Re-Writing Nevada’s Rules of Civil Procedure, Part 4: Updating Terms

At least two parts of Rule 8 no longer accurately reflect Nevada law and should be updated.

• Revise NRCP 8(a) & 54(c) to match the jurisdictional statutes.

As of January 1, 2017, the jurisdictional threshold for Nevada’s district courts was revised.  Where money damages are sought, a district court now has jurisdiction if the amount in dispute exceeds $15,000.  NRCP 8(a), however still lists the amount as $10,000.  This will need to be changed.

However, merely changing the amount would then require revision yet again if the Legislature changes the jurisdictional statutes.  To avoid the need for future amendment to match legislative action, the rule could be revised to track the appropriate statute.

Rule 8(a): “Where a claimant seeks damages of more than $10,000 exceeding the district court’s jurisdictional threhold, the demand shall be for damages “in excess of $10,000” the amount stated in the jurisdictional statute, without further specification of amount.”

Rule 54(c):  ”A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment, except that where the prayer is for damages in excess of $10,000 the district court’s jurisdictional threshold, the judgment shall be in such amount as the court shall determine.”

• Revise NRCP 8(c) to match Nevada case law.

When answering, NRCP 8(c) requires certain affirmative defenses be pled in the first answer or they are arguably waved.  These are “accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”  At least three of these terms are arcane or no longer reflect Nevada law.

Contributory Negligence:  This does not not exist in Nevada.  Contributory negligence bars a plaintiff from recovering if the plaintiff was even 1% negligent in causing the events at issue.  Instead, Nevada uses comparative negligence per NRS 41.141.  This is a subtle difference in phrasing, but a huge difference in practical effect.

Estoppel and Res Judicata:  These doctrines are still valid in Nevada, but these terms are no longer used to describe them because of confusion about their definitions.  Five Star Capital Corp. v. Ruby specifically adopted “terms of claim preclusion and issue preclusion as the proper terminology in referring to these doctrines. This will help avoid confusion and interchanging use of the two separate doctrines and follows the trend adopted among several courts, including the United States Supreme Court.”^[1]  Instead, Nevada no uses the phrases issue preclusion and claim preclusion to describe the separate doctrines.

The list of defenses in Rule 8(c) should be revised in relevant part as follows: “accord and satisfaction, arbitration and award, assumption of risk, claim preclusion, contributory comparative negligence, discharge in bankruptcy, duress, estoppel failure of consideration, fraud, illegality, injury by fellow servant, issue preclusion, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”

[1] 124 Nev. 1048, 1054, 194 P.3d 709, 713 (2008).