made a party.

Third Defense

      Defendant admits the allegation contained in paragraphs 1 and 4 of the complaint; alleges that he is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 2 of the complaint; and denies each and every other allegation contained in the complaint.

Fourth Defense

      The right of action set forth in the complaint did not accrue within six years next before the commencement of this action.

Counterclaim

      (Here set forth any claim as a counterclaim in the manner in which a claim is pleaded in a complaint.)

Cross-Claim Against Defendant M. N.

      (Here set forth the claim constituting a cross-claim against defendant M. N. in the manner in which a claim is pleaded in a complaint.)

      NOTE—The above form contains examples of certain defenses provided for in Rule 12(b). The first defense challenges the legal sufficiency of the complaint. It is a substitute for a general demurrer or a motion to dismiss.

      The second defense embodies the old plea in abatement; the decision thereon, however, may well provide under Rules 19 and 21 for the citing in of the party rather than an abatement of the action.

      The third defense is an answer on the merits.

      The fourth defense is one of the affirmative defenses provided for in Rule 8(c).

      The answer also includes a counterclaim and a cross-claim.

Nevada Rules of Civil Procedure

Form 18.  Complaint for Interpleader and Declaratory Relief

       1. On or about June 1, 1935, plaintiff issued to G. H. a policy of life insurance whereby plaintiff promised to pay to K. L. as beneficiary the sum of ten thousand dollars upon the death of G. H. The policy required the payment by G. H. of a stipulated premium on June 1, 1936, and annually thereafter as a condition precedent to its continuance in force.

       2. No part of the premiums due June 1, 1936, was ever paid and the policy ceased to have any force or effect on July 1, 1936.

       3. Thereafter, on September 1, 1936, G. H. and K. L. died as the result of a collision between a locomotive and the automobile in which G. H. and K. L. were riding.

       4. Defendant C. D. is the duly appointed and acting executor of the will of G. H.; defendant E. F. is the duly appointed and acting executor of the will of K. L.; defendant X. Y. claims to have been duly designated as beneficiary of said policy in place of K. L.

       5. Each of defendants, C. D., E. F., and X. Y. is claiming that the above-mentioned policy was in full force and effect at the time of the death of G. H.; each of them is claiming to be the only person entitled to receive payment of the amount of the policy and has made demand for payment thereof.

       6. By reason of these conflicting claims of the defendants, plaintiff is in great doubt as to which defendant is entitled to be paid the amount of the policy, if it was in force at the death of G. H.

       Wherefore plaintiff demands that the court adjudge:

       (1) That none of the defendants is entitled to recover from plaintiff the amount of said policy or any part thereof.

       (2) That each of the defendants be restrained from instituting any action against plaintiff for the recovery of the amount of said policy or any part thereof.

       (3) That, if the court shall determine that said policy was in force at the death of G. H., the defendants be required to interplead and settle between themselves their rights to the money due under said policy, and that plaintiff be discharged from all liability in the premises except to the person whom the court shall adjudge entitled to the amount of said policy.

       (4) That plaintiff recover its costs.

Nevada Rules of Civil Procedure

Form 13.  Complaint on Claim for Debt and to Set Aside Fraudulent Conveyance Under Rule 18(b)

A. B., Plaintiff                                }

        v.                                               }        Complaint

C. D. and E. F., Defendants         }

      1. Defendant C. D. on or about __________ 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 C. D. promised to pay to plaintiff or order on __________ the sum of five thousand dollars with interest thereon at the rate of __________ percent per annum].

      2. Defendant C. D. owes to plaintiff the amount of said note and interest.

      3. Defendant C. D. on or about __________ conveyed all his property, real and personal [or specify and describe] to defendant E. F. for the purpose of defrauding plaintiff and hindering and delaying the collection of the indebtedness evidenced by the note above referred to.

      Wherefore plaintiff demands:

      (1) That plaintiff have judgment against defendant C. D. for ten thousand dollars and interest; (2) that the aforesaid conveyance to defendant E. F. be declared void and the judgment herein be declared a lien on said property; (3) that plaintiff have judgment against the defendants for costs.

Nevada Rules of Civil Procedure

Form 11.  Complaint for Conversion

       On or about December 1, 1936, defendant converted to his own use ten bonds of the _________ Company (here insert brief identification as by number and issue) of the value of ten thousand dollars, the property of plaintiff.

       Wherefore plaintiff demands judgment against defendant in the sum of ten thousand dollars, interest, and costs.

Nevada Rules of Civil Procedure

Form 10.  Complaint for Negligence Where Plaintiff Is Unable to Determine Definitely Whether the Person Responsible Is C. D. or E. F. or Whether Both Are Responsible and Where His Evidence May Justify a Finding of Wilfulness or of Recklessness or of Negligence

A. B., Plaintiff                                }

        v.                                               }        Complaint

C. D. and E. F., Defendants         }

      1. On June 1, 1936, in a public highway called Boylston Street in Boston, Massachusetts, defendant C. D. or defendant E. F., or both defendants C. D. and E. F. wilfully or recklessly or negligently drove or cause to be driven a motor vehicle against plaintiff who was then crossing said highway.

       2. As a result plaintiff was thrown down and had his leg broken and was otherwise injured, was prevented from transacting his business, suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization in the sum of one thousand dollars.

       Werefore plaintiff demands judgment against C. D. or against E. F. or against both in the sum of ten thousand dollars and costs.

Nevada Rules of Civil Procedure

Form 9.  Complaint for Negligence

       1.  On June 1, 1936, in a public highway called Boylston Street in Boston, Massachusetts, defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway.

       2.  As a result plaintiff was thrown down and had his leg broken and was otherwise injured, was prevented from transacting his business, suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization in the sum of one thousand dollars.

       Wherefore plaintiff demands judgment against defendant in the sum of ten thousand dollars and costs.

       NOTE—Since contributory negligence is an affirmative defense, the complaint need contain no allegation of due care of plaintiff.

Nevada Rules of Civil Procedure

 Form 8.  Complaint for Money Had and Received

       Defendant owes plaintiff ten thousand dollars for money had and received from one G. H. on June 1, 1936, to be paid by the defendant to plaintiff.

