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 reject an offer of settlement for all the offerees.
[(d)] (e) Judgment
Entered Upon Acceptance.
(1) If [within 10 days after the service of the
offer,] the offeree serves written notice that the offer is accepted
within the
acceptance period provided by subdivision (f)(1), the offer shall be deemed
accepted and either party may then file the offer and notice of
acceptance together with proof of service.
The offer
and notice of acceptance must be filed within 7 days after service of the written
notice that the offer is accepted or before trial or other applicable
proceeding, whichever occurs earlier.
(2) [The] Except
as otherwise provided in subdivision (f)(6), the clerk or judge
shall enter judgment accordingly. [The] If permitted by law
or contract, the court shall [allow]
award
costs in accordance with NRS 18.110 [unless],
attorneys’ fees
and interest as applicable, but shall not make such awards if the
terms of the offer preclude [a] separate [award] awards of costs, attorneys’ fees and interest. If the terms of the offer permit an award of
interest, any portion of any claim or demand for damages that is asserted or
disclosed in writing before the offer is served draws interest but the entire
claim or demand for damages that is asserted or disclosed in writing before the
offer is served does not draw interest, and the offer contains no apportionment
between claims that do and do not draw interest:
(A) the court shall award
interest on the entirety of all damages when the offer is made to a claimant
and judgment is entered pursuant to this subsection; and
(B) the court shall not award interest
on any damages when the offer is made to a defending party and judgment is
entered pursuant to this subsection.
(3) Any judgment entered pursuant to this [section] subsection shall be expressly designated a
compromise and
settlement of a
disputed claim.
(4) [At his option, a defendant may within a reasonable time
pay the amount of the offer and obtain a dismissal of the claim, rather than a
judgment] A defending party that pays the principal amount
of the offer within a reasonable time after the filing of the offer and notice
of acceptance and that pays any applicable awards of costs, attorneys’ fees and
interest within a reasonable time after the awards are ordered shall obtain an
order of dismissal with prejudice and, if applicable, an order withdrawing the
judgment.
(5) A claimant that has not
been paid within a reasonable time may obtain an order to amend the judgment
and remove the subdivision (e)(3) designation of compromise and settlement.
(6) A final judgment or order of
dismissal entered pursuant to this subsection shall have the preclusive effect
of a valid judgment on the merits.
[(e)] (f) Acceptance Period and the Effect of the Failure
to Accept an
Offer.
(1) [If the offer is not accepted within 10 days
after service it shall be considered] An offer made
pursuant to subdivision (a)(1) may be accepted before trial or within 10 days
after service, whichever period is shorter.
An offer made pursuant to subdivision (a)(2) may be accepted before
the commencement of the proceeding or within 10 days after service, whichever
period is shorter.
(2) The offer shall be deemed rejected by the offeree [and
deemed withdrawn by the offeror.] if not accepted within the period prescribed
by subdivision (f)(1). If this period is
enlarged by the court, the offeror may serve a written withdrawal of the offer
at any time after the expiration of the initial acceptance period and prior to
acceptance of the offer.
(3) Evidence of the offer is not admissible except in a proceeding to
determine costs and attorneys’ fees. Evidence of a void
offer is not admissible in a proceeding to determine the attorneys fees of any
party.
(4) The fact that an offer is made but not accepted does not preclude a
subsequent offer. The service of a subsequent offer does not
operate to revoke a prior offer. No
party shall be subject to the sanctions of subsection (g) for the rejection of
a prior offer from the same offeror.
(5) The
service of a counter-offer does not operate as a rejection of a prior offer.
(6) [With]
For apportioned
offers to multiple offerees that are conditioned upon the acceptance by all parties to whom
the offer was directed, each offeree may serve a separate acceptance
of the [apportioned] offer, but if the offer is not accepted by all offerees, no judgment or
order of dismissal may be entered pursuant to subsection (e) and the action shall proceed as to all. Any
offeree who fails to accept the offer [may] shall be
subject to the [penalties of this rule] sanctions of subsection (g).
[(f)] (g) [Penalties]
Sanctions for Rejection of Offer. [If the offeree rejects
an offer and fails to obtain a more favorable judgment,
(1) the
offeree cannot recover any costs or attorney’s fees and shall not recover
interest for the period after the service of the offer and before the judgment;
and
(2) the
offeree shall pay the offeror’s post-offer costs, applicable interest on the
judgment from the time of the offer to the time of entry of the judgment and
reasonable attorney’s fees, if any be allowed, actually incurred by the offeror
from the time of the offer. If the offeror’s attorney is collecting a
contingent fee, the amount of any attorney’s fees awarded to the party for whom
the offer is made must be deducted from that contingent fee.]
(1) Except
as otherwise provided in subdivision (g)(3), if a party who rejects an offer
fails to obtain a more favorable judgment, the court:
(A) shall not award to the
party any discretionary costs or discretionary attorneys’ fees from the
commencement of the action to the entry of the judgment;
(B) shall
not award to the party any other costs or attorneys’ fees for the period from
the date of the service of the offer to the entry of the judgment;
(C) shall
not award to the party any interest for the period from the date of service of
the offer to the date of entry of the judgment;
(D) shall
order the party to pay the taxable costs and applicable interest incurred by
the offering party or parties from the date of the service of the offer to the
entry of the judgment; and
(E) May
order the party to pay the offering party any or all of the following:
(i) Reasonable costs incurred by the offering
party for each expert witness whose services were reasonably necessary to
prepare for and conduct the trial of the case for the period from the date of
the service of the offer to the date of the entry of judgment, together with
any applicable interest.
(ii) Reasonable
attorneys’ fees incurred by the offering party for the period from the date of
the service of the offer to the date of entry of the judgment, together with
any applicable interest.
(2) An award against a party made pursuant to
this subsection shall not exceed that portion of the costs, attorneys’ fees and
applicable interest that are severally attributable to the party.
(3) The court may suspend the application of
this subsection to prevent manifest injustice or if the offer was made in bad
faith.
(4) An offeror shall not be deemed the prevailing party solely due to the offeree’s failure to obtain a more favorable judgment.
[(g)] (h) [How Costs Are Considered] Determination of More
Favorable Judgment. [To
invoke the penalties of this rule, the court must determine if the offeree
failed to obtain a more favorable judgment.
Where the offer provided that costs would be added by the court, the
court must compare the amount of the offer with the principal amount of the
judgment, without inclusion of costs.
Where a defendant made an offer in a set amount which precluded a
separate award of costs, the court must compare the amount of the offer together
with the offeree’s pre-offer taxable costs with the principal amount of the
judgment.]
(1) To
determine whether a party who rejected an offer failed to obtain a more
favorable judgment:
(A) If
the offer provided that the court could award costs, attorneys’ fees or
interest upon acceptance, the court must compare the amount of the offer with
the principal amount of the judgment, without inclusion of costs, attorneys’
fees or interest.
(B) If
the offer precluded a separate award of costs, attorneys’ fees or interest upon
acceptance, the court must compare the amount of the offer with the sum of:
(i) The principal amount of the judgment; and
(ii) The
amount of applicable taxable costs, attorneys’ fees and interest, including
applicable interest on such costs and attorneys’ fees, incurred up to and
including the date the offer was served.
In making this comparison, the court shall calculate interest at the
rate in effect on the date the offer was rejected.
(2) The court shall take into account any additur or remittitur
before making the comparison.
(3) The court shall assign no value to a determination of good
faith settlement when making the comparison.
[(h) Offers After Determination of
Liability. 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, the party adjudged
liable may make an offer of judgment, which shall have the same effect as an
offer made before trial if it is served within a reasonable time not less than
10 days prior to the commencement of hearings to determine the amount or extent
of liability.]
(i) Signing of Offers. Every offer
shall be signed by at least one attorney of record in the attorney’s individual
name, whose address shall be stated. An
unrepresented party shall sign the disclosure and state the party’s address. An unsigned offer is void. The signature of the attorney or party
certifies that the offer is made in good faith and for the purpose of obtaining
a settlement.
(j)
Filing requirements.
An offer of judgment is void if the offeror does not file and serve a written
notice of service of the offer of judgment within three days after service of
the offer.
(k) When
inapplicable. This rule is not applicable to suits for divorce,
alimony, separate maintenance or custody of children.
D. NRCP
RULE 68. OFFERS OF JUDGMENT:
Replacement Rule
(a) Contents of Offer and Timing.
(1) At any time before trial, 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.
(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 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 offerors and all the offerees 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 jointly made to more than one party may be
conditioned upon the acceptance by all parties to whom the offer is directed.
(c) Unapportioned Offers Jointly Made By Multiple
Parties. An
offer jointly made by
multiple offerors is not required to be apportioned between the offerors.
(d) Joint Unapportioned
Offers to Multiple Parties.
(1) Offers to Multiple Defending Parties. 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 offerees;
(B) the
liability of some offerees are entirely derivative of the common acts or
liability of the others; or
(C) the
liability of all offerees are derivative of the common acts or liability of
another.
(2) Offers
to Multiple Claimants. 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) 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
(C) the damages claimed by
all offerees are derivative of an injury to another.
(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 reject an offer of settlement for all the offerees.
(e) Judgment Entered Upon Acceptance.
(1) If the offeree serves written notice that the offer
is accepted within the acceptance period provided by subdivision (f)(1),
the offer shall be deemed accepted and either party may then file the offer and
notice of acceptance together with proof of service. The offer and notice of acceptance must be
filed within 7 days after service of the written notice that the offer is
accepted or before trial or other applicable proceeding, whichever occurs
earlier.
