Good news! The Nevada Supreme Court has finally approved the amendments to the Eighth Judicial District Court Rules (“EDCR”). The proposed amendments were sent to the Court on July 12, 2019 and approved on November 27, 2019 by the Order. The Order is effective January 1, 2020.
While all practitioners should carefully read the rules and their amendments, here are some of the highlights from the amendments:
Deadlines regarding motion practice are as follows:
- 2.20(d) – Joinders must be filed within 7 days after service of a motion
- 2.20(e) – An Opposition or Notice of Nonopposition must be filed within 14 days after service of the motion or 5 days after service of a joinder
- 2.20(g) – a Reply may be filed no later than 7 days before the matter is set for hearing, or 7 days after service of an opposition if a hearing has not been requested or set by the court
EDCR 1.90 Caseflow Management
- 1.90(b)(3) – District Court Judges, not the Discovery Commissioner, issue scheduling orders
- 1.90(b)(4) – Cases must be set for trial no later than 6 months after the close of discovery
EDCR 2.20 Motions; Contents; responses and replies; calendaring a fully briefed matter
- all motions must include the designation “Hearing Requested” or “Hearing Not Requested” in the caption of the first page “directly below the Case Number and Department Number.”
- Motions filed with the designation “Hearing Not Requested” will be set for a decision on the court’s “Chambers” calendar unless the court orders or an adverse party makes a request for a hearing. And adverse party may make such a request by including the designation “Hearing Requested” in the caption on the first page of the opposition “directly below the Case Number and Department Number.”
- Motions to be heard by a Discovery Commissioner must include the designation “Discovery Hearing Requested” in the caption of the first page of the motion “directly below the Case Number and Department Number.”
EDCR 2.20(h) – A courtesy copy of the motion, all related briefing, affidavits, and exhibits shall be delivered “to the appropriate department” by “the movant” for any contested matter at least 7 days prior to the date of the hearing
- If no hearing is set, the materials must be delivered “after the time for filing of the last briefing paper has run.” No other deadline is provided, but the logical conclusion is that the matter will not be decided until the courtesy copy is delivered
- The rule does not require the parties opposing the matter to provide briefing, leading to a possible interpretation that the movant is responsible to provide the above-required material for all of the parties
- Further, since a Reply brief may be due 7 days prior to a hearing, the courtesy copy must be delivered on that same date, meaning parties must be careful not to file a reply after hours if they cannot deliver a copy at the same time
EDCR 2.34 Discovery disputes; conferences; motions; stays.
- 2.34(f)(1) – A party may object to a commissioner’s report and recommendation within 14 days after being served with a report
- 2.34(f)(1) – Points and authorities are not required for filing an objection to a commissioner’s report and recommendation but may be filed
- 2.34(f)(1) – If a party files points and authorities, any other party may file and serve responding points and authorities within 7 days after being served with the objections
- 2.34(f)(2) – Upon receipt of a commissioner’s report, any objections, and any response, the District Court shall: (1) affirm, reverse, or modify the ruling without a hearing; (2) set the matter for a hearing; or (3) remand the matter to the commissioner for reconsideration or further action
- 2.34(g) – A party submitting matters for in camera review by the commissioner must provide a copy of the same without redactions and a set with proposed redactions
EDCR 7.20(d) – any document filed after the complaint shall refer to the first party on each side and may refer generally to the other parties.
|ABC, LLC, et. al.
FBH, Inc. et. al.
| Case No.:
|And related matters|
Nevada State Court Litigation Checklist: Get the Third Edition of this popular book that belongs in the library of every serious Nevada litigator. It has been called an “essential tool” in the arsenal of any attorney. This checklist is as comprehensive as possible so that any attorney or person representing themselves can use it as a resource to at least find the applicable rule or statute that governs most situations, but more importantly, to understand what it takes, “A to Z” to get a case ready for trial. I approach preparation for every lawsuit as if it will go to trial. Although a majority of cases settle, a litigant who prepares each case as though it is going to trial better understands his or her case, and is likely to craft better written discovery and to take better depositions. That litigant is ultimately better equipped to achieve a more favorable settlement than they otherwise would.
- 274 pages
- Includes the elements for almost 200 Nevada causes of action (including annotations to caselaw and statutory authority)
- New chapters on ADR and preparing witnesses to testify
A Litigator’s Guide to Nevada Evidence and Objections: While Nevada’s statutory rules of evidence generally follow the Federal Rules of Evidence, the Federal system is not adopted wholesale. Perhaps as important and confusing, Nevada does not follow the Federal numbering system, making it difficult to easily analogize to known Federal principals while in the heat of the battle in State court. This guide is designed to allow litigators in Nevada who are accustomed to the Federal rules to quickly cross reference with Nevada’s rules, and to serve as a general guide on the contents of our rules of evidence. The second section provides a handy guide to objections, prompting the user on how to lodge the objection, the source of law for the objection, and a short explanation of the objection.
Paperback Edition $44.99
Federal Court Civil Litigation Checklist: Get the Second Edition of this popular checklist. It is a comprehensive “A to Z” approach to coach you from client intake to the first day of trial. Although a majority of cases settle, a litigant who prepares each case as though it is going to trial better understands his or her case, and is likely to craft better written discovery and to take better depositions. That litigant is ultimately better equipped to achieve a more favorable settlement than they otherwise would.
Kindle Edition $49.99
A Litigator’s Guide to Federal Evidence and Objections: This pocket guide is designed to allow litigators to quickly reference to the Federal Rules of Evidence (“FRE”). It is presented in three parts. First is a quick reference guide to the FRE. Second is a guide to objections. It provides a tag line for the objection (i.e., “Objection! Assumes facts not in evidence”), followed rule(s) on which the objection relies and a short explanation of the rule/statute should you need additional support or rationale for the objection. Third, is a complete copy of the 2019 FRE.
- Present the court with competent witness (witness has the mental capacity, and the ability to perceive, remember, and testify in an understandable manner)
- The witness must testify from his or her personal knowledge
- 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?”
- 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?”
- Ask for permission to approach the witness, “Your Honor, may I approach the witness?”
- 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?”;
- 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?
- Ask the court to admit the evidence. “Your honor, we move for the admission of Exhibit 12 into evidence”
- 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?
- Competent witness (FRE 602; NRS 50.025)
- Relevant evidence (FRE 401; NRS 48.015): tendency to make a fact more or less probable
- Admissible evidence (FRE 402; NRS 48.025): personal knowledge and the witness saw, felt, touched, or experienced it
- Tested for hearsay? (FRE 801-805; NRS 51.045-51.096)
- 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.
The law requires a verified complaint in the following circumstances:
- A derivative action by a shareholder against a corporate entity. NRCP 23.1
- A petition to perpetuate testimony prior to filing a suit. NRCP 27(a)(1)
- A petition for an ex parte temporary restraining order. NRCP 65(b)(1)
- Petition for eminent domain, or public taking. NRS 37.060
- Complaint for adverse possession. NRS 40.090
- Quiet Title. NRS 40.090; 40.091
- Eviction. NRS 40.370
- Petition to establish the termination of a life estate. NRS 40.515
- Petition for the termination of the interest of a deceased person in real property. NRS 40.525
- Compromise the claim of a minor. NRS 41.200
- Petition to determine and establish facts relative to vital statistics. NRS 41.220
- Petition for a name change. NRS 41.270
- Emancipation of a minor. NRS 41.295
- Complaint by shareholder against corporation or association to enforce secondary rights. NRS 41.520
- Divorce. NRS 125.020
- Expedited relief for unlawful removal or exclusion of tenant from premises. NRS 118A.390
A 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.
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.” 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.
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. “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.” In fact, where a party is not given more than an illusory opportunity to cure, there is no breach.
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. 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.
 Matter of Clark, 738 F.2d 869, 871 (7th Cir. 1984).
 8 Catherine M.A. McCauliff, Corbin on Contracts, § 36.7 at 349 (1999).
 See Restatement Second, Contracts § 241; II Farnsworth on Contracts §§ 8.17, 8.18 (2d ed 1998).
 5 Bruner & O’Connor Construction Law § 18:15 Principle Of Cure And Its Implications Upon Materiality (June 2016).
 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”).
 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)).
Frustration of Purpose Defense
The doctrine of commercial frustration applies to discharge a party’s contractual obligation when “[p]erformance remains possible but the expected value of performance to the party seeking to be excused has been destroyed by a fortuitous event, which supervenes to cause an actual but not literal failure of consideration.” Graham v. Kim, 111 Nev. 1039, 899 P.2d 1122 (1995) (quoting Lloyd v. Murphy, 25 Cal.2d 48, 153 P.2d 47, 50 (1944)). The doctrine of commercial frustration does not apply to relieve party of contractual obligation, where contingency affecting expected value of party’s performance is one which party should have foreseen, and for which he should have provided. Id.
Impossibility of Performance
Impossibility of performance is a defense to breach of contract or excuse of non-performance for events that occur after a contract is entered into. Mere unexpected difficulty, expense, or hardship involved in the performance of a contract does not excuse performance. Where the difficulty or obstacle does not make performance objectively impossible, and 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).
In the linked blog post below, Howard & Howard‘s Mike Braun explains a recent decision where a court denied an employer’s request for a preliminary injunction against the company’s former President and its IT manager who took flash drives with company information (containing the company’s vendors and suppliers list, sales data, pricing and cost information, and profit margins), then went to work for a competitor.
The Court found that the employer failed to take adequate steps to protect its supposed trade secrets and was therefore not entitled to protection under the law. According to Braun, the case acts as “a virtual checklist of the steps a company should consider if it wants its important information to be treated as a trade secret.”
As this article suggests, if you want others to treat your information as a trade secret, you have to treat it like a trade secret, by:
- Using a confidentiality agreement;
- Clearly identify confidential information;
- Train your employees to treat the information as confidential;
- Restrict access to confidential information; and
- Address confidential information when employees terminate employment
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…)
Form 2. Rule 4.1 Waiver of Service of Summons
(Attorney or Plaintiff Information)
Waiver of Service of Summons under Rule 4.1 of the Nevada Rules of Civil Procedure
To (name the plaintiff’s attorney or the self-represented plaintiff):
I have received your request to waive service of a summons in this lawsuit along with a copy of the complaint, two copies of this waiver form, and a prepaid means of returning one signed copy of the form to you.