       Wherefore (etc. as in Form 3).

Nevada Rules of Civil Procedure

Form 6.  Complaint for Money Lent

       Defendant owes plaintiff ten thousand dollars for money lent by plaintiff to defendant on June 1, 1936.

       Wherefore (etc. as in Form 3).

Nevada Rules of Civil Procedure

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.

                                                                     Signed:_____________________________

                                                                          Attorney for Plaintiff

                                                                   Address:_____________________________

                                                              Telephone:_____________________________

 

      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.

Nevada Rules of Civil Procedure

RULE 84.  FORMS

      The forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate.

Jay Young’s Peer Reviews

Mark Twain’s reportedly once said, “I like criticism, but it must be my way.”  Below are actual blind peer reviews given of Jay Young, Las Vegas, Nevada business attorney, arbitrator, and mediator to lawyer.com.  Mr. Young’s peers–attorneys and judges–have given him the highest marks available for knowledge and ethics in Arbitration, Litigation, Commercial Law, Real Estate, and Business Law.

(more…)

In Nevada, the elements of a wrongful death claim are:

  1. The death of a human being;
  2. Caused by another’s wrongful act or negligence;
  3. Plaintiff is an heir or personal representative of decedent; and
  4. Plaintiff suffered damages for monetary injury as a result of the death;

NRS 41.085; NEVADA JURY INSTRUCTIONS 10.13; NEVADA JURY INSTRUCTIONS 10.14; NEVADA JURY INSTRUCTIONS 10.15; NEVADA JURY INSTRUCTIONS 10.16; NEVADA JURY INSTRUCTIONS 10.17; NEVADA JURY INSTRUCTIONS 10.18; BAJI 14.50; BAJI 14.52

 

See elements for other claims at the Nevada Law Library

In Nevada, in order to collect attorney fees as special damages, one must plead and prove:

  1. Plead that they are entitled to collect attorney fees as special damages in the complaint pursuant to NRCP 9(g);
  2. Must plead and prove that fees are a “natural and proximate consequence of the injurious conduct”; and
  3. Must prove fees as to each claim.

Liu v. Christopher Homes, LLC, 321 P.3d 875 (2014); Sandy Valley Assoc. v. Sky Ranch Estates Owners Ass’n, 117 Nev. 948, 956, 35 P.3d 964, 969 (2001).

 

See elements for other claims at the Nevada Law Library

This is the fifth in a series of articles on doing business with Native American Tribes in Nevada.  These articles provide an overview of the political and business structures employed by Indian tribes, as well as the advantages and challenges of doing business in Indian Country.

Tribal Land

Trust Land

Most tribal land is owned by the federal government in trust for the tribe or individual Indian.  The relationship between the government and the tribe is similar to that of a guardian and a ward, where the government is a fiduciary owing duties to the tribes to care for the land on behalf of the tribes now and in the future.[1]  Trust land is not subject to state or local taxes, land use laws, or some federal environmental regulations.[2]  It may not be sold, leased, or taxed without federal government approval.[3]

Fee Land

Certain lands within a reservation may be owned in fee by a tribe, individual Indians, and non-Indians.  The federal government does not hold these lands in trust for the tribes.  Fee land is subject to applicable state and local taxes.[4]  Fee land owned by a tribe outside of a reservation is not normally subject to restrictions against alienation, encumbrance, or governmental approval. The law is not clear whether such restrictions apply to fee land within the boundaries of a reservation.[5]

 


 

[1] Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831).

[2] 25 C.F.R. § 1.4.

[3] See 25 U.S.C. § 81; 25 C.F.R. §  152.22(b); 25 U.S.C. § 177; 25 C.F.R. § 224; 25 U.S.C. § 396a; 25 U.S.C. § 415; 25 U.S.C. § 2102(a); 25 U.S.C. § 3504.

[4] County of Yakama v. Confederated Tribes and Bands of Yakama Indian Nation, 502 U.S. 251 (1992).

[5] 25 U.S.C. § 177; see also Pub. L. 101–630, § 101 (“Section 2116 of the Revised Statutes (25 U.S.C. § 177) prohibits the conveyance of any lands owned by Indian tribes without the consent of Congress.”); 25 C.F.R. §  152.22(b) (“Lands held in trust by the United States for an Indian tribe, lands owned by a tribe with Federal restrictions against alienation and any other land owned by an Indian tribe may only be conveyed where specific statutory authority exists and then only with the approval of the Secretary unless the Act of Congress authorizing sale provides that approval is unnecessary.”); United States v. Sandoval, 231 U.S. 28 (1913); United States v. Candelaria, 271 U.S. 432 (1926); Alonzo v. United States, 249 F.2d 189 (10th Cir. 1957), cert. denied 355 U.S. 940 (1958); Tonkawa Tribe of Oklahoma v. Richards, 75 F.3d 1039, 1045 (5th Cir. 1996); but see Lummi Indian Tribe v. Whatcom County, 5 F.3d 1355 (9th Cir. 1993), cert. denied, 512 U.S. 1228 (1994); Saginaw Chippewa Tribe v. State of Michigan, 882 F.Supp. 659 (E.D. Mich. 1995), rev’d on other grounds 106 F.3d 130 (6th Cir. 1997), cert. granted and judgment vacated sub. nom. Michigan v. United States, 524 U.S. 923 (1998); Anderson & Middleton Lumber Co. v. Quinault Indian Nation, 929 P.2d 379 (Wash. 1996)

In Nevada, the elements for a claim waste are:

  1. Defendant commits or permits an act constituting waste to property at a time when Defendant is rightfully in possession of property;
  2. Defendant’s act cause permanent or lasting injury done to the property, to the prejudice of another who has an interest in the property; and
  3. Plaintiff is entitled to treble damages.

NRS 40.150; Price v. Ward, 25 Nev. 203, 849–50, 58 P. 849 (1899).

