Model Nevada Affirmative Defenses

Sample Nevada Affirmative Defenses*

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

RULE 8 DELINEATED AFFIRMATIVE DEFENSES

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

Accord and Satisfaction

Plaintiff’s claims, and each of them, are barred as a result of an accord and satisfaction.

Arbitration and Award

By contract, Plaintiff’s claims are subject to arbitration, and may not be resolved in a court of law.

Assumption of Risk

Plaintiff had knowledge of and assumed the risk. The injuries alleged by Plaintiff were caused by and arose out of the risk which Plaintiff had knowledge of and assumed.

At the time and place under the circumstances alleged by the Plaintiff, Plaintiff had full and complete knowledge and information in regard to the conditions and circumstances then and there existing, and through Plaintiffs own knowledge, conduct, acts and omissions, assume the risk attendant to any condition there or then present.

Contributory Negligence

The injuries sustained by Plaintiff were proximately caused by [ITS/HIS/HER] own negligence.  Alternatively, if the negligence of Plaintiff was not the sole proximate cause of [ITS/HIS/HER] injuries, then [ITS/HIS/HER] negligence was a proximate contributory cause of the injuries.

Discharge in Bankruptcy

The complaint is based upon a debt which was discharged by the United States Bankruptcy Court or which is subject to the Automatic Stay.  11 U.S.C. § 362.

Duress

Plaintiff’s claims, and each of them, are barred due to duress.

Estoppel

Each and every one of Plaintiff’s alleged rights, claims, and obligations which it seeks to enforce against Defendant is, by Plaintiff’s conduct, agreement, or otherwise, barred by the doctrine of estoppel.

Failure of Consideration

Plaintiff’s claim is barred for failure of consideration.

Fraud

Plaintiff’s claims, and each of them, are barred due to fraud.

Illegality

The contract at issue is void, as it is an agreement to commit an illegal act.

Injury by Fellow Servant

Defendant is not responsible for injury to plaintiff, as the plaintiff was injured due to another employee’s actions.

Laches

The claims, and each of them, are barred as a result of Plaintiff’s failure to timely make those claims as against this answering Defendant and allow this answering Defendant to collect evidence sufficient to prove [ITS/HIS/HER] case.  This answering Defendant relied upon Plaintiff’s failure to allege the claims; the claims are barred by the doctrine of laches.

License

Defendant has legal license and right to use the good or property over which Plaintiff bases [ITS/HIS/HER] claim.

Payment

Plaintiff is not owed any money, as Defendant has made full payment to the actual creditor or assignee for the debt at issue, which payment was accepted.

Release

By virtue of Plaintiff’s actions, conduct, and omissions, this answering Defendant has been released.

Res Judicata

The claims, and each of them, are barred by res judicata.

Statute of Frauds

Any contract between Plaintiff and this answering Defendant is barred by the statute of frauds.

Statute of Limitations

The claims for reimbursement of or contribution for settlements made by others are barred as against this answering Defendant because the settling parties did not discharge any portion of a common liability within the applicable statutes of limitations.

The claims, and each of them, are barred by NRS 11.190.

Waiver

The claims of Plaintiff have been waived as a result of the acts and the conduct of the Plaintiff.

Each and all of Plaintiff’s rights, claims, and obligations as set forth in the Plaintiff’s Complaint, has, or have, by conduct, agreement or otherwise been waived.

Catch-all

The facts not having been fully developed, Defendant further affirmatively pleads the following affirmative defenses as may be applicable in this action: accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; discharge in bankruptcy; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; waiver; and any other matter constituting an avoidance or affirmative defense.

RULE 9 DEFENSE

The claims, and each of them, are barred by the failure of the Plaintiff to plead those claims with particularity.

RULE 12 DEFENSES

NRCP 12  (b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) insufficiency of process, (4) insufficiency of service of process, (5) failure to state a claim upon which relief can be granted, (6) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (5) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

The Court lacks subject matter jurisdiction over this matter.

The Court lacks in personam jurisdiction over this answering Defendant.

Service of process was insufficient.

Plaintiff failed to join necessary and indispensable parties in whose absence complete relief cannot be afforded.

Plaintiff has failed to state a claim against this answering Defendant upon which relief can be granted.

Plaintiff must choose between alternative remedies.

JURISDICTIONAL DEFENSES

The Court lacks subject matter jurisdiction over this matter.

The Court lacks in personam jurisdiction over this answering Defendant.

Service of process was insufficient.

The claims, and each of them, are barred by the applicable statute of limitation.

Insufficient notice was given to answering Defendant of this cause of action.

Venue is improper.