I, or the entity I represent, agree to save the expense of serving a summons and complaint in this lawsuit.
I understand that I, or the entity I represent, will keep all defenses or objections to the lawsuit, the court’s jurisdiction, and the venue of the lawsuit, but that I waive any objections to the absence of a summons or of service.
I also understand that I, or the entity I represent, must file and serve an answer or a motion under Rule 12 of the Nevada Rules of Civil Procedure within 60 days from _____________________, the date when this request was sent (or 90 days if it was sent outside the United States). If I fail to do so, a default judgment will be entered against me or the entity I represent.
(Signature of the attorney or unrepresented party)
[Added; effective March 1, 2019.]
The Randall Kiser Study, released in the Journal of Empirical Legal Studies, found that parties who reject the last and best offer at mediation overwhelmingly regret the decision. The study surveyed thousands of cases in California and New York over a five-year period. It found that plaintiffs who rejected the last settlement offer and proceeded to trial do worse a whopping 61% of the time, while defendants did worse than their last offer 24% of the time. In only 15% of the cases did both sides obtain a better result at trial.
All is not good news for defendants, however. Although they seem to do better at predicting outcomes, the 24% of the time they are wrong ends up being much more costly to them. Defendants who fail to do better than the Plaintiff’s last demand, ended up with a verdict that was on average $1.1 Million more than the Plaintiff’s last demand. On the other hand, plaintiffs received on average $43,000 less than the last offer given before trial.
Mediators assist often entrenched parties who each have a greater belief in the value of their position than they ought to have, to reach a middle position. The uncertainty of a litigated outcome alone justifies considering alternatives to a litigated result. Every experienced and honest litigator can point to cases they won when they didn’t think they had a chance winning. They can also point to times when if there was any justice, they would have won, but lost. There simply is no way to accurately predict with certainty the outcome of a litigated case whether decided by a judge, a jury, or an arbitrator.
Some studies suggest that 95% or more of lawsuits settle rather than go to trial. Assuming that is true, your case seems destined to settle; therefore, why not resolve it now rather than later? Doing so may save time, aggravation, stress, and money. That said, mediation will not be an easy process. At times, you may feel uncomfortable, pressured, and perhaps even emotional. If the process were easy, the parties wouldn’t need a mediator’s assistance to settle the matter. A mediated result gives you certainty without the risk of litigation.
In many states, courts will enforce a written promise that one will not compete with another party to the agreement, such as a key executive promising not to compete with her employer if she leaves the company. What would happen if the executive left the company, then helped someone else to compete with the executive’s former company? Courts can keep the executive from continuing to compete by enjoining the activity, but what can be done about the party who has no agreement (“the non-signatory”) with the company? Can a court enjoin the non-signatory from competing with the company? The answer is yes.
A court may enjoin someone one who does not sign a non-compete covenant when the non-signatory “breaches the covenant in active concert with the principal party enjoined and with knowledge of the covenant.” Las Vegas Novelty, Inc. v. Fernandez, 106 Nev. 113, 116-117 (1990) (citing McCart v. H & R Block, Inc., 470 N.E.2d 756 (Ind.Ct.App. 1984)). The plain language of NRCP 65(d) further supports the notion, as it requires an injunction to bind the parties, as well as their agents and any other persons participating or acting in concert with the parties. See NRCP 65(d).
Enjoining a non-signatory preserves the purposes of the covenant; otherwise, permitting someone to intentionally end-run around a non-competition provision essentially renders that provision useless. See Day Cos. V. Patat, 440 F.2d 1343 (5th Cir. 1971), cert. denied, 404 U.S. 830, 92 S.Ct. 71, 30 L.Ed.2d 59 (reasoning a non-signatory to a covenant will be bound because a covenantor will not be allowed to do through others what he or she could not do directly); H&R Block Tax Servs., LLC v. Strauss, 2015 WL 470644, at *6 (N.D.N.Y. Feb. 4, 2015) (enjoining non-signatories where evidence showed the non-signatories were acting in active concert with the covenantor); Dad’s Properties, Inc. v. Lucas, 545 So.2d 926 (Fla. Dist. Ct. App. 1989) (even though wife was the sole owner of competing business, she was properly enjoined from competing because she was aiding and abetting her husband to violate his covenant).
Accordingly, those “who benefit from the covenantor’s relationship with a competing business must abide by the same restrictive covenant agreed to by the covenantor.” Tantopia Franchising Co., LLC v. W. Coast Tans of PA, LLC, 918 F.Supp.2d 407, 416–17 (E.D.Pa.2013) (citing Total Car Franchising Corp. v. L & S Paint Works, Inc., 981 F.Supp. 1079, 1082 (N.D.Tenn.1997) (not only covenantor and new company bound but also his “servants or agents and those acting in collusion or combination with him”). The lesson here is that people who have a covenant not to compete should not try to nevertheless compete through a straw person. Both could end up as defendants in a very expensive lawsuit.
PERSONAL INJURY FREQUENTLY ASKED QUESTIONS
I Was Injured In An Accident. What Should I do?
For starters, check yourself for injuries and call the police or ask someone else to call for you if you, your passengers, or occupants of the other vehicle(s) are injured. If you or someone else is seriously injured, try not to move the injured person while waiting for an ambulance. Even if nobody is injured, and regardless of who you think was at fault, call the police so they can issue an accident report. Your insurance company may require it in order to cover damages to your vehicle or to the other vehicle.
Turn on your hazard lights if they are working or put out road flares if you have them. If the vehicles are causing a hazard, consider pulling yours to the side of the road. Otherwise, leave them where they are and get to the side of the road or a safe distance from traffic if you can. (more…)
“Those who cannot remember the past are condemned to repeat it.”
It is the dawn of a new era in Nevada state civil court discovery. The Nevada Supreme Court has adopted the Federal Rules of Civil Procedure-style proportionality standard for determining the appropriate scope of discovery. Gone are the days of discussions over whether discovery is “reasonably calculated to lead to the discovery of admissible evidence.” But is the proportionality standard really new? Or is it just in vogue again? This article discusses cases decided in the Nevada U.S. District Court and elsewhere that should inform how practitioners implement Rule 26 of the Nevada Rules of Civil Procedure. They read as a cautionary tale.
The 2019 amended Rule 26 says:
(b) Discovery Scope and Limits.
(1) Scope. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claims or defenses and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. (more…)
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.
Rule 86. Effective Dates
(a) In General. These rules and any amendments take effect on the date specified by the Supreme Court. They govern all proceedings:
(1) in actions commenced after the effective date; and
(2) in actions then pending, unless:
(A) the Supreme Court specifies otherwise, or
(B) the court determines that applying them in a particular action would not be feasible or would work an injustice.
(b) Effective Date of Amendments. The Nevada Rules of Civil Procedure became effective January 1, 1953. Subsequent amendments have been as follows:
(1) Amendment of Rules 5(b) and (d), effective January 4, 1954.
(2) Amendment of Rules 11 and 45(d)(1), effective May 15, 1954.
(3) Amendment of Rule 51, effective February 15, 1955.
(4) Amendment of Rules 3, 75(b), and 75(g), effective October 1, 1959.
(5) Amendment of Rules 38(b), 38(d), 65(b), 73(c), and 73(d), effective September 1, 1960.
(6) Amendment of Rules 4(d)(2), 5(a), 5(b), 6(a), 6(b), 7(a), 13(a), 14(a), 15(d), 24(c), 25(a)(1), 25(d), 26(e), 28(b), 30(f)(1), 41(b), 41(e), 47(a), 48, 50(a), 50(b), 50(c), 50(d), 52(b), 54(b), 56(c), 56(e), 59(a), 62(h), 77(c), 86, Forms 22-A and 22-B, 27, 30, 31, and 32, effective March 16, 1964.
(7) Amendment of Rule 86 and Form 31, effective April 15, 1964.
(8) Amendment of Rules 73(c), 73(d)(1), and 86, effective September 15,1965.
(9) Amendment of Rules 4(b), 5(a), 8(a), 12(b), 12(g), 12(h), 13(h), 14(a), 17(a), 18(a), 19, 20(a), 23, 23.1, 23.2, 24(a), 26, 29, 30, 31, 32, 33, 34, 35, 36, 37(a), 37(b), 37(c), 37(d), 41(a), 41(b), 42(b), 43(f), 44(a), 44(b), 44(c), 44.1, 45(d)(1), 47(b), 50(b), 53(b), 54(c), 65(a), 65(b), 65(c), 65.1, 68, 69(a), 77(e), 86(b), and Form 24, effective September 27, 1971.
(10) Amendment of Rules 6 and 81, effective July 1, 1973; the abrogation of Rules 72, 73, 74, 75, 76, 76A, and Form 27, effective July 1, 1973.
(11) Amendment of Rules 1, 4, 5, 6, 8, 9, 10, 11, 13, 14, 15, 16, 16.1, 17, 18, 19, 20, 22, 23, 23.1, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 41, 43, 44, 44.1, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 58, 59, 60, 62, 63, 64, 65, 65.1, 67, 69, 71, 77, 78, 81, and 83 and Forms 3, 19, 31, and the Introductory Statement to the Appendix of Forms, effective January 1, 2005, and the adoption of new Form 33.
(12) Adoption of Rules 4.1, 4.2, 4.3, 4.4, 5.1, 5.2, 62.1, and 71.1, the amendment of all other rules and the introduction to the Appendix of Forms, the deletion of the former forms, and the adoption of Forms 1 through 6, effective March 1, 2019.
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.
Rule 16.23. Physical and Mental Examinations of Minors in Family Law Actions
(a) Applicability; Motion; Notice.
(1) This rule governs a physical or mental examination of a minor in family law actions.
(2) When ordering a physical or mental examination of a minor, the court may proceed under this rule or Rule 35. The court’s order must state the court’s reasoning for proceeding under either rule and must include findings as to the best interests of the child.
