Nevada Statutes of Limitation

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In a civil setting, a statute of limitation sets a time limit on when one must file a civil lawsuit or lose the opportunity to do so.  In other words, if the statute of limitations places a 2 year expiration on a personal injury claim, one must file the claim within two years of the injury or be subject to dismissal.  The concept dates back to Roman law and is designed to prevent fraudulent or stale claims from being brought after a reasonable period of time when evidence and memories disappear regarding the events surrounding the claim.  The amount of time differs depending on the nature of the claim and is set by our legislature.

The date the clock starts ticking on a claim is discussed below in excerpts from Nevada caselaw.  The following is a partial list of Nevada statutes of limitation.

The following excerpts from Nevada caselaw further define how the running of the statute of limitations is calculated:

A court can dismiss a complaint for failure to state a claim upon which relief can be granted if the action is barred by the statute of limitations. NRCP 12(b)(5); Shupe & Yost, Inc. v. Fallon Nat’l Bank, 109 Nev. 99, 100, 847 P.2d 720, 720 (1993). In reviewing a dismissal of a complaint, we must “determine whether or not the challenged pleading sets forth allegations sufficient to make out the **440 elements of a right to relief.” Edgar v. Wagner, 101 Nev. 226, 227, 699 P.2d 110, 111 (1985). In making this determination, this court must accept all the factual allegations in the complaint as true. Pemberton v. Farmers Ins. Exchange, 109 Nev. 789, 792, 858 P.2d 380, 381 (1993). “A claim should not be dismissed … unless it appears to a certainty that the plaintiff is not entitled to relief under any set of facts which could be proved in support of the claim.” Hale v. Burkhardt, 104 Nev. 632, 636, 764 P.2d 866, 868 (1988).

We have previously recognized a distinction between the “discovery rule” and the “general rule” of accrual of a cause of action for statute of limitations purposes:

The general rule concerning statutes of limitation is that a cause of action accrues when the wrong occurs and a party sustains injuries for which relief could be sought. An exception to the general rule has been recognized by this court and many others in the form of the so-called “discovery rule.” Under the discovery rule, the statutory period of limitations is tolled until the injured party discovers or reasonably should have discovered facts supporting a cause of action.

The rationale behind the discovery rule is that the policies served by statutes of limitation do not outweigh the equities reflected in the proposition that plaintiffs should not be foreclosed from judicial remedies before they know that they have been injured and can discover the cause of their injuries.

Petersen v. Bruen, 106 Nev. 271, 274, 792 P.2d 18, 20 (1990) (emphasis added) (citations omitted).

1 NRS 11.190(1)(b) provides a six year limitation period for contract actions, but is silent as to when such a cause of action accrues.1 HOWEVER, WE HAVE Previously applied the discovery rule to contract actions, holding that an action for breach of contract accrues as soon as the plaintiff knows or should know of facts constituting a breach. Soper v. Means, 111 Nev. 1290, 1294, 903 P.2d 222, 224 (1995). The three year limitations period provided in NRS 11.190(3)(c), which governs Kevin and Scott’s conversion claim, is also silent as to time of accrual. In Hartford Accident and Indemnity Co. v. Rogers, 96 Nev. 576, 613 P.2d 1025 (1980), we implied that a conversion cause of action accrues no later than the time at which the injured party becomes aware of the taking. Today, we conclude that the statute of limitations for conversion is discovery based.

2 In a discovery based cause of action, a plaintiff must use due diligence in determining the existence of a cause of action. Sierra Pacific Power Co. v. Nye, 80 Nev. 88, 389 P.2d 387 (1964). Whether plaintiffs exercised reasonable diligence in discovering their causes of action “is a question of fact to be determined by the jury or trial court after a full hearing.” Millspaugh v. Millspaugh, 96 Nev. 446, 448, 611 P.2d 201, 203 (1980). Dismissal on statute of limitations grounds is only appropriate “ ‘when uncontroverted evidence irrefutably demonstrates plaintiff discovered or should have discovered’ ” the facts giving rise to the cause of action. Nevada Power Co. v. Monsanto Co., 955 F.2d 1304, 1307 (9th Cir.1992) (quoting Mosesian v. Peat, Marwick, Mitchell & Co., 727 F.2d 873, 877 (9th Cir.1984)).

