Civil Procedure Commons^™

In Re P.S., 131 Nev. Adv. Op. 95 (Dec. 24, 2015), Rob Schmidt

Nevada Supreme Court Summaries

The Supreme Court of Nevada held that under NRS § 62B.030 the district court has discretion over whether to conduct a hearing de novo after reviewing the recommendations of a master of the juvenile court when timely requested.

Harrison V. Roitman, 131 Nev. Adv. Op. 92 (Dec. 17, 2015), Michael Coggeshall

Nevada Supreme Court Summaries

The Court determined that absolute immunity applies to party-retained expert witnesses as well as court appointed witnesses. Party-retained expert witnesses have absolute immunity from suits for damages arising from statements made in the course of judicial proceedings.

State, Emp’T. Sec. Div. V. Murphy, 132 Nev. Adv. Op. 18 (Dec. 17, 2015), Michael Coggeshall

Nevada Supreme Court Summaries

The Court determined that employees who are terminated from employment for absence due to incarceration, and are later convicted of a crime, are not eligible for unemployment benefits. These employees are contrasted with those who are incarcerated, but remained incarcerated due to indigence, or were not convicted due to unsupported charges. The latter group may be eligible for unemployment benefits.

The Merits Of Third-Party Standing, Brian Charles Lea

William & Mary Bill of Rights Journal

When can a litigant assert someone else’s rights in federal court? The courts currently purport to adhere to a “prudential” justiciability rule barring such “thirdparty standing.” But the Supreme Court has devised exceptions—jus tertii standing and First Amendment overbreadth—under which courts can ignore that rule. The Court has never explained the source of that remarkable judicial power to choose what rights litigants can assert. The doctrine of third-party standing is, in short, an undertheorized muddle. Thankfully, the Court suggested in its 2014 decision in Lexmark International, Inc. v. Static Control Components, Inc., that it might soon try to bring order …

Radio Kol Baramah V. Kolech – Religious Women’S Forum, Yoram Danziger, Daphne Barak-Erez, Esther Hayut

Translated Opinions

The District Court certified the application of Kolech – Religious Women’s Forum Organization (hereinafter: Kolech) to bring a class action against the radio station Kol BaRamah Ltd. (hereinafter: the radio station), holding that the declared policy adopted by the radio station in the years 2009-2011, whereby women could not be heard on the station’s broadcasts, constituted prohibited discrimination under the Prohibition against Discrimination in Products, Services and Entry to Places of Entertainment and Public Places Law, 5761-2000 (hereinafter: Prohibition against Discrimination Law). (It should be noted that the change in the management of the radio station as of the year …

Helfstein V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 91 (Dec. 3, 2015), Heather Caliguire

Nevada Supreme Court Summaries

The Nevada Supreme Court determined that the six-month deadline to set aside a voluntary dismissal or settlement agreement found within NRCP 60(b) could not be extended, despite an allegation of fraud.

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.

Measuring The Impact Of Plausibility Pleading, Alexander A. Reinert

Articles

Ashcroft v. Iqbal and its predecessor, Bell Atlantic Corp. v. Twombly, introduced a change to federal pleading standards that had remained essentially static for five decades. Both decisions have occupied the attention of academics, jurists, and practitioners since their announcement. Iqbal alone has, as of this writing, been cited by more than 95,000 judicial opinions, more than 1,400 law review articles, and innumerable briefs and motions. Many scholars have criticized Iqbal and Twombly for altering the meaning of the Federal Rules of Civil Procedure outside the traditional procedures contemplated by the Rules Enabling Act. Almost all commentators agree that …

In Re Guardianship Of Hailu, 131 Nev. Adv. Op. 89 (Nov. 16, 2015), Adrienne Brantley

Nevada Supreme Court Summaries

The Court determined that under NRS § 451.007 (the Uniform Determination of Death Act) the District court failed to consider whether the American Association of Neurology (AAN) guidelines adequately measure all functions of the entire brain and whether the guidelines are considered accepted medical standards by states that have adopted the Act.

Wph Architecture, Inc. V. Vegas Vp, Lp., 131 Nev. Adv. Op. 88 (Nov. 5, 2015), Emily Dyer

Nevada Supreme Court Summaries

The Court determined that (1) NRCP 68, NRS § 17.115, and NRS § 18.020, which allow costs and fees to be awarded in several types of district court cases, do not require an arbitrator to award fees and costs after an offer of judgment has been made; and (2) NRCP 68, NRS § 17.115, and NRS § 18.020 are substantive in their application to arbitration proceedings.

Civil Practice And Procedure, John R. Walker, Jaime B. Wisegarver

University of Richmond Law Review

No abstract provided.

The "Test"--Or Lack Thereof--For Issuance Of Virginia Temporary Injunctions: The Current Uncertainty And A Recommended Approach Based On Federal Preliminary Injunction Law, Hon. David W. Lannetti

University of Richmond Law Review

No abstract provided.

