- Quickdraw McLaw
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One of you was asking about a synopsis of the rule changes that go into effect on March 1, 2019. Jay Young over at Nevada Business Law Blog has a post about some of the changes. Is there anything big that he missed? Any changes you are excited about? What else is going on out there on this fine Friday? Any of you being affected by the government shutdown yet?
Any highlights from the Nevada Supreme Court Investiture Love-fest?
I am very glad to see some of the changes, such as proportionality requirement in discovery. I've had too many cases where the demand for ESI particularly would cost tens of thousands in a case worth likely less than six figures.
I'm also glad to see the changes to just straight calendar days. That should simplify calendaring, which shouldn't be, but yet still seems to be a major source of confusion.
Service of process – possibly by social media? That's interesting. Maybe yet another good reason to get off twitter, facebook, etc.?
I'm also glad to see the elimination of the "in person" requirement for ECCs.
Interesting changes to Rule 68 – allows the court to look to past offers of judgment.
What I really would like to see is a *mandate* that all courts must accept electronic signatures. In courts without e-filing that are not local, requiring original wet ink signatures only adds costs for clients and slows down filing.
Has anyone else received a notice of hearing cancellation today from the federal court without any explanation or new hearing date?
EP blew a statute of repose regarding a swimming pool design defect case involving catastrophic injuries. (Complaint was overdue as of 02/25/2016) The district court dismissed the case against the pool company. EP appealed to NSC and the NSC affirmed the order of dismissal.
Just based on a quick reading of the order, I don't know that it's clear that they had until 2/24/16. NVSC didn't fully address the exact deadline, instead kinda punted that and said that regardless of when it was due (under a few different alternatives) the complaint was late. Going by the 6 years under current law, the accident occurred after the 6 years expired. Now that would take some skilled lawyering.
"Appellant's accident occurred beyond the outer time limit on respondent's liability under both the current and previous versions of the repose statute."
See footnote 4.
The District Court (Case No. A-16-738799) order which was affirmed by the NSC stated:
"THE COURT FURTHER FINDS that the in-ground swimming pool was not a product so as to
exempt Plaintiffs claims from the requirements of Nevada Assembly Bill 125.
IT IS THEREFORE HEREBY ORDERED, ADJUDGED, AND DECREED that pursuant to
the aforementioned findings, Defendant Anthony & Sylvan Pools Corporation's Motion to Dismiss is
GRANTED, and Defendant Anthony & Sylvan Pools Corporation shall be dismissed from this matter
with prejudice.
IT IS SO ORDERED."
Assembly Bill 125 gave the Plaintiff until February 24, 2016 to file his Complaint. EP filed the Complaint on June 21, 2016. You might want to read the Motion to Dismiss which emphasized that point.
Now, it could be that the Nevada Supreme Court was trying to create a smoke screen to protect EP from malpractice claims.
There is no bias there in favor of Eglet. Jesus, do these judges have any brain cells.
A "grace period" can't revive a claim that was already time-barred by the time the accident happened. Move along, Eglet-haters.
The SOR had blown even before the accident happened.
EP swimming pool NSC Case No. 72547
Do not rely on piecemeal "synopses" this is a massive overhaul. Keep the printed out redline at your desk. Everytime you think you know what a rule requires, GO LOOK AT THE REDLINE. The clean set and the redline are available to download and print here:
https://nvcourts.gov/AOC/Committees and Commissions/NRCP/Adopted Rules and Redlines/
@1:36 Of course every attorney should read every rule and refer to the redline. This is a complete re-write. Look at the redlined version. There is more red than black. that should tell you how comprehensive the changes are. Still, a good synopsis raises awareness.
I spent two days reading the new rules top to bottom. Every day is a school day.
At the Investiture, Cherry played "I am Woman" from his phone before swearing in Abbi Silver. After that, he asked all the female judges to stand and Parraguirre stood up. Very jovial proceedings
Ah, sounds professional. Yeah, sounds very professional.
Were they supposed to be wearing powdered wigs or something? I'm gonna miss Mike.
2:17, why would you even care about attending the investiture. I would not want to sit next to you on a school bus.
So you are saying EP filed a complaint knowing its main cause of action was time-barred? Rule 11? At what point did EP inform the District Court or the NSC its complaint was time-barred? Oh yeah, never.
And at what point did EP inform its client the complaint was time-barred?
Is it malpractice to prosecute an action that is time-barred?
No but it might be a Rule 11 violation.
Could/should EP have filed the Complaint sooner?
They had the case as of mid 2015.
The SOR had blown even before the accident happened.