Bemis v. Estate of Bemis, 114 Nev. 1021, 1024-25, 967 P.2d 437, 439-40 (1998)

The district court dismissed appellant’s complaint on the ground that it was time-barred by NRS 11.190(4)(e), the applicable two-year statute of limitations. In so doing, the district court clarified that even if appellant were given the benefit of the “discovery rule,” appellant’s cause of action would have accrued no later than September 17, 2003—the date when appellant cross-examined a witness in a different case and the witness opined that appellant’s medical problems were caused by the shotgun pellets. See Bemis v. Estate of Bemis, 114 Nev. 1021, 1024, 967 P.2d 437, 440 (1998) ( “Under the discovery rule, the statutory period of limitations is tolled until the injured party discovers or reasonably should have discovered facts supporting a cause of action.” (quotation omitted)).

Holton v. State, 59619, 2013 WL 3314697 (Nev. Apr. 12, 2013)

“The general rule concerning statutes of limitation is that a cause of action accrues when the wrong occurs and a party sustains injuries for which relief could be sought.” Bemis v. Estate of Bemis, 114 Nev. 1021, 967 P.2d 437, 440 (Nev.1998). “An exception to the general rule [is the] ‘discovery rule.’ “ Id. “Under the discovery rule, the statutory period of limitations is tolled until the injured party discovers or reasonably should have discovered facts supporting a cause of action.” Id.

Avery v. Barsky, 3:12-CV-00652-MMD, 2013 WL 1663612 (D. Nev. Apr. 17, 2013) reconsideration denied, 3:12-CV-00652-MMD, 2014 WL 852493 (D. Nev. Mar. 4, 2014)

“[A] cause of action accrues when the wrong occurs and a party sustains injuries for which relief could be sought.” Petersen v. Bruen, 106 Nev. 271, 274, 792 P.2d 18, 20 (1990). However, the discovery rule tolls “the statutory period of limitations … until the injured party discovers or reasonably should have discovered facts supporting a cause of action.” Id. 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).

Inquiry notice occurs when a plaintiff “should have known of facts that ‘would lead an ordinarily prudent person to investigate the matter further.’ “ Winn v. Sunrise Hosp. & Med. Ctr., 128 Nev. ––––, ––––, 277 P.3d 458, 462 (2012) (quoting Black’s Law Dictionary 1165 (9th ed.2009)). Factual knowledge “need not pertain to precise legal theories the plaintiff may ultimately pursue, but merely to the plaintiff’s general belief that someone’s negligence may have caused his or her injury.” Id.

In Winn, a father obtained inquiry notice of a possible medical malpractice claim when he received medical records documenting potential negligence that occurred during a surgery and caused severe brain damage to his daughter. 128 Nev. at ––––, 277 P.3d at 463. We held that the reception of the medical records suggesting negligence, and not the injury itself, started the statute of limitations period because “it is unlikely that an ordinarily prudent person would begin investigating whether a cause of action might exist on the same day as being informed that his or her child’s surgery had gone drastically wrong.” Id.; see also Ridenour v. Boehringer Ingelheim Pharm., Inc., 679 F.3d 1062, 1066 (8th Cir.2012) (applying Nevada’s discovery rule to hold that inquiry notice occurred when a plaintiff saw a law firm advertisement suggesting a connection between a drug he took and symptoms he was suffering). Thus, the statute of limitations begins to run when a plaintiff discovers facts suggesting a potentially negligent cause of harm and not when the injury itself is discovered.

Crabb v. Harmon Enterprises, Inc., 60634, 2014 WL 549834 (Nev. Feb. 10, 2014)

