NOVEMBER 2004 (back to index)

Changes to the Rules of Civil Procedure (Part 1)

By: Niels L. Pearson

On July 26, 2004, the Nevada Supreme Court entered an order enacting a comprehensive update of the rules of civil procedure, bringing them more in conformance with the current Federal Rules of Civil Procedure with significant exceptions preserving long-standing Nevada civil practice and precedent.
 

These amendments are the culmination of a four-year project by a 22-member Advisory Committee to study the Nevada Rules of Civil Procedure impaneled by the Nevada Supreme Court in July of 1999. The Advisory Committee presented its recommendations, including majority and minority reports, to the Nevada Supreme Court on March 19, 2003. This two-part article will highlight prominent amendments and major areas of rules retention in Nevada civil practice.
 

The order states the rule amendments shall become effective January 1, 2005 and that they shall be in effect for actions pending on the effective date unless the district court believes that applying the amendments would not be feasible or would create an injustice. In such an event, the prior rule of civil procedure may be applied. (Order, July 26, 2004 ADKT 276, page 2).
 

This synopsis, therefore, is organized topically as follows: 2) judgment rules (rules 41, 50, 51, 52, 54, 56, 58, 59, 60, and 62); and 3) service and pleading rules (rules 4, 5, 6, 8, 11, and 15).

Judgment Rules
Rule 41(b) has been amended to eliminate its use in both jury and nonjury trials to seek dismissal of a case or defense when a party has “failed to prove a sufficient case for the court or jury.” Now, for a nonjury case, rule 41(b) dismissal is preserved in a new provision in rule 52(c) which authorizes the court to enter judgment on partial findings against the plaintiff, as well as the defendant in nonjury trials. In jury trials, the correct motion is now a Motion for Judgment as a Matter of Law under amended rule 50. In addition, rule 41(b) is further amended to conform with the federal rule by adding “improper venue” as a ground for dismissal under the rule. The current language is retained in rule 41(a) on voluntary dismissals and 41(e) for failure to prosecute.
 

Rule 50, formerly entitled “Motion for a Directed Verdict and for Judgment Notwithstanding the Verdict,” has now been renamed as “Judgment as a Matter of Law in Jury Trials; Alternative Motion for New Trial; Conditional Rulings.” This rule is totally revised. The revised rule adopts the “judgment as a matter of law” terminology in the 1991 amendments to the federal rule.
 

Rule 50(a)(1) adopts the Nevada standard for granting a Motion for Judgment as a Matter of Law. It is not the same as the federal standard, rather, the revised subdivision (a)(1) incorporates language from former Nevada rule 41(b). Thus, the new subdivision 50(a) which authorizes the dismissal at the close of a plaintiff’s case if plaintiff had “failed to prove a sufficient case for the jury” retains the current Nevada case law on the legal standards and appellate review of these motions. The revised rule 50(a)(2) also differs from the federal rule, requiring a Motion for Judgment as a Matter of Law can only be made at the close of evidence offered by the nonmoving party or at the close of the case, rather than at “any time” as permitted under the current federal rule. Rule 50(b) is amended to conform with the 1991 amendment to the federal rule. With the amendment, a post-verdict Motion for Judgment as a Matter of Law can only be made if it is a renewal of an earlier motion brought before or at the close of evidence. Thus, a post-judgment motion under rule 50(b) must have been preceded by a motion filed at the time permitted by rule 50(a)(2). Note that the Nevada rule retains the “notice of entry of judgment” language from former rule 50(b) as the starting point for the ten (10) day time limit for filing a post-verdict motion under the rules. Rule 50(b) and (c) have been amended to conform with the new terminology in 50(a). Additionally, 50(c)(2) requires that a Motion for a New Trial under rule 59 against whom a judgment as a matter of law is rendered shall be filed no later than ten (10) days after service of written notice of entry of judgment. Under former rule 50(c)(2), the motion had to be served no later than ten (10) days after service of notice of entry of judgment. The purpose of these changes is to make sure there is both filing and service within these jurisdictional time limits.
 

Rule 51, formerly entitled “Instructions to Jury” is entitled “Instructions to Jury, Objections; Preserving a Claim of Error.” This rule has been substantially reworked to encompass 2003 federal rule amendments with several exceptions. The much more detailed requirements for the proffering of proposed jury instructions and exceptions to instructions given, not given, and objected to, follows Nevada state court practices. Written requests for jury instructions must be filed in a format directed by the court; requires a party to provide citation to or a copy of any legal precedent that the party relies on to support or object to a requested instruction; and requires the requesting party to file an original and one copy of each requested instruction and to number the instructions on the copies and indicate who filed them. Rule 51(a)(2) is identical to the 2003 amendments to the federal rule and addresses, after close of evidence, requests for unanticipated and untimely requests for jury instructions. Rule 51(b)(1)(A) and (B) also are in conformance with the 2003 amendments to the federal rule. Now, not only must the party be informed before the court gives instructions based on its rulings, but the court must now instruct the jury under the revised rule before final arguments. The federal, and thus the Nevada rule, has been amended to address proper record-keeping regarding given and refuse instructions and is based in part on a rule of civil procedure in Hawaii and in part, on NRS 16.110. Nevada also retains the provision that allows the jury to take copies of the instructions with it in deliberation which is not part of the federal rule.
 

