When filing pleadings and other court documents in Nevada state court, timing is of the utmost importance. If an attorney waits too long to file with the court, or fails to properly answer a complaint in a timely matter, then a case may be decided before it even begins. The Nevada Rules of Civil Procedure (NRCP) guide parties in regards to time allotted when filing with the court. NRCP 6 is broken down into four sections, each dealing with a different aspect of timing.
How to Compute the Deadline to File Documents
The first section provides a broad description of how to compute the correct and accurate deadline to file documents with the court or to comply with court orders.1 Excluded from being included as a deadline is any Saturday, Sunday, or non-judicial day,2 such as Nevada Day.3 Computation is arguably the most important part of NRCP 6 and is quite similar to the Federal Rules of Civil Procedure.4 Several cases in the Nevada Supreme Court have dealt with applying NRCP 6(a) to statute of limitations and filing deadline questions.5 In Romaine v. State Farm, the Supreme Court of Nevada held that if the appropriate statute of limitations ends on a Saturday, Sunday, or non-judicial day, then 6(a) is applied to extend the deadline to the next judicial day.6 In Williams v. Clark County District Attorney, the Nevada Supreme Court held that when the Nevada Revised Statues (NRS) does not specify how to compute a period, then 6(a) should be used as a supplemental method.7 In Williams, the defendant argued that the challenge to his candidacy was not filed in the appropriate five-day window.8 The Court in Williams held that, “when a statute does not specify how to compute a particular time period, NRCP 6(a) governs the computation.”9
It is important to understand that in 2004, NRCP 6(a) was revised and the Nevada Supreme Court has overturned part of the rulings regarding computing time using 6(a) and 6(e) in conjunction. In Morrow v. Eighth Judicial District Court of Nevada, the court held that 6(a) “applies to the computation of any period of time prescribed or allowed by the NRCP, local rules of the district court, by an order of the court, or by any applicable statute.”10 This decision allows NRCP 6(a) to work alongside Supreme Court Rule 4, which only discusses “non-judicial days” and does not discuss Saturdays and Sundays.11 The Nevada Supreme Court ruled in both Williams and Morrow that when a Nevada Statute is silent in regards to computing deadlines, NRCP 6(a) can be used to fill the gap left.
Computed Time Period Extension
The next section is related to the extension or enlargement of the specified computed time period.12 Enlargement of a period is important because it could give parties more time to prepare or respond to a motion. The first way that a specified time may be enlarged is through written agreement between both parties.13 Another option is for the court to decide to enlarge the period with or without the request of the parties any time prior to the original deadline, or the court may enlarge a period after the deadline has passed, when the party that missed the deadline did so out of excusable neglect and filed a motion with the court.14 However, even the court may not extend missed deadlines for NRCP 50(b), 50(c)(2), 52(b), 59(b), (d) and (e), and 60(b), barring conditions stated in those particular rules.15 Even outside of the enumerated limitations, the court may be fettered when attempting to enlarge periods under NRCP 6(b). In Culinary & Hotel Serv. Workers Union v. Haugen, the Nevada Supreme Court held that 6(b), “limits the right of the court to enlarge the time for filing motion for new trial or notice of appeal…”16 This decision reinforces that once the deadline to file for a new trial is passed, even the court cannot extend the deadline.
Time Period for Notices to be Delivered to Opposing Counsel
The third category sets a definite period in which notices and notices of hearing must be delivered to the opposing counsel, and it also requires that any supporting affidavits shall be served with the motion or opposition as well.17 NRCP 6(d) requires that any written notice or notice of hearing be served no later than five days prior to the hearing, unless only one party need be present at the hearing.18 6(d) later goes on to say that when a written motion or opposition is supported by an affidavit, then the applicable affidavit must be included with the written motion when served.19 These requirements are of course subject to different periods under other NRCPs or rule of the court.20
Additional Days for Service by Mail/Electronic Means
Finally, the last section provides an additional three days to the period for any time a party is served by mail or electronic means, excluding process.21 The common usage of mail and electronic delivery has necessitated that a special rule be added to NRCP 6. NRCP 6(e) allows for the addition of three days to the prescribed period that parties are allotted when required to act, has a right to act, or is required to take proceedings.22 When the three additional days in 6(e) should be applied in relation to 6(a) has been grounds for debate in the Nevada Supreme Court.