The parties do not dispute that the law of Nevada applies to Ridenour’s claims, with the exception of his claim under the Maryland Consumer Protection Act. The Nevada Supreme Court has held that “[t]he general rule concerning statutes of limitation is that a cause of action accrues when the wrong occurs and a party sustains injuries for which relief could be sought.” Petersen v. Bruen, 106 Nev. 271, 792 P.2d 18, 20 (1990) (citing Nelson v. A.H. Robins Co., 515 F.Supp. 623, 625 (N.D.Cal.1981)); Bemis v. Estate of Bemis, 114 Nev. 1021, 967 P.2d 437, 440 (1998). An exception to this general proposition is the “discovery rule,” whereby the statutory period of limitations is tolled until the injured party discovers or reasonably should have discovered facts supporting a cause of action. Petersen, 792 P.2d at 20 (citing Sorenson v. Pavlikowski, 94 Nev. 440, 581 P.2d 851, 853–54 (1978)); Bemis, 967 P.2d at 440 (holding that there was no evidence to suggest appellants had any knowledge that would have put them on “inquiry notice” to investigate claims they may have had against their father prior to his death); Massey v. Litton, 99 Nev. 723, 669 P.2d 248, 251 (1983)(“This rule has been clarified to mean that the statute of limitations begins to run when the [plaintiff] has before him facts which would put a reasonable person on inquiry notice of his possible cause of action[.]”). “The focus is on the [plaintiff’s] knowledge of or access to facts rather than on her discovery *1066 of legal theories.” Massey, 669 P.2d at 252. “In a discovery based cause of action, a plaintiff must use due diligence in determining the existence of a cause of action.” Bemis, 967 P.2d at 440 (citing Sierra Pacific Power Co. v. Nye, 80 Nev. 88, 389 P.2d 387, 390 (1964)); Massey, 669 P.2d at 252 (a plaintiff “discovers his legal injury when he knows or, through the use of reasonable diligence, should have known of facts that would put a reasonable person on inquiry notice of his cause of action”).

Ridenour v. Boehringer Ingelheim Pharm., Inc., 679 F.3d 1062, 1065-66 (8th Cir. 2012)

In granting respondents’ summary judgment motions, the district court concluded as a matter of law that Winn discovered *463 Sedona’s injury on December 15, 2006, the day following her surgery, when respondents were unable to provide an explanation for the surgery’s catastrophic result. We believe this was improper, as “[t]he appropriate accrual date for the statute of limitations is a question of law only if the facts are uncontroverted.” Day v. Zubel, 112 Nev. 972, 977, 922 P.2d 536, 539 (1996); see also Bemis v. Estate of Bemis, 114 Nev. 1021, 1025, 967 P.2d 437, 440 (1998) ( “Dismissal on statute of limitations grounds is only appropriate ‘when uncontroverted evidence irrefutably demonstrates plaintiff discovered or should have discovered’ the facts giving rise to the cause of action.” (quoting Nevada Power Co. v. Monsanto Co., 955 F.2d 1304, 1307 (9th Cir.1992))).

Here, the record is unclear as to what respondents specifically conveyed to Winn in the wake of Sedona’s surgery, and respondents’ failure to provide Winn with an explanation is not, in and of itself, a tacit acknowledgment of negligence. Similarly, it is unlikely that an ordinarily prudent person would begin investigating whether a cause of action might exist on the same day as being informed that his or her child’s surgery had gone drastically wrong. Accordingly, the evidence does not “irrefutably demonstrate[ ]” that Winn discovered Sedona’s injury on December 15, 2006. Bemis, 114 Nev. at 1025, 967 P.2d at 440 (internal quotation marks omitted). The district court therefore erred in determining as a matter of law that subsection 2’s one-year discovery period accrued on December 15, 2006.

5 However, the evidence does irrefutably demonstrate that Winn discovered Sedona’s injury no later than February 14, 2007—the date when he received the initial 182 pages of medical records. At this point, Winn had not only hired an attorney to pursue a medical malpractice action, but he also had access to Dr. Ciccolo’s postoperative report that referenced air being present in Sedona’s heart at inappropriate times during the surgery. By this point at the latest, Winn and his attorney had access to facts that would have led an ordinarily prudent person to investigate further into whether Sedona’s injury may have been caused by someone’s negligence. Massey, 99 Nev. at 728, 669 P.2d at 252. Thus, as a matter of law, the evidence irrefutably demonstrates that Winn was put on inquiry notice of his potential cause of action no later than February 14, 2007. Bemis, 114 Nev. at 1025, 967 P.2d at 440.

