CourtListener 9456912

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131 Nev., Advance Opinion 34
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

BRANDON DOUGLAS NUTTON, AN No. 62878
INDIVIDUAL,
Appellant,
vs. FILED
SUNSET STATION, INC., A NEVADA
CORPORATION D/B/A SUNSET JUN 1 1 2015
STATION HOTEL & CASINO, IE K. LINDEMAN
9..E17140F ,911PiraVIE C.'n4RTI
Respondent. BY
CHM' DEVAITCLERK

Appeal from a district court summar y judgment entered in a
personal injury action. Eighth Judicial District Court, Clark Count y;
Susan Johnson, Jud ge.
Affirmed.

Kravitz, Schnitzer & Johnson, Chtd., and Martin J. Kravitz and
Kristopher T. Zeppenfeld, Las Ve gas,
for Appellant.

Py att Silvestri and Robert P. Molina and Ja y T. Hopkins, Las Vegas,
for Respondent.

BEFORE GIBBONS, C.J., TAO and SILVER, JJ.

OPINION

By the Court, TAO, J.:
In this appeal, we explore the relationship between Rule 15(a)
and Rule 16(b) of the Nevada Rules of Civil Procedure (NRCP), both of

IDIf3115t evrreekzej ?er qC0
which govern the procedures for seeking leave to amend pleadings in a
civil action. Under NRCP 15(a), a party should be granted leave to amend
a pleading "when justice so requires" and the proposed amendment is not
futile. However, when a party seeks to amend a pleading after the
deadline previously set for seeking such amendment has expired, NRCP
16(b) requires a showing of "good cause" for missing the deadline. We
further explore whether a proposed amendment under NRCP 15(a) can be
considered to be futile because it is unsupported by, or contradicts, facts
previously uncovered during discovery.
We conclude that when a motion seeking leave to amend a
pleading is filed after the expiration of the deadline for filing such
motions, the district court must first determine whether "good cause"
exists for missing the deadline under NRCP 16(b) before the court can
consider the merits of the motion under the standards of NRCP 15(a).
Under the circumstances of this case, the district court failed to
independently analyze whether the proposed amendment was timely
under the standards of NRCP 16(b) before considering whether it was
warranted under the standards of NRCP 15(a). The district court also did
not correctly apply the futility exception to NRCP 15(a), but nonetheless
reached the correct conclusion under the facts of this case, and we
therefore affirm.
FACTS AND PROCEDURAL HISTORY
Appellant Brandon Nutton slipped and fell while bowling with
some friends at a bowling center operated by respondent, Sunset Station
Hotel & Casino, shattering his right patella. At the time, Nutton was
wearing his street shoes rather than bowling shoes rented from Sunset
Station.

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Nutton filed a complaint for personal injury against Sunset
Station alleging that he slipped on "a heavy concentration of lane wax" or
"lane oil" improperly applied to the approach area of the bowling lane so
thickly his clothes were "inundated" after the fall. The complaint
presented a single claim for negligence alleging that Sunset Station
breached its duty of care by improperly placing excessive lane wax or oil in
the approach area.
Over the ensuing months of discovery, Nutton repeated in
interrogatory responses, as well as his own deposition, that he fell on
excessive wax or oil so thick it permeated his clothes. He claimed "[Ole oil
was thick and clear" and "based on my experiences, I can say with
certainty that it was lane oil that I slipped on." During his deposition,
Nutton was asked whether he had worn bowling shoes or street shoes
when the fall occurred. He responded he had rented bowling shoes from
Sunset Station on the day of the fall, but did not put them on because no
employee of Sunset Station explained the need to do so. Nutton denied his
street shoes played any role in the fall, testifying, "I don't find that
bowling shoes would have been a factor in my slipping and because I don't
see how that's pertinent. . . . I feel as though I would have fallen in the
same fashion whether I was wearing my own shoes or the shoes they
provide."
The parties located no other witness who saw or felt excessive
wax or oil on the floor. To the contrary, Sunset Station produced an expert
report concluding that a study of the bowling alley's surveillance video
revealed no evidence of a foreign substance on the floor and showed other
people bowling in the same approach area just before Nutton with no
difficulty. Moreover, Nutton retained his own expert witness who agreed