(2) Except as otherwise provided in
subdivision (f)(6), the clerk or judge shall enter judgment
accordingly. If permitted by law or
contract, the court shall award costs in accordance with NRS 18.110, attorneys’ fees and interest as
applicable, but shall not make such awards if the terms of the offer preclude
separate awards of costs, attorneys’ fees and interest. If the terms of the offer permit an award of
interest, any portion of any claim or demand for damages that is asserted or
disclosed in writing before the offer is served draws interest but the entire
claim or demand for damages that is asserted or disclosed in writing before the
offer is served does not draw interest, and the offer contains no apportionment
between claims that do and do not draw interest:
(A) the court shall award interest on the entirety of
all damages when the offer is made to a claimant and judgment is entered
pursuant to this subsection; and
(B) the court shall not award interest on any damages
when the offer is made to a defending party and judgment is entered pursuant to
this subsection.
(3) Any judgment entered pursuant to this subsection
shall be expressly designated a compromise and settlement of a disputed claim.
(4) A defending party that pays the principal amount of
the offer within a reasonable time after the filing of the offer and notice of
acceptance and that pays any applicable awards of costs, attorneys’ fees and
interest within a reasonable time after the awards are ordered shall obtain an
order of dismissal with prejudice and, if applicable, an order withdrawing the
judgment.
(5) A claimant that has not been paid within a reasonable
time may obtain an order to amend the judgment and remove the subdivision
(e)(3) designation of compromise and settlement.
(6) A final judgment or order of dismissal entered pursuant to
this subsection shall have the preclusive effect of a valid judgment on the
merits.
(f) Acceptance Period and the Effect of the Failure to
Accept an Offer.
(1) An offer made pursuant to subdivision (a)(1)
may be accepted before trial or within 10 days after service, whichever period
is shorter. An offer made pursuant to
subdivision (a)(2) may be accepted before the commencement of the proceeding
or within 10 days after service, whichever period is shorter.
(2) The offer shall be deemed rejected by the offeree if
not accepted within the period prescribed by subdivision (f)(1). If this period is enlarged by the court, the offeror
may serve a written withdrawal of the offer at any time after the expiration of
the initial acceptance period and prior to acceptance of the offer.
(3) Evidence of the offer is not admissible except in a
proceeding to determine costs and attorneys’ fees. Evidence
of a void offer is not admissible in a proceeding to determine the attorneys’
fees of any party.
(4) The fact that an offer is made but not accepted does
not preclude a subsequent offer. The
service of a subsequent offer does not operate to revoke a prior offer. No party shall be subject to the sanctions of
subsection (g) for the rejection of a prior offer from the same offeror.
(5) The service of a
counter-offer does not operate as a rejection of a prior offer.
(6) For apportioned offers to multiple offerees that are
conditioned upon the acceptance by all parties to whom the offer was directed,
each offeree may serve a separate acceptance of the offer, but if the offer is
not accepted by all offerees, no judgment or order of dismissal may be entered
pursuant to subsection (e)
and the action shall proceed as to all.
Any offeree who fails to accept the offer shall be subject to the
sanctions of subsection (g).
(g) Sanctions for
Rejection of Offer.
(1) Except
as otherwise provided in subdivision (g)(3), if a party who rejects an offer
fails to obtain a more favorable judgment, the court:
(A) shall not award to the
party any discretionary costs or discretionary attorneys’ fees from the
commencement of the action to the entry of the judgment;
(B) shall
not award to the party any other costs or attorneys’ fees for the period from
the date of the service of the offer to the entry of the judgment;
(C) shall
not award to the party any interest for the period from the date of service of
the offer to the date of entry of the judgment;
(D) shall
order the party to pay the taxable costs and applicable interest incurred by
the offering party or parties from the date of the service of the offer to the
entry of the judgment; and
(E) May
order the party to pay the offering party any or all of the following:
(i) Reasonable costs incurred by the offering
party for each expert witness whose services were reasonably necessary to
prepare for and conduct the trial of the case for the period from the date of the
service of the offer to the date of the entry of judgment, together with any
applicable interest.
(ii) Reasonable
attorneys’ fees incurred by the offering party for the period from the date of
the service of the offer to the date of entry of the judgment, together with
any applicable interest.
(2) An award against a party made pursuant to this subsection shall not
exceed that portion of the costs, attorneys’ fees and applicable interest that
are severally attributable to the party.
(3) The court may suspend the application of this subsection to prevent
manifest injustice or if the offer was made in bad faith.
(4) An offeror shall not be deemed the prevailing party solely due to the offeree’s failure to obtain a more favorable judgment.
(h) Determination of More Favorable Judgment.
(1) To determine whether
a party who rejected an offer failed to obtain a more favorable judgment:
(A) If
the offer provided that the court could award costs, attorneys’ fees or
interest upon acceptance, the court must compare the amount of the offer with
the principal amount of the judgment, without inclusion of costs, attorneys’
fees or interest.
(B) If
the offer precluded a separate award of costs, attorneys’ fees or interest upon
acceptance, the court must compare the amount of the offer with the sum of:
(i) The principal amount of the judgment; and
(ii) The
amount of applicable taxable costs, attorneys’ fees and interest, including
applicable interest on such costs and attorneys’ fees, incurred up to and
including the date the offer was served.
In making this comparison, the court shall calculate interest at the
rate in effect on the date the offer was rejected.
(2) The court shall take into account any additur or remittitur
before making the comparison.
(3) The court shall assign no value to a determination of good
faith settlement when making the comparison.
(i) Signing of Offers. Every offer shall be signed by at
least one attorney of record in the attorney’s individual name, whose address
shall be stated. An unrepresented party shall
sign the disclosure and state the party’s address. An unsigned offer is void. The signature of the attorney or party
certifies that the offer is made in good faith and for the purpose of obtaining
a settlement.
(j) Filing
requirements. An offer
of judgment is void if the offeror does not file and serve a written notice of
service of the offer of judgment within three days after service of the offer.
(k)
When inapplicable. This
rule is not applicable to suits for divorce, alimony, separate maintenance or
custody of children.
E. JCRCP
RULE 68. OFFERS OF JUDGMENT:
Replacement rule
(a) Contents of Offer and Timing.
(1) At any time before trial, 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.
(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 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 offerors and all the offerees 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 jointly made to more than one party may be
conditioned upon the acceptance by all parties to whom the offer is directed.
(c) Unapportioned Offers Jointly Made By Multiple
Parties. An
offer jointly made by
multiple offerors is not required to be apportioned between the offerors.
(d) Joint Unapportioned
Offers to Multiple Parties.
(1) Offers to Multiple Defending Parties. 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 offerees;
(B) the
liability of some offerees are entirely derivative of the common acts or
liability of the others; or
(C) the
liability of all offerees are derivative of the common acts or liability of
another.
(2) Offers
to Multiple Claimants. 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) 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
(C) the damages claimed by
all offerees are derivative of an injury to another.
(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 reject an offer of settlement for all the offerees.
(e) Judgment Entered Upon Acceptance.
(1) If the offeree serves written notice that the offer
is accepted within the acceptance period provided by subdivision (f)(1),
the offer shall be deemed accepted and either party may then file the offer and
notice of acceptance together with proof of service. The offer and notice of acceptance must be
filed within 7 days after service of the written notice that the offer is
accepted or before trial or other applicable proceeding, whichever occurs
earlier.
(2) Except as otherwise provided in subdivision (f)(6),
the clerk or judge shall enter judgment accordingly. If permitted by law or contract, the court
shall award costs in accordance with NRS 18.110, attorneys’ fees and interest as
applicable, but shall not make such awards if the terms of the offer preclude
separate awards of costs, attorneys’ fees and interest. If the terms of the offer permit an award of
interest, any portion of any claim or demand for damages that is asserted or
disclosed in writing before the offer is served draws interest but the entire
claim or demand for damages that is asserted or disclosed in writing before the
offer is served does not draw interest, and the offer contains no apportionment
between claims that do and do not draw interest:
(A) the court shall award interest on the entirety of
all damages when the offer is made to a claimant and judgment is entered
pursuant to this subsection; and
(B) the court shall not award interest on any damages
when the offer is made to a defending party and judgment is entered pursuant to
this subsection.
(3) Any judgment entered pursuant to this subsection
shall be expressly designated a compromise and settlement of a disputed claim.
(4) A defending party that pays the principal amount of
the offer within a reasonable time after the filing of the offer and notice of
acceptance and that pays any applicable awards of costs, attorneys’ fees and
interest within a reasonable time after the awards are ordered shall obtain an
order of dismissal with prejudice and, if applicable, an order withdrawing the
judgment.
(5) A claimant that has not been paid within a reasonable
time may obtain an order to amend the judgment and remove the subdivision
(e)(3) designation of compromise and settlement.
(6) A final judgment or order of dismissal entered pursuant to
this subsection shall have the preclusive effect of a valid judgment on the
merits.
(f) Acceptance Period and the Effect of the Failure to
Accept an Offer.
(1) An offer made pursuant to
subdivision (a)(1) may be accepted before trial or within 10 days after
service, whichever period is shorter. An
offer made pursuant to subdivision (a)(2) may be accepted before the
commencement of the proceeding or within 10 days after service, whichever
period is shorter.
(2) The offer shall be deemed rejected by the offeree if
not accepted within the period prescribed by subdivision (f)(1). If this period is enlarged by the court, the
offeror may serve a written withdrawal of the offer at any time after the
expiration of the initial acceptance period and prior to acceptance of the
offer.