In Custom Cabinet Factory of N.Y., Inc. v. Eighth Judicial District Court, the Court held that the three additional days under 6(e) should be applied prior to examining if 6(a) would be factored in as well.23 This was contrary to a ruling in the Federal District Court for the District of Nevada, which ruled that the FRCP equivalent of NRCP 6(a) should be applied first and then the additional time from the FRCP equivalent of NRCP 6(e) should be applied after.24 At the time, the Nevada Supreme Court found that this would produce absurd results and lead to an excessive amount of time to be added. However, in 2004 when NRCP 6(a) was revised and excluded intermediate Saturdays, Sundays, and nonjudicial days for periods of less than eleven days, the Nevada Supreme Court changed their mind.25 In Winston Prods. Co. v. Deboer, the Nevada Supreme Court held that with the amendment to 6(a), it should be applied to periods prior to adding the three additional days from 6(e).26 The Nevada Supreme Court further held in Winston that, “We therefore reverse our decisions in Custom Cabinet and Ross to the extent that they require that filing periods be computed by adding the 3 days for service by mail under NRCP 6(e) to the prescribed period before applying NRCP 6(a).”27 By reversing the decision from Custom Cabinet and Ross, the Nevada Supreme Court held that, “the 10-day time period for filing motions for judgment as a matter of law and for a new trial should be calculated first under NRCP 6(a), excluding intermediate Saturdays, Sundays and nonjudicial days. If service was made by mail or electronic means, 3 days should thereafter be added pursuant to NRCP 6(e).”28 This decision is now in line with the Federal District Courts decision to compute filing periods in the same fashion. It is also worth noting that in Mikohn Gaming v. Espinosa, the Nevada Supreme Court held that deposit of mail in an internal mail system does not constitute mailing for purposes of calculating the running of the time period and that date runs from the date the item is placed in an external, public mail system.29 The Court went on to hold that, “a document is not mailed . . . until it is placed in the care of a business providing general delivery services or deposited with the United States Postal Service.”30
The Safest Method for Filing
When filing a complaint, motions, answers, or other court documents, it is vital to everyone involved that these documents be submitted and served in a timely matter. There can be room for enlargement of periods, however, the safest bet is to file with plenty of time before the deadline to avoid any mistakes that may harm the parties involved.
In general, parties must give the other parties involved in the litigation documents that are used throughout the litigation proceedings. This process is called service. Such documents include all pleadings after the original complaint, discovery papers, written motions, except those heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar papers.1 Service may be completed in person, through mail delivery, or electronic service. Although proof of service is not necessary to validate the service, proof may be made by certificate of an attorney, written admission, affidavit, or other acceptable means.2 In cases that involve a significantly large number of defendants, the court may order that copies of certain pleadings and replies thereto of the defendants are not necessary.3
Proper Methods of Service
Service must be made upon a represented party’s attorney, unless the court orders service directly upon the party.4 There are various ways to complete proper service. The first methods of service involve in-person service. A copy of the pleading may served by; handing it to the attorney or party, leaving it with a person in charge at the attorney or client’s office, or with a responsible person of suitable age at either’s residence.5
A party may also elect to complete service through the mail. A copy should be mailed to the attorney or party’s last known address.6 If the address is unknown, a copy should be left with the court clerk.7 Motions, answers, and other documents constituting the initial appearance of a party must be filed within the time allowed for service if serving by mail.8 After the initial appearance is made, service by mail must come from within Nevada.9 Service by mail is complete upon mailing.10
The last method involves electronic service. Service may be delivered electronically, which includes email or fax, as long as the receiving party consents.11 Consent must be obtained in writing, filed with the court clerk, and served on the other parties to the action.12 Electronic service is completed upon transmission.13 However, electronic service is incomplete if the serving party becomes aware the attempted service did not reach the intended recipient.14
Quinlan v. Camden
In Quinlan, the Nevada Supreme Court reversed a defendant’s award for fees and costs, where the plaintiff did not consent to receiving an offer of judgment via fax.15 Quinlan sued Camden USA after she tripped on a sidewalk in an apartment complex.16 Quinlan was subsequently ordered to pay $41,976 to Camden based on an offer at judgment.17 Quinlan’s attorney often corresponded with Camden’s counsel via fax.18 Quinlan’s attorney even sent the initial settlement offer by fax, which prompted Camden’s offer of judgment.19 The Court ruled that the service by fax violated NRCP 5(b)(2) because Quinlan did not ever expressly consent to receiving faxes.20 Camden argued Quinlan gave implied consent to receiving faxes based off utilizing faxes in the past.21 The Court ruled that implied consent may not be substituted for mandatory written consent required by NRCP 5.22
Filing Pleadings with the Court
Not only are parties required to receive copies of pleadings and other documents, so are the courts. All documents after the complaint that require service to a party must also be filed with the court.23 Required pleadings must be filed with the court clerk.24 In some circumstances, documents may be filed with the judge, who later gives them to the clerk.25 Local rules may require papers to be filed, signed, or verified electronically.26 Electronically signed documents will be treated the same as a written paper.27 It is permissible to file with the court before or after service, so long as it is within a reasonable amount of time.28 Court clerks cannot refuse any filings based on the fact that any paper does not adhere to the form required by Rule 5 or local rules29. Answers and responses, depositions, interrogatories, requests for production, and request for admission may not be filed until used in court proceedings.30 Original responses to requests for admissions or production and answers to responses must be served on the requesting party.31 The requesting party must then make those originals available for either party’s use by the time of the pretrial hearing or trial.32
O’Neal v. Hudson
In a recent case, the Nevada Supreme Court considered whether a proper filing took place when a judge did not transmit a motion to the court clerk. In O’Neal, the appellant was denied a motion for a new trial after failing to file a timely appeal.33 However, the appellant claimed that her appeal was timely, and pointed to an email that contained a motion for new appeal to the judge as evidence.34 The appellant emailed the trial judge with an attachment of the motion and asked whether the appeal should be e-filed with the court.35 The judge directed the appellant to contact the office of Alternative Dispute Resolution for an answer.36 After being told by the Alternative Dispute Resolution to file with the judge, the appellant told the judge she was instructed to file the motion directly with him instead of the court clerk.37 Respondents claimed the email did not constitute a filing pursuant to the definition in NRCP 5(e) because the motion was never transmitted to the court clerk afterwards.38 The Court ruled the trial judge accepted the motion and service was complete after giving custody of the motion to the judge.39 Additionally, the Court ruled the appellant should not be penalized for the judge’s actions.40
NRCP 4 is generally the first rule parties deal with in the very early stages of a lawsuit. Once a plaintiff files a complaint to initiate a lawsuit, the court clerk issues a summons for the plaintiff. It is then the plaintiff’s responsibility to deliver a copy of the complaint, along with the summons to the defendant, which notifies the defendant they are involved in a lawsuit and need to appear in court1. This process is known as “service of process.”
