Litigation

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

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

Does it meet the test?

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

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

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

NRS 15.010(5).

The law requires a verified complaint in the following circumstances:

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

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

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

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

Top Las Vegag Arbitrator

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

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

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

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

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

What is a Notice of Breach and Opportunity to Cure?

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

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

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

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

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

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

 

Some praise for the checklist includes:

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

Von Heinz, Esq.

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

Nicholas Santoro, Esq.

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

Steven M. Burris, Esq.

Impossibility of Performance

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

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

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

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

What Constitutes a Material Breach of Contract?

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

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

Is My Arbitration Confidential?

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

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

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

 

(CAPTION)

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

Party name(s):

_________________________________________________________________

_________________________________________________________________

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

_________________________________________________________________

_________________________________________________________________

Facsimile transmission to the following facsimile number(s):

_________________________________________________________________

_________________________________________________________________

Electronic mail to the following email address(es):

_________________________________________________________________

_________________________________________________________________

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

_________________________________________________________________

_________________________________________________________________

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

_________________________________________________________________

_________________________________________________________________

_________________________________________________________________

_________________________________________________________________

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

Dated this __________ day of _______________, 20_____.

                                                                      Signed:_____________________________

                                                                                         Attorney for Consenting Party

                                                                                                  or Consenting Party

                                                                      Address:  __________________________

                                                                      Telephone:  ________________________

                                                                      Fax number:  ________________________

                                                                      Email address:  ______________________

      [Added; effective March 1, 2019.]

Adam Ellis–Las Vegas, Nevada appellate and business litigation attorney

Many civil cases involve multiple parties and multiple causes of action.  Frequently, however, just one or few causes of action are central to the dispute.  Others are either plead in the alternative or out of an abundance of caution.  How can a party appeal a decision as to just one cause of action, when others remain?  Shouldn’t an appeal only lie after the entire case proceeds through judgment? NRCP 54(b) provides the answers:

When an action presents more than one claim for relief — whether as a claim, counterclaim, crossclaim, or third-party claim — or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.

Though the text may appear a bit confusing at first glance, the Rule’s purpose informs us.  Rule 54(b) was designed to promote judicial economy by limiting piecemeal appellate review of issues within a case, while simultaneously imposing a standard to determine when appellate review is appropriate though the case has not proceeded to judgment.

Generally, appellate courts disfavor piecemeal review of issues within a case.  And for good reason; it takes time, effort, and resources to hear an appeal, and appellate courts do not wish to hear individual appeals related to each decision by the district court in a matter.  More importantly, the appellate court lacks jurisdiction to hear an appeal where there is no final judgment in the underlying litigation.

Rule 54(b) certification is a determination from the district court that although the order or judgment under appeal disposes of fewer than all claims in the case, it is otherwise final, and that no just reason for delay exists for the appellate court to review the order.  Absent 54(b) certification, the appellate court lacks jurisdiction to hear the appeal, and the appeal will be dismissed.  See First Western Sav. & Loan Ass’n v. Steinberg, 89 Nev. 582 (1973).

But how does one obtain 54(b) certification?  Like most things, a party must move in the district court for Rule 54(b) certification.  The district court cannot grant certification unless it is  warranted and meets the necessary requirements discussed below. See Taylor Const. Co. v. Hilton Hotels Corp., 100 Nev. 207 (1984).  “The district court does not have the power, even when a motion for certification is unopposed, to transform” an inappropriate interlocutory order “into a final judgment.” Id.

To obtain Rule 54(b) certification, the order or judgment must dispose of either an entire claim or all claims against one party.  For example, the denial of a motion for summary judgment is not capable of 54(b) certification because the denial neither disposes of an entire claim nor all claims against a single party.  See id.  An order granting a motion to dismiss is certifiable under NRCP 54(b), as it operates to dismiss an entire claim, but fewer than all claims in the action.  See State v. AAA Auto Leasing & Rental, Inc., 93 Nev. 483 (1977).