Factual issues remain as to whether subsection 2’s one-year discovery period should have been tolled due to Sunrise’s alleged concealment of records

Winn argues alternatively that his February 3, 2009, lawsuit is timely as to all respondents because subsection 2’s one-year discovery period should have been tolled for concealment pursuant to subsection 3 until February 12, 2008. This is the date when Sunrise ultimately provided Winn with a complete set of records, which, according to Winn, was necessary to procure an expert affidavit.4

Winn v. Sunrise Hosp. & Med. Ctr., 128 Nev. Adv. Op. 23, 277 P.3d 458, 462-63 (2012)

“The general rule concerning statutes of limitation is that a cause of action accrues when the wrong occurs and a party sustains injuries for which relief could be sought.” Bemis v. Estate of Bemis, 114 Nev. 1021, 967 P.2d 437, 440 (Nev.1998). “An exception to the general rule [is the] ‘discovery rule.’ “ Id. “Under the discovery rule, the statutory period of limitations is tolled until the injured party discovers or reasonably should have discovered facts supporting a cause of action.” Id.

It is true that the “[i]ssuance of a patent and recordation in the patent Office constitute notice to the world of its existence.” General Bedding Corp. v. Echevarria, 947 F.2d 1395, 1397–98 (9th Cir.1991) (quoting Wine Ry. Appliance Co. v. Enterprise Ry. Equip. Co., 297 U.S. 387, 393, 56 S.Ct. 528, 80 L.Ed. 736 (1936)). However, “courts have reached different conclusions as to whether published patent applications confer constructive notice of their existence.” Onyx Pharmaceuticals, Inc. v. Bayer Corp., C 09–2145 MHP, 2011 WL 7905185, at *9 (N.D.Cal. May 10, 2011) (comparing OrbusNeich Med. Co., Ltd., BVI v. Boston Sci. Corp., 694 F.Supp.2d 106, 117 (D.Mass.2010) (“BSC alleges nothing which would suggest that Orbus had any reason to suspect a potential misappropriation of its confidential information, such that it was under a duty to investigate the contents of BSC’s published patent applications or annual report.”) and Synopsys, Inc. v. Magma Design Automation, Inc., No. C 04–3923, 2005 U.S. Dist. LEXIS 46595, at *18 (N.D.Cal. May 18, 2005) (Chesney, J.) (“Synopsys was not chargeable with notice of the publication of Magma’s PCT application unless and until Synopsys had reason to suspect that its confidential information had been misappropriated”) with WesternGeco v. Ion Geophysical Corp., No. 09–cv–1827, 2009 WL 3497123, at *5 (S.D.Tex. Oct.28, 2009) (“[Ion] has a strong interest in learning about international progress and developments in this area. Thus, it is not unreasonable to expect that Ion would examine the public records published under the PCT to determine what its colleagues around the world are inventing and accomplishing.”)).

The Court determines that it is not appropriate at the motion to dismiss stage to dismiss these claims on statute of limitation grounds. Plaintiffs allege that they discovered their exclusion as co-inventors on the registered patent in March 2011, shortly after Dr. Barsky obtained a patent on the invention Plaintiffs allegedly approached him about in August 2000. It is not clear from the Complaint that this allegation is unreasonable. Therefore, under the discovery rule, the statute of limitations may have tolled until March 2011. See Bemis, 967 P.2d at 440.

Avery v. Barsky, 3:12-CV-00652-MMD, 2013 WL 1663612 (D. Nev. Apr. 17, 2013) reconsideration denied, 3:12-CV-00652-MMD, 2014 WL 852493 (D. Nev. Mar. 4, 2014)

Plaintiff asserts the discovery rule tolls the limitations period. Nevada recognizes the discovery rule, which tolls the statutory limitations period until “ ‘the injured party discovers or reasonably should have discovered facts supporting a cause of action .’ “ Bemis v. Estate of Bemis, 967 P.2d 437, 440 (Nev.1998) (quoting Petersen v. Bruen, 792 P.2d 18, 20 (Nev.1990)). The discovery rule also applies to discovering the identity of the defendant. Siragusa v. Brown, 971 P.2d 801, 807 (Nev.1998). Under the discovery rule, the plaintiff must exercise reasonable diligence to discover the existence of a cause of action. Bemis, 967 P.2d at 440. Whether the plaintiff exercised reasonable diligence is a question of fact for the fact finder. Id. Consequently, “[d]ismissal on statute of limitations grounds is only appropriate when uncontroverted evidence irrefutably demonstrates plaintiff discovered or should have discovered the facts giving rise to the cause of action.” Id. (quotations omitted).

