My
petition
to replace NRCP 68 (a version with hyperlinks is here)
is reprinted below with some links to informational sites and source
materials. I removed the table of
contents from this post.
As
of
The
views expressed herein are those of the author.
They do not reflect the views of the author’s employer, the Nevada Law
Journal, the William S. Boyd School of Law, the State Bar of Nevada, Matthew
Bender & Company, Inc., the LexisNexis Group, their agents, editors or
directors, nor any other person or entity.
Every
effort has been made to provide the most accurate information available on this
subject. It should not, however, be
construed as legal advice. If legal
advice is required, please consult with a professional. To locate a
IN THE
SUPREME COURT
OF THE STATE OF
|
IN THE MATTER OF OFFERS OF JUDGMENT: THE REPEAL |
|
ADKT ______ |
Authored by:
Craig
R. Roecks, Esq.
Submitted by:
State Bar of
COMES
This
Petition is submitted under the authority granted to the Board of Governors of
the State Bar of Nevada by this Court pursuant to S.C.R.
Rule 86(9) and NRAD Section 3.2. The Petitioner
expresses no opinion on how this Court may choose to process this Petition.
Except where noted, this Petition is a
replication of Craig R. Roecks, A
Proposal to Clarify Rule 68 of the Nevada Rules of Civil Procedure Regarding
Offers of Judgment, 7 Nev. L.J. (Spring
2007). Deviations from that article are
as follows: 1) formatting
corrections; 2) a more harmonious bill drafting style is employed*; 3) amendments to NRCP Rule 5 and JCRCP
Rule 5 are added; 4) the subsection designated as Rule 68(j), filing
requirements, is added; and 5) the repeal and
replacement of JCRCP Rule 68 of is added.
I. Introduction
The
While Nevada Rule
of Civil Procedure 68 and Nevada Revised
Statutes § 17.115 have been replaced, substantially
amended, and clarified
over the years, they are incomplete when viewed in isolation. The gaps left by the text of Rule
68 and NRS
§ 17.115 have been partially filled through three decades of court
opinions. This Petition argues that it
is time to amend Rule 68 to codify this corpus of decisional law, make
this law more accessible, and address a limited number of significant issues
that have yet to be resolved by the Nevada Supreme Court in its published
opinions.
The
Nevada Supreme Court’s 1998 adoption
of a new Rule 68
introduced a tremendous degree of flexibility to parties that choose to serve
offers of judgment. This high degree of
flexibility is unique to
Collateral proceedings have resulted over the meaning of
Rule 68 and, given the substantial differences between
This Petition proposes to replace Rule 68 with a clarified
version that appears in the following pages. This proposal is presented as an amendment to
aid the reader in discerning the differences between the proposed rule and the
current rule. This Petition also
includes corresponding forms to be included in the NRCP
Appendix of Forms and proposes a related amendment to Rule
5(d).
Other commentators, courts, and lawmakers across the country have
disputed the utility and policy of offers of judgment and have proposed a
number of corresponding modifications to the rule, up to and including the
total abolition of offers of judgment.
This Petition does not join that debate.
The law and policy in
II. Proposed Amendments[1]
A. NRCP RULE 5. SERVICE
(a) Service:
When Required. Except as otherwise provided in these rules,
every order required by its terms to be served, every pleading subsequent to
the original complaint unless the court otherwise orders because of numerous defendants,
every paper relating to discovery required to be served upon a party unless the
court otherwise orders, every written motion other than one which may be heard
ex parte, and every written notice, appearance, demand, offer of judgment,
designation of record on appeal, and similar paper shall be served upon each of
the parties. No service need be made on parties in default for failure to
appear except that pleadings asserting new or additional claims for relief
against them shall be served upon them in the manner provided for service of
summons in Rule 4.
(b) Same:
How Made.
(1) Whenever
under these rules service is required or permitted to be made upon a party represented
by an attorney, the service shall be made upon the attorney unless the court
orders that service be made upon the party.
(2) Service
under this rule is made by:
(A) Delivering
a copy to the attorney or the party by:
(i) handing it to the attorney or to the
party;
(ii) leaving
it at the attorney’s or party’s office with a clerk or other person in charge,
or if there is no one in charge, leaving it in a conspicuous place in the
office; or
(iii) if
the office is closed or the person to be served has no office, leaving it at
the person’s dwelling house or usual place of abode with some person of
suitable age and discretion residing there.
(B) Mailing
a copy to the attorney or the party at his or her last known address. Service
by mail is complete on mailing; provided, however, a motion, answer or other
document constituting the initial appearance of a party must also, if served by
mail, be filed within the time allowed for service; and provided further, that
after such initial appearance, service by mail be made only by mailing from a
point within the State of Nevada.