(3) Evidence of the offer is not admissible except in a
proceeding to determine costs and attorneys’ fees. Evidence
of a void offer is not admissible in a proceeding to determine the attorneys’
fees of any party.
(4) The fact that an offer is made but not accepted does
not preclude a subsequent offer. The
service of a subsequent offer does not operate to revoke a prior offer. No party shall be subject to the sanctions of
subsection (g) for the rejection of a prior offer from the same offeror.
(5) The service of a
counter-offer does not operate as a rejection of a prior offer.
(6) For apportioned offers to multiple offerees that are
conditioned upon the acceptance by all parties to whom the offer was directed,
each offeree may serve a separate acceptance of the offer, but if the offer is
not accepted by all offerees, no judgment or order of dismissal may be entered
pursuant to subsection (e)
and the action shall proceed as to all.
Any offeree who fails to accept the offer shall be subject to the
sanctions of subsection (g).
(g) Sanctions for
Rejection of Offer.
(1) Except
as otherwise provided in subdivision (g)(3), if a party who rejects an offer
fails to obtain a more favorable judgment, the court:
(A) shall not award to the
party any discretionary costs or discretionary attorneys’ fees from the
commencement of the action to the entry of the judgment;
(B) shall
not award to the party any other costs or attorneys’ fees for the period from
the date of the service of the offer to the entry of the judgment;
(C) shall
not award to the party any interest for the period from the date of service of
the offer to the date of entry of the judgment;
(D) shall
order the party to pay the taxable costs and applicable interest incurred by
the offering party or parties from the date of the service of the offer to the
entry of the judgment; and
(E) May
order the party to pay the offering party any or all of the following:
(i) Reasonable costs incurred by the offering
party for each expert witness whose services were reasonably necessary to prepare
for and conduct the trial of the case for the period from the date of the
service of the offer to the date of the entry of judgment, together with any
applicable interest.
(ii) Reasonable
attorneys’ fees incurred by the offering party for the period from the date of
the service of the offer to the date of entry of the judgment, together with
any applicable interest.
(2) An award against a party made pursuant to this subsection shall not
exceed that portion of the costs, attorneys’ fees and applicable interest that
are severally attributable to the party.
(3) The court may suspend the application of this subsection to prevent
manifest injustice or if the offer was made in bad faith.
(4) An offeror shall not be deemed the prevailing party solely due to the offeree’s failure to obtain a more favorable judgment.
(h) Determination of More Favorable Judgment.
(1) To determine whether
a party who rejected an offer failed to obtain a more favorable judgment:
(A) If
the offer provided that the court could award costs, attorneys’ fees or
interest upon acceptance, the court must compare the amount of the offer with
the principal amount of the judgment, without inclusion of costs, attorneys’
fees or interest.
(B) If
the offer precluded a separate award of costs, attorneys’ fees or interest upon
acceptance, the court must compare the amount of the offer with the sum of:
(i) The principal amount of the judgment; and
(ii) The
amount of applicable taxable costs, attorneys’ fees and interest, including
applicable interest on such costs and attorneys’ fees, incurred up to and
including the date the offer was served.
In making this comparison, the court shall calculate interest at the
rate in effect on the date the offer was rejected.
(2) The court shall take into account any additur or remittitur
before making the comparison.
(3) The court shall assign no value to a determination of good
faith settlement when making the comparison.
(i) Signing of Offers. Every offer shall be signed by at
least one attorney of record in the attorney’s individual name, whose address
shall be stated. An unrepresented party
shall sign the disclosure and state the party’s address. An unsigned offer is void. The signature of the attorney or party
certifies that the offer is made in good faith and for the purpose of obtaining
a settlement.
(j) Filing
requirements. An offer
of judgment is void if the offeror does not file and serve a written notice of
service of the offer of judgment within three days after service of the offer.
A.
RULE 5. SERVICE
RULE 5. SERVICE
* * * *
(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.
This amendment establishes that it is unnecessary to
file an offer of judgment upon service. McCrary v. Bianco, 131 P.3d 573,
578 (Nev. 2006) (the “failure to file the offer until after trial is not fatal
to relief under NRCP 68 and NRS 17.115”
and is a “standard practice in this state”).
Absent amendment, the part of Rule 5(d) that requires a party to file an
offer of judgment is superfluous in light of McCrary.
B. RULE 68. OFFERS OF JUDGMENT
(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.
This new
provision first establishes that an offer must resolve all claims to be valid.[2] Next, this provision codifies that the offer
resolves the claims as accrued through the date of the service of the offer, as
opposed to the date that the offer is accepted or the date that judgment is
entered.[3]
The timing of
an offer is addressed in proposed sudivision 68(a)(3)(A),
and is unchanged.[4] The requirement that an offer be in writing is
addressed in proposed subsection 68(i), and is
unchanged.[5]
(a) Contents
of Offer and Timing.
* * * *
(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.
This
provision relocates the provision currently found in Rule 68(h) (2005).[6] The requirement that an offer be in writing
is addressed in proposed subsection 68(i) and
is unchanged.[7]
Next, this
provision establishes that any party
may serve an offer of judgment after the determination of liability. The current version lacks reciprocity because
it limits the power to serve an offer on the defending party and deprives the
claimant of the benefits of this rule.
This provision also clarifies that, to be valid, an offer must resolve
all claims.[8]
Finally, this
provision codifies that the offer resolves the claims as accrued through the
date of the service of the offer, as opposed to the date that the offer is
accepted or the date that judgment is entered.[9]
The timing of
such an offer is addressed in proposed subdivision 68(a)(3)(B),
and is unchanged.[10]
(a) Contents of Offer and
Timing.
* * * *
(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.
This provision
establishes that an offer cannot support the offeror’s motion for offer of
judgment sanctions if the offer is served too close to the commencement of
trial or other proceeding. These
provisions are relocated from Rule 68(h) (2005) and from the first
sentence of the current version of Rule 68(a) (2005) without substantive
modification.
When viewed
in conjunction with proposed subdivision 68(f)(1),[11] this provision
clarifies that an offer is not void if served less than eleven days before the
commencement of trial or other proceeding.
Proposed subdivision 68(f)(1) further
provides that such an offer may be accepted at any time before the commencement
of trial or other proceeding. While an
offeree can avoid penalties if she rejects such an offer because she “is
entitled not to be rushed into a hasty decision,”[12] an offeree
should nonetheless be able to waive this entitlement and elect to make a hasty
decision if she chooses to do so. This
result promotes settlement.
RULE 68. OFFERS
OF JUDGMENT
(a) Contents
of Offer and Timing.
* * * *
(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.
This
provision makes explicit that offers of judgment are valid even if their terms
contain non-monetary equitable relief, such as an offer to divide property in a
partition action.[13]
Next, this
provision would rectify a current gap in the law. Currently, neither Rule 68 nor NRS § 17.115 address how to construe an offer that fails to
account for attorneys’ fees or interest explicitly. Instead, Rule 68(d)
(2005) and NRS § 17.115(2)(b) address the construction of an offer that
fails to account for costs, and only costs, explicitly upon acceptance.[14] At present, the Nevada Supreme Court will
construe any ambiguity against the drafter,[15] but clarity
and predictability will be greatly enhanced on this important and recurring
issue if the rule explicitly addresses the topic.[16]
This provision
would clearly give effect to an offer “for $10,000” by deeming the offer to be
one that is for a lump-sum that includes all claims, inclusive of costs,
interest, and attorneys’ fees. This
Court has strongly implied that such offers should be given effect.[17]
Since a court
is required to construe the meaning of an offer when an offer is rejected as
well as when it is accepted, the more logical placement for this clarifying
provision is in proposed subsection 68(a), in addition to or instead of
Rule 68(d) (2005) or proposed subsection 68(e).
(a) Contents of Offer and
Timing.
* * * *
(5) The offer may specify that it is conditioned upon a
determination of good faith settlement.
This provision
establishes that an offer may be conditioned upon a determination of good faith
settlement by the court, which will encourage settlement in certain actions
involving multiple defendants. Proposed subdivision 68(h)(3)[18] establishes
that this condition is to be afforded no value when making a when making a
post-adjudication comparison to determine whether the judgment was more
favorable than the offer.
(a) Contents of Offer and
Timing.
* * * *
(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).
This
provision establishes that an offer may specify a longer acceptance period than
the ten-day acceptance period established by the rule, as the service of such
an offer should be a factor when determining whether the offer was made in good
faith. This provision also establishes
that the offer may not permit an acceptance after the commencement of trial or
other proceeding.
RULE 68. OFFERS
OF JUDGMENT
(a) Contents of Offer and
Timing.
* * * *
(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.
This
provision makes explicit the requirement that, to be valid, an offer must
specify the statute or rule that the offer is based on.[19] Moreover, this also makes explicit that an
offer may be made with reference to both Rule 68 and NRS § 17.115.[20] This provision also clarifies that where an
offer is made under Rule 68 and not under NRS § 17.115, it will still be given effect under
Rule 68.[21]
RULE 68. OFFERS
OF JUDGMENT
(a) Contents
of Offer and Timing.
* * * *
(8) An
offer that resolves less than all of the claims between all the offerors and
all the offerees is void.
While
proposed subdivision 68(a)(1) provides that a
party may serve an offer to resolve all claims, this provision clarifies that
an offer is void if it does not resolve all claims.
RULE 68. OFFERS
OF JUDGMENT
(a) Contents of Offer and Timing.
