The Nevada motion to dismiss: six grounds, and venue is not one of them

Nevada restyled its civil rules in 2019, and the new Rule 12 is shorter than the version most states still use. The enumerated list dropped from seven grounds to six.

The one that left is improper venue. A Nevada defendant in the wrong county is not making a Rule 12 motion.

Twenty-one days — unless you are suing the government

Nev. R. Civ. P. 12(a)(1)(A):

A defendant must serve an answer:

(i) within 21 days after being served with the summons and complaint; or (ii) if the defendant has timely waived service under Rule 4.1, within 60 days after the request for a waiver was sent, or within 90 days after the request for a waiver was sent to the defendant outside of the United States.

Then the provision that surprises people, Rule 12(a)(2):

The State of Nevada, Its Public Entities and Political Subdivisions, and Their Officers and Employees. Unless another time is specified by Rule 12(a)(3) or a statute, the following parties must serve an answer to a complaint, counterclaim, or crossclaim within 45 days after service on the party, or if required service on the Attorney General, whichever date of service is later:

(A) the State and any public entity of the State; (B) any county, city, town or other political subdivision of the State, and any public entity of such a political subdivision; and (C) any current or former public officer or employee of the State, any public entity of the State, any county, city, town or other political subdivision of the State, or any public entity of such a political subdivision, who is sued in his or her official capacity or his or her individual capacity for an act or omission relating to his or her public duties or employment.

Note the tie-breaker in (a)(2): where service on the Attorney General is required, the 45 days runs from whichever date of service is later.

And note that (C) reaches a public employee sued in an individual capacity, so long as the claim relates to public duties or employment. It is not limited to official-capacity suits.

Rule 12(a)(3) handles the effect of a motion:

Unless the court sets a different time, serving a motion under this rule alters these periods as follows:

(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action; or (B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.

The six defenses

Rule 12(b):

How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) insufficient process; (4) insufficient service of process; (5) failure to state a claim upon which relief can be granted; and (6) failure to join a party under Rule 19.

Count them against the federal rule and the missing one is improper venue. In Nevada that objection lives in the venue statutes rather than in Rule 12, and the ordinary remedy is a change of venue, not dismissal.

The renumbering has a practical consequence that catches people who learned the federal rule: failure to state a claim is 12(b)(5) in Nevada, not 12(b)(6). A brief citing "NRCP 12(b)(6)" for failure to state a claim is citing failure to join a party.

Then the timing and joinder sentences:

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

Conversion

Rule 12(d):

Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(5) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

Again the Nevada numbering: it is 12(b)(5) — failure to state a claim — that converts, together with judgment on the pleadings under 12(c), which is available "After the pleadings are closed—but early enough not to delay trial."

If a motion converts, see Nevada summary judgment for the timing and the evidentiary requirements that then apply.

What you waive

Rule 12(g)(2):

Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.

Rule 12(h)(1):

When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)-(4) by:

(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or (B) failing to either: (i) make it by motion under this rule; or (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.

Only three defenses are waivable this way — (b)(2), (3) and (4): personal jurisdiction, insufficient process, insufficient service. Because venue is not in the list, Nevada has one fewer trap than most states.

Rule 12(h)(2) preserves failure to state a claim, failure to join a Rule 19(b) person, and failure to state a legal defense, which may be raised in a Rule 7(a) pleading, by a Rule 12(c) motion, or at trial.

The clean-up motions

Rule 12(e) requires the motion for a more definite statement to be made before filing a responsive pleading and to "point out the defects complained of and the details desired", with 14 days to obey a granted order.

Rule 12(f) allows the court to strike "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter", acting on its own or on a party's motion — before responding, or within 21 days where no response is allowed.

If a default has already been entered

Nevada has two distinct routes, and which one applies depends on the court:

• In district court, relief runs on NRCP 55(c) and 60(b). See setting aside a Nevada default judgment.
• In justice court, the procedure differs. See vacating a justice court judgment.

And if the case is an eviction, the response route is its own — see responding to a Nevada eviction.

How Nevada compares

A short checklist

1. Check who the defendant is. The State, a county or city, or a public officer or employee gets 45 days, not 21.
2. Cite the Nevada numbers. Failure to state a claim is 12(b)(5) here.
3. Do not look for venue in Rule 12. It is not there; a wrong-county problem is a change-of-venue question.
4. Move before you plead if a responsive pleading is allowed.
5. Put every ground in one motion. Three defenses are waived if omitted.
6. Plan for 14 days to answer if the motion is denied or deferred.
7. Watch for conversion — outside material on a 12(b)(5) or 12(c) motion turns it into summary judgment.
8. If you were sent a waiver request, taking it buys 60 days instead of 21.

Where these rules live

• Nev. R. Civ. P. 8 — General Rules of Pleading
• Nev. R. Civ. P. 12 — Defenses and Objections
• Nev. R. Civ. P. 15 — Amended and Supplemental Pleadings
• Nev. R. Civ. P. 56 — Summary Judgment

This page explains what the rules say. It isn't legal advice, and the standard for dismissal under Rule 12(b)(5) is developed in case law this site doesn't cover.