(C) If
the attorney or the party has no known address, leaving a copy with the clerk
of the court.
(D) Delivering
a copy by electronic means if the attorney or the party served has consented to
service by electronic means. Service by electronic means is complete on
transmission provided, however, a motion, answer or other document constituting
the initial appearance of a party must also, if served by electronic means, be
filed within the time allowed for service. The served attorney’s or party’s
consent to service by electronic means shall be expressly stated and filed in
writing with the clerk of the court and served on the other parties to the
action. The written consent shall identify:
(i) the persons upon whom service must be
made;
(ii) the
appropriate address or location for such service, such as the electronic-mail
address or facsimile number;
(iii) the
format to be used for attachments; and
(iv) any
other limits on the scope or duration of the consent.
An attorney’s or party’s consent shall remain
effective until expressly revoked or until the representation of a party
changes through entry, withdrawal, or substitution of counsel. An attorney or
party who has consented to service by electronic means shall, within 10 days
after any change of electronic-mail address or facsimile number, serve and file
notice of the new electronic-mail address or facsimile number.
(3) Service
by electronic means under Rule 5(b)(2)(D) is not effective if the party making
service learns that the attempted service did not reach the person to be
served.
(4) Proof
of service may be made by certificate of an attorney or of the attorney’s
employee, or by written admission, or by affidavit, or other proof satisfactory
to the court. Failure to make proof of service shall not affect the validity of
service.
(c) Same:
Numerous Defendants. In any action in which there are unusually
large numbers of defendants, the court, upon motion or of its own initiative,
may order that service of the pleadings of the defendants and replies thereto
need not be made as between the defendants and that any cross-claim,
counterclaim, or matter constituting an avoidance or affirmative defense
contained therein shall be deemed to be denied or avoided by all other parties
and that the filing of any such pleading and service thereof upon the plaintiff
constitutes due notice of it to the parties. A copy of every such order shall
be served upon the parties in such manner and form as the court directs.
(d) Filing. All
papers after the complaint required to be served upon a party shall be filed
with the court either before service or within a reasonable time thereafter,
except as otherwise provided in Rule 5(b), but, unless filing is ordered by the
court on motion of a party or upon its own motion, offers of judgment, depositions
upon oral examination and interrogatories, requests for production, requests
for admission, and the answers and responses thereto, shall not be filed unless
and until they are used in the proceedings. Originals of responses to requests
for admissions or production and answers to interrogatories shall be served upon
the party who made the request or propounded the interrogatories and that party
shall make such originals available at the time of any pretrial hearing or at
trial for use by any party.
(e) Filing
With the Court Defined. The filing of pleadings and other papers
with the court as required by these rules shall be made by filing them with the
clerk of the court, except that the judge may permit the papers to be filed
with the judge, in which event the judge shall note thereon the filing date and
forthwith transmit them to the office of the clerk. A court may by local rule
permit papers to be filed, signed or verified by electronic means that are
consistent with technical standards, if any, that the Judicial Conference of
the
B. JCRCP RULE 5. SERVICE
(a) Service:
When Required. Except as otherwise provided in these rules,
every order required by its terms to be served, every pleading subsequent to
the original complaint unless the court otherwise orders because of numerous
defendants, every paper relating to discovery required to be served upon a
party unless the court otherwise orders, every written motion other than one
which may be heard ex parte, and every written notice, appearance, demand,
offer of judgment, designation of record on appeal, and similar paper shall be
served upon each of the parties. No service need be made on parties in default
for failure to appear except that pleadings asserting new or additional claims
for relief against them shall be served upon them in the manner provided for
service of summons in Rule 4.
(b) Same:
How Made.
(1) Whenever
under these rules service is required or permitted to be made upon a party
represented by an attorney, the service shall be made upon the attorney unless
the court orders that service be made upon the party.
(2) Service
under this rule is made by:
(A) Delivering
a copy to the attorney or the party by:
(i) handing it to the attorney or to the
party;
(ii) leaving
it at the attorney’s or party’s office with a clerk or other person in charge,
or if there is no one in charge, leaving it in a conspicuous place in the
office; or
(iii) if
the office is closed or the person to be served has no office, leaving it at
the person’s dwelling house or usual place of abode with some person of
suitable age and discretion residing there.