* * * *
(9) An
offer may not be withdrawn except by written stipulation or as provided in
subdivision (f)(2).
This
provision establishes that a non-defective offer of judgment may not be
unilaterally withdrawn by the offeror during the ten-day acceptance period.[22] This makes reference to an exception that is
recognized in Arizona and is discussed below under proposed subdivision 68(f)(2).[23]
RULE 68. OFFERS
OF JUDGMENT
(a) Contents
of Offer and Timing.
* * * *
(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.
This
provision establishes that no offer is valid if it purports to impose
conditions beyond those explicitly provided by Rule 68.[24] In addition to codifying existing law, this
provision is urged for adoption due to the difficulty associated with
evaluating whether a judgment finally obtained is “more favorable” than an
offer that contains a condition not expressly permitted by Rule 68 or NRS § 17.115.
Currently, neither the rule nor the statute address whether an offer may
be made with conditions that are not expressly permitted by law, such as a
condition of confidentiality, a cap on an award of costs or attorneys’ fees, of
a district court’s determination of good faith settlement for purposes of NRS § 17.245, or of a condition that extents the acceptance
period beyond ten days. This provision
would invalidate an offer that contains any of the first two conditions; an
offer that contains the latter two conditions would be given effect pursuant to
the express provisions of the proposed subdivision 68(a)(5)
and subdivision 68(a)(6), respectively.
Next, this
provision specifies that only the inclusion of a material condition will invalidate an offer. The Nevada Supreme Court appears ready to
give effect to a condition that the offeree must execute a dismissal and
release.[25] Further, where additional material conditions
are invalid under current law, it is also unclear if the entire offer is
invalid or if court will give effect to the offer but not the contingency
within the offer. This provides that no
effect shall be given to an offer with an illegal contingency, as it would be
unfair to the offeror to bind that party to a judgment that has materially
different terms than those contained in the settlement offer.
(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.
This
is a clarification.
(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.
This is technical
and clarifies the meaning of “joint offer” as used in Rule 68(c) (2005).
(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].
This
provision and the following proposed subdivision 68(d)(2)
would harmonize the text of Rule 68’s treatment of unapportioned offers to
multiple parties with the text of NRS § 17.115. These two provisions would also eliminate the
current limitation of the rule to “Defendants” and “Plaintiffs,” as this Court
clearly prefers the rule to apply to all variety of defending parties and
claimants.[26] The provisions’ usages of the terms
“defending parties” and “claimants” are similar to word usages in Rule 56 and
in the 2005 amendment to NRS § 17.115(5).[27]
Next, this
provision and the following subdivision 68(d)(2)
would substitute the text “authorized to decide whether to settle” with
“authorized to accept or reject an offer of settlement”. Both Rule 68 and NRS § 17.115 permit valid joint unapportioned offers to be
served to multiple offerees when there is a single decider “authorized to
decide whether to settle the claims” of or against all of the offerees. However, this quoted text is somewhat
vague. There is no published opinion
from the Nevada Supreme Court that addresses the issue of whether this
condition will operate to limit the validity of offers of judgment to those
circumstances where a single decider is authorized to accept or reject any
offer of compromise, as opposed to the more expansive interpretation, which is
that the condition is satisfied whenever a single decider (including any group
of offerees acting as a body corporate) is authorized to accept, reject, or make any settlement offer for all
offerees. It appears that the policy
supports limiting this condition to the former interpretation, and these two
provisions reflect this.
The
provisions of current Rule 68(c)(1) (2005) (now proposed subsection 68(c)), and NRS § 17.115(6) are so permissive that all unapportioned
offers jointly made from any combination of parties will always be valid. Thus, any
and all unrelated parties can decide to make jointly a single offer of
judgment. This is because the
apportionment problems that were present under the former version of the rule
when evaluating an unapportioned offer are not
present for such offers, as the parties “have already agreed to an
apportionment when they authorized the [making of the] offer.”[28] However, where there is agreement between
parties to fund and apportion an offer jointly made from them, it does not
logically follow that the agreement was intended to bind those same parties to
the same apportionment for a different amount.
For example, two unrelated codefendants in a negligence action may chose
to fund an offer to a plaintiff based upon their estimate of future litigation
expenses instead of their perceived degree of fault. A policy that treats the tender of a jointly
made offer as a trigger that will render valid any counter-unapportioned offer,
regardless of the relation (or lack of relation) of the offerors will operate
as a disincentive for unrelated parties to make joint offers of judgment under
Rule 68(c)(1) and NRS § 17.115(6).
Since public policy encourages the making of offers of judgment, this provision proposes to
replace the text “authorized to decide to settle claims” with text that clearly
limits the condition to those instances where one person, entity or group is
authorized to accept or reject an offer of compromise tendered to all the
offerees without regard to the existence or non-existence of an offer jointly
made from those same offerees.
(d) Joint Unapportioned Offers to Multiple Parties.
* * * *
[(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].
In addition
to those items explained in the prior subdivision, this provision adds “common
theory of liability” to the types of relationships that may exist between
multiple claimants that permissibly allow their opponents to invoke the
benefits of the offer of judgment law.
This change harmonizes Rule 68(c) (2005) with NRS § 17.115(9) and is in accord with the Nevada Supreme
Court’s discussion on the interpretation and construction when such offers are
served under both Rule 68 and
NRS § 17.115.[29]
RULE 68. OFFERS
OF JUDGMENT
(d) Joint Unapportioned Offers to Multiple
Parties.
* * * *
(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 reject an offer of settlement for all the offerees.
This
provision codifies and expands upon this Court’s treatment of spouses
maintaining an action based upon property held in joint tenancy.[30] This also extends the Albios
holding to defendant spouses, as Albios
only involved claimant spouses. Finally,
this provision extends the holding to all offeree joint tenants so that
non-married joint tenants are not treated more favorably than married joint
tenants.
RULE 68. OFFERS
OF JUDGMENT
[(d)] (e) Judgment
Entered Upon Acceptance.
(1) If [within 10 days after
the service of the offer,] the offeree serves written notice that
the offer is accepted within the acceptance period provided by subdivision (f)(1),
the offer shall
be deemed accepted and either party may then file the offer and
notice of acceptance together with proof of service. The offer and notice of acceptance must be filed within 7
days after service of the written notice that the offer is accepted or before
trial or other applicable proceeding, whichever occurs earlier.
This
provision eliminates redundancy by limiting the “acceptance period” to a single
location in the proposed subdivision 68(f)(1).
The rule also
imposes a new requirement, which is to compel the parties to file a notice
within seven days after an offer is accepted.
In addition to the obvious benefits associated with informing the court
of a settlement as soon as possible, this rule would reduce the possibility of
unfair surprise should a party wait several months to file notice of an
“acceptance” that is disputed. At least
one state has a three-day requirement.[31]
(e) Judgment Entered Upon Acceptance.
* * * *
(2) [The] Except
as otherwise provided in subdivision (f)(6), the clerk or judge shall
enter judgment accordingly. [The] If permitted by law
or contract, the court shall [allow]
award costs
in accordance with NRS 18.110 [unless], attorneys’ fees and interest as applicable, but shall not
make such awards if the terms of the offer preclude [a] separate [award]
awards of
costs,
attorneys’ fees and interest. If the terms of the offer permit an award of interest,
any portion of any claim or demand for damages that is asserted or disclosed in
writing before the offer is served draws interest but the entire claim or
demand for damages that is asserted or disclosed in writing before the offer is
served does not draw interest, and the offer contains no apportionment between
claims that do and do not draw interest:
(A) the court shall award
interest on the entirety of all damages when the offer is made to a claimant
and judgment is entered pursuant to this subsection; and
(B) the court shall not award
interest on any damages when the offer is made to a defending party and
judgment is entered pursuant to this subsection.
This
provision parallels the 2005 revision to Rule 68(d) of the Nevada Justice
Court Rules of Civil Procedure by empowering a judge to enter judgment in
addition to the clerk.[32] The new subdivision also adds an explicit
reference to attorneys’ fees in addition to the rule’s current reference to
costs and interest.[33]
The third
sentence establishes that, unless the offer specifically provides otherwise, an
award of interest will be allowed on all the claims and demands for damages in
their entirety upon acceptance of an offer, provided the offer allows a
separate interest award, the affected claimant has alleged an entitlement to
damages in writing before the offer is served, interest is permitted by law or
contract on any portion of any claim or demand, and the offer is made by a
defending party.[34] Alternatively, when the offer is made by a claimant
under identical circumstances, no interest will be awarded to the
claimant. This provision resolves an
ambiguity over the validity and treatment of an offer that allows a
post-acceptance award of interest in the following two examples:
(1) the claimant seeks past damages, future
damages and prejudgment interest; or
(2) the claimant seeks past damages, punitive
damages, and prejudgment interest.
Absent this new subdivision, such offers made pursuant
the current version of Rule 68 may not resolve all claims and demands if
accepted – and therefore may not be valid[35] – because they
may not support the plaintiff’s post-acceptance motion for prejudgment
interest. This complication was
introduced by the amendments to Rule 68 and NRS §
The offer in
the first example is akin to a general verdict that awards past and future
damages but where it is impossible to determine from the trial record that
portion of the total verdict that was awarded for past damages, which would
support an award of prejudgment interest, as opposed to future damages, where
prejudgment interest is not allowed.[36] No prejudgment interest will be awarded for
such an indeterminate verdict,[37] and so it follows
that no prejudgment interest would be awarded in the first example. If so, then under that example the offer that
allows a post-acceptance award of interest cannot resolve all of the claimant’s
claims if accepted and therefore may be invalid.[38]
The offer in
the second example is problematic because, like future damages, no prejudgment
interest is recoverable on a punitive damages award.[39] Like the first example, if the offer made
under the current rule cannot support a post-acceptance motion for prejudgment
interest, the offer cannot resolve all of the claimant’s claims and therefore
may be invalid.