(3) Upon motion and after notice to all parties and, if the minor is 14 years of age or older, to the minor to be examined, a court may for good cause order an examination of a minor’s mental or physical condition.
(b) Order. The provisions of Rule 16.22(b) apply to orders under this rule.
(c) Recording. In a motion requesting an examination or an opposition thereto, the parties may request that an examination be recorded by audio or audiovisual means. When considering whether to approve a recording, the court may appoint a guardian ad litem for the minor, hold a hearing, or both. The court may grant a request to record the examination if making the recording is in the child’s best interest. Any recording must be provided to the court and placed under seal. On motion, and for good cause, the court may permit distribution of the recording, which must include appropriate restrictions on its release and use.
(1) In General. In a motion requesting an examination or an opposition thereto, the parties may request that an observer be present at the examination. When considering whether to approve a request for an observer, the court may appoint a guardian ad litem for the minor, hold a hearing, or both. The court may grant a request for an observer if the observer’s presence is in the child’s best interest and would not compromise the examination. The observer may not be a party, a party’s attorney, or anyone employed by a party or a party’s attorney. If the minor is of sufficient age and maturity, the court may consider the child’s preference in choosing the observer. The court must approve the observer before the examination, and the observer must not in any way interfere with, obstruct, or participate in the examination.
(2) Parents. If ordered by the court, the parents or guardian of a minor may observe a physical examination, but may not interfere with, obstruct, or participate in the examination.
(e) Examiner’s Report. The examiner’s report and access to it must comply with Rule 16.22(e)(1) and (3)-(6).
(f) Stipulations. Any stipulation for a minor’s examination must comply with Rule 16.22(f).
Advisory Committee Note—2019 Amendment
Rule 16.23 is new and provides alternative procedures to Rule 35 for mental or physical examinations of minors in family law actions.
Rule 16.22. Custody Evaluations in Family Law Actions
(a) Applicability; Motion; Notice.
(1) This rule governs custody evaluations in family law actions.
(2) On motion or on its own, and after notice to all parties, the court may for good cause order a custody evaluation.
(3) The court may specify the individuals to be examined or permit the examiner to do so.
(1) In General. The order must specify the time, place, manner, conditions, and scope of the examination, as well as each examiner who will perform it.
(2) Examiner; Location. An examiner must be suitably licensed or certified. The examination must take place in an appropriate professional setting and in the judicial district in which the case is pending, unless the court orders the examination to occur in a different location.
(3) Persons Examined. The court may require a party to produce for examination a person who is in the party’s custody or under the party’s legal control.
(4) Costs. The court may assign the cost of the examination to one or more parties and may redistribute those costs as appropriate.
(5) Modification. The court, for good cause, may alter the provisions of this rule.
(c) Recording. A custody evaluation may be recorded only by the examiner, who must inform the parties if the examiner elects to record the examination. The examiner must keep the recording confidential. On motion, and for good cause, the court may order that a copy of the recording be provided to the court and placed under seal, be provided to the parties subject to appropriate restrictions upon its release and use, or both.
(d) Observers. The parties may not have an observer present at a custody evaluation.
(e) Examiner’s Report.
(1) Providing the Report to the Court. The examiner must provide a custody evaluation report to the court, and the report must be placed under seal. The court must notify all parties when it receives the report. A party and the party’s attorney may review the report in court, but may not obtain a copy of the report except under Rules 16.22(e)(2) or (3).
(2) Providing the Report to the Parties’ Attorneys. A party’s attorney may obtain a copy of the report, which the attorney must keep confidential and may not distribute without a court order under Rule 16.22(e)(3). The party may review the report if it is obtained by the party’s attorney, but the report must remain in the attorney’s possession and the attorney must not provide a copy of the report to the party without a court order under Rule 16.22(e)(3).
(3) Distribution of the Report. On motion, and for good cause, the court may permit distribution of the report, which must include appropriate restrictions on its release and use.
(4) Contents. The report must be in writing and must set out in detail the examiner’s findings, including diagnoses, conclusions, and the results of any tests.
(5) Request by the Moving Party. After the examiner provides the report to the court, the party who moved for the examination may request—and is entitled to receive—from any party, like reports of all earlier or later examinations of the same condition, which are in the possession of that party. But those reports need not be delivered by a party with custody or control of the person examined if the party shows that it cannot obtain them. Any reports in the care or custody of a court, as specified in this rule, must be sought from that court. The grant of either review or receipt of those reports is subject to the court’s discretion and the conditions in this rule.
(6) Scope. This rule does not preclude obtaining an examiner’s report or deposing an examiner under other rules, unless excluded by this rule.
(f) Stipulations. The parties may, by stipulation approved by the court, agree upon the custody evaluation, the conditions or limitations of the evaluation, and the examiner. This rule applies to any examinations agreed to by stipulation, unless the court approves a stipulation stating otherwise.
Advisory Committee Note—2019 Amendment
Rule 16.22 is new and provides procedures for custody evaluations in family law actions.
Rule 16.215. Child Witnesses in Custody Proceedings
(a) In General. The court must use these procedures and considerations in child custody proceedings. When determining the scope of a child’s participation in custody proceedings, the court should find a balance between protecting the child, the statutory duty to consider the wishes of the child, and the probative value of the child’s input while ensuring to all parties their due process rights to challenge evidence relied upon by the court in making custody decisions.
(1) “Alternative Method.” As used in this rule, “alternative method” is defined as prescribed in NRS 50.520.
(2) “Child Witness.” As used in this rule, “child witness” is defined as prescribed in NRS 50.530.
(3) “Third-Party Outsourced Provider.” As used in this rule, “third-party outsourced provider” means any third party ordered by the court to interview or examine a child outside of the presence of the court for the purpose of eliciting information from the child for the court.
(1) Identifying Witnesses. A party must identify and disclose any potential child witness whom the party intends to call as a witness during the case:
(A) at the time of the case management conference/early case evaluation; or
(B) by filing a Notice of Child Witness if the determination to call a child witness is made after the case management conference/early case evaluation.
(2) Notice of Child Witness. A notice of child witness must be filed no later than 60 days before the hearing in which a child may be called as a witness unless otherwise ordered by the court. Such notice must detail the scope of the child witness’s intended testimony and provide an explanation as to why the child witness’s testimony would aid the trier of fact under the circumstances of the case. Any party filing a notice of child witness must also deliver a courtesy copy of the notice to the court.
(3) Testimony by Alternative Methods. If a party desires to perpetuate the testimony of a child witness by an alternative method, the party must file a Motion to Permit Child Testimony by Alternative Methods, under the Uniform Child Witness Testimony by Alternative Methods Act contained in NRS 50.500 et seq., at the same time as the notice of child witness, or no later than 60 days before the hearing in which the child witness may be called to testify or 14 days after the timely filing of a notice of child witness, whichever period last expires, unless otherwise ordered by the court. The court may also issue an order to show cause why a child witness should not testify by an alternative method or address the issue at any case management conference.
(d) Alternative Methods.
(1) Available Alternative Methods. If the court determines under NRS 50.580 that an alternative method of testimony is necessary, the court must consider the following alternative methods, in addition to any other alternative methods the court considers appropriate under the Uniform Child Witness Testimony by Alternative Methods Act contained in NRS 50.500 et seq.
(A) If all parties are represented by counsel, the court may:
(i) interview the child witness outside of the presence of the parties, with the parties’ counsel present;
(ii) interview the child witness outside of the presence of the parties, with the parties’ counsel simultaneously viewing the interview via an electronic method; or
(iii) allow the parties’ counsel to question the child witness in the presence of the court without the parties present.
(B) Regardless of whether the parties are represented by counsel, the court may:
(i) interview the child witness with no parties present, but allow the parties to simultaneously view the interview via an electronic method if the court determines that the viewing is not contrary to the child’s best interest; or
(ii) have the child witness interviewed by a third- party outsourced provider.
(2) Alternative Method Considerations. In determining which alternative method should be utilized in any particular case, the court should balance the necessity of taking the child witness’s testimony in the courtroom with the parties and attorneys present with the need to create an environment in which the child witness can be open and honest. In each case in which a child witness’s testimony will be taken, the court should consider:
(A) where the testimony will be taken, including the possibility of closing the courtroom to the public or hearing from the child witness on the record in chambers;
(B) who should be present when the testimony is taken, such as both parties and their attorneys, only the attorneys when both parties are represented by counsel, the child witness’s attorney and the parties, or only a court reporter;
(C) how the child witness will be questioned, including whether only the court will pose questions that the parties have submitted, whether the parties or their attorneys will be permitted to cross-examine the child witness, or whether a child advocate or expert in child development will ask the questions in the presence of the court and the court reporter, with or without the parties or their attorneys; and
(D) whether it will be possible to provide an electronic method so that testimony taken in chambers may be heard simultaneously by the parties and their attorneys in the courtroom.
(3) Protections for Child Witness. In taking testimony from a child witness, the court must take special care to protect the child witness from harassment or embarrassment and to restrict the unnecessary repetition of questions. The interviewer must also take special care to ensure that questions are stated in a form that is appropriate given the child witness’s age or cognitive level. The interviewer must inform the child witness in an age-appropriate manner about the limitations on confidentiality and that the information provided to the court will be on the record and provided to the parties in the case. In the process of listening to and inviting the child witness’s input, the interviewer may allow, but should not require, the child witness to state a preference regarding custody or visitation and should, in an age-appropriate manner, provide information about the process by which the court will make a decision.
(e) Due Process Rights. Any alternative method must afford all parties a right to participate in the questioning of the child witness, which, at a minimum, must include an opportunity to submit potential questions or areas of inquiry to the court or other interviewer before the interview of the child witness.
(f) Preservation of Record. Any alternative method of testimony ordered by the court must be preserved by audio or audiovisual recording to ensure that such testimony is available for review for future proceedings.
(g) Review of Record. Any party may review the audio or audiovisual recording of testimony procured from a child witness by an alternative method upon written motion to the court or stipulation of the parties, unless the court finds by clear and convincing evidence that review by a party would pose a risk of substantial harm to the child witness.