(B) Mailing
a copy to the attorney or the party at his or her last known address. Service
by mail is complete on mailing; provided, however, a motion, answer or other
document constituting the initial appearance of a party must also, if served by
mail, be filed within the time allowed for service; and provided further, that
after such initial appearance, service by mail be made only by mailing from a
point within the State of Nevada.
(C) If
the attorney or the party has no known address, leaving a copy with the clerk
of the court.
(D) Delivering
a copy by electronic means if the attorney or the party served has consented to
service by electronic means. Service by electronic means is complete on
transmission provided, however, a motion, answer or other document constituting
the initial appearance of a party must also, if served by electronic means, be
filed within the time allowed for service. The served attorney’s or party’s
consent to service by electronic means shall be expressly stated and filed in
writing with the clerk of the court and served on the other parties to the
action. The written consent shall identify:
(i) the persons upon whom service must be
made;
(ii) the
appropriate address or location for such service, such as the electronic-mail
address or facsimile number;
(iii) the
format to be used for attachments; and
(iv) any
other limits on the scope or duration of the consent.
An attorney’s or party’s consent shall remain
effective until expressly revoked or until the representation of a party
changes through entry, withdrawal, or substitution of counsel. An attorney or
party who has consented to service by electronic means shall, within 10 days
after any change of electronic-mail address or facsimile number, serve and file
notice of the new electronic-mail address or facsimile number.
(3) Service
by electronic means under Rule 5(b)(2)(D) is not effective if the party making
service learns that the attempted service did not reach the person to be
served.
(4) Proof
of service may be made by certificate of an attorney or of the attorney’s
employee, or by written admission, or by affidavit, or other proof satisfactory
to the court. Failure to make proof of service shall not affect the validity of
service.
(c) Same:
Numerous Defendants. In any action in which there are unusually
large numbers of defendants, the court, upon motion or of its own initiative,
may order that service of the pleadings of the defendants and replies thereto
need not be made as between the defendants and that any cross-claim,
counterclaim, or matter constituting an avoidance or affirmative defense
contained therein shall be deemed to be denied or avoided by all other parties
and that the filing of any such pleading and service thereof upon the plaintiff
constitutes due notice of it to the parties. A copy of every such order shall
be served upon the parties in such manner and form as the court directs.
(d) Filing. All
papers after the complaint required to be served upon a party shall be filed
with the court either before service or within a reasonable time thereafter,
except as otherwise provided in Rule 5(b), but, unless filing is ordered by the
court on motion of a party or upon its own motion, offers of judgment, depositions
upon oral examination and interrogatories, requests for production, requests
for admission, and the answers and responses thereto, shall not be filed unless
and until they are used in the proceedings. Originals of responses to requests
for admissions or production and answers to interrogatories shall be served
upon the party who made the request or propounded the interrogatories and that
party shall make such originals available at the time of any pretrial hearing
or at trial for use by any party.
(e) Filing
With the Court Defined. The filing of pleadings and other papers
with the court as required by these rules shall be made by filing them with the
clerk of the court, if there be one, except that the justice may permit the
papers to be filed with him or her. In cases where there is no clerk, the
papers shall be filed with the justice. A court may by local rule permit papers
to be filed, signed or verified by electronic means that are consistent with
technical standards, if any, that the Judicial Conference of the
(f) Drop
Box Filing
(1)
Authorization. The court, or clerk of the court if there be
one, may maintain one or more drop boxes in which papers and pleadings may be
deposited for filing with the court. If such a system is maintained, the court
or clerk must:
(A)
Place the drop box at a location that is easily accessible by the public;
(B)
Ensure that the drop box is locked or otherwise constructed to prevent theft or
tampering of documents; and
(C)
Provide, in a location immediately adjacent to the drop box, a machine or other
device that is capable of stamping the date and time of receipt on documents
that are being deposited in the drop box.
(2)
Papers Eligible for Filing. All papers and pleadings,
including, but not limited to, motions, oppositions, replies, affidavits,
points and authorities, and courtesy copies, may be deposited in the drop box.
However, filings which require the payment of filing fees must be made directly
with the clerk’s office, or justice where there is no clerk, unless the fees
accompanying the filing are paid by check.
(3)
Procedure. Papers and pleadings may be deposited in the drop
box during all hours the courthouse is open. Before such documents are deposited,
the documents must be date and time stamped as described in subdivision (f)(1).
Documents placed in the drop box shall be deemed filed as of the date and time
stamped on the paper or pleading. However, if a document is placed in the drop
box without being date and time stamped, that document will not be deemed filed
until it is date and time stamped by the clerk’s office. In addition, if a
document is placed in the drop box, and the clerk’s office determines that the
attempted filing is defective based on the absence of filing fees or based on
any other legitimate reason, that document will not be deemed filed until the
defect has been cured.
