Nevada Anti-SLAPP Laws Acts UPEPA

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Nevada Anti-SLAPP Acts & Laws

Last updated 2017-06-26

NRS 41.635. Definitions

As used in NRS 41.635 to 41.670, inclusive, unless the context otherwise requires, the words and terms defined in NRS 41.637 and 41.640 have the meanings ascribed to them in those sections.

NRS 41.637. "Good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern" defined

"Good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern" means any:

1. Communication that is aimed at procuring any governmental or electoral action, result or outcome;

2. Communication of information or a complaint to a Legislator, officer or employee of the Federal Government, this state or a political subdivision of this state, regarding a matter reasonably of concern to the respective governmental entity;

3. Written or oral statement made in direct connection with an issue under consideration by a legislative, executive or judicial body, or any other official proceeding authorized by law; or

4. Communication made in direct connection with an issue of public interest in a place open to the public or in a public forum,

which is truthful or is made without knowledge of its falsehood.

NRS 41.640. "Political subdivision" defined

"Political subdivision" has the meaning ascribed to it in NRS 41.0305.

NRS 41.650. Limitation of liability

A person who engages in a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern is immune from any civil action for claims based upon the communication.

NRS 41.660. Attorney General or chief legal officer of political subdivision may defend or provide support to person sued for engaging in right to petition or free speech in direct connection with an issue of public concern; special counsel; filing special motion to dismiss; stay of discovery; adjudication upon merits

1. If an action is brought against a person based upon a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern:

(a) The person against whom the action is brought may file a special motion to dismiss; and

(b) The Attorney General or the chief legal officer or attorney of a political subdivision of this State may defend or otherwise support the person against whom the action is brought. If the Attorney General or the chief legal officer or attorney of a political subdivision has a conflict of interest in, or is otherwise disqualified from, defending or otherwise supporting the person, the Attorney General or the chief legal officer or attorney of a political subdivision may employ special counsel to defend or otherwise support the person.

2. A special motion to dismiss must be filed within 60 days after service of the complaint, which period may be extended by the court for good cause shown.

3. If a special motion to dismiss is filed pursuant to subsection 2, the court shall:

(a) Determine whether the moving party has established, by a preponderance of the evidence, that the claim is based upon a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern;

(b) If the court determines that the moving party has met the burden pursuant to paragraph (a), determine whether the plaintiff has demonstrated with prima facie evidence a probability of prevailing on the claim;

(c) If the court determines that the plaintiff has established a probability of prevailing on the claim pursuant to paragraph (b), ensure that such determination will not:

(1) Be admitted into evidence at any later stage of the underlying action or subsequent proceeding; or

(2) Affect the burden of proof that is applied in the underlying action or subsequent proceeding;

(d) Consider such evidence, written or oral, by witnesses or affidavits, as may be material in making a determination pursuant to paragraphs (a) and (b);

(e) Except as otherwise provided in subsection 4, stay discovery pending:

(1) A ruling by the court on the motion; and

(2) The disposition of any appeal from the ruling on the motion; and

(f) Rule on the motion within 20 judicial days after the motion is served upon the plaintiff.

4. Upon a showing by a party that information necessary to meet or oppose the burden pursuant to paragraph (b) of subsection 3 is in the possession of another party or a third party and is not reasonably available without discovery, the court shall allow limited discovery for the purpose of ascertaining such information.

5. If the court dismisses the action pursuant to a special motion to dismiss filed pursuant to subsection 2, the dismissal operates as an adjudication upon the merits.

6. The court shall modify any deadlines pursuant to this section or any other deadlines relating to a complaint filed pursuant to this section if such modification would serve the interests of justice.

7. As used in this section:

(a) "Complaint" means any action brought against a person based upon a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern, including, without limitation, a counterclaim or cross-claim.

(b) "Plaintiff" means any person asserting a claim, including, without limitation, a counterclaim or cross-claim.

NRS 41.665. Legislative findings and declaration regarding plaintiff's burden of proof under NRS 41.660

The Legislature finds and declares that:

1. NRS 41.660 provides certain protections to a person against whom an action is brought, if the action is based upon a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern.

2. When a plaintiff must demonstrate a probability of success of prevailing on a claim pursuant to NRS 41.660, the Legislature intends that in determining whether the plaintiff "has demonstrated with prima facie evidence a probability of prevailing on the claim" the plaintiff must meet the same burden of proof that a plaintiff has been required to meet pursuant to California's anti-Strategic Lawsuits Against Public Participation law as of June 8, 2015.

NRS 41.670. Award of reasonable costs, attorney's fees and monetary relief under certain circumstances; separate action for damages; sanctions for frivolous or vexatious special motion to dismiss; interlocutory appeal

1. If the court grants a special motion to dismiss filed pursuant to NRS 41.660:

(a) The court shall award reasonable costs and attorney's fees to the person against whom the action was brought, except that the court shall award reasonable costs and attorney's fees to this State or to the appropriate political subdivision of this State if the Attorney General, the chief legal officer or attorney of the political subdivision or special counsel provided the defense for the person pursuant to NRS 41.660.

(b) The court may award, in addition to reasonable costs and attorney's fees awarded pursuant to paragraph (a), an amount of up to $10,000 to the person against whom the action was brought.

(1) Compensatory damages;

(2) Punitive damages; and

(3) Attorney's fees and costs of bringing the separate action.

2. If the court denies a special motion to dismiss filed pursuant to NRS 41.660 and finds that the motion was frivolous or vexatious, the court shall award to the prevailing party reasonable costs and attorney's fees incurred in responding to the motion.