Weinstein v. Mortgage Capital Associates, Inc., 2:10-CV-01551-PMP, 2011 WL 90085 (D. Nev. Jan. 11, 2011)

Appellant argues on appeal that the statute of limitations was tolled until he discovered facts giving rise to the claims and that he did not discover such facts until 2005, when respondents allegedly ceased communicating with him. Nevada requires causes of action for breach of fiduciary duty, conversion, fraud, and negligent misrepresentation to be brought within three years, NRS 11 .190(3)(c)-(d); Nev. State Bank v. Jamison Family P’ship, 106 Nev. 792, 799–800, 801 P.2d 1377, 1382 (1990), and causes of action for negligence to be brought within two years. NRS 11.190(4)(e). The causes of action for breach of fiduciary duty, fraud, and negligent misrepresentation are deemed to begin to accrue on the discovery of the facts constituting the breach or fraud. NRS 11.190(3)(d).

Kancilia v. Claymore & Dirk Ltd. P’ship, 61116, 2014 WL 3731862 (Nev. July 24, 2014)

“[A] cause of action accrues when the wrong occurs and a party sustains injuries for which relief could be sought.” Petersen v. Bruen, 106 Nev. 271, 274, 792 P.2d 18, 20 (1990). However, the discovery rule tolls “the statutory period of limitations … until the injured party discovers or reasonably should have discovered facts supporting a cause of action.” Id. 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).

Inquiry notice occurs when a plaintiff “should have known of facts that ‘would lead an ordinarily prudent person to investigate the matter further.’ “ Winn v. Sunrise Hosp. & Med. Ctr., 128 Nev. ––––, ––––, 277 P.3d 458, 462 (2012) (quoting Black’s Law Dictionary 1165 (9th ed.2009)). Factual knowledge “need not pertain to precise legal theories the plaintiff may ultimately pursue, but merely to the plaintiff’s general belief that someone’s negligence may have caused his or her injury.” Id.

In Winn, a father obtained inquiry notice of a possible medical malpractice claim when he received medical records documenting potential negligence that occurred during a surgery and caused severe brain damage to his daughter. 128 Nev. at ––––, 277 P.3d at 463. We held that the reception of the medical records suggesting negligence, and not the injury itself, started the statute of limitations period because “it is unlikely that an ordinarily prudent person would begin investigating whether a cause of action might exist on the same day as being informed that his or her child’s surgery had gone drastically wrong.” Id.; see also Ridenour v. Boehringer Ingelheim Pharm., Inc., 679 F.3d 1062, 1066 (8th Cir.2012) (applying Nevada’s discovery rule to hold that inquiry notice occurred when a plaintiff saw a law firm advertisement suggesting a connection between a drug he took and symptoms he was suffering). Thus, the statute of limitations begins to run when a plaintiff discovers facts suggesting a potentially negligent cause of harm and not when the injury itself is discovered.

Crabb v. Harmon Enterprises, Inc., 60634, 2014 WL 549834 (Nev. Feb. 10, 2014)

In my view, the district court erred by dismissing appellant’s complaint at this stage of the litigation. Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 181 P.3d 670 (2008) (recognizing that in reviewing orders dismissing complaints under NRCP 12(b)(5), all factual allegations in the complaint are recognized as true and all reasonable inferences are drawn in the plaintiffs favor); Clark v. City of Braidwood, 318 F.3d 764, 767–68 (7th Cir.2003) (explaining that on a motion directed at the pleadings, the only question is “whether there is any set of facts that if proven would establish a defense to the statute of limitations,” and that, while a plaintiff can plead himself out of court if he alleges facts that affirmatively show that his suit is time-barred, he need not negate an affirmative defense, such as the statute of limitations, in his complaint) (citing Early v. Bankers Life and Cas. Co., 959 F.2d 75, 80 (7th Cir.1992)); Bethel v. Jendoco Const. Corp., 570 F.2d 1168, 1174 (3d Cir.1978) (“If the [statute of limitations] bar is not apparent on the face of the complaint, then it may not afford the basis for a dismissal of the complaint under Rule 12(b)(6).”).