On Regulatory Discord And Procedure, Elizabeth Chamblee Burch

Scholarly Works

Businesses are increasingly global. But domestic courts’ jurisdiction remains largely provincial; both public and private regulators have overlapping, mismatched authority. Regulatory discord is readily apparent in consumer protection cases. When the Dodd-Frank Wall Street Reform and Consumer Protection Act empowered state regulators while simultaneously creating an encompassing federal regulator—the Consumer Financial Protection Bureau—it further contributed to overlap between federal agencies, states, and private litigation.

Whether this regulatory magnetism is optimal in terms of fundamental goals like compensation and deterrence is a hotly debated normative and empirical question. Yet, one need not wade too far into the substantive debate to appreciate …

Constructing Issue Classes, Elizabeth Chamblee Burch

Scholarly Works

As government budgets shrink each year, enforcement responsibilities in products liability, consumer protection, and employment discrimination fall increasingly to private attorneys. But defendants have successfully layered new objections about noncohesive classes and unascertainable members atop legislative and judicial reforms to cripple plaintiffs’ attorneys’ chief weapon — the class action. The result? Courts deny class certification and defendants escape enforcement by highlighting the differences among those affected by their misconduct. At the other end of the regulatory spectrum lies the opposite problem. Some defendants’ actions are so egregious that hordes of public and private regulators can’t help but get involved — …

D.R. Horton, Inc. V. Eighth Jud. Dist. Ct, 131 Nev., Adv. Op. 86 (October 29, 2015), Brandonn Grossman

Nevada Supreme Court Summaries

The Nevada Supreme Court considered a Petitioner home builder’s petition for writ relief and appeal of a district court order granting Respondent HOA’s ex parte motion for a stay and enlargement of time for service pursuant to NRS 40.647(2)(b). Ruling on Petitioner’s two writ petitions, the Court held the district court’s grant of a stay was not in error and the NRCP 41(e) five-year limitation period was tolled under the Boren exception to NRCP 41(e). Accordingly, the Court denied both writ petitions.

Eureka Cnty. V. Off. Of State Engr. Of State Of Nev., Div. Of Water Resources, 131 Nev. Adv. Op. 84 (Oct. 29, 2015), Chelsea Finnegan

Nevada Supreme Court Summaries

For the State Engineer to grant water rights applications, there must be evidence to support the decision and the new rights must not substantially conflict with existing rights. On appeal from the District Court, the Court found no evidence to support the granted application, and held the use of Respondent’s rights would severely impact the water table. The Court reversed and remanded the case for proceedings consistent with the opinion.

Rule 55: Why Broadly Interpreting "Otherwise Defend" Protects A Diligent Party's Rights And Encourages An Orderly And Efficient Judicial System, Jessica Ruoff

St. John's Law Review

(Excerpt)

This Note argues that a uniform interpretation of "otherwise defend" is needed. Part I of this Note discusses the history and purpose of Rule 55, the procedure for entries of default and default judgment, and other alternatives to Rule 55 default judgments. Part II of this Note examines how the language "otherwise defend" has been interpreted differently by the federal circuit courts. Part III of this Note argues that the majority's broad interpretation of "otherwise defend" should be adopted as the uniform interpretation because it is supported by statutory interpretation and the underlying purpose of Rule 55.

Broader Is Better: How Courts Should Determine Whether Or Not An Allegation Of Fraud Falls Under The Preemption Provision Of The Securities Litigation Uniform Standards Act, Jennifer Rose Roeske

St. John's Law Review

(Excerpt)

This Note argues that the correct approach for interpreting the scope of SLUSA's preemption language is the "literalist" approach taken by the Sixth Circuit. Part I of this Note lays out the legal framework of the Reform Act of 1995, Congress's intent in enacting the legislation, and the unintended consequences that flowed from the PSLRA's heightened pleading requirements. Part I also discusses SLUSA, what led to its passage, and its preemption language. Additionally, it looks at the Supreme Court's interpretation of preemption statutes generally, as well as the Supreme Court's broad interpretation of SLUSA in Merrill Lynch, Pierce, Fenner …

The Shortcomings Of New York's Long-Arm Statute: Defamation In The Age Of Technology, Robert D. Nussbaum

St. John's Law Review

(Excerpt)

This Note suggests that the New York legislature amend New York's long-arm statute so that it no longer excludes the tort of defamation as a basis for long-arm jurisdiction. Part I provides a brief background and history of jurisdiction and longarm statutes in general. It also focuses on New York's statute more specifically. Part II focuses on the arguments for excluding acts of defamation from long-arm jurisdiction and compares New York's statute to those of other states. Finally, Part III examines the different policy reasons for changing the statute and argues that such a change will not offend Due …

Employment Discrimination Class Actions After Wal-Mart V. Dukes, Michael Selmi, Sylvia Tsakos

Akron Law Review

This Article explores the ramifications of Wal-Mart approximately five years after the case was decided. While five years hardly provides definitive data on how the case will be interpreted, it is possible to identify trends in the cases that have been decided to date—trends that are likely to provide insight into the future of class action claims. That future suggests that there will be fewer, and perhaps no, nationwide class actions in cases that do not involve a clear challenged practice (any such cases are likely to be disparate impact cases) and that the prospect for class certification will turn …