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Articles 1 - 28 of 28
Full-Text Articles in Civil Procedure
Mcdonald Carano Wilson, Llp. V. Bourassa Law Group, 131 Nev. Adv. Op. 90 (December 3, 2015), Patrick Caddick
Mcdonald Carano Wilson, Llp. V. Bourassa Law Group, 131 Nev. Adv. Op. 90 (December 3, 2015), Patrick Caddick
Nevada Supreme Court Summaries
The Court considered an appeal from a district court order. The Court reversed and remanded the district court’s ruling that NRS § 18.015 does not allow an attorney to enforce a charging lien when the attorney withdrew from representation.
Procedural Triage, Matthew J.B. Lawrence
Procedural Triage, Matthew J.B. Lawrence
Faculty Scholarly Works
Prior scholarship has assumed that the inherent value of a “day in court” is the same for all claimants, so that when procedural resources (like a jury trial or a hearing) are scarce, they should be rationed the same way for all claimants. That is incorrect. This Article shows that the inherent value of a “day in court” can be far greater for some claimants, such as first-time filers, than for others, such as corporate entities and that it can be both desirable and feasible to take this variation into account in doling out scarce procedural protections. In other words, …
Mandatory Process, Matthew J.B. Lawrence
Mandatory Process, Matthew J.B. Lawrence
Faculty Scholarly Works
This Article suggests that people tend to undervalue their procedural rights—their proverbial “day in court”—until they are actually involved in a dispute. The Article argues that the inherent, outcome-independent value of participating in a dispute resolution process comes largely from its power to soothe a person’s grievance— their perception of unfairness and accompanying negative emotional reaction—win or lose. But a tendency to assume unchanging emotional states, known in behavioral economics as projection bias, can prevent people from anticipating that they might become aggrieved and from appreciating the grievance-soothing power of process. When this happens, people will waive their procedural rights …
Michaels V. Pentair Water Pool & Spa, Inc., 131 Nev. Adv. Op. 81 (Oct. 1, 2015), F. Shane Jackson
Michaels V. Pentair Water Pool & Spa, Inc., 131 Nev. Adv. Op. 81 (Oct. 1, 2015), F. Shane Jackson
Nevada Supreme Court Summaries
The Court of Appeals considered an appeal from a district court order denying the plaintiff’s post-trial motion for a new trial, which alleged that the defendant’s attorney committed misconduct during closing arguments at trial. The Court held that the district court failed to make the detailed findings required by the Nevada Supreme Court for claims of attorney misconduct and remanded the case for the district court to reconsider the matter and make the necessary findings.
William Nathan Baxter V. Dignity Health, Et Al, 131 Nev. Adv. Op. 76 (September 24, 2015), Andrea Orwoll
William Nathan Baxter V. Dignity Health, Et Al, 131 Nev. Adv. Op. 76 (September 24, 2015), Andrea Orwoll
Nevada Supreme Court Summaries
The Court considered an appeal from a district court order dismissing a medical malpractice complaint. The Court held that because NRS § 41A.071 creates threshold requirements for bringing medical malpractice suits, it must be construed consistently with the liberal pleading requirements. The Court reversed and remanded.
In Re Guardianship Of N.M., 131 Nev. Adv. Op. 75 (September 24, 2015), Daniel Ormsby
In Re Guardianship Of N.M., 131 Nev. Adv. Op. 75 (September 24, 2015), Daniel Ormsby
Nevada Supreme Court Summaries
The Court heard an appeal from a parent-appellant challenging a district court’s exercise of temporary emergency jurisdiction to appoint a temporary, non-parent, guardian and general, non-parent, guardian. Affirmed.
Bergenfield V. Bac Home Loans Servicing, 131 Nev. Adv. Op. 68 (Sep. 10, 2015), Chelsea Stacey
Bergenfield V. Bac Home Loans Servicing, 131 Nev. Adv. Op. 68 (Sep. 10, 2015), Chelsea Stacey
Nevada Supreme Court Summaries
The Court held that when a district court dismisses a complaint but gives the plaintiff leave to amend the order it is not a final appealable judgment. In order for it to be a final appealable judgment, a plaintiff must give the district court written notice within 30 days that the plaintiff will not amend the complaint so the district court may enter a final, appealable order.