Here, the district court found that appellant’s negligence claims were time-barred as a matter of law, since appellant did not file his complaint until 2009, approximately four years after any allegedly negligent acts on behalf of respondent ended in 2005. See NRS 11.190(4)(e) (providing that negligence actions must be filed within two years from the alleged tort). But appellant alleged that (1) an abusive and inappropriate relationship with a social worker formerly employed by respondent continued through 2009, until the social worker abruptly discontinued the relationship shortly before appellant filed his complaint, and that the cause of action did not accrue until he became aware of the alleged injury around that time; and (2) he was mentally ill when the cause of action accrued. See Siragusa v. Brown, 114 Nev. 1384, 1392–93, 1400–01, 971 P.2d 801, 806–07, 812 (1998) (recognizing that when a plaintiff does not discover his injury or cause of injury at the time when it occurred, the statute of limitations is tolled “ ‘until the injured party discovers or reasonably should have discovered facts supporting a cause of action,’ “ and whether a plaintiff has discovered or should have discovered the cause of his injury is ordinarily a question of fact for the jury) (quoting Petersen v. Bruen, 106 Nev. 271, 274, 792 P.2d 18, 20 (1990)); NRS 11.250 (providing that if a person is insane at the time when his cause of action accrued, “the time of such disability shall not be a part of the time limited for the commencement of the action”); Butler v. Bayer, 123 Nev. 450, 460 n. 23, 168 P.3d 1055, 1062–63 n. 23 (2007) (indicating, without actually defining the scope of “insanity,” that the statute of limitations is tolled under NRS 11 .250 when the plaintiff has a mental disability resulting in the inability to manage his affairs); see also Hsu v. Mt. Zion Hospital, 66 Cal.Rptr. 659, 664 (Ct.App.1968) (explaining that under a similar California Code statute of limitations exception, “ ‘insane’ has been defined as a condition of mental derangement which renders the sufferer incapable of … understanding the nature or effects of his acts”). Because factual issues concerning the accrual of appellant’s cause of action and when he discovered the facts supporting his action are in dispute, the district court erred by resolving this matter on an NRCP 12(b)(5) motion.3 I would therefore reverse the district court’s order and remand this matter for further district court proceedings to resolve the factual disputes.

McInerney v. Lakes Crossing Ctr., 55341, 2011 WL 1207743 (Nev. Mar. 30, 2011)

Whether a plaintiff has exercised reasonable care generally is a question of fact. Bemis v. Estate of Bemis, 114 Nev. 1021, 967 P.2d 437, 440–41 (1998). However, the issue may be decided as a matter of law if the “uncontroverted evidence irrefutably demonstrates plaintiff discovered or should have discovered the facts giving rise to the cause of action.” Id. at 440 (quotation omitted). The “focus is on the [plaintiff’s] knowledge of or access to facts rather than on her discovery of legal theories.” Massey v. Litton, 99 Nev. 723, 669 P.2d 248, 252 (1983).

Baroi v. Platinum Condo. Dev., LLC, 914 F. Supp. 2d 1179, 1199 (D. Nev. 2012) on reconsideration in part, 2:09-CV-00671-PMP, 2012 WL 4606720 (D. Nev. Oct. 1, 2012)

Plaintiffs therefore had all facts necessary to bring their registration claims at the time they signed their purchase agreements, even if they did not understand the legal significance of those facts until later. See, e.g., Perry H. Bacon Trust v. Transition Partners, Ltd., 298 F.Supp.2d 1182, 1192 (D.Kan.2004) (“Here, it is evident that if plaintiffs had exercised reasonable diligence, they could have learned that the securities were not registered by checking the Kansas Securities Commissioner’s office.”); Blatt v. Merrill Lynch, Pierce, Fenner & Smith Inc., 916 F.Supp. 1343, 1353 (D.N.J.1996) (stating “the seller of securities cannot conceal the fact that the securities he sells are not registered”).

