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Litigation: Submitting Orders Under The New Rules

At our firm, one of us is in court on almost a daily basis, and we deal with the requirement to submit proposed orders frequently. The rules of civil procedure were significantly altered recently, and those changes went into force on March 1, 2019. The way those amendments interact with the Eighth District Court Rules can be confusing at times.

The local Rules of Practice for the Eighth Judicial District Court of the State of Nevada (“EDCR”) state that proposed orders should be submitted to the court within 10 days. The rule is EDCR 7.21, specifically. However, under the Rules of Civil Procedure which were in place at the time EDCR 7.21 was drafted, that referred to 10 Court days. See e.g. Administrative Order 19-03; NRCP 6(a) (2017).

The changes to NRCP which took effect on March 1st, 2019 caused the issuance of Administrative Order 19-03 which suspends some rules and directs that the rest be interpreted to reasonably comply with the revisions to the NRCP. Id. The most reasonable way to reconcile the EDCR with the revisions is to find that time to submit a proposed order is within 14 calendar days from the time of a verbal order. See ADKT 0522 (revising the NRCP and stating that in general deadlines which were for 6 to 15 days are adjusted to 14 days).

Under the new rules, in some cases, 10 judicial days can turn out to be longer than 14 calendar days when there are intervening holidays.

At Morris Law Center, we love to dig into the technicalities of the rules. As such, if you are an opposing attorney, do not expect to catch us slipping. However, if you are a fan of legal procedure, give us a call to discuss further.

Options For Enforcement of Settlement Agreements

Your options are when an agreement isn’t working

What happens when you’ve reached a settlement agreement in your case using alternative dispute resolution, such as mediation or arbitration, yet one of the parties involved isn’t holding up their end of the bargain? You must be thinking “there has to be something that can be done,” and you’d be right. Below are a few options to consider when someone isn’t honoring an agreed upon settlement.

Motion to Enforce Settlement Agreement

If a case has already been filed in Nevada district court, one of the options you can consider is having the court order the other party to honor the agreement. To accomplish this, you would have to file a Motion to Enforce. In Nevada, a settlement agreement is a contract governed by general principles of contract law, and a district court has the authority to enforce a settlement agreement in an existing case where it already has jurisdiction. In order to enforce a settlement agreement, the moving party must show either: (1) a written, signed agreement; or (2) terms entered into the court minutes reduced to an order. If granted, the other party to the settlement must comply with the terms of the agreement. If they do not comply, you could pursue further remedies, such as moving to hold the other party in contempt for not following the court’s order.

Sue for Breach of Settlement Agreement

Another option is to move to add a claim for Breach of Contract (if a suit has already been filed) or to file a Complaint for Breach of Contract. In some cases, suing for a Breach of Contract is an easier case to prove than the facts of the underlying dispute, which could provide an easier route to a favorable judgment.

You might also consider an additional claim for Breach of the Implied Covenant of Good Faith and Fair Dealing. This claim would apply in cases where a party to the settlement made the agreement knowing they would not be able to fulfill their part of the agreement. This claim is meant to ensure that all parties enter into an agreement in good faith to one another and prohibits unfair acts by one party that would work to the disadvantage of the other. This claim might be available even if the court determines there is no breach of the settlement agreement itself, giving additional options for relief.

Proceed with Underlying Case

Another option to weigh is considering moving to set aside the initial agreement and proceed with litigation. This would essentially ignore the settlement agreement and proceed with the original lawsuit. However, litigation options generally come at a greater financial cost than settlement, which is something to consider.

Conclusion

In conclusion, all is not lost if the opposing party doesn’t meet their obligations. You have plenty of options to enforce the agreement, or to move on and continue litigation.

If you need assistance in your settlement agreement, or just have questions, please feel free to contact us at Morris Law Center for your complimentary consult.

And as always, “If you think you might need an attorney, you probably do.”

Unwritten Litigation Rules: Three Day Notice of Intent to Take Default

The Three Day Notice of Intent to Take Default (“3DN”) is commonly used in Nevada, particularly in the Eighth Judicial District, to notify an opposing attorney that a default will be entered if they do not immediately respond to a lawsuit. However, it can not be found anywhere in the Nevada Rules of Civil Procedure, or in the Rules of Practice for the Eighth Judicial District Court of the State of Nevada.

That is because the basis for this pleading is in the Nevada Rules of Professional Conduct:

Rule 3.5A.  Relations With Opposing Counsel.  When a lawyer knows or reasonably should know the identity of a lawyer representing an opposing party, he or she should not take advantage of the lawyer by causing any default or dismissal to be entered without first inquiring about the opposing lawyer’s intention to proceed.

The unwritten rule that evolved in response to this is the 3DN. The 3DN is normally filed into the case with a certificate of service reflecting who it was served upon. While not required, the executive summary is that the Judge won’t report an attorney to the Nevada Bar for investigation if that attorney files the 3DN and then pursues default after the three days run.

The attorneys at Morris Law Center love to discuss procedural strategy. Contact us if you want to discuss the blueprint for litigation.

Can a Court Judgment be Recorded Against Real Property?

