Discovery and Pretrial Conference, Cont'd.

DISCOVERY AND PRETRIAL CONFERENCE (continued)

Within 30 days after service of the answer by the defendant, the parties’ attorneys must meet and confer to discuss the scope of their impending discovery. At this time the attorneys will provide initial disclosures and all documents reasonably available to a party used in support of the allegations or denials made in the pleadings of each party. The attorneys also propose a plan and schedule of discovery ensuring that each one makes a reasonable effort to provide all discovery requested. In essence, the Early Case Conference is done to expedite the process of litigation by agreeing on the limit and scope of discovery. Following the Early Case Conference, within 30 days, the parties must file a Joint Case Conference Report with the Discovery Commissioner who is situated at the Regional Justice Center.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.

TIMETABLE FOR VARIOUS PLEADINGS

Timetable for Various Pleadings

Once the plaintiff commences an action by filing a complaint, certain timetables for various forms of pleading kick in.

1. Complaint

Filing of the complaint will normally occur before it is served upon the defendant. However, service of the summons and complaint must be made within 120 days after the initial filing.

2. Answer and Rule 12 motions

The answer must be served within 20 days after service of the complaint. However, if the defendant chooses to file a Rule 12 motion and the court denies his motion, he will have an additional 10 days after the court has denied the motion in which to file his answer.

3. Reply to Counterclaim

If the answer contains a counterclaim then the plaintiff must serve his reply within 20 days after service of the answer.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.

REPLY

Reply

If the answer contains a counterclaim, the plaintiff must serve his reply within 20 days after service of the answer. In the plaintiff’s reply he must either admit or deny the claims made within the counterclaim in a similar fashion to the defendant in his initial answer.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.

PERMISSIVE COUNTERCLAIM

Permissive Counterclaim

A permissive counterclaim allows the assertion of any claim not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim. This means that no claim is too far removed from the subject of the plaintiff’s claim to be allowed as a counterclaim.

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COMPULSORY COUNTERCLAIM

Compulsory Counterclaim

If a claim arises out the same transaction or occurrence that is the subject matter of the plaintiff’s claim its assertion is compulsory under Rule 13(a) of the Nevada Rules of Civil Procedure. A counterclaim arises out of the same transaction or occurrence if it is “logically related” to the plaintiff’s claim. A failure to state a compulsory counterclaim within the defendant’s answer, results in a loss of that claim for future litigation. Moreover, if the defendant has asserted a counterclaim (whether compulsory or permissive) and the plaintiff has failed to serve a reply (discussed below) or to move against a counterclaim, a default judgment may be entered against the plaintiff on the counterclaim.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.

COUNTERCLAIMS

Counterclaims

In addition to affirmative defenses and varying forms of denials, the defendant may, if he has a claim against the plaintiff, plead that claim as a counterclaim. If the defendant is required to plead a claim, it is called a compulsory counterclaim. If the defendant has the option of pleading the claim or not, it is called a permissive counterclaim.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.

ANSWER AND COUNTERCLAIMS - TYPES OF DENIALS

Answer and Counterclaims – Types of Denials

1. Specific Denials

The defendant may make specific denials, which denies all of the allegations contained in a particular paragraph or count of the complaint. For example, “in answering paragraph 25, the answering defendant denies the allegations contained therein.”

2. General Denials

The defendant may make a general denial, which denies each and every allegation in the plaintiff’s complaint. However, if a defendant does make this denial he must be ready to challenge every single allegation in the complaint.

3. Qualified Denials

The defendant may deny a particular portion of a particular allegation. For example, the defendant could state “in answering paragraph 25, the answering defendant denies the allegations made in the first sentence and is without sufficient knowledge to form an opinion as to the truth of the remaining allegations.”

4. Denial of Knowledge or Information

The defendant may also deny knowledge or information if he does not have knowledge or information sufficient to form a belief as to the truth of the plaintiff’s complaint. This denial has the effect of a complete denial, but it must be made in good faith.

5. Denial Based on Information and Belief

Courts have allowed a defendant without first-hand knowledge, but with enough information to believe in good faith that the complaint is false, to deny the same. This kind of denial is generally used by large corporations, on whom the burden of obtaining information may be substantial.

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ANSWER AND COUNTERCLAIMS - CONTINUED

Answer and Counterclaims (continued)

The Defendant may make various denials as to the truth of the plaintiff’s allegations. Remember, that if the defendant fails to deny allegations made in the complaint they are deemed admitted. The kinds of denials include: (1) specific denials; (2) general denials; (3) qualified denials; (4) denial of knowledge or information; and (5) denial based on information and belief. In addition to these denials (explained below) the defendant must explicitly plead affirmative defenses in his answer. Rule 8(c) of the Nevada Rules of Civil Procedure lists 19 specific defenses that must be plead in the defendant’s answer else they are lost. However, Rule 15(a) generally allows the defendant 20 days from the service of the original answer in which to amend his answer to include specific affirmative defenses.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.