(h) Stipulation. The court may deviate from any of the provisions of this rule upon stipulation of the parties. The judicial districts of this state should promulgate a uniform canvass to be provided to the parties to ensure that they are aware of their rights to a full and fair opportunity for examination or cross-examination of a child witness before entering into any stipulation that would permit the interview or examination of a child witness by an alternative method, including a third-party outsourced provider.
(i) Retention of Recordings. Original recordings of an interview or examination of a child witness must be retained by the interviewer for a period of 7 years from the date of their recording, or until 6 months after the child witness emancipates, whichever is later, unless otherwise ordered by the court.
Rule 16.21. Postjudgment Discovery in Family Law Actions
(a) Except as provided by this rule, parties must not conduct postjudgment discovery in a family law action.
(b) Parties may conduct postjudgment discovery in family law actions when:
(1) the court orders an evidentiary hearing in a postjudgment custody matter; or
(2) on motion or on its own, the court, for good cause, orders postjudgment discovery.
(c) Postjudgment discovery is governed by Rule 16.2, by Rule 16.205 for paternity or custody matters, or as otherwise directed by the court.
Advisory Committee Note—2019 Amendment
The amendments to Rule 16.21 permit postjudgment discovery in certain situations. Rule 16.21(b)(1) automatically permits discovery under Rule 16.205 upon the court’s entry of a postjudgment order setting an evidentiary hearing in a custody action. Rule 16.21(b)(2) permits postjudgment discovery in any action if ordered by the court.
Rule 4.4. Alternative Service Methods
(a) Statutory Service. If a statute provides for service, the summons and complaint may be served under the circumstances and in the manner prescribed by the statute.
(b) Court-Ordered Service.
(1) If a party demonstrates that the service methods provided in Rules 4.2, 4.3, and 4.4(a) are impracticable, the court may, upon motion and without notice to the person being served, direct that service be accomplished through any alternative service method.
(2) A motion seeking an order for alternative service must:
(A) provide affidavits, declarations, or other evidence setting forth specific facts demonstrating:
(i) the due diligence that was undertaken to locate and serve the defendant; and
(ii) the defendant’s known, or last-known, contact information, including the defendant’s address, phone numbers, email addresses, social media accounts, or any other information used to communicate with the defendant; and
(B) state the proposed alternative service method and why it comports with due process.
(3) If the court orders alternative service, the plaintiff must also:
(A) make reasonable efforts to provide additional notice under Rule 4.4(d); and
(B) mail a copy of the summons and complaint, as well as any order of the court authorizing the alternative service method, to the defendant’s last-known address.
(4) The plaintiff must provide proof of service under Rule 4(d) or as otherwise directed by the court.
(5) A plaintiff may serve a defendant by publication only if the requirements of Rule 4.4(c) are met and the procedures for publication are followed.
(c) Service by Publication. If a party demonstrates that the service methods provided in Rules 4.2, 4.3, and 4.4(a) and (b) are impracticable, the court may, upon motion and without notice to the person being served, direct that service be made by publication.
(1) Conditions for Publication. Service by publication may only be ordered when the defendant:
(A) cannot, after due diligence, be found;
(B) by concealment seeks to avoid service of the summons and complaint; or
(C) is an absent or unknown person in an action involving real or personal property under Rule 4.4(c)(3).
(2) Motion Seeking Publication. A motion seeking an order for service by publication must:
(A) through pleadings or other evidence establish that:
(i) a cause of action exists against the defendant who is to be served; and
(ii) the defendant is a necessary or proper party to the action;
(B) provide affidavits, declarations, or other evidence setting forth specific facts demonstrating the efforts that the plaintiff made to locate and serve the defendant;
(C) provide the proposed language of the summons to be used in the publication, briefly summarizing the claims asserted and the relief sought and including any special statutory requirements;
(D) suggest one or more newspapers or other periodicals in which the summons should be published that are reasonably calculated to give the defendant actual notice of the proceedings; and
(E) if publication is sought based on the fact that the defendant cannot be found, provide affidavits, declarations, or other evidence establishing the following information:
(i) the defendant’s last-known address;
(ii) the dates during which the defendant resided at that location; and
(iii) confirmation that the plaintiff is unaware of any other address at which the defendant has resided since that time, or at which the defendant can be found.
(3) Service by Publication Concerning Property Located Within Nevada.
(A) The court may order service by publication in the actions listed in Rule 4.4(c)(3)(B) if a defendant:
(i) resides in the United States and has been absent from this state for at least two years;
(ii) resides in a foreign country and has been absent from the United States for at least six months;
(iii) is an unknown heir or devisee of a deceased person; or
(iv) is an unknown owner of real or personal property.
(B) Rule 4.4(c)(3) applies only to the following actions involving real or personal property located within Nevada:
(i) actions for the enforcement of mechanics’ liens or other liens against real or personal property;
(ii) actions for foreclosure of mortgages and deeds of trust;
(iii) actions for the establishment of title to real estate;
(iv) actions to exclude the defendant from any interest in real or personal property; and
(v) any other action for the enforcement, establishment, or determination of any right, claim, or demand, actual or contingent, to or against any real or personal property.
(C) Service by publication on an unknown heir, devisee, or property owner may only be used when the unknown heir, devisee, or property owner must be a party to the action under Rule 19(b).
(D) A plaintiff proceeding under Rule 4.4(c)(3) must provide the information required by Rule 4.4(c)(2), as applicable, in addition to providing affidavits, declarations, or other evidence establishing the facts necessary to satisfy the requirements of Rule 4.4(c)(3).
(4) The Order for Service by Publication.
(A) In the order for service by publication, the court must direct publication to be made in one or more newspapers or other periodicals published in Nevada; in the state, territory, or foreign country where the defendant is believed to be located; or in any combination of locations. The court’s designated locations must be reasonably calculated to give the defendant actual notice of the proceedings. The service must be published at least once a week for a period of four weeks.
(B) If publication is ordered and the plaintiff is aware of the defendant’s last-known address, the plaintiff must also mail a copy of the summons and complaint to the defendant’s last-known address. The court may also order that additional notice be sent under Rule 4.4(d).
(C) Service by publication is complete four weeks from the later of:
(i) the date of the first publication; or
(ii) the mailing of the summons and complaint, if mailing is ordered.
(d) Additional Methods of Notice.
(1) In addition to any other service method, the court may order a plaintiff to make reasonable efforts to provide additional notice of the commencement of the action to a defendant using other methods of notice, including certified mail, telephone, voice message, email, social media, or any other method of communication.
(2) Unless otherwise ordered, the plaintiff or the plaintiff’s attorney may contact the defendant to provide notice of the action, except when the plaintiff or attorney would violate any statute, rule, temporary or extended protective order, or injunction by communicating with the defendant.
(3) The plaintiff must provide proof of notice in the same manner as proof of service under Rule 4(d), or as otherwise directed by the court.
Advisory Committee Note—2019 Amendment
Subsection (a). Rule 4.4(a) incorporates former NRCP 4(e)(3). Subsection (b). Modeled on Rule 4.1(k) of the Arizona Rules of Civil Procedure, Rule 4.4(b) is new and authorizes the court to fashion a method of service consistent with due process when no other available service method remains besides publication, which should only be used as a last resort.
Subsection (c). Rule 4.4(c), publication, amends former NRCP 4(e)(1). Rule 4.4(c)(2) specifies the requirements for a motion seeking publication. The motion must contain specific facts demonstrating the plaintiffs efforts to find and serve the defendant; general allegations that a defendant cannot be found are insufficient to warrant publication. Rule 4.4(c)(3) governs service by publication concerning real and personal property in this state. In general, persons outside the state must be served under Rule 4.3. Given the State’s interest in resolving disputes concerning real or personal property located within this state, however, service by publication may be used for the specified defendant when that party’s presence is necessary for the action to be adjudicated. Rule 4.4(c)(4) governs the order for publication. When ordering publication, the court must designate the locations for publication and order any other steps to be taken to effect service that, in the court’s opinion, are calculated to satisfy due process. This may include publication in locations outside of Nevada or outside of the United States. The new rule adds “or other periodicals” to the rule to permit the court to authorize the summons in a periodical other than a newspaper, including an online periodical.
Subsection (d). Rule 4.4(d) is new and permits the court to order the plaintiff to make reasonable efforts to provide actual notice of the action to the defendant. In this modem era of electronic communication, a plaintiff may communicate with a defendant electronically, and thus know how to contact the defendant by phone, email address, social media, or other methods, but be unaware of the defendant’s current physical address. In this situation, a plaintiff should not be permitted to mail notice to a defendant’s long-outdated last-known address while ignoring other reliable means of providing actual notice. The rule does not specify any particular method of communication, recognizing that notice via nontechnological methods of communication or future technologies may both be used, depending on the individual case. This rule is intended to work in conjunction with other service rules that require the summons and complaint to be mailed to a defendant’s last-known address. Notice given under Rule 4.4(d) does not constitute service by itself, unless the notice provided complies with another service method.
Rule 4.3. Service Outside Nevada
(a) Service Outside Nevada but Within the United States.
(1) Serving Individuals. A party may serve process outside Nevada, but within the United States, in the same manner as provided in Rule 4.2(a) for serving such a defendant within Nevada, or as prescribed by the law of the place where the defendant is served.
(2) Serving Minors and Incapacitated Persons. A party may serve process outside Nevada, but within the United States, in the same manner as provided in Rule 4.2(b) for serving such a defendant within Nevada.
(3) Serving Entities and Associations. A party may serve process outside Nevada, but within the United States, in the same manner as provided in Rule 4.2(c)(1) for serving such a defendant within Nevada, or as prescribed by the law of the place where the defendant is served.
(4) Serving Another State or Territory. Service upon another state or territory, its public entities and political subdivisions, and their officers and employees may be made in the manner prescribed by that state’s or territory’s law for serving a summons or like process on such a defendant.
(5) Serving the United States. Service upon the United States and its agencies, corporations, officers, or employees may be made as provided by Rule 4 of the Federal Rules of Civil Procedure.