The short answer is “yes.” Not only can you record a judgment against real property, but you will often want to. Obtaining a judgment lien against real property can be a good way to ensure payment of a judgment debt. A lien on the property makes it more difficult for a judgment debtor to transfer an interest in the property and gives the judgment creditor (the person who won the judgment) the ability to take further steps, including foreclosure on the property.

CLICK HERE to read the full story.

How do I Certify my Pup to be a Service Dog?

Today a trip to the store likely involves seeing a service animal assisting their owner while they travel about. If you’re a dog lover, you’ve probably wondered what the process is to get your own furry children trained and certified to accompany you in public places. However, it is important to understand the purpose of a service dog and what specific reason would require your dog to join you in public.

Firstly, the most important and albeit shocking piece of information about service dogs is that the American Disabilities Act (ADA) does not require formal training or certification. If you search “service dog” online, you will immediately be barraged with several sites offering certifications for service dogs. These are not required nor are they recognized as legitimate proof that your dog is a service animal by the Department of Justice. Although professional training is not required, a service dog still must be trained in providing a “service” to you. For example, you may train your own dog to guide you as you walk if you have impaired vision or blindness.

So, now you may be thinking, “Great – I can bring my dog anywhere a service animal is allowed and say: I trained him/her myself.” However, the use of a service dog requires the place you are going, whether a restaurant, store, movie theatre, etc., to make accommodations for you and your service dog. This is based on an honor system that you have some reason you need your dog’s assistance. If you don’t, you could be inconveniencing that place and others around you for no good reason. Moreover, it isn’t fair to those who truly do require their service animal. These places should be reserving their reasonable accommodations for individuals who really do need their dog to provide a service in order to participate in their everyday lives.

In sum, while it would be amazing to take our adorable, loving puppies everywhere we go, it is important to respect the purpose of a service dog. Please only train your pup to be a service dog, and bring them around as such, if you truly need their assistance to function in your everyday life.

For more information on service dogs, and the laws that protect them, please review the AmericanDisabilities Act (ADA) at this link: https://www.ada.gov/regs2010/service_animal_qa.html

And finally, as we always say, “If you think you might need an attorney, you probably do.” Contact us before anything is set in stone. We love answering questions!

Nevada’s New Gun Law Explained

It’s no surprise that emotions ran hot this autumn as voters decided the fate of the Nevada Background Checks for Gun Purchases Initiative.

But now that the measure has been approved, even if the approval was only by a 10,000-vote margin, gun owners in Nevada need to make sure that they comply with the law whenever they transfer ownership of a firearm.

And, frankly, it’s a little complex.

Here is how the new state law will work when it takes effect Jan. 1:

Anyone who isn’t a licensed firearms dealer is required to conduct a background check on the buyer whenever they sell a gun. To conduct a background check, both the seller and the buyer (or the donor and the recipient, if the transfer doesn’t involve a sale), need to take the firearm and appear before a federally licensed dealer.

Currently, for retail gun sales in Nevada, dealers conduct background checks through the Criminal History Repository run by the Department of Public Safety.  The state charges dealers a $25 fee to run a background check.

But the new system requires instead that the FBI’s National Instant Background Check System handle the private-party background check system in Nevada. The national system involves filling out some paperwork from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF Form 4473, if you want to be precise). The dealer calls in the information or inputs it on a Web site, and generally gets a fairly quick response.

But not all responses are fast. Sometimes — like Black Friday, which saw more than 185,000 requests for background checks in 2015 — the federal background check system bogs down.

Licensed gun dealers in the state say they’re confused by the conflict between the state background check for retail sales versus the FBI system for private-party sales. State officials are studying the question and promise an answer before the law takes effect.

Federal law says that firearm dealers can proceed with a sale if they haven’t heard back from the FBI within three days, but many firearms dealers aren’t willing to go out on this limb. And it’s not entirely certain what happens if a background check requested by an unlicensed seller gets hung up in the federal system.

Licensed dealers also are uncertain how much they’ll charge for background checks on private sales. The new law allows a reasonable fee, and some dealers have kicked around the possibility of charging $100 or so.

Not every private sale is covered by the new state law. Law-enforcement agencies can buy and sell without background checks. Antique firearms aren’t covered. Transfers between immediate family members don’t require a background check.

If two buddies swap guns while they’re at a shooting range, the law specifically says that they do not need to conduct background checks on each other. Ditto for hunting parties. Or, if someone is in great bodily danger, they don’t need to fill out paperwork before grabbing a gun to defend themselves.

Even with those exceptions, and even with the confusion that faces the licensed firearms dealers who will run background checks, we think it’s a good idea for gun owners to err on the side of caution.

As a practical matter, it seems highly improbable that the state would be able to detect most of the sales that evade the requirement for a background check. But if a firearm somehow ends up as evidence in a criminal case, it’s almost certain that police and prosecutors will track its history, and they’re likely to discover the point when a sale was conducted outside the background-check system.

And the results of that discovery are going to be uncomfortable for otherwise law-abiding gun owners.

Sellers who fail to request a background check can be charged with a gross misdemeanor, which could result in a $2,000 fine or as much as a one-year jail term.

That seems like a tough price to pay just to avoid some paperwork and the expense of a background check.

For more informations or questions, please give us a call at (702) 850-7798 or click here to send us an email