The proposed
rule is crafted to permit the award of prejudgment interest on the entire
damages instead of denying such interest when the defending party makes the
offer. A contrary rule would render
illusory certain prejudgment interest statutes and would thereby unfairly force
claimants to forego legitimate claims for prejudgment interest. The rule provides reciprocal treatment when
an offer is made by the claimant so that an incautious or crafty claimant will
not brook no benefit from this rule at the defendant’s expense.
By providing
that an offer may be drafted in a manner that will avoid the operation of the
rule in the third sentence of proposed
subdivision 68(e)(2), this provision establishes that an offer’s terms may
apportion values to different claims and demands. Thus, an offer that allows a post-acceptance
award of interest may explicitly apportion the amounts for past damages, future
damages, or punitive damages. If
accepted, the court will award interest where allowed by law pursuant to the
terms of the offer (i.e., for past damages only). If rejected, the court will compare the
judgment finally obtained against the sum of the total offer.[40] Of course, an offeror can also avoid the
application of this rule by serving an offer that precludes an award of
interest.
The following
four examples illustrate the operation of the rule contained in the third sentence of proposed
subdivision 68(e)(2):
(A) Suppose a personal injury claimant’s complaint
demands “judgment against defendant in an amount in excess of $10,000 and
costs,”[41] discovery
produces written evidence of $60,000 in special damages and indeterminate
future damages. An offer is thereafter
served by the defendant to resolve all claims in favor of claimant “for
$100,000 excluding interest,” and a notice of acceptance is filed. The new subdivision will operate to allow
judgment to be entered for $100,000 and prejudgment interest on the entire
$100,000 will be added to the judgment because interest is permitted on a
portion of the claimant’s claim/demand for damages. Specifically, special damages are eligible
for interest to pursuant to NRS § 17.130. In addition, the claimant will be entitled to
a post-acceptance award of prejudgment interest on its taxable costs under NRS § 17.130.[42]
(B) Consider the same facts as above, but the
plaintiff serves the offer. Judgment
will be entered for $100,000 and no prejudgment interest will be added to the
judgment because interest is permitted on a portion, but not the entirety, of
the claimant’s disclosed damages.
Interest is awarded on taxable costs as above.
(C) If a personal injury claimant’s complaint makes a
demand identical to the one in example A, the only evidence adduced in
discovery to date is for future damages, an offer is thereafter served by the
defendant to resolve the claim in favor of claimant “for $100,000 excluding
interest,” and the offer is accepted, then the new subdivision will operate to
allow a judgment to be entered for $100,000.
The claimant will also be entitled to a post-acceptance award of
prejudgment interest on its taxable costs, but no portion of the claimed
damages is eligible for an interest award because NRS § 17.130(2) prohibits an award of prejudgment interest
for future damages. While interest is
allowed on the costs, the new subdivision is not triggered because taxable
costs are not “damages.”
(D) Consider the same facts as example C, but in
addition the plaintiff asserts a demand for special damages by a written
settlement demand or an invalid written offer of judgment, but there is no
evidence adduced to date to support the claim before the valid offer is
accepted. Judgment will be entered for
$100,000 and prejudgment interest on the entire $100,000 will be added to the
judgment because interest is permitted on a portion of the claimant’s pre-offer
demand for damages. Interest is awarded
on taxable costs as above.
By limiting
the operation of this subdivision to those instances “when judgment is entered
pursuant to this subsection,” the third sentence
in the proposed subdivision 68(e)(2) will have no applicability when the
offer is rejected and judgment is then entered pursuant to other law, such as
after a jury’s verdict or a bench trial.
RULE 68. OFFERS
OF JUDGMENT
(e) Judgment Entered Upon Acceptance.
* * * *
(3) Any judgment entered pursuant to this [section] subsection shall be expressly designated a
compromise and
settlement of a
disputed claim.
This is a clarification.
RULE 68. OFFERS
OF JUDGMENT
(e) Judgment Entered Upon Acceptance.
* * * *
(4) [At his option, a defendant may within a
reasonable time pay the amount of the offer and obtain a dismissal of the
claim, rather than a judgment] A defending party
that pays the principal amount of the offer within a reasonable time after the
filing of the offer and notice of acceptance and that pays any applicable
awards of costs, attorneys’ fees and interest within a reasonable time after
the awards are ordered shall obtain an order of dismissal with prejudice and,
if applicable, an order withdrawing the judgment.
This
provision retains the provision that allows a defending party to obtain a
dismissal in lieu of a judgment if the defending party pays the principal
amount of the offer in a reasonable time.
This clarifies that the dismissal shall be with prejudice and, if
applicable, an order may be entered to withdraw the judgment.
This
provision also encourages settlement by clarifying that a defending party is
rewarded by its prompt satisfaction of the principal amount of the offer, which
can be significant when the entitlement to attorneys’ fees, interest and/or
costs is disputed and thereafter appealed.
RULE 68. OFFERS
OF JUDGMENT
(e) Judgment Entered Upon Acceptance.
* * * *
(5) A claimant that has not been
paid within a reasonable time may obtain an order to amend the judgment and
remove the subdivision (e)(3) designation of compromise and settlement.
This
provision adds a reciprocal benefit to claimants that is not explicit in the
current Rule. The value of a judgment
that is designated a “compromise and settlement” is of lesser value to a
claimant that must domesticate the judgment in a foreign jurisdiction. The policy of promoting settlements will be
enhanced if the claimant knows their judgment will be given full effect should
the defending party refuse to satisfy a judgment.
Also, if an
offer was contingent upon a determination of good faith settlement, and such
determination is made, this proposed provision would give the claimant standing
to reverse that determination if she does not obtain the full benefits of a
settlement. The policy of promoting
settlements will be enhanced if the defending party knows that the benefits of
a determination of good faith settlement will be jeopardized if payment is not
made with reasonable promptness.
RULE 68. OFFERS
OF JUDGMENT
(e) Judgment Entered Upon Acceptance.
* * * *
(6) A final judgment or order of
dismissal entered pursuant to this subsection shall have the preclusive effect
of a valid judgment on the merits.
This
provision clarifies that a judgment or order of dismissal entered pursuant to
Rule 68 – including one designated as a “compromise settlement” – shall
have the effect of a valid judgment on the merits.[43] Under existing law, a judgment is “on the
merits” when it in fact determines the substantive legal rights of the parties
in connection with the dispute before the court. Dismissals on the basis of purely procedural
or technical failings ordinarily do not constitute judgments on the
merits. Similarly, a dismissal without
prejudice is not a judgment on the merits.[44] Thus, this provision establishes that a
judgment will have the effect of a claim preclusion,[45]
and not issue preclusion, between the parties.
[(e)] (f) Acceptance Period and the Effect of the Failure
to Accept an Offer.
(1) [If the offer is not accepted within 10 days
after service it shall be considered] An offer made pursuant
to subdivision (a)(1) may be accepted before trial or within 10 days after service, whichever period is shorter. An offer made pursuant to
subdivision (a)(2) may be accepted before the commencement of the
proceeding or within 10 days after service, whichever period is shorter.
(2) The offer shall be deemed rejected by the offeree [and
deemed withdrawn by the offeror.] if not accepted within the period prescribed by subdivision
(f)(1). If this period is enlarged by
the court, the offeror may serve a written withdrawal of the offer at any time
after the expiration of the initial acceptance period and prior to acceptance
of the offer.
This
provision establishes that an offer may be open for a longer period of
acceptance if the offer so provides.
This, in conjunction with the provisions in proposed subsection 68(a)(6), also establishes that every
offer that is accepted must be accepted before trial. This should be made explicit because the 2005
amendment to Rule 6(a) now establishes that when any judicial period of time is
less than eleven days, intermediate Saturdays, Sundays, and nonjudicial days
are excluded from the computation. Since
a valid offer of judgment must be served “more than 10 days” before trial,[46] it would
appear that the 2005 amendment to Rule 6(a) does not apply to that
computation. However, the amendment does appear to apply to the calculation
of the period within which a timely acceptance may be made,[47] and for when
an offer is deemed rejected if not accepted.[48] Thus, the bare text of Rule 6(a) and
Rule 68 in their present form allows an offer of judgment to be accepted
several days after the trial commences.
This frustrates the purpose of the offer of judgment rules and leads to
absurd results, especially in short trials.
Another
alternative that would resolve this ambiguity and greatly simplify the text of
the rule is to change the periods within which to serve a timely offer, a
timely acceptance, or both. However, the
new subdivision does not propose a change of either time period because there
is no indication in the published opinions or in the applicable legislative or
rulemaking history that Nevada policymakers have considered expanding either
time period. An expansion of the
acceptance period would be in harmony with Nevada’s policy to give offerees
time to carefully consider the likely value of pursuing a claim in light of the
offer of judgment and the possible penalties that flow from rejection.[49] Of course, an expansion of the acceptance period
would necessitate an expansion of the allowable period to serve an offer of
judgment currently provided in Rule 68(a) (2005) and in proposed subdivision 68(a)(3). A third alternative would be to amend the
Rule 6(a) provision that addresses periods of time under eleven days so that
Rule 68 is exempted from its operation.