Plaintiff failed to join necessary and indispensable parties in whose absence complete relief cannot be afforded.

The claims, and each of them, are barred by the failure of the Plaintiff to plead those claims with particularity. This answering Defendant is not the real party in interest.

This answering Defendant has no personal liability herein and therefore is an improper party to this action.

Plaintiff’s claims are barred by the Governmental Immunity Statutes of NRS Chapter 41.

NRS Chapter 41 limits the damages that may be collectible against a political subdivision of the State of Nevada to Fifty Thousand Dollars ($50,000).  The claims, and each of them, are barred by NRS 11.205.

NON-DELINEATED DEFENSES

General and Equitable Defenses Applicable to All Claims

Plaintiff has suffered no damages and, therefore, is not entitled to relief.

Plaintiff has suffered no harm as a result of Defendant’s conduct.

Any damages suffered by Plaintiff were not the direct or proximate result of Defendant’s actions.

Plaintiff’s alleged damages, if any, were caused in whole or in part by the acts and omissions of third parties over whom Defendant has no control.

Plaintiff suffered no damage and therefore is not entitled to any relief.

If Plaintiff sustained any injuries, economic or otherwise, [ITS/HIS/HER] injuries were proximately caused by Plaintiff’s failure to mitigate damages and/or to take corrective action.  Accordingly, any and all recovery is barred or should be limited to the extent or degree of Plaintiff’s failure to mitigate damages.

Plaintiff’s claims are barred by the doctrine of unclean hands and Plaintiff’s failure to do equity.

Plaintiff’s claims, if valid, are offset by the claims which Defendant has against Plaintiff.

Defendant is not jointly or severally liable for any of the damages alleged in the claims.

Plaintiff has not paid more than [ITS/HIS/HER] equitable share of the common liability.

Plaintiff lacks standing to bring the claims made in the Complaint.

The claims, and each of them, are barred as a result of Plaintiff’s failure to timely make those claims as against this answering Defendant and allow this answering Defendant to collect evidence sufficient to prove [ITS/HIS/HER] case.  This answering Defendant relied upon Plaintiff’s failure to allege the claims; the claims are barred by the doctrine of laches.

The Complaint is barred because Plaintiff lacks capacity to sue.

Plaintiff’s claim is barred as a result of [ITS/HIS/HER] prior wrongful conduct.

At all times, Defendant acted in a legally permissible way.

Pursuant to NRCP 11, all possible affirmative defenses may not have been alleged herein, insofar as sufficient facts were not available after reasonable inquiry upon filing of this Answer, therefore, Defendant reserves the right to amend [ITS/HIS/HER] Answer to add affirmative defenses should the necessity arise.

Abuse of Process

Defendant did not have an ulterior purpose for filing the claim.

Plaintiff did not commit a willful act in the use of the process not proper in the regular conduct of the proceeding.

Plaintiff did not misuse regularly issued process.

Defendant did not commit a willful act in [ITS/HIS/HER] use of the legal process that was not proper in the regular conduct of the proceedings of the Lawsuit.

Accounting

Plaintiff is not entitled to an accounting of answering Defendant.

Defendant has no duty to account.

Defendant alleges that there has been a stated account.

Alter Ego

The entity is not directed and controlled by Defendant.

The entity was not undercapitalized.

There has been no commingling of funds.

There was no comingling of funds, undercapitalization, unauthorized diversion of funds, treatment of corporate assets as Defendant’s own, or failure to observe corporate formalities by entity.

Justice does not require the corporate fiction to be disregarded.

There is not such unity of interest and ownership between the entity and Defendant such that one is inseparable from the other.

Attorney Fees

The amount of time Plaintiff’s attorney billed was not reasonable.

The fees were not properly documented.

Plaintiff’s counsel has not acted in good faith.

Plaintiff’s counsel has intentionally violated court guidelines in seeking payment of fees and expenses.

Plaintiff has rejected reasonable settlement offers and is barred from recovering attorney fees and must pay answering Defendant’s attorney fees.

It has been necessary for answering Defendant to retain the services of an attorney to defend this action and he is entitled to reasonable sums as and for attorney fees.

Attorney fees are only recoverable through contract or by statute and are not recoverable damages in a lawsuit.  Plaintiff’s attorney fees are not recoverable.

Bond

The aggregate liability of surety for all claims on the bond, including any claims for costs, fees and expenses, including any claims for attorney’s fees, is limited to the penal sum of the bond.

The Surety reserves all its rights, remedies, and defenses in this matter and by its answer hereto does not waive any of its claims or defenses nor does it waive the claims or defenses of its principal which it hereby asserts in its own right.