Not true. The Defendant stated in their Answering Brief that the Plaintiff had until February 24, 2016 to file his complaint, but EP inexplicably waited until June 21, 2016 to file the Complaint: The defense wrote in its Answering Brief:At the 2015 legislative session, the Legislature passed AB 125,
which amended the construction statutes of repose, consolidated them
into one, and put an outer limit of six years from the completion of construction to bring an action. See 2015 Nev. Stat. 2–21. AB 125 also
created a one-year grace period to bring any existing causes of action.
Id. § 21(5), (6), at 21.
Because plaintiff’s claim had arisen under prior law that extended
the statute of repose beyond six years, the grace period gave plaintiff an
additional year to bring a claim that the new law would have otherwise
extinguished.
Plaintiff Sues After the Grace Period
After the grace period expired, plaintiff filed suit against defendant-respondent Anthony & Sylvan Pools, which constructed the pool in
This is where having a Canepa available would have not been a stupid idea.
In their Answering Brief, Defendants stated that the Plaintiff had until February 24, 2016 to file his Complaint, but failed to do so. He filed his complaint on June 21, 2016. The defense never stated that the action was barred at the time the Plaintiff was injured in August of 2014:
"AB 125 had a Grace Period.
AB 125 did have a grace period. Section 16(6)(a) of the bill provides that the amended NRS 11.202 “do[es] not limit an action * * *
[t]hat accrued before the effective date of this act, and was commenced
within 1 year after the effective date of this act.” 2015 Nev. Stat. 21.
As the Legislative Counsel Bureau explained, this language “establishes a 1-year grace period during which a person may commence an action
under the existing statutes of repose, if the action accrued before the effective date of this bill.” 2015 Nev. Stat. 4.
Plaintiff had a full year to file a suit against Anthony & Sylvan after the passage of AB 125. He did not. That does not create the constitutional issue."
In their Answering Brief, Defendants never stated that the Plaintiff's 08/02/2014 claim was time barred. On the contrary, the Defendants stated that the Plaintiff had an opportunity to file a civil complaint on or before February 24, 2016, pursuant to AB 125. The defense clearly stated that the "Plaintiff's claim had arisen under the prior law that extended the statue of repose beyond six years":
"The Legislature passes AB 125
At the 2015 legislative session, the Legislature passed AB 125,
which amended the construction statutes of repose, consolidated them
into one, and put an outer limit of six years from the completion of construction to bring an action. See 2015 Nev. Stat. 2–21. AB 125 also
created a one-year grace period to bring any existing causes of action.
Id. § 21(5), (6), at 21.
Because plaintiff’s claim had arisen under prior law that extended
the statute of repose beyond six years, the grace period gave plaintiff an
additional year to bring a claim that the new law would have otherwise
extinguished.
Plaintiff Sues After the Grace Period
After the grace period expired, plaintiff filed suit against defendant-respondent Anthony & Sylvan Pools, which constructed the pool in
2004."
Did AB 125 really revive from the dead all causes of action that had already passed the SOR? What about a 20 year old claim? 40 year old claim? Now they're all revived for a year? I doubt the legislature did that. I'm not going to waste my own time looking it up, but I doubt it.
Also, just because the defendants said the plaintiff had until X date to file doesn't make it legally accurate. The Defendants might have been wording their MTD conservatively to show that no matter what the SOR had lapsed.
"Because plaintiff’s claim had arisen under prior law that extended
the statute of repose beyond six years, the grace period gave plaintiff an
additional year to bring a claim that the new law would have otherwise
extinguished." The Plaintiff had until February 24, 2016 to file his claim.
Here is what the Supreme Court's disposition says:
The timeline respondent provided at oral argument illustrates that appellant's accident occurred beyond the outer time limit on respondent's liability under both the current and previous versions of the repose statute, thus precluding appellant's action against respondent. *** Thus, whether applying amended NRS 11.202 and the corresponding grace period provided in AB 125, or the applicable provisions of the former version of the repose statute, the district court properly dismissed appellant's complaint as time-barred.
October 20, 2004 County issued final pool inspection
October 21, 2010 Former NRS 11.205 6-year statute of repose for
patent defects expired
October 21, 2012 Former NRS 11.204 8-year statute of repose for
latent defects expires
August 2,2014 Appellant's accident
October 21, 2014 Former NRS 11.203 10-year statute of repose for
known defects expires
February 24, 2015 Assembly Bill (AB) 125 passes
February 25, 2016 AB 125's one-year grace period expires
June 21, 2016 Complaint filed
August 2,2014 Appellant's accident
October 21, 2014 Former NRS 11.203 10-year statute of repose for
known defects expires
"Because plaintiff’s claim had arisen under prior law that extended
the statute of repose beyond six years, the grace period gave plaintiff an
additional year to bring a claim that the new law would have otherwise
extinguished." The Plaintiff had until February 24, 2016 to file his claim