(6) Authorized Persons. Service must be made by a person who is authorized to serve process under the law of the state or territory where service is made.
(b) Service Outside the United States.
(1) Serving an Individual. Unless otherwise provided by these rules, an individual—other than a minor, an incapacitated person, or a person whose waiver has been filed—may be served at a place outside of the United States:
(A) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;
(B) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:
(i) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction;
(ii) as the foreign authority directs in response to a letter rogatory or letter of request; or
(iii) unless prohibited by the foreign country’s law, by:
(a) delivering a copy of the summons and of the complaint to the individual personally; or
(b) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or
(C) by other means not prohibited by international agreement, as the court orders.
(2) Serving a Minor or Incapacitated Person. A minor or an incapacitated person who is outside the United States must be served in the manner prescribed by Rule 4.3(b)(l)(B)(i) or (ii), or 4.3(b)(1)(C).
(3) Serving Entities or Associations. An entity or association that is outside the United States may be served in any manner prescribed by Rule 4.3(b)(1) for serving an individual, except personal delivery under Rule 4.3(b)(l)(B)(iii)(a).
(4) Serving a Foreign Country or Political Subdivision. A foreign country or a political subdivision, agency, or instrumentality thereof must be served under 28 U.S.C. § 1608.
Advisory Committee Note—2019 Amendment
Rule 4.3(a) governs service outside Nevada but within the United States and amends former NRCP 4(e)(2). Rule 4.3(b) governs service outside of the United States and is drawn from FRCP 4(f), (g), (h), and (j).
Rule 4.2. Service Within Nevada
(a) Serving an Individual. Unless otherwise provided by these rules, service may be made on an individual:
(1) by delivering a copy of the summons and complaint to the individual personally;
(2) by leaving a copy of the summons and complaint at the individual’s dwelling or usual place of abode with a person of suitable age and discretion who currently resides therein and is not an adverse party to the individual being served; or
(3) by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.
(b) Serving Minors and Incapacitated Persons.
(1) Minors. A minor must be served by delivering a copy of the summons and complaint:
(A) if the minor is 14 years of age or older, to the minor; and
(B) to one of the following persons:
(i) if a guardian or similar fiduciary has been appointed for the minor, to the fiduciary under Rule 4.2(a), (c), or (d), as appropriate for the type of fiduciary;
(ii) if a fiduciary has not been appointed, to the minor’s parent under Rule 4.2(a); or
(iii) if neither a fiduciary nor a parent can be found with reasonable diligence:
(a) to an adult having the care or control of the minor under Rule 4.2(a); or
(b) to a person of suitable age and discretion with whom the minor resides.
(2) Incapacitated Persons. An incapacitated person must be served by delivering a copy of the summons and complaint:
(A) to the incapacitated person; and
(B) to one of the following persons:
(i) if a guardian or similar fiduciary has been appointed for the incapacitated person, to the fiduciary under Rule 4.2(a), (c), or (d), as appropriate for the type of fiduciary; or
(ii) if a fiduciary has not been appointed:
(a) to a person of suitable age and discretion with whom the incapacitated person resides;
(b) if the incapacitated person is living in a facility, to the facility under Rule 4.2, as appropriate for the type of facility; or
(c) to another person as provided by court order.
(c) Serving Entities and Associations.
(1) Entities and Associations in Nevada.
(A) An entity or association that is formed under the laws of this state, is registered to do business in this state, or has appointed a registered agent in this state, may be served by delivering a copy of the summons and complaint to:
(i) the registered agent of the entity or association;
(ii) any officer or director of a corporation;
(iii) any partner of a general partnership;
(iv) any general partner of a limited partnership;
(v) any member of a member-managed limited-liability company;
(vi) any manager of a manager-managed limited-liability company;
(vii) any trustee of a business trust;
(viii) any officer or director of a miscellaneous organization mentioned in NRS Chapter 81;
(ix) any managing or general agent of any entity or association; or
(x) any other agent authorized by appointment or by law to receive service of process.
(B) If an agent is one authorized by statute and the statute so requires, a copy of the summons and complaint must also be mailed to the defendant entity or association at its last-known address.
(2) Other Foreign Entities and Associations. A foreign entity or association that cannot be served under Rule 4.2(c)(1) may be served by delivering a copy of the summons and complaint to any officer, director, partner, member, manager, trustee, or agent identified in Rule 4.2(c)(1) that is located within this state.
(3) Service via the Nevada Secretary of State.
(A) If, for any reason, service on an entity or association required to appoint a registered agent in this state or to register to do business in this state cannot be made under Rule 4.2(c)(1) or (2), then the plaintiff may seek leave of court to serve the Nevada Secretary of State in the entity’s or association’s stead by filing with the court an affidavit:
(i) setting forth the facts demonstrating the plaintiffs good faith attempts to locate and serve the entity or association;
(ii) explaining the reasons why service on the entity or association cannot be made; and
(iii) stating the last-known address of the entity or association or of any person listed in Rule 4.2(c)(1), if any.
(B) Upon court approval, service may be made by:
(i) delivering a copy of the summons and complaint to the Nevada Secretary of State or his or her deputy; and
(ii) posting a copy of the summons and complaint in the office of the clerk of the court in which such action is brought or pending.
(C) If the plaintiff is aware of the last-known address of any person listed in Rule 4.2(c)(1), the plaintiff must also mail a copy of the summons and complaint to each such person at the person’s last-known address by registered or certified mail. The court may also order additional notice to be sent under Rule 4.4(d) if the plaintiff is aware of other contact information of the entity or association or of any person listed in Rule 4.2(c)(1).
(D) Unless otherwise ordered by the court, service under Rule 4.2(c)(3) may not be used as a substitute in place of serving, under Rule 4.3(a), an entity or association through a person listed in Rule 4.2(c)(1) whose address is known but who lives outside this state.
(E) The defendant entity or association must serve a responsive pleading within 21 days after the later of:
(i) the date of service on the Nevada Secretary of State and posting with the clerk of the court; or
(ii) the date of the first mailing of the summons and complaint to the last-known address of any person listed in Rule 4.2(c)(1).
(d) Serving the State of Nevada, Its Public Entities and Political Subdivisions, and Their Officers and Employees.
(1) The State and Its Public Entities. The State and any public entity of the State must be served by delivering a copy of the summons and complaint to:
(A) the Attorney General, or a person designated by the Attorney General to receive service of process, at the Office of the Attorney General in Carson City; and
(B) the person serving in the office of administrative head of the named public entity, or an agent designated by the administrative head to receive service of process.
(2) State Officers and Employees. Any current or former public officer or employee of the State who is sued in his or her official capacity or his or her individual capacity for an act or omission relating to his or her public duties or employment must be served by delivering a copy of the summons and complaint to:
(A) the Attorney General, or a person designated by the Attorney General to receive service of process, at the Office of the Attorney General in Carson City; and
(B) the current or former public officer or employee, or an agent designated by him or her to receive service of process.
(3) Political Subdivisions and Their Public Entities. Any county, city, town, or other political subdivision of the State, and any public entity of such a political subdivision, must be served by delivering a copy of the summons and complaint to the presiding officer of the governing body of the political subdivision, or an agent designated by the presiding officer to receive service of process.
(4) Local Officers and Employees. Any current or former public officer or employee of any county, city, town, or other political subdivision of the State, or any public entity of such a political subdivision, who is sued in his or her official capacity or his or her individual capacity for an act or omission relating to his or her public duties or employment must be served by delivering a copy of the summons and complaint to the current of former public officer or employee, or an agent designated by him or her to receive service of process.
(5) Statutory Requirements. A party suing the State, its public entities or political subdivisions, or their current or former officers and employees must also comply with any statutory requirements for service of the summons and complaint.
(6) Extending Time. The court must allow a party a reasonable time to cure its failure to:
(A) serve a person required to be served under Rule 4.2(d)(1) or (2), if the party has served the Attorney General; or
(B) serve the Attorney General under Rule 4.2(d)(1) or (2), if the party has served the required person.
Advisory Committee Note—2019 Amendment
Subsection (a). Rule 4.2(a) restyles NRCP 4(d)(6) to track FRCP 4(e)(2). Rule 4.2(a)(2) specifies that a summons and complaint may not be delivered to a person of suitable age and discretion who resides with the individual being served if the person is a party to the litigation adverse to the individual being served. This makes unavailing the practice of having a plaintiff in a divorce action accept service on behalf of the spouse with whom he or she still resides.
Subsection (b). Rule 4.2(b) amends former NRCP 4(d)(3) and (4) for service on minors and incapacitated persons. NRS Chapter 129 generally defines a “minor” to be a person under 18 years of age unless emancipated. To serve a minor who is 14 years of age or older, Rule 4.2(b)(1)(A) requires personal service of the summons and complaint on the minor and, also, service on the person designated by Rule 4.2(b)(1)(B).
Rule 4.2(b)(2) similarly amends the procedure for serving an incapacitated person. The rule requires personal service of the summons and complaint on the incapacitated person and, in addition, service of the summons and complaint on the incapacitated person’s guardian or fiduciary, if one has been appointed, or other person specified in the rule. Rule 4.2(b)(2) only applies when the person being served has already been declared incapacitated under applicable law; service on a person not yet declared incapacitated should be made under Rule 4.2(a). The change in terminology from “incompetent” to “incapacitated” is stylistic, not substantive.
Subsection (c). The amendments to Rule 4.2(c) encompass all business entities, associations, and other organizations. Rule 4.2(c)(1) generally restates former NRCP 4(d)(1), but also incorporates provisions from FRCP 4(h)(1)(B). Rule 4.2(c)(1) applies to any Nevada entity or association and any foreign entity or association that has registered to do business in Nevada or has appointed a registered agent in Nevada. Rule 4.2(c)(2) applies to foreign entities or associations generally.
Rule 4.2(c)(3) revises the second half of former NRCP 4(d)(1) and governs service on the Nevada Secretary of State when an entity or association cannot otherwise be served. Secretary of State service only applies when a Nevada or foreign entity or association is required by law to appoint a registered agent in Nevada or to register to do business in Nevada. Service on the Nevada Secretary of State now requires court approval and incorporates new alternative notice provisions in Rule 4.4(d).