Pursuant to NRS 624.273 and the bond, the surety is only liable for the unlawful acts, omissions, and defaults of its principal occurring after the issuance of the bond, within the bond period, and upon an adjudication of the principal’s liability falling within the terms of the bond and NRS 624.273.

Any other claim pending or filed against the bond will reduce the bond amount and/or require pro-rata distribution of the bond proceeds.

The claims do not arise from a construction contract and/or are otherwise improper pursuant to NRS Chapter 624 and the bond, and therefore said claims are not properly asserted against the bond.

Breach of Contract

Plaintiff failed to give Defendant timely notice of any alleged breach.

The contract at issue is not enforceable, due to:

The contract lacks a valid offer and acceptance;

The contract lacks consideration;

There was no meeting of the minds;

The contract was validly rescinded;

The contract is illusory and/or lacks mutuality; or

The contract is void for vagueness.

Defendant has not breached any contract.

Defendant is not a party to the contract and, accordingly, is not in breach of contract.

Defendant has substantially performed the contract.

Defendant was justified in its failure to perform, if any.

Plaintiff’s claims, and each of them, are barred due to fraud.

Plaintiff’s claims, and each of them, are barred as a result of unconscionability.

Plaintiff’s claims are barred as a result of an invalid modification.

Plaintiff’s claims are barred, in whole or in part, by the doctrines of mistake, excuse and/or nonperformance.

The claim for breach of contract is barred by the failure to satisfy conditions precedent.

Plaintiff’s claim for breach of contract is barred by the failure to satisfy conditions subsequent.

Plaintiff has failed to mitigate [ITS/HIS/HER] damages.

Defendant validly delegated [ITS/HIS/HER] duties to Plaintiff.

Defendant acted reasonably and in good faith in discharging [ITS/HIS/HER] obligations and duties, if any.

Defendant acted in conformity with the law and with reasonableness in discharging [ITS/HIS/HER] duties.

Plaintiff has received everything [IT/HE/SHE] was entitled to receive under [ITS/HIS/HER] agreement with Defendant.

Defendant has properly and legally fulfilled [ITS/HIS/HER] duties and obligations, if any, to the Plaintiff.

Plaintiff failed to complete the work [IT/HE/SHE] agreed to perform.

Plaintiff’s claims are barred by Plaintiff’s own anticipatory breach of [ITS/HIS/HER] contractual duties to Defendant, which breach relieved Defendant of any and all contractual obligations or promises to Plaintiff.

Plaintiff approved or ratified all Defendant’s acts.

There is no privity of contract between the parties.

The contract lacks mutuality of obligation.

The contract at issue does not have a severability clause.

Plaintiff’s claim is barred by an accord and satisfaction.

Plaintiff’s claim is barred by the failure of Plaintiff to furnish consideration to support the contract.

Plaintiff’s claim is barred by the doctrine of mistake.

Plaintiff’s claims are barred by the doctrines of release and payment.

Plaintiff’s claims are barred by the doctrine of in pari delicto.

All or part of Plaintiff’s claims are barred by the applicable statute of limitations.

Plaintiff’s claims are barred by Plaintiff’s ratification and confirmation of the alleged actions.

Plaintiff’s claims are barred in whole or in part by the statute of frauds.

Plaintiff materially breached the terms and conditions of the agreement, thereby excusing Defendant’s further performance.

Defendant performed each and every obligation owed to Plaintiff.

Defendant remains willing to perform the terms and conditions of the agreement; however, Plaintiff refuses and continues to refuse to allow Defendant to perform.

Defendant did not sign the contract at issue in [ITS/HIS/HER] individual capacity.

Defendant is not a signatory to the contract at issue.

Defendant did not manifest a present intent not to perform any duty [IT/HE/SHE] owed Plaintiff.

Defendant did not make a clear, positive, and unequivocal repudiation of the contract at issue.

Breach of Fiduciary Duty

Plaintiff breached [ITS/HIS/HER] fiduciary duties to Defendant.

Plaintiff forfeited any entitlements because of [ITS/HIS/HER] own breach of fiduciary duties.

Plaintiff’s conduct was not conducted in the best interest of the corporation.

Plaintiff’s conduct was conducted for [ITS/HIS/HER] own personal motivation.

Plaintiff violated [ITS/HIS/HER] duty of loyalty to Defendant.

Defendant is not an officer, director, or agent of Plaintiff.

There is no special relationship between Plaintiff and Defendant.

Breach of Implied Covenant of Good Faith and Fair Dealing (Contract)

Defendant fulfilled [ITS/HIS/HER] duty to deal with Plaintiff in good faith.