Barbara Ann Hollier Trust V. Shack, 131 Nev. Adv. Op. 59 (August 6, 2015), Patrick Phippen
Barbara Ann Hollier Trust V. Shack, 131 Nev. Adv. Op. 59 (August 6, 2015), Patrick Phippen
Nevada Supreme Court Summaries
On an issue of first impression, the Nevada Supreme Court held that the filing of a post-judgement motion which tolls the time to appeal also tolls NRCP 54(d)(2)(B)’s 20-day deadline to move for attorney fees. The Court further concluded that (a) the $100,000 offset in Hollier’s favor was not extinguished by the Court’s previous order and (b) only Acadian Realty is liable for attorney fees.
Summary Of Biscay V. Mgm Resorts Int’L., 131 Nev. Adv. Op. 46 (July 2, 2015), Patrick Phippen
Summary Of Biscay V. Mgm Resorts Int’L., 131 Nev. Adv. Op. 46 (July 2, 2015), Patrick Phippen
Nevada Supreme Court Summaries
The Court concluded dismissal is not proper under NRS 18.130(4) when a non-resident plaintiff files security with the court clerk for the defendant’s costs when the required security is filed any time prior to the action being dismissed.
The Forms Had A Function: Rule 84 And The Appendix Of Forms As Guardians Of The Liberal Ethos In Civil Procedure, A. Benjamin Spencer
The Forms Had A Function: Rule 84 And The Appendix Of Forms As Guardians Of The Liberal Ethos In Civil Procedure, A. Benjamin Spencer
Faculty Publications
The Appendix of Forms that, from the time of their adoption have accom - panied the Federal Rules of Civil Procedure, are a seeming anachronism, more appropriate for a much simpler time that hardly characterizes modem day federal civil litigation. Perhaps the form for a negligence complaint is the most striking in this regard, offering only that at a certain time and place "the defendant negligently drove a motor vehicle against the plaintiff," causing harm.2 Not only does such a complaint fail to typify the negligence claims one might find on any federal docket, but it also fails to reflect …
Summary Of Lisle V. State, 131 Nev. Adv. Op. 39 (June 25, 2015), Adam Wynott
Summary Of Lisle V. State, 131 Nev. Adv. Op. 39 (June 25, 2015), Adam Wynott
Nevada Supreme Court Summaries
The Court held that the petitions filed by the appellant, Kevin James Lisle (Lisle), were procedurally barred. The Court determined that a petitioner cannot present new evidence of mitigating circumstances in order to prove actual innocence of the death penalty. The Court determined that the claims of Lisle did not warrant relief and upheld the district court ruling.
Summary Of Berry V. Feil, 131 Nev. Adv. Op. 37 (June 11, 2015), Patrick Phippen
Summary Of Berry V. Feil, 131 Nev. Adv. Op. 37 (June 11, 2015), Patrick Phippen
Nevada Supreme Court Summaries
The exhaustion requirement applies regardless of what court the complaint is filed in, and that a state court has no discretion to stay a § 1983 action to allow for administrative remedies to be pursued.
Summary Of Fulbrook V. Allstate Ins. Co., 131 Nev. Adv. Op. 33 (Jun. 4, 2015), Walter Fick
Summary Of Fulbrook V. Allstate Ins. Co., 131 Nev. Adv. Op. 33 (Jun. 4, 2015), Walter Fick
Nevada Supreme Court Summaries
The Court held that appellant’s counsel’s “technical difficulties,” with regard to e-mails and case files, was an insufficient basis on which to recall remittitur, because the technical difficulties were unrelated to Nevada’s electronic filing system, which exclusively provides required notifications to counsel.