Subsection (d). Rule 4.2(d) amends former NRCP 4(d)(5) and addresses service on government entities and their officers and employees. Waiver of service under Rule 4.1 does not apply to government entities and persons subject to service under Rule 4.2(d).
Rule 4.1. Waiving Service
(a) Requesting a Waiver. An individual, entity, or association that is subject to service under Rule 4.2(a), 4.2(c)(1) or (2), 4.3(a)(1) or (3), or 4.3(b)(1)
or (3) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and
request that the defendant waive service of a summons. The notice and request must:
(1) be in writing and be addressed:
(A) to the individual defendant; or
(B) for an entity or association, to a person designated by Rule 4.2(c)(1);
(2) name the court where the complaint was filed;
(3) be accompanied by a copy of the complaint, two copies of the waiver form, Form 2 in the Appendix of Forms or its substantial equivalent,
and a prepaid means for returning the form;
(4) inform the defendant, using the waiver form, of the consequences of waiving and not waiving service;
(5) state the date when the request is sent;
(6) give the defendant a reasonable time of at least 30 days after the request was sent—or at least 60 days if sent to the defendant outside the United States—to return the waiver; and
(7) be sent by first-class mail or other reliable means.
(b) Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff
located within the United States, the court must impose on the defendant:
(1) the expenses later incurred in making service; and
(2) the reasonable expenses, including attorney fees, of any motion required to collect those service expenses.
(c) Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the
complaint until 60 days after the request was sent—or until 90 days after it was sent to the defendant outside the United States.
(d) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint
had been served at the time of filing the waiver.
(e) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.
Advisory Committee Note-2019 Amendment
Rule 4.1 is new and mirrors FRCP 4(d). The waiver provisions apply to individuals, entities, and associations, wherever served, but do not apply to
minors, incapacitated persons, or government defendants. The Appendix of Forms at the end of these rules includes Form 1, a Request to Waive Service of
Summons; and Form 2, Waiver of Service of Summons. Use of the forms is not mandatory, but if the forms are not used the text of the request or waiver sent must be substantially similar to the text in Forms 1 and 2 to be valid.
Since the publication of the article below, the Nevada Supreme Court has reconsidered its earlier version of Rule 4.1 (Waiver of Service) that specifically deleted the penalties found in the Federal Rules of Civil Procedure version of the same rule. I inquired of a member of the committee about whether the lack of a penalty encourages a defendant to wait out the required 30 days and refuse to waive service, resulting in added expense and delay for the plaintiff, as the defendant knows there is no penalty. I heard back from the committee member this morning that the Supreme Court issued an amendment to ADKT 522 that resolves the matter, adding the penalty provision into the rule and changing the official form accordingly. A copy of the Order can be found here.
In a unanimous decision authored by Justice Kavanaugh, the U.S. Supreme Court held that under the Federal Arbitration Act (“FAA”), “when the parties’ contract delegates the arbitrability question to an arbitrator, a court may not override the contract even if the court thinks that the arbitrability claim is wholly groundless.” The decision in Henry Shein, Inc. v. Archer & White Sales, Inc., issued January 8, 2019, addresses a split among the six circuit courts which have heard similar matters and vacates the decision of the Fifth Circuit which held that when a court determines that the request to have the matter arbitrated is “wholly groundless,” the court may deny a motion to allow an arbitrator to determine whether a matter is subject to arbitration.
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.
Parties subject to an arbitration agreement may challenge whether a particular arbitrator may hear a matter. If the contract does not specify particular arbitral rules (AAA or JAMs, for instance), then the parties must rely on the laws of the place of the arbitration to determine the circumstances under which an arbitrator may challenged.
Under the Rules of the American Arbitration Association, and arbitrator may only be challenged for: 1) partiality or lack of independence; 2) inability or refusal to carry out his duties diligently and in good faith; or 3) any ground for disqualification specified by the applicable law. Rule 18, American Arbitration Association Rules.
Under the Rules of JAMS, the parties must object to the service of an arbitrator within ten days of his or her appointment based on the disclosure of any circumstance likely to give rise to justifiable doubt about the arbitrator’s impartiality or independence. JAMS Rule 15(h). Any party may challenge the continued service of the arbitrator at any time if the party discovers information that was not available to the parties at the time the arbitrator was selected. JAMS Rule 15(i). JAMS arbitrators have an immediate and continuing obligation to disclose known or apparent conflicts of interest. JAMS Arbitrators Ethics Guidelines,
What Constitutes Admissible Evidence
Under Rule 56?
Nevada law provides requires that all fact presented to a court by motion must be by sworn testimony. Further, “[a]ffidavits/declarations must contain only factual, evidentiary matter, conform to the requirements of NRCP 56(e), and avoid mere general conclusions or argument.” EDCR 2.21(c). NRCP 56(e) requires “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”
The first requirement of Rule 56(e) is that the sworn testimony must be made upon personal knowledge. See generally Saka v. Sahara–Nevada Corp., 92 Nev. 703, 705, 558 P.2d 535, 536 (1976) (recognizing that affidavits must be based on “the affiant’s personal knowledge, and there must be an affirmative showing of his competency (more…)
Nevada Statutes of Limitation and the Discovery Rule
Statutes of limitation are designed to assure fairness to parties and prevent surprise lawsuits by determining the maximum time allowed after an event within which legal proceedings may be initiated. As a practical matter, statutes of limitation avoid fraud on the court by disallowing claims to linger “until evidence has been lost, memories have faded, and witnesses have disappeared.” In re Jim L. Shetakis Distrib. Co., 415 B.R. 791, 799 (D. Nev. 2009) aff’d, 401 F. App’x 249 (9th Cir. 2010) (quoting Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965) (as quoted in Oltman v. Holland America Line, Inc., 538 F.3d 1271, 1278 (9th Cir. 2008))). The appropriate accrual date after which a claim may not be filed is a question of law if the facts are uncontroverted. Winn v. Sunrise Hosp. & Med. Ctr., 277 P.3d 458, 463 (2012).
The time allowed to file a claim may be extended pursuant to the “discovery rule”, which is also known as the inquiry notice doctrine. The discovery rule is available when fairness dictates that the plaintiff should be allowed more time to file her claim because the nature of the claim was hidden from her somehow. Claimants must demonstrate the reasons or excuses why the statute should be tolled. Siragusa v. Brown, 971 P.2d 801, 807 (Nev. 1998). “This rule requires a plaintiff to use due diligence in determining the existence of a cause of action and delays the accrual of the cause of action until the plaintiff obtains inquiry notice. Bemis v. Estate of Bemis, 114 Nev. 1021, 1025, 967 P.2d 437, 440 (1998) (applying the inquiry notice standard to determine when the applicable statute of limitations ran).” (more…)
In Nevada, a claim for civil conspiracy requires: (1) two or more parties; (2) acting in concert; (3) with an intent to accomplish an unlawful objective for the purpose of harming another; and (4) damages. Consolidated Generator-Nevada Inc. v. Cummins Engine Co., Inc., 114 Nev. 1304, 1311, 917 P.2d 1251, 1256 (1998). When alleging civil conspiracy between corporations, one must plead and prove that agent(s) of each corporation involved acted outside their employment and personally became a conspirator.
Under the Intracorporate Conspiracy doctrine, members of a corporation, such as officers or employees, cannot be held to have conspired among themselves, because the corporation and its agents constitute a single actor for purposes of law. Therefore, the plurality of actors requirement needed to constitute a conspiracy is not satisfied. “Agents and employees of a corporation cannot conspire with their corporate principal or employer where they act in their official capacity on behalf of the corporation not as individuals for their individual advantage.” Collins v. Union Federal Savings and Loan Association, 99 Nev. 284, 304, 662 P.2d 610, 622 (1983). “[I]n order to sustain a claim for civil conspiracy for agents of a corporation are involved, it is necessary to show that one or more of the agents acted outside of the scope of their employment to render them a separate “person” for purposes of the conspiracy.” Faulkner v. Arkansas Children’s Hospital, 69 S.W. 3d, 393, 407 (Ark. 2002). Thus, it is incumbent upon the Plaintiff to allege sufficient facts that corporations which are alleged to be agents of one another received “a benefit wholly separable from the more general and indirect corporate benefit always present under the circumstances surrounding virtually any alleged corporate conspiracy.” Seleman v. Am. Sports Underwriters Inc., 697, F. Supp. 225, 239 (W. D. VA 1988). See also Trau-Med of Am. Inc. v. Allstate Ins. Co., 71 SW 3d 691, 704 (Tenn. 2002) (affirming dismissal of a conspiracy claim and noting “in this case, the plaintiff does not even intimate much less expressly allege in the complaint that the corporate agents involved in conspiratorial conduct were acting outside the scope of their employment or that they were pursuing their own personal objectives”).
Jay Young is a top mediator in Las Vegas, Nevada. ADR Certified since 1994. Additional 40 hour certification and graduate of Pepperdine Law’s Strauss Institute for Dispute Resolution’s “Advanced Mediation: Skills and Techniques” program. Jay is a Nevada Supreme Court Settlement Judge (mediator), a Judge Pro Tem, a Special Master, and a National Mediation Panelist for the American Arbitration Association and Advanced Resolution Management. Contact him at 702.960.4494. Go here for Jay’s full bio.
Praise for Jay:
“Jay Young did a truly spectacular job. The parties had tried countless times to reach a resolution and never got anywhere close prior to Jay’s involvement. He is as good a mediator as I have encountered anywhere in the country.” Anonymous Attorney participating in Nevada Supreme Court Settlement Program.
“He is extremely professional, fully prepared, strategic and effective.” Anonymous evaluation from Advanced Resolution Management Mediation.
“Simply put, Jay Young is a person you can trust.” Anonymous evaluation from Advanced Resolution Management Mediation.
What Is Mediation?