 

See elements for other claims at the Nevada Law Library

 

In Nevada, the elements for a claim of bad faith discharge, tortious discharge, or wrongful discharge, are:

  1.  Enforceable contract of employment (even for an indefinite period of future employment);
  2. Special relationship between the tortfeasor and the tort victim (i.e., a relationship of trust and special reliance);
  3. Employer acts in bad faith; conduct must go well beyond the bounds of ordinary liability for breach of contract;
  4. Causation and damages; and
  5. Punitive damages.

Martin v. Sears, Roebuck and Co., 111 Nev. 923, 899 P.2d 551 (1995); Shoen v. Amerco, Inc., 111 Nev. 735, 896 P.2d 469 (1995); D’Angelo v. Gardner, 107 Nev. 704, 819 P.2d 206 (1991); Kmart v. Ponsock, 103 Nev. 39, 732 P.2d 1364 (1987).

 

See elements for other claims at the Nevada Law Library

1794297759_6d53e7c4f5_b                The Nevada Supreme Court recently decided that the waiver of the right to arbitrate a dispute is presumptively within the jurisdiction of the courts, not arbitrators to decide unless the arbitration agreement clearly reserves this question of arbitrability to the arbitrator.  That is if the claimed waiver arises from litigation conduct.

The case involves claims against a payday lender who obtained, according to the court, “thousands of default judgments” against defendants who failed to appear in collection actions brought after default on the short term loans.  Plaintiffs sued as a class to, inter alia, have the court deem the default judgments void and uncollectable when it was learned that the lender’s process server engaged in “sewer service—the practice of accepting summonses and complaints for service, failing to serve them, then falsely swearing in court-filed affidavits that service had been made when it was not.”

The lender’s motion to compel arbitration based on agreements to arbitrate was denied when the District Court held the lender waived its right to arbitration by bringing the collections actions and obtaining the default judgments at issue.  (more…)

In Nevada, the defense of waiver is available where:

  1. A voluntary and intentional express or implied relinquishment of a known right; and
  2. Made with full knowledge of all material facts.

Udevco, Inc. v. Wagner, 100 Nev. 185, 189, 678 P.2d 679, 682 (1984).

 

See elements for other claims at the Nevada Law Library

Generally

Nevada has no limit on the rate of interest to which parties may agree so long as the agreement reflects an arms-length transaction.[1]  Further, Nevada allows compound interest on loans.[2]

Pawnbrokers and Short Term Loans

Although Nevada does not have a general limitation on interest rates, certain transactions and business are subject to interest rate and other restrictions.  Pawnbrokers are prohibited from charging more than 13% interest per month on any loan of money secured by personal property (more…)

QUANTUM MERUIT OR QUASI CONTRACT

In Nevada, the elements for a claim unjust enrichment or quantum meruit are:

  1. A benefit has been conferred upon the defendant;
  2. Defendant appreciated the benefit;
  3. Defendant accepted and retained the benefit under circumstances where it would be inequitable for Defendant to retain the benefit without the payment of value for the same; and
  4. Absence of an express, written contract.

Robinson v. Coury, 115 Nev. 84, 976 P.2d 518 (1999); Leasepartners Corp. v. Robert L. Brook Trust, 13 Nev. 747, 942 P.2d 182, 187 (1997); Asphalt Prod. Corp. v. All Star Ready Mix, Inc., 111 Nev. 799, 898 P.2d 699 (1995); Topaz Mut. Co., Inc. v. Marsh, 108 Nev. 845 (1992); Nevada Indus. Dev. v. Benedetti, 103 Nev. 360, 363 n. 2, 741 P.2d 802, 804 n. 2 (1987); Union America Mortg. & Equity Trust v. McDonald, 97 Nev. 210 (1981).

See elements for other claims at the Nevada Law Library

This is the third in a series of articles on doing business with Native American Tribes in Nevada.  These articles provide an overview of the political and business structures employed by Indian tribes, as well as the advantages and challenges of doing business in Indian Country.

 

Tribal Owned Businesses

Non-Indians conducting business in Indian country are exposed to a mix of tribal, federal, state, and local laws.[1]  Due care should be taken to know the legal status of the entity with which one is conducting business. (more…)

In Nevada, the elements for a claim usurpation of corporate opportunity are:

  1. Defendant is a fiduciary to a company;
  2. Defendant appropriates for her own use, an opportunity that should belong to the company;
  3. The competing business is operated to the detriment of the Plaintiff company;
  4. Defendant has an interest or expectancy in the competing business’s opportunity; and
  5. Causation and damages.

Simply stated, a company’s fiduciary is forbidden from appropriating a business opportunity belonging to the company for her own personal gain.  19 Am. Jur. 2d, Corporations, § 1311.  The Doctrine is recognized in Nevada.  Leavitt v. Leisure Sports, Inc., 103 Nev. 81, 87-88, 734 P.2d 1221 (1987) (“it is generally recognized that a corporate fiduciary cannot exploit an opportunity that belongs to the corporation.”).  The central questions presented to courts in most Corporate Opportunity Doctrine situations are whether the company has an expectancy interest in the opportunity and whether the opportunity, in all fairness, belongs to the Company.  Id.  Under this view, the existence of a protectable opportunity is tested by determining  whether the company has an “expectancy or interest” therein.  If the company has a legal or even equitable interest or expectancy growing out of a pre-existing right or relationship, the fiduciary may not keep the opportunity for herself.  Am. Jur. Proof of Facts 2d 291 Corporate Opportunity Doctrine – Fairness of Corporate Official’s Acquisition of Business Opportunity § 2 (2003).  Stated another way, any proposed activity developed through the company’s assets that is reasonably incident to the business is a protected opportunity.  See Anest v. Audino, 773 N.E.2d 202, 210-11 (Ill. App.  2d  2002).   In such a situation, if a fiduciary takes the opportunity for herself, the Company may elect to claim all benefits therefrom for itself, and the law will impress a trust in favor of the company on the opportunity and its profits.  McLinden v. Coco, 764 N.E.2d 606, 616 (Ind. App. 2002); I.P. Homeowners, Inc. v. Radtke, 558 N.W.2d 582, 288 (Neb. Ct. App. 1997); Bank of Amer. v. Ryan, 207 Cal. App. 2d 698, 24 Cal. Rptr. 739 (1962) (recognizing that the implied trust is imposed not only on the property and its profits, but also imposes liability for interest at the legal rate from the receipt of profits, rents, etc.).