Plaintiff’s claim for breach of the covenant of good faith and fair dealing is barred because Plaintiff breached [ITS/HIS/HER] reciprocal covenant of good faith and fair dealing.

Defendant performed faithfully to the purposes of the Agreement at issue.

Breach of Implied Covenant of Good Faith and Fair Dealing (Tort)

Defendant has no duty towards Plaintiff.

Defendant has acted in good faith.

Plaintiff’s claim for breach of the covenant of good faith and fair dealing is barred because Plaintiff breached [ITS/HIS/HER] reciprocal covenant of good faith and fair dealing.

No special or fiduciary relationship exists between Plaintiff and Defendant.

Defendant performed faithfully to the purposes of the Agreement at issue.

Breach of Warranty

At all times herein, the product or products supplied or installed by Defendant were fit and proper for the use for which they were designed and intended.

There was a misuse of the product by some person or persons not employed or controlled by Defendant; the misuse proximately caused the events and occurrences described in the Complaint and is a bar to any recovery by the Plaintiff.

The claim for breach of warranty are barred by the doctrine of privity.

Plaintiff or some third person misused the product or products; the misuse is an absolute bar to any recovery.

The claim for breach of warranty are barred by the failure to satisfy conditions subsequent.

Any and all alleged events, happenings, injuries and damages, if any, were caused or contributed to by the products having been used in a non-intended or abnormal manner, and not as a result of any defects in or failure of said products or any of their component parts.

Any warranty, express or implied, was disclaimed, excluded and limited, explicitly and conspicuously both orally and in writing, in words that plainly conveyed the meaning to Plaintiff that a disclaimer and limitation of such warranty also excluded and modified in the course of dealing and usage of the trade, all of which precludes Plaintiff from reliance upon a recovery from this warranty.

Claim and Delivery

Defendant’s possession, if any, is not wrongful.

Plaintiff has no title to or right to possession of the Property.

Conspiracy

Defendants could not, as a matter, of law conspire with each other.

Defendant did not enter into a relationship with the purpose to harm Plaintiff.

Defendant did not intend to accomplish an unlawful objective for the purpose of harming Plaintiff.

Defendant did not intend to harm Plaintiff.

Defendant did not commit an unlawful act.

Construction Defect

Plaintiff had knowledge of and prepared, or had prepared, the design and specifications and approved, or had approved, all work performed and materials supplied by Defendant.

Plaintiff failed and refused to provide Defendant a reasonable opportunity to inspect and repair any claimed defects.

Plaintiff’s alleged injuries and damages were caused by and resulted from the change, modification, alteration, reconstruction, misuse of, damage to, addition to or removal of said work and materials subsequent to the original construction and/or supplying of material by Defendant.

The product or products Defendant supplied or installed were fit and proper for the use for which they were designed and intended.

Some person or persons not employed or controlled by Defendant misused the product; the misuse proximately caused the events and occurrences described in the Complaint and is a bar to any recovery by the Plaintiff.

The products or materials manufactured, designed or supplied by Defendant were manufactured, designed, and supplied in strict accordance with specifications supplied by others to Defendant.

If there were any defects in said products or materials, such were caused by deficiencies in the specifications supplied to Defendant which were neither known to Defendant nor discoverable by it in the exercise of ordinary care.

The defect was not present at the time said products or materials left the custody, control, and possession of Defendant, but arose subsequent thereto and was caused by or due to the misuse, modification, alteration, repackaging, storage, lack of repair, or inadequate maintenance of said products or materials by one other than Defendant.

No demand was made upon Defendant to repair any alleged defect.

No demand for contribution was made upon Defendant for contribution for any alleged defect.

Defendant was never given the opportunity to repair any alleged defect.

The notice of claimed defects does not satisfy the requirements of NRS 40.600 et. seq.

The alleged liability of Defendant does not arise out of a constructional defect.

Constructive Trust

Defendant has a right to exclusive ownership of the Property.

Defendant has a right to the equity from the Property.

Plaintiff’s ownership rights, if any, were unbeknownst to Defendant.

Defendant’s retention of title and possession of the Property is not wrongful.

No failure of justice resulted from Defendant’s acts.

Contribution

The right of contribution is codified at NRS 17.285.  The claim for contribution as pled does not satisfy the plain and unambiguous requirements of NRS 17.285.

Plaintiff is not a joint tortfeasor with Defendant with respect to the claims asserted in the pleadings on file in this case.

Defendant is not alleged to be liable in tort; accordingly, there is no right of contribution.

Conversion

Defendant has committed no acts of dominion over Plaintiff’s property/chattels.

Defendant’s acts of dominion, if any, were not wrongful.