"Just A Bit Outside!": Proportionality In Federal Discovery And The Institutional Capacity Of The Federal Courts, Bernadette Bollas Genetin
"Just A Bit Outside!": Proportionality In Federal Discovery And The Institutional Capacity Of The Federal Courts, Bernadette Bollas Genetin
Akron Law Faculty Publications
This Article focuses on pending amendments to Rule 26(b)(1), the scope-of-discovery provision in the Federal Rules of Civil Procedure. Proposed Rule 26(b)(1) would authorize parties to obtain discovery of “any non-privileged matter that is relevant to any party’s claim or defense” if that information is also “proportional to the needs of the case,” based on enumerated proportionality factors – “the importance of the issues at state in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the …
Summary Of Catholic Diocese Of Green Bay, Inc. V. John Doe 119, 131 Nev. Adv. Op. 29 (May 28, 2015), Adam Wynott
Summary Of Catholic Diocese Of Green Bay, Inc. V. John Doe 119, 131 Nev. Adv. Op. 29 (May 28, 2015), Adam Wynott
Nevada Supreme Court Summaries
The Court held a plaintiff must prove sufficient contacts with the jurisdiction in order to establish personal jurisdiction over a defendant. Without proof of sufficient contacts, Nevada courts do not have personal jurisdiction over a foreign Catholic diocese. The Court reversed the district court’s decision.
Saving Charitable Settlements, Christine P. Bartholomew
Saving Charitable Settlements, Christine P. Bartholomew
Journal Articles
This Article defies the conventional wisdom that all charitable distributions from a class action settlement fund are types of cy pres. Instead, it proposes a radical delineation between “cy pres remainders” (meaning settlement funds left over after individual monetary distributions) and “charitable settlements” (meaning money initially distributed to charities as part of class action settlements). While both have cy pres roots, these two settlement structures have been conflated, jeopardizing the potential utility of charitable settlements. After articulating more precise nomenclature for these distinct distribution methods, this Article justifies why we must preserve charitable settlements. This defense is particularly timely, as …
Resurrecting Trial By Statistics, Jay Tidmarsh
Resurrecting Trial By Statistics, Jay Tidmarsh
Journal Articles
“Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible. After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: a …
A View From The Sky: A General Overview About Civil Litigation In The United States With Reference To The Relief In Small And Simple Matters, Manuel A. Gómez, Juan Carlos Gómez
A View From The Sky: A General Overview About Civil Litigation In The United States With Reference To The Relief In Small And Simple Matters, Manuel A. Gómez, Juan Carlos Gómez
Faculty Publications
This article, which is based on the research conducted for the General Report ‘Relief in Small and Simple Matters in an Age of Austerity’ presented at the XV World Congress of Procedural Law, provides a contextualised and broad overview of these phenomena in the United States. After describing the general features of the federal and state judiciaries, including its adversarial model of judging, and the importance of the jury system, the article turns its attention to discuss the factors that affect the cost of litigation in the United States, the different models of litigation funding, the available legal aid mechanisms, …
The Issue Class, Joseph Seiner
The Issue Class, Joseph Seiner
Faculty Publications
In 2011, in Wal-Mart Stores, Inc. v. Dukes, the Supreme Court refused to certify a proposed class of one and a half million female workers who had alleged that the nation’s largest private employer had discriminated against them on the basis of their sex. The academic response to the case has been highly critical of the Court’s decision. This Article does not weigh in on the debate of whether the Court missed the mark. Instead, this Article addresses a more fundamental question that has gone completely unexplored: what is the best tool currently available for workers to pursue systemic employment …
More Uncertainty After Daimler Ag V. Bauman: A Response To Professors Cornett And Hoffheimer, Deborah Challener
More Uncertainty After Daimler Ag V. Bauman: A Response To Professors Cornett And Hoffheimer, Deborah Challener
Journal Articles
In Good-Bye Significant Contacts: General Personal Jurisdiction After Daimler AG v. Bauman, Professors Judy M. Cornett and Michael H. Hoffheimer identify a number of legal issues that will become the focus of litigation after Daimler. This Response identifies an additional, perhaps surprising issue that is currently being litigated in the wake of Daimler AG v. Bauman. In the lower federal courts, defendants who have litigated cases on the merits without raising lack of personal jurisdiction as a defense are filing motions to dismiss and arguing that they are not subject to general jurisdiction in the forum under Daimler’s “at home” …
The Value Of Uncertainty, Cathy Hwang, Benjamin P. Edwards
The Value Of Uncertainty, Cathy Hwang, Benjamin P. Edwards
Faculty Scholarship
No abstract provided.