 

See elements for other claims at the Nevada Law Library

 

In Nevada, the defense of the doctrine of unclean hands “derives from the equitable maxim that ‘he who comes into equity must come with clean hands.’ ”  Omega Industries, Inc. v. Raffaele, 894 F.Supp. 1425, 1431 (D.Nev.1995) (quoting Ellenburg v. Brockway, Inc., 763 F.2d 1091, 1097 (9th Cir. 1985)).  The doctrine bars relief to a party who has engaged in improper conduct in the matter in which that party is seeking relief.   As such, the alleged inequitable conduct relied upon must be connected with the matter in litigation, otherwise the doctrine is not available as a defense.  Gravelle v. Burchett, 73 Nev. 333, 342, 319 P.2d 140, 145 (1957).  Truck Ins. Exchange v. Palmer J. Swanson, Inc., 124 Nev. 59 (Nev. 2008); Locken v. Locken, 98 Nev. 369, 650 P.2d 803 (1982).

 

See elements for other claims at the Nevada Law Library

This is the second in a series of articles on doing business with Native American Tribes in Nevada.  These articles provide an overview of the political and business structures employed by Indian tribes, as well as the advantages and challenges of doing business in Indian Country.

 

Tribal Status

A tribe which has obtained “federal recognition” is understood by the U.S. government to be a sovereign nation which may operate legally and politically as an independent entity.  The federal government is, in essence, recognizing that the tribe was a sovereign nation prior to the creation of the United States, and recognizes it as the same today.  Tribes without federal recognition have no legal relationship with the U.S. government, enjoy no protection from state jurisdiction or control, and have no sovereign immunity.[1] (more…)

The Lanham Act prohibits unfair competition. See 15 U.S.C. § 1125.

15 U.S.C. § 1125. False designations of origin, false descriptions, and dilution forbidden (a) Civil action (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or devise, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which — (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, quahties, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

Courts have recognized that the Lanham Act represents an affirmative code of business ethics. See Gold Seal Co. v. Weeks, 129 F.Supp. 928 (D.D.C. 1995) Aff’d subnom. S.C. Johnson & Son, v. Gold Seal Co., 230 F.2d 832 (D.C. Cir. 1955), cert, denied. 352 U.S. 829 (1956). According to this business code, competitors may not destroy the basis of genuine competition by destroying the buyers’ opportunity to judge fairly between rival products. Id.

For over a century, the United States Supreme Court has recognized that the primary reason for prohibiting unfair competition is to guard against public deception. See Laurence Mfg. Cn. v. Tennessee Mfg. Co., 138 U.S. 537 (1891). “[T]he touchstone of a Section 1125(a) unfair competition claim is whether the defendant’s actions are likely to cause confusion.” Matrix Essentials, Inc. v. Rmporium Drug Mart, Inc., 988 F.2d 587, 592 (5th Cir. 1993). Like claims for trademark infringement, claims for unfair competition under the Lanham Act require the same threshold showing of a likelihood of consumer confusion as to the source of the goods. See John Paul Mitchell Syst. v. Pete-N-Larry’s, Inc., 862 F.Supp. 1020, 1023 (W.D. N.Y. 1994).

To determine if there is a likelihood of confusion, courts consider multiple factors. The Ninth Circuit Court of Appeals has recognized that eight non-dispositive factors should be considered when evaluating a likelihood of confusion: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the marketing channels; (6) the type of goods and the degree of care likely to be exercised by the purchaser; (7) the defendant’s intent in selecting the mark; and (8) the likelihood of expansion of the product lines. See AMP, Tnr,. v. Sleekcraft Boats. 599 F.2d 341, 348-49 (9th Cir. 1976). Most commonly, these factors are used to determine the likelihood of confusion in trademark infringement cases. Id.

 

See elements for other claims at the Nevada Law Library

The following are actual client reviews found on Avvo, Google, Yelp, and Facebook for Jay Young


New Business Setup 5.0 stars

Posted by Kristina

Jay Young is an outstanding attorney. He is very informative and takes time out to teach his clients. I recently changed the legal structure of my business. Jay took the time to assess my business and gave me his recommendation. I was very pleased with his team. I definitely recommend using an attorney for any business set up. Jay is prompt, kind, and such a pleasure to work with.

(more…)

In Nevada, the elements for a claim civil trespass are:

  1. Invasion or invasion upon property of another;
  2. Defendant acted intentionally to intrude; and
  3. Causation and damages.

NRS 207.200; Bradley v. Am. Smelting & Ref. Co., 104 Wash.2d 677, 692-693 (1985); Lied v. Clark County, 94 Nev. 171, 173-174, 579 P.2d 275 (1978).

 

See elements for other claims at the Nevada Law Library

Those entering into a business relationship with a Native American Indian tribe[1] or in Indian Country[2] would be well served to understand the unique landscape of tribal law which gives rise to both challenges and rewards.  19 tribes in Nevada are recognized and eligible to receive services from the United States Bureau of Indian Affairs (“BIA”).[3]  (more…)

The elements of a Lanham Act false advertising claim are as follows:

  • the defendant made a false or misleading statement of fact in a commercial advertisement about a product;
  • the statement either deceived or had the capacity to deceive a substantial segment of potential consumers;
  • the deception is material, in that it is likely to influence the con­sumer’s purchasing decision;
  • the product is in interstate commerce; and
  • the plaintiff has been or is likely to be injured as a result of the statement.

See, e.g., Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 244 (9th Cir. 2000); Clorox Co. Puerto Rico v. Procter & Gamble Commercial Co., 228 F.3d 24, 33 n.6 (1st Cir. 2000); Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489, 495 (5th Cir. 2000); Balance Dynamics Corp. v. Schmitt Indus., 204 F.3d 683, 689 (6th Cir. 2000); United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1180 (8th Cir. 1998); Johnson & Johnson-Merck Consumer Pharm. Co. v. Rhone-Poulenc Rorer Pharm., Inc., 19 F.3d 125, 129 (3d Cir. 1994); Skil Corp. v. Rockwell Int’l Corp., 375 F. Supp. 777 (N.D. Ill. 1974).