Next, the district court must “expressly determine[] that there is no just reason for delay.”  NRCP 54(b).  The court need not provide any findings of fact or reasoning to support its determination that there is no reason for delay. See Mallin v. Farmers Ins. Exchange, 106 Nev. 606 (1990).  Though this sentence seems rather conclusory, that is all that is required.

NRCP 54(b) serves as a buffer against appeals being taken from interlocutory orders, and imposes a requirement on the district court to certify that its order is final and reviewable.  Failure to seek 54(b) certification when claims or parties remain in the district court proceeding will certainly be fatal to your appeal.  Save yourself time, and your client’s money.  Apply NRCP 54(b) the next time you wish to appeal a district court’s order.

 

PERSONAL INJURY FREQUENTLY ASKED QUESTIONS

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

Hurt in an Auto Accident

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

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

Eighth Judicial District Court Rules are amended to comply with 2019 Nevada Rules of Civil Procedure

Chief Judge Linda Marie Bell issued Administrative Order 19-03 on behalf of the Eighth Judicial District Court on March 12, 2019.   It suspends many Eighth Judicial District Court Rules which are in conflict with the amended NRCP.  The purpose of the order is stated:

[f]or the benefit of the bar and to ease confusion until the EJDC amends its local rules to conform to the amended NRCP, NRAP, and NEFCR, the EJDC finds it necessary to suspend or modify certain District Court Rules.  Additionally, to the extent any other rule of the Eighth Judicial District Court conflicts with the revised NRCP, NRAP, and NEFCR, the NRCP, NRAP, and NEFCR control.  

The Order alters the rules as follows until the EDCR can be amended (the stricken language below is suspended by the Order):

Rule 1.14.  Time; judicial days; service by mail.

(more…)

As of today, counsel filing a complaint in Nevada must provide the court with a “short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support”.  NRCP 8(a)(1).   A reader inquired what a jurisdictional statement should look like.  I gave him some ideas, then promised I would follow up.  This is my effort to do that.

If you are familiar with the Federal Rules of Civil Procedure and practice in federal court, this concept is not new to you.  But if you only practice in Nevada’s state courts, the concept of providing the court with a jurisdictional statement may take some time.  The following is a non-exhaustive list of sample jurisdictional statements that you might find useful when pleading a claim in Nevada.   All circumstances vary and you should conduct your own research before determining that any of these apply to your claim.

This Court has jurisdiction over this matter pursuant to Nev. Const. art. VI, § 6, as this Court has original jurisdiction in all cases not assigned to the justices’ courts.

This Court has jurisdiction over this matter pursuant to Nev. Const. art. VI, § 6, as this Court has original jurisdiction over matters involving title to real property.

This Court has jurisdiction over this matter pursuant to Nevada’s Long Arm Statute, NRS 14.065.  Nonresident Defendant(s) [INSERT NAME(S)] availed [HIMSELF/HERSELF/ITSELF] of opportunities to conduct business in the State of Nevada, establishing minimum contacts with the forum, and [IS/ARE] therefore subject to personal jurisdiction in Nevada on claim(s) arising out of that contact.

This Court has subject matter jurisdiction over this matter pursuant to NRS 4.370(1), as the matter in controversy exceeds $15,000, exclusive of attorney’s fees, interest, and costs.

This Court has jurisdiction over this matter pursuant to NRS 118C.220, as Plaintiff combines an action for summary eviction of a tenant from commercial premises with a claim to recover contractual damages in an amount in excess of $15,000, exclusive of attorney’s fees, interest, and costs.

This Court has jurisdiction over this matter pursuant to NRS 38.243, as this matter seeks an order confirming an arbitration award and entry of a judgment on the confirmed award.

This Court has jurisdiction over this matter pursuant to NRS 3.0199, as the controversy concerns a matter arising from or relating to the administration of the Humboldt River Decree.  Venue is proper in the [SIXTH/ELEVENTH] Judicial District Court pursuant to NRS 3.0199.