The provision
also provides that an offeror may withdraw an offer if a court enlarges an
acceptance period. This is modeled upon Arizona
Rule of Civil Procedure 68(e).[50] This encourages settlement, as parties may be
reluctant to serve an offer if a material term in their offer, such as the time
of acceptance, is modified without their consent by a court. This provision respects and preserves the
court’s power to enlarge the acceptance period for good cause. In Nevada, there are serious consequences for
failing to obtain a more favorable judgment, and the risk of loss is borne
solely by the offeree, so the court’s power to grant an offeree’s request to
enlarge the acceptance period should be generously exercised.
RULE 68. OFFERS
OF JUDGMENT
(f) Acceptance
Period and the Effect of the Failure to Accept an Offer.
* * * *
(3) Evidence of the offer is not admissible except in a proceeding to
determine costs and attorneys’ fees. Evidence of a void
offer is not admissible in a proceeding to determine the attorneys’ fees of any
party.
This
provision clarifies that void offers of judgment shall not be considered by a district
court when determining the amount of an award of attorneys’ fees. A district court can consider the amount of
an offer of judgment as a factor in its determination of the amount of an
offeree’s attorneys’ fees award when the offeree obtains a more favorable
judgment (and has a basis for an entitlement to such fees).[51] However, it is not clear if the district
court may consider the amount of an invalid offer as a factor when it
determines the amount of an award for attorneys’ fees.
The new
subdivision would not affect the admissibility of invalid offers other
purposes, such as a proceeding to seek sanctions against a party or attorney.
RULE 68. OFFERS
OF JUDGMENT
(f) Acceptance Period and the
Effect of the Failure to Accept an Offer.
* * * *
(4) The
fact that an offer is made but not accepted does not preclude a subsequent
offer. The service of a subsequent offer does not
operate to revoke a prior offer. No
party shall be subject to the sanctions of subsection (g) for the rejection of
a prior offer from the same offeror.
This
provision establishes that, for the purposes of determining if a more favorable
verdict was obtained, the district court may consider only the most recent
offer of judgment.[52] This also establishes that while an offeror
can only rely upon the most recent offer of judgment in post-trial proceedings,
the offeree can accept any offer within the applicable ten-day acceptance
period because the offers are irrevocable.[53] In other words, the offeree’s power to accept
an offer is not extinguished by the service of a subsequent offer.
RULE 68. OFFERS
OF JUDGMENT
(f) Acceptance
Period and the Effect of the Failure to Accept an Offer.
* * * *
(5) The
service of a counter-offer does not operate as a rejection of a prior offer.
This provision establishes that the service of a counter-offer of judgment does not operate as a rejection of a prior offer of judgment. The Nevada Supreme Court has not addressed this issue in a published opinion. However, this policy appears consistent with the Nevada Supreme Court’s rationale in other offer of judgment cases. Specifically, the Nevada Supreme Court has determined that policy behind Rule 68 and NRS § 17.115 supports the position that an offer of judgment should be irrevocable during the ten-day acceptance period;[54] the ten-day acceptance period is designed to give the offeree time to consider carefully the likely value of pursuing a claim in light of the offer of judgment and the possible penalties that flow from rejection;[55] the offeree is entitled not to be rushed into a hasty decision.[56] Those courts that have addressed this issue appear to hold uniformly that the service of a counter-offer does not operate as a rejection of a prior offer of judgment.[57]
RULE 68. OFFERS
OF JUDGMENT
(f) Acceptance
Period and the Effect of the Failure to Accept an Offer.
* * * *
(6) [With]
For apportioned
offers to multiple offerees that are conditioned upon the acceptance by all parties to
whom the offer was directed, each offeree may serve a separate
acceptance of the [apportioned] offer, but if the offer is not accepted
by all offerees, no
judgment or order of dismissal may be entered pursuant to subsection (e) and the action
shall proceed as to all. Any offeree who
fails to accept the offer [may] shall be subject to the [penalties of this rule] sanctions
of subsection (g).
This
provision makes explicit the counterintuitive operation of the current rule
which establishes that there are situations where a party can “accept” an offer
of judgment, but judgment cannot thereafter be entered. It also establishes that this provision
applies only to apportioned offers that are conditioned upon the acceptance by
all, as apportioned offers that are not so conditioned should result in a
judgment when accepted.
RULE 68. OFFERS
OF JUDGMENT
[(f)] (g) [Penalties]
Sanctions for Rejection of Offer. [If the offeree
rejects an offer and fails to obtain a more favorable judgment,
(1) the
offeree cannot recover any costs or attorney’s fees and shall not recover interest
for the period after the service of the offer and before the judgment; and
(2) the
offeree shall pay the offeror’s post-offer costs, applicable interest on the
judgment from the time of the offer to the time of entry of the judgment and
reasonable attorney’s fees, if any be allowed, actually incurred by the offeror
from the time of the offer. If the offeror’s attorney is collecting a
contingent fee, the amount of any attorney’s fees awarded to the party for whom
the offer is made must be deducted from that contingent fee.]
(1) Except
as otherwise provided in subdivision (g)(3), if a party who rejects an offer
fails to obtain a more favorable judgment, the court:
(A) shall not award to the
party any discretionary costs or discretionary attorneys’ fees from the
commencement of the action to the entry of the judgment;
This
provision establishes that an offeree that fails to obtain a more favorable
verdict cannot obtain an award of discretionary costs or attorneys’ fees.[58]
RULE 68. OFFERS
OF JUDGMENT
(g) Sanctions
for Rejection of Offer.
(1) Except
as otherwise provided in subdivision (g)(3), if a party who rejects an offer of
judgment fails to obtain a more favorable judgment, the court:
* * * *
(B) shall
not award to the party any other costs or attorneys’ fees for the period from
the date of the service of the offer to the entry of the judgment;
This
provision establishes that an offeree that fails to obtain a more favorable
verdict cannot obtain an award of post-offer nondiscretionary costs or
nondiscretionary attorneys’ fees. It
clarifies that the offer of judgment rule does not operate to defeat an
offeree’s entitlement to pre-offer nondiscretionary costs or nondiscretionary
attorneys’ fees.
While the
Nevada Supreme Court has noted that an unsuccessful offeree is absolutely
prohibited from recovering any costs
or attorneys’ fees,[59] this sweeping
observation has been made and reiterated in dicta. The Bowyer
and Palace Station courts squarely
addressed the extent of the offer of judgment penalties and in doing so noted
that the offer of judgment penalties that disallow the offerees from recovering
any costs and attorneys’ fees are in conflict with the statutes that entitle
the offerees to discretionary awards of attorneys’ fees and costs. Both courts resolved the conflict by holding
that the mandatory penalties defeated the discretionary entitlements to the
costs and attorneys’ fees awards.
The Nevada
Supreme Court has not resolved the statutory conflict that arises when an
unsuccessful offeree is subject to the mandatory penalties of the rule and the
statute and is concurrently entitled to a mandatory
award of attorneys’ fees[60] and a mandatory award of litigation costs.[61] A review of the appellate briefing to Nevada
Supreme Court in recent cases reveals that it was not asked to resolve, and
thus did not resolve, this statutory conflict.
In such an instance, a court may resolve the conflict by sustaining the
unsuccessful offeree’s entitlement to pre-offer costs and pre-offer attorneys’
fees and disallow the offeree its post-offer costs and post-offer attorneys’
fees. This result would harmonize
Nevada’s law with federal law,[62] and with the
overwhelming majority of jurisdictions,[63] and would
punish the unsuccessful offeree for the direct consequences of the rejection of
the offer; the offeree would lose its entitlement to post-offer costs and
post-offer attorneys’ fees and become liable for all of the offerors’ applicable
litigation expenses incurred after the service of the offer.
If the
statutory conflict is resolved by concluding that the offer of judgment
penalties prevail over all other conflicting laws,
RULE 68. OFFERS
OF JUDGMENT
(g) Sanctions
for Rejection of Offer.
(1) Except
as otherwise provided in subdivision (g)(3), if a party who rejects an offer of
judgment fails to obtain a more favorable judgment, the court:
* * * *
(C) shall
not award to the party any interest for the period from the date of service of
the offer to the date of entry of the judgment;
(D) shall
order the party to pay the taxable costs and applicable interest incurred by
the offering party or parties from the date of the service of the offer to the
entry of the judgment; and
This text is
relocated from existing Rule 68(f)(2) (2005) and without substantive
modification.
RULE 68. OFFERS
OF JUDGMENT
(g) Sanctions
for Rejection of Offer.
(1) Except
as otherwise provided in subdivision (g)(3), if a party who rejects an offer of
judgment fails to obtain a more favorable judgment, the court:
* * * *
(E) May
order the party to pay the offering party any or all of the following:
(i) Reasonable costs incurred by the offering
party for each testifying expert witness whose services were reasonably
necessary to prepare for and conduct the trial of the case for the period from
the date of the service of the offer to the date of the entry of judgment,
together with any applicable interest.
(ii) Reasonable
attorneys’ fees incurred by the offering party for the period from the date of
the service of the offer to the date of entry of the judgment, together with
any applicable interest.
This
provision establishes that an offeror is eligible for an award of expert
witness costs for testifying experts that were reasonably accrued after the
service of the offer. The text of
Rule 68 currently does not provide for any such award. NRS § 17.115
provides that expert fees can be awarded but only if the “services were reasonably
necessary to prepare for and conduct the trial of the case,” but the statute
does not specify when those costs begin to accrue and does not explicitly limit
recovery to costs associated with testifying experts.[64] Inasmuch as this Petition argues that the
penalty should be reflective of the litigation expenses incurred as a result of
the offeree’s rejection, it asserts that the penalties should not include
expert witness fees that were incurred before the service of the offer.