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"Nutton did not slip and fall from oil residue on the approach." These
opinions were contained in an expert report prepared before the expiration
of the deadline to amend pleadings.
Subsequently, Nutton filed a motion with the district court
seeking leave to amend his complaint pursuant to NRCP 15(a). Conceding
that his own expert had agreed excessive lane oil did not cause his fall,
Nutton sought to amend his theory of liability to instead plead that the
fall was caused by his street shoes and Sunset Station had negligently
failed to ensure he wore bowling shoes while he bowled. The proposed
amended complaint asserted that Sunset Station's own policies required
bowlers to wear bowling shoes at all times while bowling, but employees
and agents of Sunset Station breached their duty by failing to enforce the
policy and permitting Nutton to bowl without them. Nutton also sought to
assert that Sunset Station possessed superior knowledge regarding the
risks of bowling in street shoes, yet failed to warn him of any danger.
Nutton's motion was filed approximately three weeks after the
expiration of the deadline to amend pleadings previously imposed by the
district court. At the time, the final discovery cutoff date was just over
two months away, and trial was set to begin three months after the close
of discovery. Nutton's motion to amend was also filed after the expiration
of the statute of limitations period for asserting a negligence claim.
Sunset Station filed an opposition to Nutton's motion. The
opposition noted that Nutton had previously denied his shoes played any
role in the fall. Sunset Station also provided some photographs of signs
posted around the bowling center warning of the danger of failing to wear
bowling shoes while bowling. Based upon these photographs and Nutton's
prior testimony, Sunset Station argued that Nutton's proposed

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amendment was meritless and had no chance of prevailing at trial or even
surviving a future motion for summary judgment. In reply, Nutton noted
Sunset Station had failed to provide any evidence regarding when the
signs had been posted, and thus argued the photographs were irrelevant
because no evidence had been presented demonstrating they were in place
at the time of the fall.
The district court denied Nutton's motion. During oral
argument, the district court expressed concern that the proposed amended
complaint set forth a "totally different theory of [the] case" than had been
alleged in the original complaint, and the motion had been filed "too close
to trial." The district court also suggested the amendments would
probably not survive a future summary judgment motion, were one to be
filed by Sunset Station. The district court's written order concluded that
Nutton's motion was untimely and, furthermore, even if leave were
granted, the proposed amendment "would be futile given the results of the
discovery already conducted."'
Shortly after the district court denied Nutton leave to amend,
Sunset Station filed a motion seeking summary judgment in its favor on
the theory of negligence pleaded in the original complaint. Nutton's
opposition conceded that "no genuine issue of fact exists as to [Nutton's]
original theory of negligence liability set forth in his original Complaint."

'During the hearing, the district court also expressed "concern" that
Nutton's amendment was proposed after the expiration of the limitations
period applicable to the amended cause of action and might not "relate
back" to the filing of his original complaint. However, the district court
did not make any finding on this issue in its written order, and therefore it
is not part of this appeal.

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The district court granted summary judgment in favor of Sunset Station
and awarded attorney fees and costs. This appeal followed.
ANALYSIS
Nutton contends the district court erred by refusing to grant
leave to amend the complaint even though discovery was still open and the
allegations of the proposed amended complaint had been substantially
explored during discovery. Nutton also argues that, although summary
judgment was properly granted as to the theory of liability set forth in his
original complaint, summary judgment would not have been appropriate
had he been given leave to amend. Finally, Nutton challenges the award
of attorney fees and costs, arguing that it was predicated upon the
improper granting of summary judgment resulting from the district court's
erroneous decision to deny him leave to amend his complaint.
Although Nutton separately challenges all three decisions
issued by the district court, all three arise from a single overarching issue,
namely, the allegedly erroneous denial of his motion seeking leave to
amend his complaint. If the district court's denial of leave was error, then
it follows that its orders granting summary judgment and awarding
attorney fees and costs were also improper. Therefore, we begin with the
district court's resolution of Nutton's motion seeking leave to amend.
The district court denied Nutton's motion on two grounds.
First, it found that the request was untimely. Second, it concluded the
proposed amendment would have been futile even if it had been brought
earlier in the case. We consider each of these grounds seriatim.
The relationship between Rule 15(a) and Rule 16(b)
NRCP 15(a) recites that when a party seeks leave to amend a
pleading after the initial responsive pleadings have been served, "leave