A false advertiser “shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.”  15 U.S.C. § 1125(a) (emphasis added). This element states both standing injury requirements.  Courts have consistently rejected consumer standing to sue for false advertising under the Lanham Act, however. See, e.g., Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1383 n.5 (5th Cir. 1996) (“[W]e have found no case which suggests that ‘consumers’ have standing under § 43(a).”); Stanfield v. Osborne Indus., Inc., 52 F.3d 867, 873 (10th Cir. 1995) (“[T]hus, to have standing for a false advertising claim, the plaintiff must be a competitor of the defendant and allege competitive injury.”); Serbin v. Ziebart Int’l Corp., 11 F.3d 1163, 1177 (3d Cir. 1993) (holding that the consumers, as noncommercial plaintiffs, do not have standing under the Lanham Act); Colligan v. Activities Club of New York, Ltd., 442 F.2d 686 (2d Cir. 1971) (analyzing the legislative history and purpose behind § 43(a) and concluding that consumers lacked standing to bring action under the Lanham Act); Bacon v. Sw. Airlines Co., 997 F. Supp. 775, 780 (N.D. Tex. 1998) (holding that there is no private cause of action for consumers under the false advertising prong of the Lanham Act); see also James S. Wrona, False Advertising and Consumer Standing Under Section 43(a) of the Lanham Act: Broad Consumer Protection Legislation or a Narrow Pro-Competitive Measure?, 47 RUTGERS L. REV. 1085  (1995) (concluding that most courts agree that consumers do not have standing to sue, although various rationales are still employed).

Section 45 of the Lanham Act protects “persons engaged in … commerce against unfair competition.  15 U.S.C. § 1127.  Section 45 requires a commercial or competitive injury.  In the Ninth Circuit, a plaintiff must “allege commercial injury based upon a misrepresentation about a product, and also that the injury was ‘competitive,’ i.e., harmful to the plaintiff’s ability to compete with the defendant.”  Barrus v. Sylvania, 55 F.3d 468, 470 (9th Cir. 1995) (quoting Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992)).

The Plaintiff must first prove the Defendant made a false or misleading statement of fact.  Falsity is demonstrated by proving either: (1) the statement is literally false, or (2) although literally true, the statement is likely to mis­lead, confuse, or deceive consumers.  S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 238 (2d Cir. 2001); United Indus. Corp., 140 F.3d at 1179; Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139–40 (9th Cir. 1997).  Whether an advertisement is liter­ally false is an issue of fact.  See, e.g., Clorox Co. Puerto Rico, 228 F.3d at 34.  “A claim is conveyed by necessary implica­tion when, considering the advertisement in its entirety, the audience would recognize the claim as readily as if it had been explicitly stated.”  Id. at 35.  A suggestive representation is less likely to be found as a literally false statement.  See, e.g., Id.; United Indus. Corp., 140 F.3d at 1175.  Proving that the adver­tisement is literally false depends on the nature of the claim made in the advertisement, as well as the context in which the claim was made.  See Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489, 495 (5th Cir. 2000) (“When construing the allegedly false or misleading statement to determine if it is actionable under section 43(a), the statement must be viewed in the light of the overall context in which it appears.”); United Indus. Corp., 140 F.3d at 1180.  For example, a visual image may make an advertisement literally false.  In Rhone-Poulenc Rorer Pharm., Inc. v. Marion Merrell Dow, Inc. (93 F.3d 511, 516 (8th Cir. 1996)), the court found literal falsity when a drug manufacturer’s television advertisement showed images of two gasoline pumps side by side, but displaying different prices, together with a question “Which one would you choose?”  The court held the advertisement inaccurately portrayed that the manufacturer’s and competitor’s drugs are substituted for one another.

Misleading Statements

A statement which is literally true may nevertheless be actionable false advertising. “Statements that are literally true or ambigu­ous but which nevertheless have a tendency to mislead or deceive the consumer are actionable under the Lanham Act.”  United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1182 (8th Cir. 1998).  This is true where claims convey a false impres­sion, are misleading in context, or may be deceptive when viewed by consumers.  Id. at 1180.

If an advertisement is literal­ly true but misleading, the plaintiff must also prove that the adver­tisement has in fact deceived or has a tendency to deceive.  See, e.g., Clorox Co. Puerto Rico v. Procter & Gamble Commercial Co., 228 F.3d 24, 33 (1st Cir. 2000).  The plaintiff must prove materiality by extrinsic evidence showing what consumers actually believe when viewing the advertising.  Id.; Gordon & Breach Science Publishers S.A. v. Am. Inst. Of Physics, 859 F. Supp. 1521, 1532 (S.D.N.Y. 1994).

Opinion and Puffery

Opinion and puffery are not actionable. For a statement to be actionable under Section 43(a), it must be a statement of fact, as opposed to mere opinion or bald assertion. See also Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1145 (9th Cir. 1997); Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489, 496 (5th Cir. 2000) (collecting cases); Groden v. Random House, 61F.3d 1045, 1051 (2d Cir. 1995) (stating that when a statement is “obviously a statement of opinion,” it cannot “reasonably be seen as stating or implying provable facts”).  A state­ment of fact is one that “(1) admits of being adjudged true or false in a way that (2) admits of empirical verification.”  Presidio Enter., Inc. v. Warner Bros. Distrib. Corp., 784 F.2d 674, 679 (5th Cir. 1986);  “Puffery,” comes in two forms: (1) an exaggerated, blustering, and boasting statement upon which no reasonable buyer would be justified in relying; or (2) a general claim of superiority over com­parable products that is so vague that it can be understood as noth­ing more than a mere expression of opinion.  Pizza Hut, 227 F.3d at 496-97.