This
provision also preserves the current discretionary entitlement to an award of
attorneys’ fees. However, it eliminates
the part of the current rule that provides that if the offeror’s attorney is
collecting a contingent fee, the amount of the party’s fee award must be deducted from the attorney’s fee.[65] As explained in the Nevada Civil
Practice Manual:
Although the Rule 68
Drafting Committee Notes indicate that this rule is intended to “prevent
double recovery” for an attorney, it is not clear that the attorney would
obtain a “double recovery” in the absence of this rule and, worse, it appears
that that the rule does not accomplish that goal. In fact, if the text of the rule were given
literal effect, there will be situations where a successful attorney will be
paid nothing but will instead owe the client a windfall amount.[66] It seems more appropriate to regulate the
compensation between a counselor and a client by other and more traditional
means. See, e.g., NRPC 1.5(c) (“A fee may be contingent on the
outcome of a matter for which the service is rendered, except in a matter in
which a contingent fee is [a domestic relations matter or for representation of
a defendant in criminal case] or other law”); NRS
18.010(1) (“The compensation of an attorney and counselor for his services is
governed by agreement, express or implied, which is not restrained by law”).[67]
For an example of the unintended
consequences that could occur under the current rule, consider a case where a claimant’s
offer of $90,000 is rejected, the claimant later obtains a judgment of
$140,000, and the court orders a Rule 68 attorneys’ fees award of $60,000
in the claimant’s favor. If the
claimant’s attorney negotiated a simple 25% contingency fee, then the attorney
that would have been paid $50,000 but for Rule 68(f)(2) (2005) is instead
indebted to the claimant for $10,000.
This windfall for the claimant exists because the text of the current
rule provides that the claimant’s $60,000 attorneys’ fees award must be
“deducted from that [attorney’s] contingent fee” of $50,000. This creates the absurd result of a conflict
between the attorney and client and is an absurd result. Even if this were not the intended result, it
is difficult to craft any construction of the current rule that would produce
any incentive for a claimant’s attorney to counsel the client to serve an offer
of judgment. The current rule creates a
disincentive for the attorney to advocate for the maximum possible attorneys’
fees award when the claimant becomes eligible for such an award; yet the
benefit of contingent fees is to create this very type of performance
incentive. Simply put, the current
fee-limiting rule does not clearly comport with the overall operation and
purpose of the offer of judgment law, which is to encourage settlement through
the construction of incentives that operate to achieve that end. The proposed new subdivision corrects this
evident error and restores the law to its pre-1998 condition.
RULE 68. OFFERS
OF JUDGMENT
(g) Sanctions
for Rejection of Offer.
* * * *
(2) An award against a party made pursuant to this subsection shall not exceed that portion of the costs, attorneys’ fees and applicable interest that are severally attributable to the party.
This
provision also establishes that awards for costs, attorneys’ fees, and
applicable interest are limited to the expenses severally attributable to the
party or parties that reject an offer.
This clarification is necessary to describe what limitations exist on
the penalty when one or more parties accept an apportioned offer that is
conditioned upon acceptance by all.
Inasmuch as this Petition argues that the penalty should be reflective
of the litigation expenses incurred as a result of the offeree’s rejection,
this Petition asserts that the penalties should not include expenses incurred
in the same action but connection with the claims or defenses concerning
another party.
RULE 68. OFFERS
OF JUDGMENT
(g) Sanctions
for Rejection of Offer.
* * * *
(3) The court may suspend the application of
this subsection to prevent manifest injustice or if the offer was made in bad
faith.
This
provision makes clear that a court may suspend the application of Rule 68
to prevent manifest injustice. This is
consistent with the constitutional limitations on the Nevada Supreme Court’s
ability to craft rules of procedure and with the purposes of the Rules of Civil
Procedure.[68] This provision also makes explicit that an
offer of judgment must be served in good faith.
A district court has the discretion to invalidate an offer that is not
made in good faith, that is, one that is not served for the purpose of settling
a case.[69]
An offer that
has no reasonable prospect of acceptance under the circumstances of the
particular case does not encourage settlement,[70] nor furthers
the purpose of the offer of judgment law, and if given effect, would force
parties to forego legitimate claims or defenses.[71] It would frustrate the purpose of the offer
of judgment rule if a district court were to give any effect to a defendant’s
token offer of judgment or other nominal offer made before meaningful discovery
is obtained and the plaintiff thereafter fails to obtain a more favorable
judgment in a meritorious action.[72] A contrary result would permit the rule to be
used as a tactical device solely for the purpose of obtaining costs or
attorneys’ fees to which an offering party would not otherwise be entitled.
RULE 68. OFFERS
OF JUDGMENT
(g) Sanctions
for Rejection of Offer.
* * * *
(4) An offeror shall not be deemed the
prevailing party solely due to the offeree’s failure to obtain a more favorable
judgment.
This
provision establishes that a court shall not deem the offeror as the
“prevailing party” as a matter of law because the offeree failed to obtain a
more favorable judgment.[73] Instead, the offeree may be the prevailing
party even though the offer of judgment penalties will apply against the
offeree.[74]
RULE 68. OFFERS
OF JUDGMENT
[(g)] (h) [How Costs Are Considered] Determination of
More Favorable Judgment. [To
invoke the penalties of this rule, the court must determine if the offeree
failed to obtain a more favorable judgment.
Where the offer provided that costs would be added by the court, the
court must compare the amount of the offer with the principal amount of the
judgment, without inclusion of costs.
Where a defendant made an offer in a set amount which precluded a separate
award of costs, the court must compare the amount of the offer together with
the offeree’s pre-offer taxable costs with the principal amount of the
judgment.]
(1) To
determine whether a party who rejected an offer of judgment failed to obtain a
more favorable judgment:
(A) If
the offer provided that the court could award costs, attorneys’ fees or
interest upon acceptance, the court must compare the amount of the offer with
the principal amount of the judgment, without inclusion of costs, attorneys’
fees or interest.
(B) If
the offer precluded a separate award of costs, attorneys’ fees or interest upon
acceptance, the court must compare the amount of the offer with the sum of:
(i) The principal amount of the judgment; and
(ii) The
amount of applicable taxable costs, attorneys’ fees and interest, including
applicable interest on such costs and attorneys’ fees, incurred up to and
including the date the offer was served.
In making this comparison, the court shall calculate interest at the
rate in effect on the date the offer was rejected.
This
provision adds clarity and precision to the method that a court must undertake
to compare an offer with a judgment in that it explicitly accounts for the
treatment of costs, attorneys’ fees, interest, and interest on costs and
attorneys’ fees.[75]
Next, this
provision departs from the Nevada Supreme Court’s recent discussion on
determining which interest rate to employ to make the comparison. The Albios
court has explained that the interest rate in effect on the date the judgment
is entered is the operative interest rate, and the interest rate in effect on
the date of the offer is irrelevant.[76] This seems erroneous, as the crux of a
court’s post-judgment analysis is whether the offer should have been accepted,
and therefore the interest rate in effect on the last day that acceptance was
possible seems to be more appropriate for the analysis.
Finally, this new subdivision implicitly defines the phrase
“principal amount of the judgment” to mean the amount of the judgment less any
applicable taxable costs, attorneys’ fees and interest. The phrase is presently used in Rule 68
and NRS § 17.115, but its meaning is vague and ambiguous in
both the rule and the statute.
RULE 68. OFFERS
OF JUDGMENT
(h) Determination of More Favorable Judgment.
* * * *
(2) The court shall take into account any additur or remittitur
before making the comparison.
This
provision establishes that the court shall take into account any additur or
remittitur before making the comparison.
The Nevada Supreme Court has not yet directly determined how a trial
court’s post-trial additur or remittitur affects the determination of a more
favorable judgment, but it seems ready to conclude that this comparison is made
after the trial court’s additur or remittitur.[77]
(h) Determination of More Favorable Judgment.
* * * *
(3) The court shall assign no value to a determination of good
faith settlement when making the comparison.
This
provision establishes that the court shall assign no value to a determination
of good faith settlement when making the comparison. Absent this instruction, a court may not be
readily able to assign a value to a condition requiring a determination of good
faith settlement and thus may invalidate an offer. This provision promotes settlement in certain
actions with multiple defendants.
[(h) Offers After Determination of
Liability. 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, the party adjudged
liable may make an offer of judgment, which shall have the same effect as an
offer made before trial if it is served within a reasonable time not less than
10 days prior to the commencement of hearings to determine the amount or extent of liability.][78]
(i) Signing of Offers. Every offer shall
be signed by at least one attorney of record in the attorney’s individual name,
whose address shall be stated. An
unrepresented party shall sign the disclosure and state the party’s
address. An unsigned offer is void. The signature of the attorney or party
certifies that the offer is made in good faith and for the purpose of obtaining
a settlement.
This
provision relocates the requirement that
the offer must be reduced to writing to be valid as required by Rule 68(a)
(2005). This provision alerts the
signing individual that the purpose of the offer is to obtain a
settlement. This is necessary to alert
the signing individual and/or place some
risk on the offeror who acts inconsistently with the purpose of
Rule 68. Rule 11 alone may not be
sufficient because it allows a signatory twenty-one days to withdraw the
suspect paper, yet an offer will be deemed rejected if it is not accepted
within the ten-day acceptance period in the absence of court intervention.