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shall be freely given when justice so requires." The Nevada Supreme
Court has held that "in the absence of any apparent or declared reason—
such as undue delay, bad faith or dilatory motive on the part of the
movant—the leave sought should be freely given." Stephens v. S. Nev.
Music Co., 89 Nev. 104, 105-06, 507 P.2d 138, 139 (1973). Thus, NRCP
15(a) contemplates the liberal amendment of pleadings, which in
colloquial terms means that most such motions ought to be granted unless
a strong reason exists not to do so, such as prejudice to the opponent or
lack of good faith by the moving party. Stephens, 89 Nev. at 105, 507 P.2d
at 139.
The liberality reflected in NRCP 15(a) recognizes that
discovery is a fluid process through which unexpected and surprising
evidence is uncovered with regularity (particularly when important
evidence was solely in the possession of one party when the case was
initiated), and parties should have some ability to tailor their pleadings
and reframe the case around what they might have learned after the
initial pleadings were filed. Such flexibility aids not only the parties but
also the court and the judicial process by helping to ensure that the
pleadings remain focused on issues that are truly in dispute and the
court's time is not unduly wasted on allegations that may have been
originally made in good faith but eventually fail to pan out despite initial
investigation.
On its face, NRCP 15(a) makes no reference to whether leave
has been requested before or after the close of discovery, or before or after
any other deadline imposed by the trial court. Read in isolation, the text
of NRCP 15(a) appears to suggest that the liberal standards for granting
leave remain the same regardless of when the motion has been filed. But

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NRCP 15(a) cannot be read in a vacuum; the rules of civil procedure must
be read together. See generally Rosen v. Dick, 639 F.2d 82, 94 (2d. Cir.
1980). 2 See also NRCP 1 (providing that rules of procedure are to be
construed and administered to secure the just, speedy, and inexpensive
determination of every action).
One rule that frequently overlaps with NRCP 15(a) is NRCP
16(b). NRCP 16(b) requires, among other things, the district court to set
deadlines in each case for various events, including deadlines for
conducting various types of discovery and for filing various kinds of
motions. One deadline specifically contemplated by NRCP 16(b) is one by
which motions seeking to amend the pleadings must be filed with the
court. Moreover, NRCP 16(b) recites that the deadlines imposed by the
court under this rule "shall not be modified" except "upon a showing of
good cause."
Thus, when a party seeks leave to amend a pleading pursuant
to NRCP 15(a) after a deadline set under NRCP 16(b) for filing such a
motion has already elapsed, such motions implicate NRCP 16(b) in
addition to NRCP 15(a) because they effectively seek a waiver or extension
of that deadline so that the merits of the motion may be considered. If this
were not so, and a motion seeking leave would be considered only under
the standards of NRCP 15(a) no matter when it was filed, then the

2 Where the Nevada Rules of Civil Procedure parallel the Federal
Rules of Civil Procedure, rulings of federal courts interpreting and
applying the federal rules are persuasive authority for this court in
applying the Nevada Rules. See Exec. Mgmt., Ltd. v. Ticor Title Ins. Cf
118 Nev. 46, 53, 38 P.3d 872, 876 (2002).