Defendant did not seriously interfere with Plaintiff’s property rights.

Defendant is the owner of the property in question.

Defendant did not intend to possess Plaintiff’s property.

Covenant Not to Compete

The restrictive covenant does not survive the termination of the contract.

Plaintiff cannot terminate the contract and enforce the covenant.

The restrictive covenant is in restraint of trade and may not be enforced in accordance with its terms

The restrictive covenant is not reasonable.

The restrictive covenant is a greater restraint than is reasonably necessary to protect the business and good will of Plaintiff.

The restrictive covenant imposes undue hardship upon Defendant.

The time for the restrictive covenant is longer than is reasonably necessary to protect the business and goodwill of Plaintiff.

The territory included in the restrictive covenant is greater than is reasonably necessary to protect the business and goodwill of Plaintiff.

The restrictive covenant at issue, if enforced, will result in Defendant’s loss of [HIS/HER] employment; thus, the covenant is subject to strict scrutiny by the Court.

Declaratory Relief

Plaintiff should not be granted [ITS/HIS/HER] declaration.

Plaintiff has no interest in this action that is adverse from Defendant.

No genuine judicial controversy exists as to relevant rights and obligations of the parties.

Defamation

Defendant enjoys an absolute privilege.

Defendant made no statements about Plaintiff.

Defendant’s statements, if any, were opinion.

Plaintiff consented to Defendant’s statements, if any.

Defendant’s statements, if any, were true.

Defendant’s statements, if any, were made by way of fair comment.

Plaintiff’s claims are barred as a result of the “single instance” rule.

Defendant’s statements, if any, were innocently construed.

Defendant’s statements, if any, were made in jest.

Fraud

Defendant did not make a false statement.

Defendant did not knowingly make a false statement.

Defendant did not make a statement without sufficient basis or information.

Defendant did not intend to induce Plaintiff’s reliance upon a false statement.

Defendant did not intend to induce Plaintiff’s reliance upon a statement made without basis or information.

Plaintiff was not damaged by relying upon a false statement.

Plaintiff was not damaged by relying upon a statement made without sufficient basis or information.

Defendant made no false representations of material fact which [HE/SHE] knew to be false.

Defendant did not intend to defraud Plaintiff.

Defendant did not intend for Plaintiff to rely on misrepresentations.

Plaintiff did not detrimentally rely on misrepresentations.

Defendant’s conduct was not oppressive, fraudulent, nor committed with malice.

Defendant’s acts were not misleading in any material way.

Plaintiff has not been injured as a result of any deceptive act of Defendant.

Plaintiff’s claim is barred by [ITS/HIS/HER] own fraud.

Plaintiff did not justifiably nor reasonably rely on any alleged representation of Defendant.

Plaintiff failed to plead the alleged fraud with the requisite particularity.

Any punitive or exemplary damages are limited, in whole or in part, by, inter alia, Nevada Revised Statute 42.005.

Defendant did not in the course of Defendant’s business, profession or employment, or in any other action in which Defendant has a pecuniary interest, supply false information to Plaintiff for the guidance of their business transactions.

Fraudulent Conveyance/Fraudulent Transfer

Defendant received fair consideration for the transfers at issue.

The transfers at issue were not made to insiders of Defendant.

The transfers at issue were made in good faith.

The transfers at issue were for a valid and enforceable pre-existing debt.

Plaintiff was not a creditor at the time of the transfers at issue.

The transfers at issue were made in the ordinary course of Defendant’s business.

The transfers at issue were made in payment of debt incurred by the Defendant in the ordinary course of business.

The transfers at issue were made according to ordinary business terms.

The challenged transaction involved neither a transfer nor an obligation.

The transfer at issue did not go to an insider.

Defendant is permitted to prefer one creditor to another.

Defendant received reasonably equivalent value in exchange for the property that was transferred.

When Defendant made the transfer at issue, it did not intend to hinder or delay or defraud other creditors.

Defendant was a subsequent transferee or obligee who received the asset or obligation in good faith and for value.

Defendant was not aware that Defendant was insolvent, if it was, when it received the transfer at issue.

Defendant was not made insolvent, if it ever was, by making the transfers at issue.

Defendant was not insolvent, if it ever was, at the time of the transfers at issue.

Defendant did not intend to hinder, delay, or defraud Plaintiff.

Defendant was not insolvent at the time of making the transfer.

Defendant did not become insolvent as a result of the transfer.

The result of the transaction at issue did not leave Defendant with an unreasonably small amount of capital.

The transfer at issue did not make the Defendant unable to pay [ITS/HIS/HER] debts as they came due.