This Court has jurisdiction over this matter pursuant to NRS 598A.090, as the controversy concerns violations of the provisions of NRS Chapter 598A for Unfair Trade Practices.

This Court has jurisdiction over this matter pursuant to NRS 78.605, as the controversy seeks the appointment of a trustee or custodian of a dissolved corporation.

This Court has jurisdiction over this matter pursuant to NRS 78.650, as plaintiff(s) hold(s) at least one-tenth of the issued and outstanding stock of [COMPANY NAME], and this matter seeks an injunction or appointment of a receiver over [COMPANY NAME].

This Court has jurisdiction over this matter pursuant to NRS 685B.040, as the controversy concerns violations of the provisions of NRS Chapter 685B.

Nevada Rules of Civil Procedure

Rule 62.1. Indicative Ruling on a Motion for Relief That Is Barred by a Pending Appeal

(a)    Relief Pending Appeal. If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may:

(1)     defer considering the motion;

(2)     deny the motion; or

(3)    state either that it would grant the motion if the appellate court remands for that purpose or that the motion raises a substantial issue.

(b)    Notice to the Appellate Court. The movant must promptly notify the clerk of the supreme court under NRAP 12A if the district court states that it would grant the motion or that the motion raises a substantial issue.

(c)    Remand. The district court may decide the motion if the appellate court remands for that purpose.

Advisory Committee Note—2019 Amendment

This new rule is modeled on FRCP 62.1 and works in conjunction with new NRAP 12A. Like its federal counterpart, Rule 62.1 does not attempt to define the circumstances in which a pending appeal limits or defeats the district court’s authority to act. See FRCP 62.1 advisory committee’s note (2009 amendment). Rather, these rules provide the procedure to follow when a party seeks relief in the district court from an order or judgment that the district court has lost jurisdiction over due to a pending appeal of the order or judgment, consistent with Huneycutt v. Huneycutt, 94 Nev. 79, 575 P.2d 585 (1978), and its progeny.

For a word copy of this Sample Joint Defense Agreement, click here

JOINT DEFENSE AGREEMENT

            This Joint Defense (the “Agreement”) is made and entered into as of {DATE} by and among the undersigned counsel, for themselves and on behalf of their respective clients {LIST PARTIES} (each individually a “Party,” and collectively, “Parties”).

RECITALS

            WHEREAS, the Parties have been named as defendants in a lawsuit filed by {PLAINTIFF NAME} entitled {CAPTION}, which was initially filed on {DATE}, in the {COURT NAME} (the “Lawsuit”).

            WHEREAS, for purposes of this Agreement, the term “Counsel” means and includes any attorney representing any Party, including in-house attorneys, any and all paralegals, law clerks, and any outside vendors of the Parties’ respective outside counsel acting at the direction of outside counsel, and any other persons expressly agreed to in writing by the Parties.  The term “Outside Counsel” means and includes any attorney representing any Party at an outside law firm, as well as paralegals and law clerks working for such attorneys.  The term “Joint Defense Group” means and includes the Parties and Counsel. (more…)

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, 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.

(more…)

Sample Nevada Affirmative Defenses*

* Not all defenses are appropriate for all matters or in all jurisdictions.  You should seek the advice of competent counsel in your jurisdiction before claiming any defense, as you may be responsible for the attorneys fees of your opponent if a claimed defense has no merit.  See Rule 11.

RULE 8 DELINEATED AFFIRMATIVE DEFENSES

NRCP 8(c)(1).     In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; discharge in bankruptcy; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver.

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Writ Petition for Denial of Motion to

Dismiss in Nevada

The Supreme Court will entertain writ petitions in the context of a denial of a motion to dismiss when (1) no factual dispute exists and the district court is obligated to dismiss an action pursuant to clear authority under a statute or rule; or (2) an important issue of law needs clarification and considerations of sound judicial economy and administration militate in favor of granting the petition.  Beazer Homes Nev., Inc. v. Dist. Ct., 120 Nev. 575, 97 P.3d 1132 (2004).