Summons: What Is Required?
The summons must contain the court clerk’s signature under the court seal, name of the court, county, parties to the action, name and address of plaintiff’s attorney, the plaintiff’s address, and the time and date the defendant must appear to defend the action.2 The summons must also notify the defendant that failure to appear at the stated date and time will result in a default judgment.3 The summons and complaint must be served upon the defendant together.4 Additionally, the person serving the defendant with these items must be a disinterested party over the age of 18.5 It is also typical for the sheriff’s department in the defendant’s county to serve the defendant.6 A defendant may be served anywhere, as long as it is within the state.7 After serving the defendant, the server must submit an affidavit to the court showing proof of service8.
The plaintiff must adhere to certain requirements depending on who or what is being served. For example, registered agents, officers, partners, or members must be served for actions against businesses and corporations.9 Key business employees within the state may be served in suits against an unregistered foreign entity.10
Who Can be Served a Summons?
The Nevada Supreme Court upheld the idea that service may only be made upon appropriate business agents in Karns v. State Bank & Trust Co.11 In Karns, the Court found that an assistant cashier, of the defendant’s domestic corporation, was not the managing agent, and therefore not able to receive service of process.12 This was despite the fact the assistant had authority to sign drafts and receive correspondence.13 The individual who received the summons and complaint did not have capacity to receive service because he was in charge of a branch of defendant’s banking business under the title of assistant cashier.14 Service may be made upon the secretary of state in the case such business employees cannot be located.15
Minors under the age of 14 must also be served personally, in addition to their parents or guardians.16 Additionally, legally incompetent persons must be served personally, in addition to any guardian.17 If suing a local government, the board of commissioners chair, city mayor, or applicable legislative department head must be served.18 In all other cases, the individual may be served personally or copies of the complaint and summons may be left at their home with a person of suitable age.19 Similar processes should be used when personally serving a defendant that resides out of state.20
The 120 Day Filing Requirement & Exceptions
An action will be dismissed if the defendant is not served the summons and complaint within 120 days after the filing of the complaint, unless the plaintiff has good cause for not serving within that time.21 In Joanna T. v. Eighth Jud. Dist. Ct., the court held that the 120 day filing requirement does not apply to proceedings governed by specific statutes, which contain procedures and practices that are inconsistent or in conflict with the rule.22 More specifically, the filing requirement does not apply to neglect and abuse petitions because the time limit is inconsistent with procedures designed to protect children from abuse and neglect.23
Joanna’s daughter was removed from family custody in December 2012 after an abuse-and-neglect petition alleged the child needed protection outside the home.24 In March 2014, Joanna filed a motion to set aside the recommendation to sustain the abuse-and-neglect petition because she never received the summons notifying her to appear in court.25 The petition was orally sustained.26 The juvenile court granted the motion and directed the State to issue Joanna a summons, which was served 486 days after the petition was initially filed.27 Although the summons was issued more than the 120 days allowed under NRCP 4, the juvenile court denied Joanna’s motion to dismiss the petition.28 The Court upheld the juvenile court’s decision to deny the petition, stating that despite procedural error, the purpose of the proceeding was to protect abandoned and abused children in need of protection.29 Additionally, dismissal on procedural grounds could cause a child to return to a potentially unsafe environment, while creating exposure to abuse, neglect, or injury.30
What if the Defendant Cannot be Found?
If the Defendant cannot be located after all reasonable attempts, then service may be made by publishing the summons in a Nevada newspaper.31 The notification must run in a newspaper at least once a week for four weeks.32 A copy of the summons and complaint may also be left with the post office for at least four weeks in the event the defendant cannot be found.33