Baroi v. Platinum Condo. Dev., LLC, 914 F. Supp. 2d 1179, 1199 (D. Nev. 2012) on reconsideration in part, 2:09-CV-00671-PMP, 2012 WL 4606720 (D. Nev. Oct. 1, 2012)

We note that under Nevada law, the question of whether Plaintiffs exercised reasonable diligence in discovering their causes of action “is a question of fact to be determined by the jury or trial court after a full hearing.” See Bemis v. Estate of Bemis, 114 Nev. 1021, 967 P.2d 437, 440 (Nev.1998); see also Millspaugh v. Millspaugh, 96 Nev. 446, 611 P.2d 201, 203 (Nev.1980). Dismissal on statute of limitations grounds is only appropriate “when uncontroverted evidence irrefutably demonstrates plaintiff discovered or should have discovered” the facts giving rise to the cause of action. Nevada Power Co. v. Monsanto Co., 955 F.2d 1304, 1307 (9th Cir.1992) (quoting Mosesian v. Peat, Marwick, Mitchell & Co., 727 F.2d 873, 877 (9th Cir.1984)).

Sherfey v. Johnson & Johnson, CIV.A. 12-4162, 2014 WL 2616806 (E.D. Pa. June 12, 2014)

While Nevada law has recognized the tort of corporate negligence in a hospital setting, no authority has specifically recognized a cause of action for negligent credentialing. However, Plaintiff brings a claim for negligence arising under an alleged general duty “to investigate and monitor the medical practices at the clinic” and arising under statutory duties which “Plaintiff is within the class of persons intended to be protected by[.]” The Court need not speculate as to whether Nevada would recognize a tort of negligent credentialing or whether there is an implied right to bring a private action based on the Nevada statute, or even whether Beech Street is an entity covered by the Nevada statute, because even if Plaintiff has adequately stated a cause of action under Nevada law, it is barred by the statute of limitations.

Nevada Revised Statute 11.190 states: “actions … may only be commenced as follows:

… 4. Within 2 years:

… (e) Except as otherwise provided in NRS 11.215, an action to recover damages for injuries to a person … caused by the wrongful act or neglect of another.

Nev.Rev.Stat. § 11.190(4)(e). The Nevada Supreme Court recognizes “that a cause of action does not accrue, and the statute does not begin to run until a litigant discovers, or reasonably should have discovered facts giving rise to an action.” Beazer Homes Nevada, Inc. v. The Eighth Judicial Dist. Ct., 120 Nev. 575, 97 P.3d 1132, 1138 (Nev.2004); see also Bemis v. Estate of Bemis, 114 Nev. 1021, 967 P.2d 437, 440 (Nev.1998). Plaintiff correctly asserts that under the “discovery rule” the statute of limitations should not commence to run “until the plaintiff with due diligence knows … the identity of the allegedly responsible defendant.” Siragusa v. Brown, 114 Nev. 1384, 971 P.2d 801, 807 (Nev.1998)(quoting Spitler v. Dean, 148 Wis.2d 630, 436 N.W.2d 308, 310 (Wis.1989)(emphasis removed). The Siragusa court quoted further from Spitler: “However … the expansion of the discovery rule carries with it the requirement that the plaintiff exercise reasonable diligence … Plaintiffs may not close their eyes to means of information reasonably accessible to them and must in good faith apply their attention to those particulars within their reach.” See id. (quoting Spitler, 436 N.W.2d at 310–11).

Nogle v. Beech St. Corp., 2:10-CV-01092-KJD, 2013 WL 1182680 (D. Nev. Mar. 20, 2013)

About the Author

Jay Young is a Las Vegas, Nevada attorney. His practice focuses on business law, business litigation, and acting as an Arbitrator and Mediator. Peers have named him an AV-Rated Lawyer, Best Lawyers, a Top 100 Super Lawyers in the Mountain States multiple years, and to the Legal Elite and Top Lawyers lists for many years. Mr. Young has been appointed a part time Judge, a Special Master to the Clark County, Nevada Business Court, as an arbitrator by the Nevada Supreme Court. He has been appointed as an arbitrator or mediator of well over 250 legal disputes from business disputes to personal injury matters. He has been named Best Lawyers for Arbitration. Mr. Young is a respected author of ten books, including A Litigator’s Guide to Federal Evidentiary Objections, A Litigator’s Guide to the Federal Rules of Evidence, and the Federal Court Civil Litigation Checklist.
Mr. Young can be reached at 702.667.4868 or at jay@h2law.com.