An NRCP 12(b)(5) motion to dismiss shall be reviewed as a summary judgment where the district court treated it as a Rule 56 motion for summary judgment by entertaining matters outside the pleadings.  NRCP 12(b).

This Court reviews the denial of dismissal in these circumstance as though it were an order denying summary judgment.  Witherow v. State Bd. of Parole Comm’rs, 123 Nev. 305, 308, 167 P.3d 408, 409 (2007) (citing Coblentz v. Union Welfare Fund, 112 Nev. 1161, 1167, 925 P.2d 496, 499 (1996)) (granting of motion to dismiss where matters outside the pleadings were considered will be reviewed as granting a motion for summary judgment).

Orders granting or denying summary judgment are reviewed de novo.  Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Therefore, as the Order was issued after consideration of matters outside the pleadings, it should be reviewed de novo.

Although reviewing denial of a motion to dismiss with summary judgment treatment is available to petitioners, this Court reserves its discretion to cases in where there is “no question of fact, and in which a clear question of law, dispositive of the suit, [is] presented for our review.”  Poulos v. Eighth Judicial Dist. Court of State of Nev. In & For Clark Cnty., 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982) (citing Bottorff v. O’Donnell, 96 Nev. 606, 614 P.2d 7 (1980)).

Pursuant to Article 6, Section 4 of the Nevada Constitution: “[t]he court shall also have power to issue writs of mandamus, certiorari, prohibition, quo warranto, and habeas corpus and also all writs necessary or proper to the complete exercise of its appellate jurisdiction.” NRS 34.160 provides that “[t]he writ [of mandamus] may be issued by the Supreme Court … to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station …” For more than a century, the Supreme Court has interpreted Nevada’s constitutional and statutory law to vest original jurisdiction in the Supreme Court to issue writs of mandamus.  See State v. Dist. Ct., 116 Nev. 127, 994 P.2d 692 (2000) (citing State ex rel. Curtis v. McCollough, 3 Nev. 202 (1867)).  Thus, the court has the constitutional and statutory authority to issue a writ of mandamus when, in the court’s discretion, circumstances warrant.

A writ of mandamus is available to compel the performance of an act which the law requires as a duty resulting from an office, trust or station, or to control a manifest abuse of discretion.  See Beazer Homes, Nev., Inc. v. Dist. Ct., 120 Nev. 575, 97 P.3d 1132, 1135 (2004); NRS 34.160.)  An abuse of discretion occurs if the district court’s decision is arbitrary and capricious or if it exceeds the bounds of law or reason.  Crawford v. State, 121 P.3d 582, 585 (Nev. 2005) (citation omitted). “Abuse of discretion” is defined as the failure to exercise a sound, reasonable, and legal discretion.  State v. Draper, 27 P.2d 39, 50 (Utah 1933) (citations omitted).  “Abuse of discretion” is a strict legal term indicating that the appellate court is of the opinion that there was a commission of an error of law by the trial court.  Id.  It does not imply intentional wrongdoing or bad faith, or misconduct, nor any reflection on the judge but refers to the clearly erroneous conclusion and judgment – one that is clearly against logic.  Id. (more…)

Rule 12(f) provides that a court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “[M]otions to strike should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.” Colaprico v. Sun Microsys., Inc., 758 F. Supp. 1335, 1339 (N.D. Cal. 1991).