3. In addition to reasonable costs and attorney's fees awarded pursuant to subsection 2, the court may award:

(a) An amount of up to $10,000; and

(b) Any such additional relief as the court deems proper to punish and deter the filing of frivolous or vexatious motions.

4. If the court denies the special motion to dismiss filed pursuant to NRS 41.660, an interlocutory appeal lies to the Supreme Court.

The Serious Flaw In Nevada's Anti-SLAPP Law And Its Easy Workaround

A particular type of abusive litigation is known as a SLAPP lawsuit, with the acronym meaning Strategic Lawsuit Against Public Participation. This is a lawsuit that is brought by one person to attempt to silence another person, or to retaliate against them for expressing themselves on some subject (usually about the person bringing the lawsuit). Such SLAPP lawsuits commonly manifest themselves as defamation lawsuits but they can take other forms as well.

SLAPP lawsuits became so common that state legislatures started passing laws, known as Anti-SLAPP laws, which allowed courts to more quickly dismiss these lawsuits. Most states now have Anti-SLAPP laws, albeit of varying quality. Finally, in 2020, the Uniform Law Commission adopted the Uniform Public Expression Act (UPEPA) as a uniform statute to ― someday, hopefully ― be adopted by all states. The UPEPA embodied the best features of Anti-SLAPP laws from around the United States and has since become the standard that all other Anti-SLAPP laws are measured against.

One state that has a robust Anti-SLAPP law is Nevada. Nevada has not adopted the UPEPA, at least yet, but has its own organic statute. There is at least one unique feature to Nevada's Anti-SLAPP statute, which is that the court may award up to $10,000 in damages to a SLAPP victim, in addition to attorney's fees and costs. This provides a powerful deterrent to those who would bring SLAPP lawsuits.

Yet, there is a fatal flaw in Nevada's Anti-SLAPP statute that seeks to undermine the effectiveness of the statute. The flaw is that a SLAPP plaintiff can avoid the consequences of Nevada's statute by simply dismissing its complaint after the victim files his Anti-SLAPP special motion to dismiss.

By way of contrast, UPEPA § 4(a)(1) provides that upon the filing of a special motion, "all other proceedings between the moving party and responding party, including discovery and a pending hearing or motion, are stayed". This stay would operate to prevent the SLAPP plaintiff from dismissing her complaint. By contrast, Nevada law stays only discovery and thus allows a SLAPP plaintiff to dismiss her complaint after the Anti-SLAPP motion has been filed.

This came up in a case before the Nevada Supreme Court, being Padda v. Hendrick, 136 Nev. 856 (Unpublished, 2020).The defendant, Hendrick, had posted an online negative review about Padda and law firm, and the Padda sued Hendrick for defamation and similar causes of action. Hendrick filed his Anti-SLAPP special motion, and the next day Padda simply dismissed its complaint. Hendrick moved for an award of attorney's fees and costs under Nevada's Anti-SLAPP law and these were granted by the Nevada district court.

The Nevada Supreme Court reversed this decision. The court noted that the Nevada Anti-SLAPP statute only allowed for an award of attorney's fees and costs if Hendrick had prevailed on his special motion, but he had not since the Padda law firm had dismissed its complaint. The court held that:

"[T]he plain language of NRS 41.670(1) requires an anti-SLAPP motion to be granted before attorney fees and costs may be awarded under the statute. Because the complaint was dismissed before the district court ruled on the anti-SLAPP motion, Hendrick was not entitled to attorney fees under NRS 41.670(1)."

So, Padda did not get the relief he sought because he had dismissed his complaint. Hendrick, however, had to eat the legal bills and court costs incurred in preparing and filing his special motion (and his subsequent appeal). This is not the sort of outcome the Nevada Assembly desired when it adopted Nevada's Anti-SLAPP law, but it is the natural result of their (faulty) drafting language.

THE WORKAROUND

There is an easy workaround to this situation: The defendant should file an answer before filing his Anti-SLAPP special motion.

Under Rule 15 of the Nevada Rules of Civil Procedure ("NRCP"), a party can amend its pleadings without leave of court only in two cases: (1) within 21 days after the defendant was served with the complaint, or (2) within 21 days after either the defendant's service of a responsive pleading or 21 days after the defendant files a motion to dismiss under NRCP Rule 12(b), (e) or (f).

A special motion filed under Nevada's Anti-SLAPP law is not a motion to dismiss under NRCP Rule 12, however, so that means that if the defendant files an answer an then waits 22 days to file his special motion, the plaintiff cannot dismiss her complaint without either the consent of the defendant's counsel (which presumably would not be given at that stage) or with leave of court. As to leave of court, while Rule 15(a)(2) states that such leave should be given freely by the court "when justice so requires", the court could justifiably deny that leave because it would be unfair to the Anti-SLAPP defendant.

Thus, by filing an answer at least 21 days before filing the Anti-SLAPP special motion, the defendant can lock the plaintiff into the case such that the special motion will be heard and, if the defendant prevails, there will be a mandatory award of attorney's fees and costs against the plaintiff.

Timing obviously plays a critical role in this scenario. Nevada's Anti-SLAPP statute requires that the special motion must be filed within 60 days of service of the SLAPP complaint. Thus, in Nevada, an attorney representing a defendant bringing a special motion would be well-advised to file an answer as quickly as possible so that the 21 days thereafter could run before the 60 day deadline to file the special motion is reached.

Of course, the better solution would be for the Nevada Assembly to modify the Nevada Anti-SLAPP statute to correct this flaw or, for that matter, to realize that it is time for Nevada to update its Anti-SLAPP law altogether and adopt the UPEPA instead.

But that is for another day.

Nevada Opinions

Padda v. Hendrick, 136 Nev. 856 (2020). Anti-SLAPP and Dismissal Of Complaint