Indemnity/Contribution

Plaintiff’s claim for indemnity for or contribution to the payment of any settlement by settling parties is barred by the failure to provide Defendant with timely notice of the terms of, and an opportunity to object to, the settlement.

Plaintiff’s claim for indemnity for or contribution to the settlement proceeds paid by the settling parties is barred as a result of lack of good faith of the settlement.

Any and all damages were wholly or partly caused by the acts, facts, events, circumstances and/or conduct of other parties.

The acts at issue by Plaintiff in the underlying claims consist of intentional torts, thus Plaintiff is not entitled to indemnification or contribution.

Injunctive Relief

Plaintiff will not be irreparably harmed without an injunction.

Irreparable harm will come to Defendant if enjoined.

Plaintiff is not entitled to an injunction, either for a limited period or perpetually.

Plaintiff cannot show a likelihood of success on the merits.

Plaintiff cannot show a reasonable probability Defendant’s conduct, if allowed to continue, will cause Plaintiff irreparable harm.

The public interest in having qualified title officers and the hardships placed on Defendant outweigh Plaintiff’s reasons, if any, for an injunction.

There is no clear basis for the issuance of an injunction in this matter.

Plaintiff has an adequate remedy at law.

Intentional Interference with a Contract/Prospective/Economic Advantage

Defendant committed no intentional acts intended or designed to disrupt contractual relationships of Plaintiff.

Plaintiff has no contract with a third party.

Plaintiff suffered no actual disruption of a contract or relationship.

There is no prospective contractual relationship between Plaintiff and third parties.

Defendant had no knowledge of any prospective relationships between Plaintiff and third parties.

Defendant did not intend to harm Plaintiff if any relationship was prevented between Plaintiff and the third party.

Defendant was not aware of a contractual relationship between Plaintiff and a third party.

Defendant did not intend to harm Plaintiff by preventing any relationship.

Defendant was privileged to conduct the acts at issue.

Defendant was justified to conduct the acts at issue.

Liquidated Damages

The liquidated damages claimed are not a good faith estimate of the actual damages suffered by Plaintiff.

The liquidated damages claimed by Plaintiff are not a measure of compensation for the alleged breach of contract, rather they are a penalty.

The liquidated damages are disproportionate to the actual damages, if any, suffered by Plaintiff.

The liquidated damages clause acts as an inappropriate penalty.

Mechanics’ Lien Foreclosure

A notice of lien was not served as required by Chapter 108 of the Nevada Revised Statutes.

Plaintiff did not supply labor, materials, or equipment toward the improvement of the Property.

No notice to the owner of materials, supply or work performed as required by NRS 108.2394 was served.

Plaintiff’s lien is fraudulent and has not been filed or served in accordance to Nevada law; the lien is therefore unenforceable.

Plaintiff’s lien was not made with reasonable cause.

Negligence

Plaintiff’s own negligence or fault was active and primary; Defendant’s negligence or fault, if any, was secondary and passive.

Plaintiff had knowledge of and assumed the risk of [HIS/HER] alleged injuries.

Plaintiff failed to exercise ordinary care, caution or prudence for [ITS/HIS/HER] own safety, thereby negligently and proximately causing or contributing to [ITS/HIS/HER] own damages.

Defendant acted with due care and diligence; Defendant breached no duty to the Plaintiff.

Plaintiff had full and complete knowledge and information in regard to the conditions and circumstances existing at the time of the alleged incident; through Plaintiff’s own knowledge, conduct, acts and omissions, Plaintiff assumed the risk attendant to any condition there or then present.

Defendant’s liability, if any, must be reduced by the percentage of fault of others, including Plaintiff.

Plaintiff’s injuries or damages were not foreseeable.

Plaintiff proximately caused or contributed [ITS/HIS/HER] damages by Plaintiff’s own negligence.  Plaintiff’s negligence was greater than Defendant’s negligence, if any.

Defendants conduct was not extreme, outrageous, or reckless.  Defendant’s conduct conformed to the law.

Defendant’s liability, if any, is several and not joint and based upon [ITS/HIS/HER] own acts and not the acts of others.

Any and all damages sustained by Plaintiff are the result of negligence, breach of contract and breach of warranty, express and/or implied of third party over whom Defendant has no control.

Plaintiff’s damages, if any, are the result of an unavoidable accident.

Plaintiff’s damages, if any, were proximately caused or contributed to by the acts of other person and/or other entities; those acts were an intervening and/or superseding cause of Plaintiff’s damages, if any, barring any recovering against Defendant.

Defendant’s acts were not the cause of Plaintiff’s damages, if any.