ANSWER AND COUNTERCLAIMS

Answer and Counterclaims

The defendant’s response to the complaint is called an answer. In the answer, the defendant states in short and plain terms his defenses to each claim asserted by the plaintiff, and admits or denies each count of the plaintiff’s complaint. Defenses, like complaints may be plead in the alternative. For example, in a breach of contract suit, the defendant can in count 1 of his answer state that no contract existed, while in count 2 state that if such a contract did exist, it was breached by the plaintiff, not defendant.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.

MOTION TO DISMISS - NRCP 12(b)(5) - FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

MOTIONS TO DISMISS - NRCP 12(b)(5) - FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

A Rule 12(b)(5) motion is especially important because the motion asserts that on the facts as pleaded by the plaintiff, no recovery is possible under any legal theory. This motion is generally made prior to answering the complaint. If the complaint is dismissed in response to the defendant’s motion to dismiss, the plaintiff will likely have the opportunity to amend his complaint to state a claim upon which relief can be granted. The pleading rules are very liberal and entitle the plaintiff to amend its complaint without leave of the court any time before a responsive pleading has been filed (the answer). Since a motion to dismiss does not qualify as a responsive pleading, the plaintiff will likely be granted leave to amend.

If the defendant files his motion to dismiss after he has served his answer and the court grants it, the plaintiff must be given leave from the court to amend its complaint. In other words, it is no longer entitled to an automatic amendment because the defendant has made a responsive pleading.

If the complaint is so vague and incomprehensible that the defendant cannot reasonably make sense of it, he may file a Rule 12(e) motion asking for a more definite statement. If the court grants this motion the plaintiff will have 10 days in which to cure the alleged defects. If the plaintiff fails to do so then the court will strike the pleading to which the motion was directed or make an order that it deems just.

The defendant may also file a Rule 12(f) motion to strike material from the complaint that is redundant, immaterial, impertinent, or scandalous. However, most courts are wary to grant such motions, instead relying on the plaintiff’s later ability to plead certain facts with the required specificity. Global Business Lawyers Nevada Business Lawyers Lovaas & Lehtinen, P.C.

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.

MOTIONS AGAINST THE COMPLAINT

MOTIONS AGAINST THE COMPLAINT

Either in the answer, or in a separate motion, the defendant may attack the validity of the Complaint in a number of different ways under Nevada Rules of Civil Procedure Rule 12(b). This rule lists the following defenses: (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) or failure to join a necessary party under Rule 19. Global Business Lawyers Nevada business Lawyers Lovaas & Lehtinen, P.C.

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THE LITIGATION PROCESS

THE LITIGATION PROCESS

Although complaints are fairly general in nature they require three essential elements to satisfy notice pleading standards. First, they require a short and plain statement of the grounds upon which the court’s direction depends. Second, they require a short and plain statement of the claim showing that the plaintiff is entitled to relief. Third, they require a demand for judgment or relief, which can take the form of money damages, specific performance, or an injunction (to name a few).

The short and plain statement of the claim does not require much. The plaintiff need only state the facts, not the legal theory he is relying upon. As long as the plaintiff gives enough facts to put the defendant on reasonable notice about what is being alleged, it is irrelevant that the plaintiff has failed to allege some matters that he will eventually have to prove in order to recover. However, certain “special matters” must be pleaded with particularity, these special matters can be found under the Nevada Rules of Civil Procedure Rule 9. Global Business Lawyers Nevada Business Lawyers Lovaas & Lehtinen, P.C.

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THE LITIGATION PROCESS

THE LITIGATION PROCESS

Since general standards of jurisdiction and the right to notice and opportunity to be heard have been disposed of. it is time to begin a discussion of the actual litigation process beginning with the filing of the plaintiff’s complaint. Please note that this is not an all inclusive discussion into every aspect of the litigation process, but it should provide some education into what it entails and what is expected of litigants at each step.

Complaint

The complaint is the initial pleading in the lawsuit and is filed by the plaintiff. The filing of the complaint essentially “commences” the action. The filing of the complaint is what counts for statute of limitations purposes in specific federal question suits. Global Business Lawyers Nevada Business Lawyers Lovaas & Lehtinen

Disclaimer: This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. If you have questions or need specific advice relating to the matters contained herein, please contact Lovaas & Lehtinen, P.C.