Rule 51(c) addresses the requirements for proper objection to an instruction or the failure to give an instruction. The provision also conforms with the 2003 amendment to the federal rule.
 

Rule 51(d) addresses what is required to preserve the right to appeal to the giving of an instruction or the failure to give an instruction and the applicability of plain err or review where a party fails to preserve the right to appellate review.
 

Finally, Rule 51(e) is unique to Nevada, but mirrors the language in the advisory committee notes to the 2003 amendments to the effect that preliminary and non-verdict determinative instructions are not subject to the provisions of Rule 51.
 

Rule 52 has been amended to add additional language to conform with amendments to the federal rules concerning cases tried without a jury. Rule 52(a) allows a court to make findings of fact and conclusions of law in an oral fashion in nonjury cases. Additionally, the last sentence provides that if a court grants a motion for summary judgment, the court shall set forth in its ultimate order the undisputed material facts and legal determinations on which the court granted the motion.
 

Subdivision (c) is added to conform with the 1991 amendment to the federal rule. This parallels revised rule 50(a), but applies to nonjury trials. It authorizes the court to enter judgment at any time it can appropriately make dispositive findings of fact on the evidence. The new subdivision replaces part of former rule 41(b), which had authorized dismissal at the close of plaintiff’s case, if the plaintiff had “failed to prove a sufficient case for the court...”
 

Rule 54 concerning judgments, and in particular rule 54(b), is now amended to omit any mention of claims. Under the revised rule, the trial court can no longer direct the entry of a final judgment as to one or more, but fewer than all, of the claims in a multiple claim case. Thus, an order adjudicating one or more, but fewer than all, of the claims in a multiple-claim case, is not a final judgment and cannot be certified as a final judgment under rule 54(b). The revised rule retains, however, language permitting the court to direct entry of a final judgment as to one or more, but fewer than all, of the parties involved in a case.
 

Rule 56 is amended in subdivision (c) to make clear that Motions for Summary Judgment and responses thereto must identify each material fact that a party claims is or is not genuinely an issue and must cite the relevant portions of any documents or evidence upon which the party relies. This new language is taken from local rule 56-1 of the civil rules of practice of the United States District Court for the District of Nevada. The provision is also amended to require an order granting summary judgment set forth the undisputed material facts and legal determinations that support the decision to grant summary judgment.1
 

Rule 58 has been revised, but differs substantially from the federal counterpart. Rule 58(a) is amended only in part to conform with federal practice, but the amendments do not alter existing Nevada practice and require that judgments entered pursuant to subdivision rule 58(a) be signed by a judge and not by the clerk of the court. The revised rule also requires the court to designate a party under 58(a)(2) to serve notice of entry of judgment upon other parties. All judgments under 58(b) must be signed by the judge except default judgments entered pursuant to rule 55(b)(1). Rule 58(e) is new and adds a provision expressly requiring that the party designated by the court under 58(a) to serve notice of entry of judgment. Any other party under this rule may also serve notice of entry of judgment under this provision. Failure to serve notice of entry of judgment does not affect the validity of the judgment, but the judgment may not be executed upon until such notice is served.
 

Rule 59 retains the Nevada rule language under 59(a) setting forth specific grounds for a new trial. 59(b) now requires that a motion for new trial must be filed, not just served, within ten (10) days. The time for the filing of the motion runs from service of notice of entry of judgment rather than from entry of judgment under the federal rule. A similar amendment to 59(c) requires that opposing affidavits be filed, not just served, within the specified time period. Rule 59(d) also allows the court on its own volition to order new trial or for grounds not stated in a timely motion. Rule 59(e) is revised to provide that a motion to alter or amend a judgment must be filed, not just served, within the specified ten (10) day time period. Again, time for filing a motion runs from service of notice of entry of order rather than from entry of judgment under the federal rule.
 

Rule 60 concerning relief from judgment is amended in 60(b) to incorporate the 1946 amendment to the federal rule which added “newly discovered evidence” as a ground for relief under subdivision 60(b). The revised rule does not include the provision in the federal rule for relief under 60(b) based on “any reason justifying relief from the operation of judgment.” Likewise, this same provision is amended by deleting reference to fraud that “would have therefore justified a court in sustaining a collateral attack upon the judgment” language that does not appear in the current federal rule. Additional language is added consistent with the federal rule that abolishes “writs of coram nobis, coram vobis, audita querela and bills of review and in the nature of bills of review.”
 