Simply put, mediation is a process where a person called a mediator helps people resolve a dispute in a non-confrontational setting. It is more akin to marriage counseling than litigation. The mediator will not be deciding any outcome but will try to get the parties to come to an agreement with which they can both live. According to the Nevada Rules Governing Alternative Dispute Resolution, Rule 1(B), the mediator:
acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.
Since no two disputes are alike, no two solutions will be the same. The process of how mediation proceeds will therefore depend largely on the needs of those involved. I will attempt to illustrate some of the possible ways a mediation might proceed.
What is the Role of the Mediator?
As a mediator, I believe my first role is to understand the dispute between the parties. The parties to the suit have the most information about the issues that they currently face. To help them reach a resolution, I need to understand the genesis of the dispute through its current status. Therefore, before the parties and their counsel meet with me, I ask each of them to provide me with a “mediation brief,” which is essentially a summary of your dispute. Your brief should not be a trial advocacy brief or contain bundles of pleadings and deposition transcripts unless those are absolutely necessary to educate me. You should simply provide me general information regarding the types of claims filed, as well as the strengths and weaknesses of the evidence regarding those claims. Briefs should be civil and professional in tone, without personal attacks. The goal your brief should be to inform me, not to inflame your opponent.
A good brief will contain:
- A factual summary, including any factual disputes;
- A short statement outlining the type of work/business of every party, if relevant;
- A chronology of events, if relevant;
- A glossary of technical terms, if relevant;
- A list of the important parties and their relation to the dispute;
- An outline of the legal issues;
- A history of the settlement negotiations between the parties, if any (consider submitting this information in a separate confidential submission);
- A candid evaluation of the relative strengths and weaknesses of each party’s case;
- A procedural history of the litigation, and any upcoming deadlines, including a trial date;
- A fair settlement proposal to which you would be willing to agree (consider submitting this information in a separate confidential submission);
- Any non-monetary settlement terms you would like to explore (consider submitting this information in a separate confidential submission); and
- Any terms or conditions that the party or parties believe should be included in a settlement agreement.
Second, attorneys sometimes want all mediation briefs to be confidential. There are many times when parties could have saved hours of negotiations during the mediation session had counsel shared their briefs with each other. If the other side has an over-inflated view of their case, sharing that information early will assist in settling the matter and advance your cause.
While it is not recommended to disclose truly confidential information in your brief, sharing your brief is not an accommodation to other side. Retired judge and mediator Alexander H. Williams III is fond of pointing out that a shared brief is an enhancement of your presentation as well as your influence on the mediation. And even if the other side decides not to share its brief, and therefore chooses not to strengthen its presentation, that does not mean you should refuse to strengthen yours.
Third, I will not decide who wins your dispute. I do not “take sides”— I am not a judge, jury, or an advocate. My job is to help each side come to an agreement. You are the one who decides if you are willing to accept any offer made by the other party. I may provide the parties with some food for thought and even play devil’s advocate at times to challenge how each party sees both the dispute as well as the way forward. At times, I may act as an “agent of reality,” telling each party things that they don’t want to hear. I do so that the parties can see things that they may not have considered before, but you will be the one who makes the final decision whether you agree to a settlement. Most parties to mediation at one time or another express unrealistic goals or settlement offers. Rest assured that I will discuss “reality” with both side of the dispute.
Fourth, I will try to help the parties find common ground. As I do so, my goal is to guide the process in a fair fashion. Sometimes that means discussing money being paid from one side to another. Other times that will entail crafting a business relationship going forward that benefits both parties more than litigation does.
Finally, understand that I will often be asked to “carry water” for a party—that is, a party will ask that I deliver a message to the other party. These messages could be positive in nature—a willingness to express a sincere apology, or a more negative approach—if you don’t accept our offer, we intend to file a motion for fees, etc.
What is Your Role at Mediation?
In litigation, your attorney does most of the heavy lifting, and as a party, you are mostly watching the presentation. Much of that presentation, if not all, focuses on the past. In mediation, your attorney will still be an important advocate for your cause and will certainly be a very important adviser to you, but you play a more central role. I will sometimes speak with your attorney and I will sometimes speak directly to you in order to help find the best way forward. I will have learned about the past from your counsel’s brief and will look forward to understanding its impact on you when we meet. Please be engaged in the process and share with me your feelings both about what occurred as well as what you would like to see for the future. Even though I have been involved in thousands of disputes, I guarantee that I have never had one “just” like yours. Therefore, I need your help to understand your unique situation.
How Does Mediation Compare to Litigation?
Litigation is about proving your case and having a judge, or an arbitrator declare a winner; one party wins and another loses. In contrast, at mediation the law and your likelihood of success is a very important aspect of your case, but it is not the only factor. Mediation allows other factors to be considered and developed without being limited to just what the law might provide if everything at trial goes the way that you hope it will. Mediation is designed to try to find a resolution that is a win-win. Unless parties insist, I normally do not normally suggest that counsel give an opening statement at mediation. Doing so is, more often than not, counterproductive as they tend to devolve into a chest pounding session about who will win the litigation.
In litigation, one often listens to the other side, not for understanding and a search for common ground, but for the exposure of inconsistencies, weaknesses, and opportunities to score points. Because of this adversarial process, litigants almost always have an exaggerated view of the strength of their own case and the weakness of the other side, which means that you probably have an exaggerated view of your case, just as the other side does. Litigants tend to experience what psychologists call “confirmation bias” — the tendency to interpret new evidence and information as confirmation of one’s existing beliefs and theories. I therefore encourage you to be open to a conversation that requires parties to listen as well as to speak. Be honest about your “bad facts”. All cases have bad facts and neither yours nor your opponent’s case is an exception. Discuss your bad facts with your counsel before the mediation so that you will be prepared to understand how they motivate the other side and/or how they should influence you.
Lastly, in litigation, someone else determines your future. It might be a judge, a jury, or an arbitrator, but someone else will decide who is right and who is wrong. You will lose all control over the outcome. Conversely, by mediating your dispute, you can maintain control over the outcome.
The uncertainty of a litigated outcome alone justifies considering alternatives to a litigated result. Every experienced litigator can point to cases they won when they didn’t think they had a chance winning. They can also point to times when if there was any justice, they would have won, but lost. There simply is no way to accurately predict with certainty the outcome of a litigated case whether decided by a judge, a jury, or an arbitrator. A mediated result gives you certainty without the risk of litigation.
The Randall Kiser Study, released in the Journal of Empirical Legal Studies, found that parties who reject the last and best offer at mediation overwhelmingly regret the decision. The study surveyed thousands of cases in California and New York over a five-year period. It found that plaintiffs who rejected the last settlement offer and proceeded to trial do worse a whopping 61% of the time, while defendants did worse than their last offer 24% of the time. In only 15% of the cases did both sides obtain a better result at trial.
All is not good news for defendants, however. Although they seem to do better at predicting outcomes, the 24% of the time they are wrong ends up being much more costly to them. Defendants who fared worse at trial than the last demand, ended up with a verdict that was on average $1.1 Million more than the Plaintiff’s last demand. On the other hand, plaintiffs received on average $43,000 less than the last offer given before trial. Some studies suggest that 95% or more of lawsuits settle rather than go to trial. Assuming that is true, your case seems destined to settle; therefore, why not resolve it now rather than later? Doing so will save time, aggravation, stress, and money. That said, mediation will not be an easy process. At times, you may feel uncomfortable, pressured, and perhaps even emotional. If the process were easy, the parties wouldn’t need a mediator’s assistance to settle the matter.
There may come a time during mediation when you may feel like giving up and you might feel like settlement is impossible. It is likely that in order to settle, both parties will be urged to step beyond the original “bottom line” limit they determined for themselves before the process started, in order to make a deal. Once the parties have come this close to a settlement, the last thing they should do is to give up. The easy answer will be to walk out the door in frustration. But remember what awaits you if you choose to leave: more attorney fees, stress, frustration, and an uncertain result through litigation. If you are inclined to say, “I offered my last dollar and they rejected it,” I would also urge you to avoid drawing a line in the sand. Instead, explore if there is something of non-monetary value that you can give or get that might make the deal more palatable. If not, I would recommend that instead of walking out the door, you tell the mediator that you are ready to quit and allow the mediator a chance to give you a reason to stay. If you give the process a chance, you may walk away with a settlement you can live with, rather than an uncertain future where the decision will be made by someone else.
Who May Attend The Mediation?
All parties directly involved in the dispute should attend the mediation. You and your attorney, as well as the other party and their counsel need to appear. Anyone who would be responsible to pay or to approve the amount paid or received should be in attendance or, at a minimum, be available by telephone. If an insurance company will be paying for any settlement, a representative of that insurance company who has full settlement authority should be there in person. If a company is a party to the litigation, an individual with final settlement authority should be present. My preference is that parties not participate via telephone, as it is easier to be dispassionate and disassociated with the process. Anecdotal evidence suggests that having a party appear by telephone increases the chances that the mediation fails to end in a settlement, so I prefer to have all decision makers present for my mediations.
Is Mediation Confidential?
Yes, mediation proceedings are confidential. There are several aspects of mediation confidentiality that are explained in greater detail below, which you should understand: 1) confidential submissions to the mediator; 2) confidentiality of the settlement itself; 3) admissibility of the negotiations should the matter not settle; and 4) the obligation of the mediator keep confidential, the information shared with him or her by a party.
As I indicated above, counsel may submit truly confidential matters to me without sharing it with the other side. I will absolutely hold those in confidence unless you later authorize me to share that information with someone. The settlement reached at a mediation is not necessarily confidential unless the parties make confidentiality a term of the agreement. The parties will have to determine whether they should allow one or both parties to be able to speak openly about the fact that the case settled, or about the amount of the settlement.
Things that happen and information exchanged at mediation cannot be used against a party to that litigation or in other court proceedings so long as the information is not discoverable by other means. This point is so important that it is written into the law. First, an offer to compromise one’s position by way of negotiation “is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.” Nevada Revised Statutes 48.105. Federal Rule of Evidence, Rule 408 provides the same protection for matters in Federal Court. Second, a mediator in Nevada cannot be forced by any court to disclose any matter discussed during mediation proceedings. Nevada Revised Statutes 48.109(3). Finally, in order to encourage parties to be open, honest, and to achieve a mediated resolution, our legislature has declared that “no admission, representation or statement made during the [mediation] session, not otherwise discoverable or obtainable, is admissible as evidence or subject to discovery.” Nevada Revised Statute 48.109(2).