Commercial Advertising or Promotion

The false or misleading statement of fact must appear in a “com­mercial advertising or promotion.”  See 17 U.S.C. § 1125(a); Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1383 (5th Cir. 1996).  “Commercial advertising or promotion” is defined as:

  • commercial speech;
  • by a defendant who is in commercial competition with the plaintiff;
  • for the purpose of influencing consumers to buy the defendant’s goods or services; and
  • that is disseminated sufficiently to the relevant purchasing pub­lic to constitute “advertising” or “promotion” within that industry, even if not made in a “classical advertising campaign.” Coastal Abstract Serv., Inc. v. First Am. Tit. Ins. Co., 173 F.3d 725, 734 (9th 1999); Gordon & Breach Science Publishers S.A. v. American Inst. of Physics, 859 F. Supp. 1521, 1532 (S.D.N.Y. 1994); see also Sports Unlimited, Inc. v. Lankford Enter., Inc., 275 F.3d 996, 1004-05 (10th Cir. 2002) (using these four factors to determine whether challenged conduct constitutes “commercial advertising or promotion”); Seven-Up Co., 86 F.3d at 1384. The definition excludes non-commercial speech; non-commercial speech is entitled to a greater protection under the First Amendment than commercial speech.  Gordon & Breach, 859 F. Supp. at 1536.

Materiality

A plaintiff must demonstrate that the false or misleading advertising or promotion at issue is “material.”  JTH Tax, Inc. v. H&R Block East Tax Serv., Inc., 28 Fed. App. 207 (4th Cir. 2002).  Materiality centers on whether the false or misleading advertisement deceives or is likely to deceive.  Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489, 502 (5th Cir. 2000); Sandoz Pharm. Corp. v. Richardson-Vicks, Inc., 902 F.2d 222, 228-29 (3d Cir. 1990).  Such materiality generally is established when the advertisement deceives, or has the capacity to deceive, a substantial segment of potential con­sumers about a relevant quality or characteristic of the prod­uct or service.

Literally False Statements

Where the statement at issue is literally false, materiality is presumed. “With respect to materi­ality, when the statements of fact at issue are shown to be lit­erally false, the plaintiff need not introduce evidence on the issue of the impact the statements had on consumers.”  Pizza Hut, 227 F.3d at 497; see also S.C. Johnson & Son, 241F.3d at 232; Clorox Co. Puerto Rico v. Procter & Gamble Commercial Co., 228 F.3d 24 (1st Cir. 2000).  Section 43(a) does not require an additional showing of deception.

Misleading Statements

With a literally true but misleading statement, materiality is decided based on public’s actual reaction to the advertisement.  See Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1140 (9th Cir. 1997);  Pizza Hut, 227 F.3d at 497; Johnson & Johnson-Merck Consumer Pharm. Inc. Co. v. Rhone-Poulenc Rorer Pharm., 19 F.3d 125 (3d Cir. 1994).  “The plaintiff may not rely on the judge or the jury to determine, based solely upon his or her own intuitive reaction, whether the advertisement is deceptive.”  Pizza Hut, 227 F.3d at 497 (quotation omitted); see also Clorox Co. Puerto Rico, 228 F.3d at 37; Johnson & Johnson v. Smithkline Beecham Corp., 960 F.2d 294, 297 (2d Cir. 1992).  Plaintiff must demonstrate that the advertising deceived a substantial portion of the public.  See United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1182 (8th Cir. 1998).  “[W]here the advertisement is liter­ally true, [public perception] is often the only measure by which a court can determine whether a commercial’s net communicative effect is misleading.”  Pizza Hut, 227 F.3d at 503 n.13.  Generally, surveys are the preferred vehicle; however, evidence of consumers’ letters, calls, and affidavits, can also show consumer deception.  See Clorox Co. Puerto Rico, 228 F.3d at 36; Pizza Hut, 227 F.3d at 497; Pizza Hut, 227 F.3d at 497.

Willful or Bad Faith Conduct

The 9th Circuit held that if the defendant violated the Lanham Act will­fully or in bad faith, a plaintiff is not required to provide a con­sumer survey or any other extrinsic evidence in order to prove materiality.  U-Haul Intl., Inc. v. Jartan, Inc., 793 F.2d 1034 (9th Cir. 1986).

In some circuits, if the defendant “intentionally set out to deceive the public,” using “deliberate conduct” of an “egregious nature” in light of the advertising culture of the marketplace in which the defendant competes, a presumption arises that consumers were, in fact, deceived, dispensing with the need for the plaintiff to commis­sion a consumer survey.

Clorox Co. Puerto Rico v. Procter & Gamble Commercial Co., 228 F.3d 24 36 n.9 (1st Cir. 1998); see also United Indus. Corp., 140 F.3d at 1183; Johnson & Johnson-Merck Consumer Pharm. Co. v. Rhone-Poulenc Rorer Pharm., Inc., 19 F.3d 125 (3d Cir. 1994); Resource Dev., Inc. v. Statue of Liberty-Ellis Island Found., Inc., 926 F.2d 134 (2d Cir. 1991).

Remedies

The Lanham Act provides for both injunctive and monetary relief.  See 15 U.S.C. §§ 1116 – 1117.  For literally false claims where a plaintiff is only seeking injunctive relief, no additional evidence is necessary, and for misleading claims, a tendency to deceive consumers must be established.  See, e.g., Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489, 497 (5th Cir. 2000); American Council, 185 F.3d at 618 (“Although plaintiff need not present consumer surveys or testimony demonstrating actual deception, it must present evidence of some sort demonstrating that consumers were misled.”).  If a plaintiff seeks damages, however, it must prove actual confusion or deception arising from the violation. See generally George Basch Co., Inc. v. Blue Coral, Inc., 968 F.2d 1532, 1537 (2d Cir. 1992).  Injunctive relief only requires a showing that the defendant’s rep­resentations have a tendency to deceive consumers (which is presumed where the statement is literally false).  See, e.g., Pizza Hut, 227 F.3d at 497; American Council, 185 F.3d at 618.