“Courts will not grant motions to strike unless ‘convinced that there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the claim or defense succeed.’”  Novick v. UNUM Life Ins. Co. of America, 570 F.Supp.2d 1207, 1208 (C.D. Cal. 2008) (quoting RDF Media Ltd. v. Fox Broad. Co., 372 F. Supp. 2d 556, 561 (C.D. Cal. 2005)).  “When ruling on a motion to strike, this Court ‘must view the pleading under attack in the light most favorable to the pleader.” Id. (citing RDF Media Ltd., 372 F. Supp. 2d at 561).  “Motions to strike apply only to pleadings, and courts are unwilling to construe the rule broadly and refuse to strike motions, briefs, objections, affidavits, or exhibits attached thereto.” Foley v. Pont, No. 11cv1769-ECR-VCF, 2013 WL 782856, at *4 (D. Nev. Mar. 1, 2013); Caldwell v. Smith, No. 94-3066-CO, 1995 WL 555080, at *1 (D. Or. Sept. 1, 1995) (denying motion to strike since motion to dismiss is not a pleading). (more…)

“The court looks with disfavor on motions to exceed page limits, so permission to do so will not be routinely granted.”  LR 7-3(c).

 

[INSERT CAPTION]

 

[PARTY NAME] hereby moves this Court, pursuant to Rule 7-3 of this Court’s Local Rules of Civil Procedure, for an Order granting [INSERT PARTY NAME] leave to file [NAME OF MOTION] in excess of twenty pages. In support of this motion, [INSERT PARTY NAME] states as follows:

  1. Local Rule 7-3 provides, in relevant part, that “[r]eply briefs and points and authorities shall be limited to twenty (20) pages, excluding exhibits.”
  2. [INSERT PARTY NAME] filed its [NAME OF MOTION] on [DATE] (Docket No. [NUMBER]). [INSERT PARTY NAME]’s [NAME OF MOTION] totals approximately [PAGES] pages.
  3. [INSERT PARTY NAME] has made every effort to be both brief and complete in its reply memorandum, as required by Local Rule 7-4. Because of [REASONS JUSTIFYING THE NEED FOR A LENGTHY PLEADING], [INSERT PARTY NAME] respectfully submits that a presentation of all the relevant facts and legal arguments requires greater length than permitted in a standard-length reply memorandum.  [INSERT FACTS AND REASONS FOR THE MOTION IN COMPLIANCE WITH LR 7-3(c)].

WHEREFORE, [INSERT PARTY NAME] respectfully requests

  1. That this Court allow [INSERT PARTY NAME] to file its [NAME OF MOTION] in excess of twenty (20) pages; and
  2. That this Court accept the [NAME OF MOTION] filed by [INSERT PARTY NAME] (Docket No. [NUMBER]), which is in excess of twenty (20) pages.

[DATE]

Respectfully submitted,

[COUNSEL NAME]

IT IS SO ORDERED:

________________________________

UNITED STATES MAGISTRATE JUDGE

DATED: ________________________

The law in Nevada has consistently held that a superseding intervening cause is an interfering act that overcomes the original culpable act, and where the intervening act is an unforeseeable, independent, non-concurrent cause of the injury. Thomas v. Bokelman, 86 Nev. 10, 13, 462 P.2d 1020, 1022 (1970) (a negligence action will not stand when there is an intervening cause that in and of itself is “the natural and logical cause of the harm.”).  In effect, the intervening cause must break the chain of causation.

In the case of Milwaukee and St. Paul Ry. Co. v. Kellogg, 94 U.S. 469, 24 L. Ed. 256, Mr. Justice Strong, speaking for the supreme Court of the United States, said:  “In the nature of things, there is in every transaction a succession of events more or less dependent upon those preceding, and it is the province of a jury to look at this succession of events or facts and ascertain whether they are naturally and probably connected with each other by a continuous sequence or are dissevered by new and independent agencies, and this must be determined in view of the circumstances existing at the time.”

Konig v. C.C.O. Ry., 36 Nev 181, 212, 135 P. 141, (1913).

Complying with the Meet and Confer Requirement in Nevada Discovery Disputes

Nevada law requires that counsel, before filing a motion regarding a discovery dispute, meet and confer in an attempt to resolve the matter without court intervention.  This article discusses the requirements of that obligation, together with the mechanics of how the parties must be prove compliance with the requirement to the court.