The same provision, rule 60(b) retains the six month limit on motions based on the first three grounds stated in the revised rule rather than the one year limit provided in the federal rule. However, the provision is revised so that the six month limit starts to run from service of written notice of entry of judgment or order. Provisions 60(c) and (d) which have no federal counterpart are retained.
 

Rule 62 is now amended to provide, similar to the federal rule, an automatic stay of execution for enforcement of a judgment except for an injunction or receivership. The Nevada rule provides for a stay until ten (10) days after service of notice of entry of judgment. Rule 62(d) provides that stay upon appeal of a case is effected upon the filing of the supercedeas bond, rather than court approval of a supercedeas bond, as in federal practice.

Service and pleading rules:
Rule 4(c) now clarifies the service may be made by any person who is over 18 years of age so long as he or she is also a disinterested person.
 

Amendments to (4)(e)(1)(iii) provide a publication order is not a precondition to personal service outside the state, by removing the fourth sentence of the former rule. The amendment to (4)(e)(2) removes language that stated personal service outside of Nevada could be used “only where the party being served has submitted to the jurisdiction of the courts as required by NRS 14.065.” This revision corresponds to the 1995 amendments to NRS 14.065. Rule 4(i) is similar to the federal rule except that the district court is limited to expanding the time for service only upon a motion to enlarge the 120-day service period that demonstrates good cause why service has not been made within that period. Thus, unlike the federal rule, the Nevada rule does not give the district court discretion to enlarge the time for service in the absence of a showing of good cause. Additionally, unlike the federal rule, the revised Nevada rule clarifies that in deciding whether there is good cause why service was not made within the 120-day period, the court must consider whether the party, on whose behalf such service was required, filed the motion to enlarge time for service within the 120-day period.
 

Rule 5 is reorganized, but remains essentially the same, except that it now permits service by electronic means including facsimile and electronic mail consistent with the 2001 amendments to the federal rule. Rule 5(b)(2)(D) provides that the served attorney or party must consent in writing to service by electronic means and includes specific provisions governing the form and content of the consent to service by electronic means. Rule 5(b)(3) addresses the question of failed electronic service and deems that service ineffective, if the party making service learns the attempted service did not reach the person to be served. Rule 5(e) is revised to conform with the 1991 and 1996 amendments to the federal rule, and adds language that prohibits the clerk from refusing to “accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by the rules or any local rules or practices.”
 

Rule 5 amendment adds language to accommodate local rules that authorize filing by facsimile or other electronic means, and thereby, empowers the individual courts to address the adoption of electronic filing based on the capabilities of both the district’s or clerk’s office and the desires of the bench and bar.
 

Rule 6 is revised to extend the exclusion of intermediate Saturdays, Sundays and non-judicial days with a computation of time periods less than eleven (11) days (the former rule was seven (7) days) consistent with the 1985 amendment to the federal rule. The “inaccessibility of the court” provision found in 6(a) of the federal rules is added to toll time periods under extraordinary circumstances. Additional language concerning probate, guardianship, and trust proceedings is added to except this practice area’s particularized service requirements from this rule. Time may not be extended for usual post-judgment rules, and the rule is amended to preclude extensions of motions for new trial under revised rule 50(c)(2). Rule 6(d) is amended to require an affidavit in support of an opposition to a motion must be served with the opposition. This revision is based on local rules in several districts. The revised rule, thus, does not incorporate language in the federal rule that requires opposing affidavits to be filed one (1) day before the hearing. Rule 6(e) is amended to provide an additional three (3) days to act in response to a paper that is served by electronic means.
 

Rule 8 retains the restriction in rule 8(a), added in 1971, prohibiting allegations of specific amounts of damages in excess of $10,000.
 

Rule 11 is amended to conform to the federal rule as amended in 1993. Rule 11(d) is added to clarify that rule 11 no longer applies to sanctions sought for discovery violations. The rule is much more detailed as drafted and prominently does not allow the filing of a sanctions motion until service of such proposed motion allowing a period of at least twenty-one days to permit withdraw, correction or amendment. In all events, rule 11 sanctions shall not be awarded absent appropriate notice and the reasonable opportunity to respond.
 

Rule 15 remains the same, and in particular, rule 15(c) does not conform with the 1966 or 1991 amendment to the federal rule and still provides for a relation back of any claim or defense that rose out of the same conduct transaction or occurrence that has been set forth in the original pleading. NL

Endnote
1. The Advisory Committee was initially asked to review, but later agreed not to decide, the issue of whether there should be "federalization" of rule 56. This is not an issue of rule drafting, but whether the Nevada Supreme Court will or will not eventually adopt by case precedent changes in the current Nevada state practice on summary judgments and involuntary dismissals.