(j) Filing
requirements. An offer of judgment is void if the offeror does not file
and serve a written notice of service of the offer of judgment within three
days after service of the offer.
This provision amendment requires the
offeror to file a “notice of service of offer of judgment” within three days
after serving the offer. It is hoped
that adding this filing and service requirement will reduce the instances where
an offeree denies that it received or had notice of the offer. See,
e.g., McCrary v. Bianco, 131 P.3d 573, 578 (Nev. 2006) (offeree found
to have received mailed offer); McEvoy v. Aerotek, Inc., 34 P.3d 979, 983-86 (Ariz.App. 2001) (trial court has
discretion to receive evidence on the issue of whether an offeree actually
received an offer that was duly served by mail and has discretion to relieve
the offeree from the consequences of not responding to the offer).
RULE 68. OFFERS
OF JUDGMENT
(k) When
inapplicable. This rule is not
applicable to suits for divorce, alimony, separate maintenance or custody of
children.
This
provision makes explicit this Court’s holding that the offer of judgment rules
do not apply to divorce proceedings, child support cases, or child custody
matters.[79] The text of this subsection replicates the
first sentence of Nevada Rule of Civil Procedure 65(f).
This
subsection is not needed and therefore should not be included in Justice Court
Rule of Civil Procedure 68.
IV. Proposed Amendments to NRCP Appendix of Forms
The following
forms are to be used and adopted in conjunction with the proposed repeal and
replacment of Rule 68. They are
intended to comply with Rule 84: to be
sufficient under the rule and to indicate the simplicity and brevity of
statement which the rules contemplate.
With the exception of the last form, they are not adequate for use under
current law.
Form 33. Lump-Sum
Offer of Judgment Under Rule 68.
A.B., Plaintiff, )
v. ) Offer
of Judgment
C.D., Defendant. )
Pursuant to NRCP 68, defendant C.D. hereby offers to allow judgment to
be taken against defendant C.D. and in favor of plaintiff A.B.
in the amount of $100,000 to resolve all claims between the parties in the
above-captioned action.
Form 34.
Non-Lump-Sum Offer of Judgment Under Rule 68.
A.B., Plaintiff, )
v. ) Offer
of Judgment
C.D., Defendant. )
Pursuant to NRCP 68, plaintiff A.B. hereby
offers to allow judgment to be taken in favor of plaintiff A.B.
and against Defendant C.D. in the amount of $100,000, excluding all accrued
interest, costs, attorneys’ fees and any other sums to resolve all claims
between the parties in the above-captioned action. Following acceptance, the plaintiff may seek
accrued interest, costs and attorneys’ fees by separate motion.
Form
35. Lump-Sum Apportioned Offer of
Judgment Under Rule 68 to Multiple Offerees and Conditioned Upon the
Acceptance by All Offerees.
A.B. & C.D., Plaintiffs, )
v. )
Offer of Judgment
E.F., Defendant. )
Pursuant to NRCP 68, defendant E.F. hereby
offers to allow judgment to be taken in favor of plaintiff A.B.
and against defendant E.F. in the amount of $100,000 to
resolve all claims between those parties in the above-captioned action; and
offers to allow judgment to be taken in favor of plaintiff C.D. and against
defendant E.F. in the amount of $50,000 to resolve
all claims between those parties in the above-captioned action. This apportioned offer of judgment is
conditioned upon the acceptance of all plaintiffs.
Form
36. Lump-Sum Apportioned Offer of
Judgment Under Rule 68 to Multiple Offerees and Not Conditioned Upon the
Acceptance by All Offerees.
A.B. & C.D., Plaintiffs, )
v. )
Offer of Judgment
E.F., Defendant. )
Pursuant to NRCP 68, defendant E.F. hereby
offers to allow judgment to be taken in favor of plaintiff A.B.
and against defendant E.F. in the amount of $100,000
to resolve all claims between those parties in the above-captioned action; and
offers to allow judgment to be taken in favor of plaintiff C.D. and against
defendant E.F. in the amount of $50,000 to resolve
all claims between those parties in the above-captioned action. This apportioned offer of judgment is not
conditioned upon the acceptance of all plaintiffs.
Form
37. Lump-Sum Unapportioned Offer of
Judgment Under Rule 68 Jointly Made from Multiple Offerors.
A.B. & C.D., Plaintiffs, )
v. )
Offer of Judgment
E.F., Defendant. )
Pursuant to NRCP 68, plaintiff A.B. and
plaintiff C.D., jointly, hereby offer to allow judgment to be taken in favor of
plaintiffs and against defendant E.F. for $100,000 to
resolve all claims between the parties in the above-captioned action.
Form
38. Lump-Sum Joint Unapportioned Offer
of Judgment Under Rule 68 to Multiple Plaintiffs.
A.B. & C.D., Plaintiffs, )
v. )
Offer of Judgment
E.F., Defendant. )
Pursuant to NRCP 68, defendant E.F. hereby
offers to allow judgment to be taken against defendant E.F.
and in favor of plaintiff A.B. and plaintiff C.D.,
jointly, for $100,000 to resolve all claims between the parties in the
above-captioned action.
Form
39. Lump-Sum Joint Unapportioned Offer
of Judgment Under Rule 68 to Multiple Defending Parties.
A.B., Plaintiff, )
v. )
Offer of Judgment
C.D. & E.F., Defendants. )
Pursuant to NRCP 68, plaintiff A.B. hereby
offers to allow judgment to be taken in his favor and against defendants C.B. and E.F., jointly, for $100,000
to resolve all claims between the parties in the above-captioned action.
Form
40. Lump-Sum Joint Unapportioned Offer
of Judgment Under Rule 68 Jointly Made from Multiple Offerors to Multiple
Offerees.
A.B. & C.D., Plaintiffs, )
v. )
Offer of Judgment
E.F. & G.H., Defendants. )
Pursuant to NRCP 68, defendants E.F. and G.H., jointly, hereby offer to allow judgment to be taken
against defendants E.F. and G.H.
and in favor of plaintiff A.B. and plaintiff C.D.,
jointly, for $100,000 to resolve all claims between the parties in the
above-captioned action.
Form
41. Lump-Sum Apportioned Offer of
Judgment Under Rule 68 Jointly Made from Multiple Offerors to Multiple
Offerees Conditioned Upon the Acceptance by All Offerees.
A.B. & C.D., Plaintiffs, )
v. )
Offer of Judgment
E.F. & G.H., Defendants. )
Pursuant to NRCP 68, defendants E.F. and G.H., jointly, hereby offer to allow judgment to be taken
against them and apportioned as follows:
in favor of plaintiff A.B for $100,000 to
resolve all claims between the parties in the above-captioned action; and in
favor of plaintiff C.D. for $50,000 to resolve all claims between the parties
in the above-captioned action. This
apportioned offer of judgment is conditioned upon the acceptance of all
plaintiffs.
Form
42. Non-Lump-Sum Offer of Judgment Under
Rule 68 to Quiet Title in Easement.
A.B., Plaintiff, )
v. ) Offer
of Judgment
C.D., Defendant. )
Pursuant to NRCP 68, defendant C.D. hereby offers to allow judgment to
be taken against defendant C.D. and in favor of plaintiff A.B.
to resolve all claims between the parties in the above-captioned action as
follows:
Plaintiff
A.B. is entitled to have a prescriptive road easement
fifteen (15) feet in width on and across the following described land: [Legal description of defendant C.D.’s real property].
Said
roadway easement is more particularly described as follows: [Legal description of roadway easement on
defendant C.D.’s real property].
Said
road easement shall be a perpetual non-exclusive easement for ingress and
egress to and from a tract of land owned by plaintiff A.B.
and more particularly described as follows to wit: [Legal description of plaintiff A.B.’s real property].
Following
acceptance, the plaintiff may seek accrued interest, costs and attorneys’ fees
by separate motion.
V. Conclusion
The current
rules and forms are inadequate to the task of providing certainty of outcome
and therefore do not adequately promote settlement. The proposed replacement rules and amended
rules and forms are believed to be better suited to fulfill that important
task.
RESPECTFULLY SUBMITTED
This ___ day of __________, 20______
FOR
THE STATE BOARD OF GOVERNORS
___________________________
* For example, this
Petition uses “subdivision (a)(1)”
in lieu of “paragraph (1) of section (a)”,
and “subsection (a)” is used in lieu
of “section (a)”.
[1] Matter in italics is new;
matter in brackets [omitted material] is
material to be omitted.
[2] See Clark
v. Lubritz, 944 P.2d 861, 868 (
[3] See generally McCrary v. Bianco, 131 P.3d 573 (
[6] The following
is a “redline” comparison of
[(h) Offers After Determination of
Liability.] 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, [the party adjudged liable may make an
offer of judgment, which shall have the same effect as an offer made before
trial if it is served within a reasonable time not less than 10 days prior to
the commencement of hearings to
determine the amount or extent of liability] 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 a offer to enter judgment to resolve all claims in the
action between those parties accrued through the date of the offer.
[8] See Clark
v. Lubritz, 944 P.2d 861, 868 (
[9] See generally McCrary v. Bianco,
131 P.3d 573 (
[12] Nava v. Second Judicial
[13]
[14] If an offer of
judgment for a lump-sum that makes no reference to costs is accepted, then the
district “court shall allow costs in accordance with NRS
18.110[,]” because the offer does not explicitly “preclude a separate award of
costs.”