A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux
A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux
Publications
No abstract provided.
Recent Trends In Discovery In Arbitration And In The Federal Rules Of Civil Procedure, Paul Radvany
Recent Trends In Discovery In Arbitration And In The Federal Rules Of Civil Procedure, Paul Radvany
Faculty Scholarship
No abstract provided.
Processing Disability, Jasmine E. Harris
Processing Disability, Jasmine E. Harris
All Faculty Scholarship
This Article argues that the practice of holding so many adjudicative proceedings related to disability in private settings (e.g., guardianship, special education due process, civil commitment, and social security) relative to our strong normative presumption of public access to adjudication may cultivate and perpetuate stigma in contravention of the goals of inclusion and enhanced agency set forth in antidiscrimination laws. Descriptively, the law has a complicated history with disability — initially rendering disability invisible, later, legitimizing particular narratives of disability synonymous with incapacity, and, in recent history, advancing full socio-economic visibility of people with disabilities. The Americans with Disabilities Act, …
Can We Learn Anything About Pleading Changes From Existing Data?, Jonah B. Gelbach
Can We Learn Anything About Pleading Changes From Existing Data?, Jonah B. Gelbach
All Faculty Scholarship
In light of the gateway role that the pleading standard can play in our civil litigation system, measuring the empirical effects of pleading policy changes embodied in the Supreme Court's controversial Twombly and Iqbal cases is important. In my earlier paper, Locking the Doors to Discovery, I argued that in doing so, special care is required in formulating the object of empirical study. Taking party behavior seriously, as Locking the Doors does, leads to empirical results suggesting that Twombly and Iqbal have had substantial effects among cases that face Rule 12(b)(6) motions post-Iqbal. This paper responds to …
Rationalizing Cost Allocation In Civil Discovery, A. Benjamin Spencer
Rationalizing Cost Allocation In Civil Discovery, A. Benjamin Spencer
Faculty Publications
A movement is afoot to revise the longstanding presumption that in civil litigation the producing party bears the cost of production in response to discovery requests. An amendment to Rule 26( c )-which took effect in December 2015-makes explicit courts' authority to issue protective orders that shift discovery costs away from producing parties. But this authority is not new; what is new is what may be coming next-an undoing of the producer-pays presumption itself. Thus far, the sentiment to move in this direction has been slightly below the radar, advocated by probusiness interest groups and advocates before the Advisory Committee …
Understanding Judgments Recognition, Ronald A. Brand
Understanding Judgments Recognition, Ronald A. Brand
Articles
The twenty-first century has seen many developments in judgments recognition law in both the United States and the European Union, while at the same time experiencing significant obstacles to further improvement of the law. This article describes two problems of perception that have prevented a complete understanding of the law of judgments recognition on a global basis, particularly from a U.S. perspective. The first is a proximity of place problem that has resulted in a failure to understand that, unlike the United States, many countries allow their own courts to hear cases based on a broad set of bases of …
Five Questions After Atlantic Marine, Stephen E. Sachs
Five Questions After Atlantic Marine, Stephen E. Sachs
Faculty Scholarship
The Supreme Court’s Atlantic Marine ruling did a lot to clear up the law of forum selection. But it also left a number of live questions in place. This essay briefly discusses five of them. When a party wants to move a case to the selected forum, what procedures can it use, other than venue transfer or forum non conveniens? When is a forum selection clause valid and enforceable, as a matter of state or federal law? If the clause isn’t valid, should a federal court still give it any weight? What if there are multiple parties or claims, and …