Monetary Damages

Once a violation of section 43(a) has been established, the plaintiff is entitled

subject to the principles of equity, to recover (1) defendant’s profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action. . . . In assessing profits the plaintiff shall be required to prove defendant’s sales only; defendant must prove all elements of cost or deduction claimed. In assessing damages the court may enter judgment, according to the circumstances of the case, for any sum above the amount found as actual damages, not exceeding three times such amount. If the court shall find that the amount of recovery based on profits is either inadequate or excessive the court may in its discretion enter judgment for such sum as the court shall find to be just, according to the circumstances of the case. Such sum in either of the above circumstances shall constitute compensation and not penalty. The court in exceptional cases may award reason­able attorney fees to the prevailing party.

15 U.S.C. § 1117(a).  The courts enjoy broad discretion when determining damages.  Burger King Corp. v. Mason, 855 F.2d 779 (11th Cir. 1988).

Several forms of monetary relief are possible, including the amount of profits lost as a result of the defendant’s false advertising (marketplace damages), the defendant’s profits gained as a result of its false advertising (unjust enrichment), amounts necessary for corrective advertising, and attorney fees.  Ninth Circuit law holds that punitive damages are not available for vio­lation of section 43(a).  Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197 (9th Cir. 1989).  Further, the Ninth Circuit has held that the “[p]ublication of deliberately false comparative claims gives rise to a presumption of actual deception and reliance,” reasoning that:

The expenditure by a competitor of substantial funds in an effort to deceive consumers and influence their purchasing decisions justi­fies the existence of a presumption that consumers are, in fact, being deceived. He who has attempted to deceive should not com­plain when required to bear the burden of rebutting a presumption that he succeeded.

U-Haul Int’l, Inc. v. Jartran, Inc., 793 F.2d 1034, 1040-41 (9th Cir. 1986); see also Resource Dev., Inc. v. Statue of Liberty-Ellis Island Found., Inc., 926 F.2d 134 (2d Cir. 1991) (“[U]pon a proper showing of such deliberate conduct, the burden shifts to the defendant to demonstrate the absence of consumer confusion.”); Porous Media Corp. v. Pall Corp., 110 F.3d 1329, 1334-35 (8th Cir. 1992) (applying rule only in context of comparative advertising where plaintiff’s product was specifically targeted).

Defendant’s Profits

The Ninth Circuit suggests that willful con­duct is required in order to recover defendant’s profits.  See Minn. Breeders, Inc. v. Schell & Kampeter, Inc., 41 F.3d 1242, 1247 (8th Cir. 1994); Gracie v. Gracie, 217 F.3d 1060, 1068 (9th Cir. 2000).

 

See elements for other claims at the Nevada Law Library

In Nevada, the elements for a claim of nuisance are:

  1. Unreasonable, unwarrantable, or unlawful use of one’s own property;
  2. Cause of a sustainable/unreasonable interference of another’s enjoyment;
  3. Interferes with another’s enjoyment of their own property; and
  4. Such that the law will presume consequential damages.

NRS 40.140; D.S. Edwards v. Emperor’s Garden Rest., 122 Nev. 317, 130 P.3d 1280, 1288 (2006); Jezowski v. Reno, 71 Nev. 233, 240, 286 P.2d 257 (1955).

 

See elements for other claims at the Nevada Law Library

In Nevada, the elements for a claim of negligence of an agency relationship are:

  1. The existence of an agency relationship;
  2. The agent was negligent in fulfilling the agent’s duties; and
  3. Causation and damages.

Scialabba v. Brandise Constr. Co., 112 Nev. 965, 968; 921 P.2d 928, 930 (1996); Hunter Mining Laboratories, Inc. v. Mgt. Assistance, Inc., 104 Nev. 568, 570-71; 763 P.2d 350, 352 (1988).

 

See elements for other claims at the Nevada Law Library

In Nevada, the elements for a claim of negligent misrepresentation are:

  1. The defendant must have supplied information while in the course of his business,profession or employment, or any other transaction in which he had a pecuniary interest;
  2. The information must have been false;
  3. The information must have been supplied for the guidance of the plaintiff in his business transactions;
  4. The defendant must have failed to exercise reasonable care or competence in obtaining or communicating the information;
  5. The plaintiff must have justifiably relied upon the information by taking action or refraining from it; and
  6. And, finally, as a result of his reliance upon the accuracy of the information, the plaintiff must have sustained damage.

NEVADA JURY INSTRUCTIONS 9.05; Barmettler v. Reno Air, Inc., 114 Nev. 441, 449, 956 P.2d 1382, 1387 (1998); Albert H. Wohlers & Co. v. Bartgis, 114 Nev. 1249, 1260, 969 P.2d 949, 957 (1998); Epperson v. Roloff, 102 Nev. 206, 211, 719 P.2d 799, 802 (1986); Bill Stremmel Motors, Inc. v. First Nat’l Bank of Nevada, 94 Nev. 131, 134, 575 P.2d 938, 940 (1978); Kitchen Krafters, Inc. v. Eastside Bank of Montana, 789 P.2d 567 (Mont. 1990).

 

See elements for other claims at the Nevada Law Library

In Nevada, the elements for a claim of negligent infliction of emotional distress are:

  1. Defendant acted in a negligent manner, causing an accident or injury of another;
  2. Plaintiff witnesses the accident;
  3. Plaintiff is closely related to the victim of the accident;
  4. Plaintiff suffered emotional or physical distress by witnessing the accident while it happened; and
  5. Proximate cause and damages.

Boorman v. Nevada Mem’l Cremation Soc’y, 236 P.3d 4, 8 (Nev. 2010); Luckett v. Doumani, 121 Nev. 44, 110 P.3d 30 (2005); Grotts v. Zahner, 115 Nev. 339, 342, 989 P.2d 415, 417 (1999); Shoen v. Amerco, Inc., 111 Nev. 735, 748, 896 P.2d 469, 477 (1995); Chowdhry v. NLVH, Inc., 109 Nev. 478, 851 P.2d 459 (1993);  State v. Hill, 114 Nev. 810, 963 P.2d 480 (1998); State v. Eaton, 710 P. 2d 1370 (Nev. 1985); Paugh v. Hanks, 451 N.E.2d 759, 767 (Ohio 1983).