C. NRCP
RULE 68. OFFERS OF JUDGMENT: Illustrative amendments shown
(a) [The] Contents of Offer and Timing.
(1) At
any time [more than 10 days] before
trial, any party may serve [an offer in writing]
to any other party an offer to enter judgment to resolve all claims in the action between those parties
accrued through the date of the offer.
(2) When
the liability of one party to another has been determined by verdict, order or
judgment, but the amount or extent of the liability remains to be determined by
further proceedings, at any time before the commencement of the proceeding to
determine the amount or extent of liability, any party may serve to any other
party an offer to enter judgment to resolve all claims in the action between
those parties accrued through the date of the offer.
(3) No party shall be subject to the sanctions of subsection (g) for the rejection of an offer that:
(A) is
made pursuant to subdivision (a)(1) and served less
than 11 days before trial; or
(B) is
made pursuant to subdivision (a)(2) and served less
than 11 days before the commencement of the proceeding.
(4) The
offer shall allow judgment to be taken in accordance with its terms [and conditions.] and may include
equitable remedies. Unless otherwise specified, an offer is deemed to be for a
lump-sum, meaning the terms of the offer are deemed to preclude separate
post-acceptance awards of costs, attorneys’ fees and interest.
(5) The offer may specify that it is conditioned upon a determination
of good faith settlement.
(6) The
offer may specify a longer acceptance period than the period prescribed by
subdivision (f)(1), but may not permit an acceptance after the commencement of
a trial if the offer is made pursuant to subdivision (a)(1) and may not permit
an acceptance after the commencement of the proceeding if the offer is made
pursuant to subdivision (a)(2).
(7) The offer shall specify that it is based upon this rule or it shall specify the complete basis of the offer if it is based upon a combination of this rule and NRS 17.115. An offer is not void because it is based upon this rule, NRS 17.115, or both.
(8) An offer that resolves less than all of the claims between
all the offerees and all the offerors is void.
(9) An offer may not be withdrawn except by written stipulation or as provided in subdivision (f)(2).
(10) An offer that specifies material conditions that are in
addition to those provided by this rule or that conflict with those provided by
this rule is void.
(b) Apportioned
Conditional Offers to Multiple
Parties. An
apportioned offer [of
judgment] jointly made to more than
one party may be conditioned upon the acceptance by all parties to whom the
offer is directed.
(c) [Joint] Unapportioned Offers Jointly Made By Multiple Parties. [
(1) Multiple
Offerors. A joint offer may be] An offer jointly made
by multiple offerors is not required to be apportioned between the offerors.
(d) Joint Unapportioned Offers to Multiple
Parties.
[(2)] (1) Offers to Multiple [defendants] Defending Parties. [An offer made to multiple defendants will invoke the
penalties of this rule only if] An unapportioned offer jointly made to
multiple parties against whom claims, counterclaims or cross-claims are
asserted may be conditioned upon the acceptance by all parties to whom the
offer is directed if one entity, person or group is authorized to accept or
reject an offer of settlement for all the claims against all the offerees and:
(A) there
is a single common theory of liability against all the [offeree
defendants, such as where] offerees;
(B) the
liability of some [is] offerees are
entirely derivative of the common acts or liability of the others; or [where]
(C) the
liability of all [is] offerees are
derivative of the
common acts [by] or liability of another[, and (B) the same entity, person or group is
authorized to decide whether to settle the claims against the offerees].
[(3)] (2) Offers to Multiple [Plaintiffs] Claimants. [An offer made to multiple plaintiffs will invoke the penalties
of this rule only if] An unapportioned
offer jointly made to multiple claimants may be conditioned upon the acceptance
by all parties to whom the offer is directed if one entity, person or group is
authorized to accept or reject an offer of settlement for all the claims of all
the offerees and:
(A) [the damages claimed by all the offeree plaintiffs are
solely derivative, such as that] there is a single common theory of liability claimed by all
the offerees;
(B) the damages claimed by some offerees are
entirely derivative of an injury to the others; or [that]
(C) the damages claimed by all offerees are
derivative of an injury to another[, and
(B) the same entity, person or group is authorized to decide whether to
settle the claims of the offerees].
(3) Offers to Joint Tenants. No combination of offerees that jointly claim or defend under the same common theory of liability concerning jointly owned property is a group as that term is used in this subsection. When two or more offerees jointly claim or defend under the same common theory of liability concerning jointly owned property, the burden is on any offeree to establish that no one person has authority to accept or r