Global Business Lawyers - Lovaas and Lehtinen, P.C.

Wednesday, September 30, 2009

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.

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Monday, September 28, 2009

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.

Friday, September 25, 2009

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.

Wednesday, September 23, 2009

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.

Monday, September 21, 2009

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.

Friday, September 18, 2009

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.

Wednesday, September 16, 2009

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.