 

See elements for other claims at the Nevada Law Library

In Nevada, the elements for a claim of negligent entrustment are:

  1. Defendant leaves an object, such as an automobile or firearm, with another person;
  2. Defendant knows or should know the person with whom the defendant left the object is inexperienced and/or incompetent to use the object and a person who could use the object to harm others;
  3. The person entrusted with the object uses it in a negligent fashion, harming another; and
  4. Damages.

Nurse v. U.S., 226 F.3d 99 (9th Cir. 2000); Hall v. Enter. Leasing Company-West, 122 Nev. 685, 137 P.3d 1104 (Nev. 2006); Zugel v. Miller, 100 Nev. 525, 688 P.2d 310 (1984); McCart v. Muir, 230 Kan. 618, 641 P.2d 384 (1982); Mills v. Continental Parking Corp., 86 Nev. 724, 725-26, 475 P.2d 673, 674 (Nev. 1970); Wiggins v. Hughes Tool Co., 87 Nev. 190, 193-94 484 P.2d 566, 568-69 (Nev. 1971); 7A Am. Jur. 2d Automobiles and Highway Traffic §§ 643-45 (1980).

 

See elements for other claims at the Nevada Law Library

In Nevada, the elements for a claim of elder abuse are:

  1. A person over the age of 60 years or is vulnerable as defined by NRS 41.1395 (physical or mental impairment);
  2. Suffers a personal injury or death caused by abuse or neglect, as defined by NRS 41.1395;
  3. Suffers a loss of money or property by reason of their exploitation by another;
  4. The defendant knows or has reason to know that the plaintiff is elderly or vulnerable;
  5. Double actual damages; and
  6. If the defendant acted with recklessness, oppression, fraud or malice, the plaintiff shall be entitled to an award of attorney fees and costs of the suit.

NRS 41.1395; DeRuise v. Progressive Cas. Ins. Co. Inc., 3:11-CV-00136-ECR, 2011 WL 3651297 (D. Nev. Aug. 17, 2011).

 

See elements for other claims at the Nevada Law Library

In Nevada, the elements for a claim of negligent hiring, retention, and supervision are:

  1. Employer had a duty to protect plaintiff from harm resulting from its employment of the tortfeasor;
  2. Employer breached that duty by hiring, retaining, failing to train, supervise, or discipline the tortfeasor;
  3. Proximate cause; and
  4. Causation and damages.

Nurse v. U.S., 226 F.3d 99 (9th Cir. 2000); Blanck v. Hager, 360 F. Supp. 2d 137, 157 (2005); Goodrich and Pennington Mortgage Fund, Inc. v. RJ Woolard, Inc., 120 Nev. 777 (2004);  Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 1226-27, 925 P.2d 175, 1181 (1996); Harrigan v. City of Reno, 86 Nev. 678, 475 P.2d 94 (Nev. 1970); Amen v. Mercede Cty. Title Co., 58 Cal. 2d 528 (1962); Rianda v. Sand Benito Title Guar. Co., 35 Cal. 2d 170 (1950).

 

See elements for other claims at the Nevada Law Library

In Nevada, the elements for a claim of negligence per se, or negligence for violation of a statute, are:

  1. Defendant had duty to exercise due care with respect to plaintiff as is defined by a statute or administrative regulation;
  2. Plaintiff was of the class of persons the statute or regulation was designed to protect;
  3. Defendant breached the duty by violating the statute or regulation, which constitutes negligence as a matter of law; and
  4. Causation and damages.

NEVADA JURY INSTRUCTIONS 4.12; NEVADA JURY INSTRUCTIONS 4.13; Atkinson v. MGM Grand Hotel, Inc., 98 P.3d 678, 680 (Nev. 2004); Scialabba v. Brandise Constr. Co., 12 Nev. 965, 968 (1996); Joynt v. California Hotel and Casino, 108 Nev. 539, 542 (1992); Sagebrush Ltd. v. Carson City, 99 Nev. 204, 208, 660 P.2d 1013, 1015 (1983); Seim v. Garavalia, 306 N.W.2d 806 (1981); Bearden v. City of Boulder City, 89 Nev. 106, 507 P.2d 1034 (Nev. 1973); Restatement (Second) of Torts § 286.

 

See elements for other claims at the Nevada Law Library

In Nevada, the elements for a civil claim of gross negligence are:

  1. Defendant owed a duty of care to plaintiff;
  2. Defendant breached that duty, failing to exercise even the slightest degree of care;
  3. Defendant engaged in an act or omission respecting legal duty of an aggravated character, or with willful, wanton misconduct;
  4. The breach was the legal cause of plaintiff’s injuries; and
  5. Plaintiff suffered Causation and damages.

Gross negligence is substantially and appreciably higher in magnitude and more culpable than ordinary negligence. Gross negligence is equivalent to the failure to exercise even a slight degree of care. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character, as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. NEVADA JURY INSTRUCTIONS 6.21; Bearden v. Boulder City, 89 Nev. 106, 507 P.2d 1034 (Nev. 1973).

 

See elements for other claims at the Nevada Law Library

In Nevada, if a plaintiff’s negligence is greater than sum of defendants’ negligence or the plaintiff acted with gross negligence, plaintiff can have no recovery; otherwise, damages are diminished in proportion to the plaintiff’s fault. This is known as comparative negligence.  NRS 41.141.

In Nevada, the elements for a claim of civil assault are:

  1. Intentionally placing another person in reasonable apprehension of immediate harmful or offensive touching;
  2. Offender intended to cause harmful or offensive touching;
  3. Lack of consent for the contact;
  4. The victim was put in apprehension of such contact; and
  5. Causation and damages.

Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865 (1989); In re Bradshaw, 315 B.R. 875 (Bankr. D. Nev. 2004); Burns v. Mayer, 175 F. Supp. 2d 1259 (D. Nev. 2001); Lerner Shops v. Marin, 83 Nev. 75, 423 P.2d 398 (1967); Yada v. Simpson, 112 Nev. 254, 913 P.2d 1261; Wright v. Starr, 42 Nev. 441, 179 P. 877 (1919);  Prosser and Keeton on Torts, § 10 at 43 (5th ed. 1984).

 

See elements for other claims at the Nevada Law Library