Plaintiff’s damages, if any, were caused in whole or in part by Plaintiff’s own acts and omissions, which negligence exceeds any fault, if any, of Defendant.

Plaintiff’s damages, if any, were proximately caused and contributed to by Plaintiff’s failure to conduct [ITSELF/HIMSELF/HERSELF] in a manner ordinarily expected of a reasonably prudent person conducting [ITS/HIS/HER] affairs.

Plaintiff failed to exercise ordinary care, caution or prudence to avoid the loss at issue in the claims and that failure directly and proximately contributed to, and was caused by the negligence, misconduct or fault of Plaintiff.

Plaintiff is barred from asserting any claims against Defendant because the alleged damages were the result of intervening and superseding conduct of others.

Defendant at all times complied with the duty of care owed by Defendant to Plaintiff, and therefore were/was not negligent.

The relationship between Plaintiff and Defendant did not give rise to a duty being owed by Defendant to Plaintiff.

Defendant performed each and every duty, if any, it owed Plaintiff.

Negligent Misrepresentation

Defendant did not know or could not have known that the statements, if any, were misrepresentations.

Defendant did not violate a duty owed to Plaintiff, as [IT/HE/SHE] made no affirmative misrepresentations, but merely omitted negative comments or information.

Defendant made no false representations of material fact.

Defendant had no reason to believe that [HIS/HER] statement was false.

Defendant did not intend for Plaintiff to rely on misrepresentations.

Plaintiff did not detrimentally rely on misrepresentations.

Defendant’s acts were not misleading in any material way.

Defendant’s statements have not actually deceived and are not likely to deceive any part of an intended audience.

Plaintiff’s claim is barred by [ITS/HIS/HER] own fraud.

Plaintiff did not justifiably nor reasonably rely on any alleged representation of Defendant.

Defendant did not make a statement without sufficient basis or information.

Plaintiff was not damaged by relying upon a false statement.

Plaintiff was not damaged by relying upon a statement made without sufficient basis or information.

Negligence Per Se

Defendant’s actions, if any, were not in violation of any statute.

The statute was not intended to protect persons such as Plaintiff.

The statute was not intended to protect against the type of injury that occurred.

Defendant’s actions, if any, were not negligent.

Non-Disclosure

Defendant’s non-disclosures, if any, were not intentional.

Defendant owed no duty of disclosure to Plaintiff.

Partition

Plaintiff are not entitled to any interest in the Property.

Plaintiff are not entitled to a partition of the Property.

A partition of the Property would not be fairly and equitably divided and would confer unfair advantage to particular owners thereof.

Upon partition, if any, Plaintiff are not entitled to possession of the Property.

Partnership

No partnership exists between Defendant and Plaintiff, as they did not agree to be partners, did not share the rights of management in a business, or did not share profits or the risk of loss.

Plaintiff should be estopped from claiming the existence of a partnership.

Promissory Estoppel

Defendant made no promises.

Defendant did not intend for Plaintiff to rely on [ITS/HIS/HER] representations, if any.

Plaintiff did not rely to [ITS/HIS/HER] detriment on Defendant’s representations, if any.

Defendant did not make a promises or assurances to Plaintiff that ______________________ in exchange for _____________________________.

Plaintiff did not act in reliance upon Defendant’s promises and assurances.

Plaintiff did not place a great deal of trust and confidence in Defendant.

Plaintiff did not act with prudence and in reasonable reliance on the promises made by Defendant.

Defendant did not make any promises to Plaintiff to induce Plaintiff to _______________.

Defendant did not know, nor should [IT/HE/SHE] have reasonably expected Plaintiff would to take action based on [ITS/HIS/HER] statements.

Defendant could not reasonably foresee that Plaintiff would rely on the Defendant’s statements and forego ___________ due to Defendant’s broken promise.

Plaintiff will not suffer an injustice if the alleged promise is not enforced.

Equities do not support enforcement of the alleged agreement.

Punitive Damages

Defendant’s conduct was not oppressive nor made or committed with malice, oppression, or fraud.

Plaintiff’s Complaint fails to set forth any facts which would constitute a basis for any claim for punitive or exemplary damages as against Defendant.

Punitive damages as claimed will be excessive and otherwise violate the provisions of both the United States and Nevada Constitutions.

Plaintiff is not entitled to punitive damages.

Punitive damages are not available for breach of contract.

Any punitive or exemplary damages are limited, in whole or in part, by, inter alia, Nevada Revised Statute 42.005.

Quiet Title

Plaintiff has no interest in the Property.

Defendant is legally entitled to the Property in equity/through title/by easement/through adverse possession.

Rescission

Defendant and Plaintiff did not share a misconception about the contract.