The Eighth Judicial Court Rule (“EDCR”) 2.34 provides, in relevant part:

(d) Discovery motions may not be filed unless an affidavit of moving counsel is attached thereto setting forth that after a discovery dispute conference or a good faith effort to confer, counsel have been unable to resolve the matter satisfactorily. A conference requires either a personal or telephone conference between or among counsel. Moving counsel must set forth in the affidavit what attempts to resolve the discovery dispute were made, what was resolved and what was not resolved, and the reasons therefor. If a personal or telephone conference was not possible, the affidavit shall set forth the reasons.

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Can the Confidential Documents of a Non-Party be Subpoenaed?

If you have documents which require that you hold them in confidence, but receive a subpoena requiring the disclosure of those documents, can you withhold the documents?  In this situation, non-parties served with a subpoena can file a timely objection and ask the court to quash or modify the subpoena to protect them from disclosing privileged or protected matter, trade secrets or confidential commercial information.  See Fed.R.Civ.P. 45(3); see also United States v. Fed’n of Physicians & Dentists, Inc., 63 F. Supp. 2d 475, 479 (D. Del. 1999).

A confidentiality requirement alone is generally not sufficient to warrant a protective order. “[P]rivate confidentiality agreements do not preclude the production of documents for the purpose of discovery.”  In re C.R. Bard, Inc. Pelvic Repair Systems Products Liability Litigation, 287 F.R.D 377, 384 (S.D. W.Va. 2012) (citing Zoom Imaging, L.P. v. St. Luke’s Hosp. and Health Network, 513 F.Supp.2d 411, 417 (E.D.Pa.2007); Niester v. Moore, No. 08–5160, 2009 WL 2179356, at *3 (E.D.Pa. July 22, 2009)). (more…)

Rule 45 Requires That a Party Imposing an Undue Financial Burden on a Third Party Must    Reimburse its Costs

Rule 45 provides that “[a] party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.”  Fed. R. Civ. P. 45(d)(1).  Discoverable information from a non-party is construed more narrowly, and is weighed against the potential prejudice to the non-party.  See Laxalt v. McClatchy, 116 F.R.D. 455, 458 (D.Nev.1986) (“The standards for non-party discovery … require a stronger showing of relevance than for simple party discovery.”); Litton Indus., Inc. v. Chesapeake & Ohio Railway Co., 129 F.R.D. 528, 529-30 (E. D. Wis. 1990) (providing that “records of non-party shipbuilder concerning ship construction” were germane to establishing ship construction costs for damage purposes and would not prejudice the producing non-party; however, the other vast categories of  documents sought regarding business operations were not discoverable from the non-party).  The rules require that the courts be sensitive to the costs imposed on third parties, protecting them against significant cost.  Watts v. S.E.C., 482 F.3d 501, 509, 375 U.S.App.D.C. 409, 417 (D.C. Cir. 2007). (more…)

Abuse of Process Claim Requires an Allegation of Abusive Acts After the Filing of a Claim

An abuse of process claim in Nevada has two fundamental elements: (1) an ulterior purpose, and (2) a willful act in the use of the process not proper in the regular conduct of a proceeding.  Executive Mgmt. Ltd. v. Ticor Title Ins. Co., 114 Nev. 823, 843, 963 P.2d 465, 478 (1998).  The action for abuse of process hinges on the misuse of regularly-issued process.  Nevada Credit Rating Bureau, Inc. v. Williams, 88 Nev. 601, 606, 503 P.2d 9 (1972).

The mere filing of a complaint itself is insufficient to establish the tort of abuse of process.  Hampton v. Nustar Managment Financial Group, Dist. Court, (D. Nev. 2007); Laxalt v. McClatchy, 622 F. Supp. 737, 752 (D. Nev. 1985).  Instead, the complaining party must include some allegation of abusive measures taken after the filing of the complaint in order to state a claim.  Id.  Merely alleging that an opposing party has a malicious motive in commencing a lawsuit does not give rise to a cause of action for abuse of process.  Id.; Curiano v. Suozzi, 469 N.E.2d 1324, 1326 (N.Y. 1984). (more…)

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:

  1. What information must the witness admit?
  2. What information shows bias or impeaches the witness’ credibility?
  3. On what items may the witness’ testimony be limited (didn’t hear or see or experience X, Y, and Z)?
  4. Where is the witness weak?
  5. What does the witness know that agrees with your case?