Mediators may not share confidential information you provide to him or her to your opponent. Some mediators will tell you they hold everything you tell them in confidence and only divulge what you specifically tell them is not confidential. Other mediators (me included) feel that sharing of information is so essential to the process that nothing is treated as confidential unless they are specifically instructed that the matter is confidential. I will assume you want me to be able to share information if and when I feel it may assist with settlement unless you tell me it is confidential. There is no right or wrong approach, but you should make sure you understand your mediator’s philosophy before you share sensitive information. Finally, communications between you and your counsel are attorney-client privileged communications protected by law.
What Will Happen At The Mediation?
First, I prefer to have a pre-mediation discussion by telephone with counsel a few days before we meet. I find that these conversations give me a flavor for the dispute that I cannot always get from the written briefs and help me to jumpstart the actual mediation by getting to know the attorneys and their issues better. Attorneys often choose to use this phone call as an opportunity to deliver an ”opening statement,” laying out their client’s case in a safe environment where they are not likely to enflame emotions as sometimes happens when opening statements are given with litigants present. I appreciated the candid exchange, as well as the advocacy in an environment that is not likely to set negotiations back because someone is offended.
Second, I like to start the day with a short joint session. In the joint session, all participants will be introduced and will sign a confidentiality agreement before proceeding. Next, I will take a moment to introduce myself and my background as a professional neutral, and outline the process of holding separate sessions. I will ask for a commitment to the process of the mediation. You should be prepared to commit to making a good faith effort to settle your differences at mediation.
What Is A Separate Session?
A separate session is sometimes referred to as a caucus or a private session. It is simply a private meeting between a mediator and one party (with that party’s counsel). I place the parties in separate rooms, and far enough apart that they won’t run into each other easily and uncomfortably in the hall and will not be able to hear one another’s separate session. I then meet separately with each party. These sessions can be as short as a few minutes and as long as necessary to make progress.
The time spent in separate sessions will certainly not be equal between the parties, but you should not read any significance into that fact. Understand that each person processes information, offers, and emotions differently, so a mediator may have to spend more time with one party than another. It does not mean that I am in the other room “drinking the kool-aid” being served by the other side. Rather, think of it as me taking the amount of time I believe is necessary to move that party closer to a resolution. During a separate session, a mediator may simply gather information before even asking either party to make any offer. Thereafter, a mediator may engage in shuttle diplomacy, moving from one room to another, delivering information, exploring options, and making offers and counteroffers.
Can You Speak With Your Attorney Privately Any Time You Want?
Yes! All you have to do, whether in a joint session or separate session, is tell me and I will make arrangements for privacy so that you can speak freely with your counsel.
How Long Will the Mediation Last?
No two mediations are alike, but you should be prepared for a long, sometimes tedious, tiresome, trying, and emotional process. The more complex the problem, the more likely that the mediation will take some time to come to a conclusion. I have spent as little as an hour and as long as 40 hours (over multiple days of course) mediating a single matter. Most business mediations take at least a half a day, but complex matters can go a full day or longer. Bring any item with you that you need to be comfortable. Some people bring a good book or a hobby to work on during down time when the mediator is in a separate session with the other party.
What Helps To Get The Case Settled?
Everything I have covered in this article is designed to assist you in trying to resolve your dispute. The more you prepare, the more likely you are to reach a settlement. Perhaps the most important factor in you being able to settle your case is having a realistic expectation regarding the value of your case and what is means to really compromise. If you think you could get $1,000,000 from a jury on your very best day, do not expect the other side to be willing to pay you that $1,000,000, as they will be looking at how little they could pay you if the jury believes them more than it believes you. If you are an injured party, you may likely feel that no amount of money can really make the past go away. Likewise, if you are defending that case, do not expect to walk away paying the amount you think you would at trial if you did everything right and the jury agreed with all of your analysis and presentation. The sweet spot for settlement is somewhere between those two extremes.
Ultimately, if your case is not settled at mediation, a judge or jury will decide the case value. Jurors are strangers to your case and may have differing beliefs and attitudes toward you. Jurors are often suspicious of people who bring lawsuits and of their attorneys. They also tend to wonder why they shouldn’t get the $1,000,000 that you are seeking and sometimes resent the person asking for money. This is especially true where there are minimal property damages and soft tissue injuries that cannot be verified objectively or where damages in a business matter are caused to a new business and are hard to quantify. On the other hand, juries tend to be unforgiving if they feel a plaintiff has been treated unfairly or if they feel the acts of the defendant are particularly harmful that they need to be punished. Further, some jurors have religious or moral objections to filing a lawsuit and therefore hold some bias. Some jurors, for reasons they may not even understand, will simply like one party more than the other party. You should come prepared to discuss a realist case value in light of all of these risks.
A Subpoena Seeking Documents from a Third Party That Could be Obtained from a Party is Unduly Burdensome
The discovery standards and case law applied when seeking documents or information from non-parties differ from those of a party to the litigation. The limits on discovery should be more narrowly construed when non-parties are the target of discovery. Dart Indus. Co., Inc. v. Westwood Chemical Co., 649 F.2d 46, 649 (9th Cir. 1980) (recognizing that although there is a strong policy in favor of liberal discovery, there is potential for abuse in applying that policy to nonparties); In re Subpoena to Apple, Inc., No. 5:14-cv-80139-LHK-PSG, 2014 WL 2798863, *2 (N.D. Cal., June 19, 2014) (“Discovery may be limited to ‘protect third parties from harassment, inconvenience, or disclosure of confidential documents.'” quoting Dart, supra); Edwards v. California Dairies, Inc., 2014 WL 2465934 at *2 (“While discovery should not be unnecessarily restricted, discovery is more limited to protect third parties from harassment, inconvenience, or disclosure of confidential documents.” citing Dart, supra). Pursuant to Rule 45(c)(2)(B), which allows the answering party to timely object to the Subpoena, once a party raises a timely objection to a Subpoena, it is not required to produce documents, or even search for them, until the subpoenaing party obtains an order compelling the same. Id. (citing Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, at 494 & n. 5 (9th Cir. 1983)); see also Forsythe v. Brown, 281 F.R.D. 577, 587 (D.Nev.2012) report and recommendation adopted, 3:10–CV–00716–RCJ, 2012 WL 1833393 (D. Nev. May 18, 2012). (more…)
Once you have exhausted the witness’ knowledge regarding their knowledge of the subject matter of the dispute, filled in the gaps, and created usable testimony by gaining recapitulation and are about to conclude the deposition, you want to do all that you can to make sure the witness cannot later change testimony without looking biased or lacking in veracity. Consider asking the following questions which will provide you with some good testimony in the event the witness attempts to materially change his or her testimony at the time of trial:
- Witness, do you agree that I have given you every opportunity to tell me what you want the court to know about the incident leading to this suit?
- Do you agree that you have given me truthful testimony today?
- Is there anything that you think is important about the incidents related to this lawsuit that I have not asked you about?
- If there is, please tell me about that now.
- So, you have told me everything that you believe is important about this lawsuit?
Gaining this testimony will not prevent the witness from changing testimony, but it will allow you to highlight the fact that the witness didn’t think the “new” testimony was important at the time of the deposition, and allow you to argue that the trier of fact should discount the testimony for that reason.
Can a Party to Litigation Object to a Subpoena Issued to a Non-Party Witness for Documents?
It happens often. A subpoena is issued to a third party who isn’t part of litigation because that party might have documents that are useful in a lawsuit. When responding to the subpoena, can a party to the litigation step in and object on behalf of the non-party witness? The law is clear that a party has standing to challenge a subpoena issued to a non-party only “when it alleges a personal right or privilege with respect to, or has possession of, the materials subpoenaed.” See Platinum Air Charters, LLC v. Aviation Ventures, Inc., No. 205CV-01451-RCJ-LRL, 2007 WL 121674, at *2 (D. Nev. Jan. 10, 2007) (citing Jez v. Dow Chemical Co., Inc., 402 F.Supp.2d 783, 784–85 (S.D.Tex.2005)); First Am. Title Ins. Co. v. Commerce Assocs., LLC, No. 2:15-CV-832-RFB-VCF, 2017 WL 53704, at *1 (D. Nev. Jan. 3, 2017). In other words, because the party is not the recipient of the subpoena, it has standing to challenge only where its challenge asserts that the information is privileged or protected to itself. See Diamond State Ins. Co. v. Rebel Oil Co., 157 F.R.D. 691, 695 (D. Nev. 1994) (Jerry T. O’Brien, Inc. v. Securities and Exchange Commission, 704 F.2d 1065, 1068 (9th Cir.1983), rev’d on other grounds, 467 U.S. 735, 104 S.Ct. 2720, 81 L.Ed.2d 615 (1984), citing Donaldson v. United States, 400 U.S. 517, 523, 91 S.Ct. 534, 538, 27 L.Ed.2d 580 (1971)). (more…)
Readiness Checklist for Mediation:
Eight Things You Should Discuss With Your Client Before Mediation
- 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?
Cases Interpreting NRS 38.241; Vacatur of Arbitration Award—A Digest
Mere error in the application of the law is not grounds to vacate an arbitration award. Bohlmann v. Byron John Printz and Ash, Inc., 96 P.3d 1155, 120 Nev. 543 (2004).
An arbitrator manifestly disregards the law, so as to require vacation of arbitration award, when he or she recognizes that the law absolutely requires a given result and nonetheless refuses to apply the law correctly. Bohlmann v. Byron John Printz and Ash, Inc., 96 P.3d 1155, 120 Nev. 543 (2004).
Arbitrator’s manifest disregard of the law, so as to require vacation of arbitration award, is something beyond and different from a misinterpretation or error in applying the law. Bohlmann v. Byron John Printz and Ash, Inc., 96 P.3d 1155, 120 Nev. 543 (2004). (more…)