The misconception, if any, did not affect the material purpose of the contract.

Defendant has not made any intentional misrepresentations to Plaintiff.

The misrepresentation, if any, was not intentionally made to induce the Plaintiff to execute the contract.

Plaintiff is not entitled to rescind the contract.

Respondeat Superior

The initial prerequisites for vicarious liability do not exist.

There was no tortious conduct by [ALLEGED TORTFEASOR] and/or [ALLEGED TORTFEASOR] was not Defendant’s employee or agent.

The tortious conduct, if any, was not within the scope of the employee’s employment at the time the tort was committed as the conduct was not undertaken by the employee to further Defendant’s interests, and/or there was no objective causal connection between the employment and the tort.

Retaliatory Discharge

Defendant did not have a significant degree of supervision over Plaintiff.

Defendant did not pay Plaintiff’s salary.

Defendant did not have the power to hire or fire Plaintiff.

Defendant did not have the right to control the hours and location of Plaintiff’s employment.

The relationship between Defendant and Plaintiff was not an employer/employee relationship, rather, Plaintiff was an employee of an independent contractor.

Defendant did not fire Plaintiff from [ITS/HIS/HER] position with [COMPANY].

Defendant lacked the requisite intent to harm Plaintiff.

Nevada is an at-will employment state, and Defendant may at any time for any reason terminate any employee.

Specific Performance

Plaintiff is not entitled to specific performance.

A remedy at law would adequately compensate Plaintiff.

Specific performance would cause a severe hardship to Defendant.

Specific performance is impossible.

Specific performance consists of a personal service.

The terms of the agreement are neither definite nor certain.

Plaintiff has an adequate remedy at law.

Plaintiff failed to tender performance for the property in question.

Plaintiff had notice of the alleged defect in the property.

Trademark

Plaintiff’s mark is not inherently distinctive.

Plaintiff’s mark has not acquired a secondary meaning.

Plaintiff does not own the trademark.

Any trademarks are entitled to fair use by Defendant.

Plaintiff’s mark does not contain any commercial goodwill.

Plaintiff’s mark has not been debilitated or diluted.

Plaintiff was not the first to adopt and use the trademark in commerce.

Trespass

Plaintiff consented to Defendant’s entry on Plaintiff’s property.

Defendant enjoyed a privilege of necessity.

Defendant has no reason to know that he was trespassing on the rights of Plaintiff.

Defendant did not trespass on Plaintiff’s rights.

Ultra Vires

Defendant’s actions were within the scope of powers granted by Defendant’s charter, the laws authorizing [ITS/HIS/HER] formation, or similar founding documents.

Unjust Enrichment

Plaintiff did not confer a benefit on Defendant.

Defendant did not appreciate any benefits conferred by Plaintiff.

Defendant did not accept and retain any benefit under circumstances such that it would be inequitable for [IT/HIM/HER] to retain the benefit without payment of the value thereof.

No claim for unjust enrichment can be made when there is an express contract between the parties.

Defendant has made all necessary payments or abided by all necessary provisions to Plaintiff.

To the extent that Defendant has received any benefits from Plaintiff, Defendant has not been unjustly enriched.

Plaintiff is not equitably entitled to obtain any money from Defendant.

Plaintiff is not entitled to the reasonable value of any services.

There is no reasonable value for Plaintiff’s services because Plaintiff damaged Defendant.

Defendant has not retained any money or property against fundamental principles of justice, equity, and good conscience.

Plaintiff’s claims are merely conjecture and speculation.

Unlawful Detainer

Defendant and Plaintiff do not have a landlord-tenant relationship.

Defendant’s lease, if any, does not indicate an expiration date.

Defendant’s possession, if any, is not wrongful.

Plaintiff did not make a demand for surrender of the premises.

Defendant has not refused to surrender the premises.

Plaintiff did not properly serve Defendant with a notice to quit as required by law.

 

 

Published by

Jay Young, Mediator and Arbitrator

Jay Young is a Las Vegas, Nevada attorney. His practice focuses on acting as an Arbitrator and Mediator. Mr. Young can be reached at 702.667.4868 or at jay@h2law.com. The information provided on this site does not, and is not intended to constitute legal advice. You understand each legal matter should be considered to be unique and subject to varying results. You should not take or refrain from taking action based on any information contained on this website without first consulting legal counsel, as it is not intended to advise you on your particular matter. Further, you understand that no guarantee is given that the information contained herein is an accurate statement of the law at any given point in time, as the law is constantly changing. Guest bloggers are responsible for their own content, which is not to be construed as an article authored by Jay Young. Please see http://nevadalaw.info/disclaimer