Nevada Standards of Review on Appeal—A Digest

Abuse of Discretion

In General

“An abuse of discretion is a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.”  Rabkin v. Oregon Health Sciences Univ., 350 F.3d 967, 977 (9th Cir. 2003) (citation and internal quotation marks omitted); In re Korean Air Lines Co., Ltd., 642 F.3d 685, 698 n.11 (9th Cir. 2011).

Under the abuse of discretion standard, a reviewing court cannot reverse absent a definite and firm conviction that the district court committed a clear error of judgment in the conclusion it reached upon a weighing of relevant factors.  McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 953 (9th Cir. 2011); Valdivia v. Schwarzenegger, 599 F.3d 984, 988 (9th Cir. 2010) (citing SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir. 2001)); Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000) (noting reversal under abuse of discretion standard is possible only “when the appellate court is convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances”). (more…)

 Readiness Checklist for Mediation:

Eight Things You Should Discuss With Your Client Before Mediation

The Mediation Process

  • For a printer-friendly version of this checklist, click here
  • What is mediation and how is it different from court or arbitration?
  • Why should the client consider mediation?
  • What is the mediator’s role?
  • What is the client’s role in mediation?
  • Who may attend the mediation?
  • Confidentiality in mediation
  • Discuss joint and separate sessions (also called caucuses)
  • Discuss whether an apology to or from a party might be appropriate
  • Discuss whether the client will speak directly with the mediator and/or the other party
  • Discuss whether an opening presentation at mediation is desirable or appropriate
  • Are there desirable non-monetary solutions, such as future business or payment in-kind?

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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…)

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.

The italicized language below explains the rationale behind clauses and why one might choose that clause over another alternative.[1] (more…)

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.

Jay Young | Las Vegas, Nevada | Mediator

Mediation: Seven Things You Should Discuss With Your Client Before Mediation

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

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.

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.

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;

  1. 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.

* * *

  1. 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)).

Punitive Damage in Federal Court

Punitive damages are not available in every case. For example, punitive damages are not available against municipalities, counties, or other governmental entities unless expressly authorized by statute. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 259-71 (1981).  Punitive damages may, however, be available against governmental employees acting in their individual capacities. See Monell v. New York City Dept. of Soc. Services, 436 U.S. 658 (1978); City of Newport, 453 U.S. at 254. In diversity cases, look to state law for an appropriate instruction.

Similarly, punitive damages claims arising under state law are subject to state law standards for recovery. See, e.g., Coughlin v. Tailhook Ass’n, 112 F.3d 1052, 1056 (9th Cir. 1997). (more…)

Sample  Objections to and Caselaw Regarding Written Discovery–Interrogatories, Requests to Produce, and Requests for Admission

Objecting to discovery is a necessary thing at times.  As long as one is purposeful in approach, objections can assist your case.  Take the wrong approach, or simply copy these objections without much thought, and you may find yourself sanctioned.  Consider the counsel given in this ABA article by Andrew Fesler before drafting your discovery responses:

“How to present a winning objection:

  • If the request would take an unreasonable amount of time or money to fulfill in relation to the reasonable needs of the case (proportionality), recite specific, persuasive facts that explain why, preferably in an affidavit.
  • If the request is not reasonably related to any claim or defense, and if there is no good reason to go beyond the ordinary scope of discovery under Rule 26(b), take the time to explain why in your discovery response.
  • Comply with Rule 34’s requirement that you state whether any responsive materials are being withheld on the basis of the objection.
  • If you are not producing documents when your responses come due, state when the documents will be produced.

At any discovery conference, you want to sound like the most thoughtful and reasonable lawyer in the room.  Start early.  Build your discovery objections with the same care that you build your case in chief.”

For a review of what Nevada federal judges have to say about discovery under the proportionality standard, see this article

What Can Nevada State Court Attorneys Learn About Proportionality From Federal Court Decisions?

OBJECTIONS  

“Repeating the familiar phrase that each request is ‘vague, ambiguous, overly broad, unduly burdensome and oppressive, not relevant nor calculated to lead to the discovery of admissible evidence and, further, seeks material protected by the attorney/client or other privilege and the work product  doctrine’ is insufficient. . . . The burden is on the party resisting discovery to clarify and explain precisely why its objections are proper given the broad and liberal discovery rules.”  Alboum v. Koe, M.D., et al., Discovery Commissioner Opinion #10 (November 2001) (citing Pleasants v. Allbaugh, 2002 U.S.Dist. Lexis 8941 (D. D.C. 2002); G-69 v. Degnan, 130 F.R.D. 326 (D. N.J. 1990); Josephs v. Harris Corp., 677 F.2d 985 (3d Cir. 1982)). (more…)

In Nevada, to be eligible for the remedy of lost profits, one must prove:

  1. Evidence of lost profits must not be speculative; and
  2. Evidence must show with reasonable certainty both the occurrence and extent of lost profits.

Dobbs Law of Remedies at § 12.62(2); El Ranco, Inc. v. First Nat’l Bank, 406 F.2d 1205 (9th Cir. 1968) (The existence and extent of lost profits is one of evidentiary weight instead of admissibility); Bader v. Cerri, 96 Nev. 352, 609 P.2d 314 (1980); Eaton v, J. H., Inc., 94 Nev. 446, 450, 581 P.2d 14, 17 (1978).  Houston Exploration Inc. v. Meredith, 728 P.2d 437 (1986) (expert testimony regarding the lost profits of a new venture must be allowed to go to the jury, which will determine the weight to be assigned such testimony); Hughes v. Hobson, 92 Nev. 683, 558 P.2d 543 (1976) (damages based on the prospective profits of a new business venture are too uncertain and speculative to form a basis for recovery).

The Litigation Toolbox

The Litigation Toolbox

I am a Nevada business litigator, arbitrator, and mediator with experience litigating thousands of disputes as a litigator, arbitrator, Judge Pro Tem, and Special Master. This Litigation Toolbox is designed to assist those involved in litigation in Nevada state or federal courts to navigate the process. My aim is for this Toolbox to be a knowledge resource center for litigants and advocates, and for those trying to understand the process better.  Please feel free to reach out to me if there are resources that should be added to this Toolbox. (more…)

Nevada Revised Statutes: CHAPTER 38 – MEDIATION AND ARBITRATION

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.

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Mediation Settlement Agreement

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.

Alternative Dispute Resolution Options in Las Vegas, Nevada

Alternative Dispute Resolution Options in Las Vegas, Nevada

There are many pathways to resolving legal disputes in Nevada other than litigating the matter in court.  Some of those pathways, paradoxically, begin with one of the parties filing a lawsuit in court.  Others are initiated by the parties without going to court.  This article explores the various pathways to Alternative Dispute Resolution (“ADR”), including arbitration and mediation and the rules governing them.

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In Search of the Efficient Arbitration

In Search of the Efficient Arbitration

 

A frequent complaint about arbitration is that it is not as cost-effective as the parties hoped it would be.  In fact, 69% of corporate counsel, outside counsel, arbitrators, and company executives surveyed believe arbitration fails at least half of the time to meet its goal of providing speed, efficiency, and economy.[1]  What makes arbitration costly?  Many things, but this article will focus on discovery, motion practice, and multiple-arbitrator panels. (more…)

Preparing for Mediation (Produced by the American Bar Association, Section of Dispute Resolution)

Preparing for Family Mediation (Produced by the American Bar Association, Section of Dispute Resolution)

Preparing for Complex Civil Mediation (Produced by the American Bar Association, Section of Dispute Resolution)”

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