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deadlines required to be imposed under NRCP 16(b) would become
meaningless and could be blithely ignored.
Functionally, NRCP 16(b) serves as something of a
counterweight to NRCP 15(a). In contrast to the fluidity reflected in
NRCP 15(a), the purpose of NRCP 16(b) is "to offer a measure of certainty
in pretrial proceedings, ensuring that at some point both the parties and
the pleadings will be fixed." Parker v. Columbia Pictures Indus., 204 F.3d
326, 339-40 (2d Cir. 2000) (internal quotation marks omitted). Thus,
"[w]here a scheduling order has been entered, the lenient standard under
Rule 15(a), which provides leave to amend 'shall be freely given,' must be
balanced against the requirement under Rule 16(b) that the Court's
scheduling order 'shall not be modified except upon a showing of good
cause." Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003)
(quoting prior version of FRCP 15(a) and 16(b)). "Disregard of the
[scheduling] order would undermine the court's ability to control its
docket, disrupt the agreed-upon course of the litigation, and reward the
indolent and the cavalier." Johnson v. Mammoth Recreations, Inc., 975
F.2d 604, 610 (9th Cir. 1992). NRCP 16 was drafted precisely to prevent
this from occurring, and "its standards may not be short-circuited by an
appeal to those of Rule 15." Id.
The Nevada Supreme Court has never defined what
constitutes "good cause" under NRCP 16(b), but NRCP 16(b) is based in
relevant part upon Rule 16(b) of the Federal Rules of Civil Procedure.
Multiple federal courts of appeal have held that, although Rule 15(a)
governs the amendments of pleadings in general, Rule 16(b) "governs
amendment of pleadings after a scheduling order deadline has expired."
S&W Enters., LLC v. South Trust Bank of Ala., NA, 315 F.3d 533, 536 (5th

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Cir. 2003); see In re Milk Prods. Antitrust Litig., 195 F.3d 430, 437 (8th
Cir. 1999) ("When the district court has filed a Rule 16 pretrial scheduling
order, it may properly require that good cause be shown for leave to file an
amended pleading that is substantially out of time under that order.");
Riofro Anda v. Ralston Purina Co., 959 F.2d 1149, 1154-55 (1st Cir. 1992)
("The district court did not abuse its discretion by adhering to its
scheduling order and refusing to allow plaintiffs to amend their complaint.
Under the facts here, the allowance of an amendment would have nullified
the purpose of rule 16"); Johnson, 975 F.2d at 608-09 (some "courts have
considered a motion to amend the complaint [after the amendment
deadline] as a motion to amend the scheduling order and the court's denial
of that motion a denial of a motion to amend the scheduling order"); Dedge
v. Kendrick, 849 F.2d 1398 (11th Cir. 1988) (holding that a motion filed
after scheduling order deadline is untimely and, where appropriate, may
be denied solely on that ground); R.L. Clark Drilling Contractors, Inc. v.
Schramm, Inc., 835 F.2d 1306, 1308 (10th Cir. 1987) (construing a party's
assertion of matter after scheduling order deadline as a request to modify
the deadline).
The distinction between NRCP 15(a) and NRCP 16(b) is not
merely a cosmetic one, because the definition of "good cause" under Rule
16(b) is narrower than the considerably more lenient considerations
governing amendment under Rule 15(a). "A court's evaluation of good
cause [under Rule 16(b)] is not coextensive with an inquiry into the
propriety of the amendment under Rule 15." Johnson, 975 F.2d at 609
(internal quotation marks omitted). "Unlike Rule 15(a)'s liberal
amendment policy which focuses on the bad faith of the party seeking to
interpose an amendment and the prejudice to the opposing party, Rule

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16(b)'s 'good cause' standard primarily considers the diligence of the party
seeking the amendment." Id.
In determining whether "good cause" exists under Rule 16(b),
the basic inquiry for the trial court is whether the filing deadline cannot
reasonably be met despite the diligence of the party seeking the
amendment. See 6A Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure § 1522.2 (2010), and cases cited
therein. Courts have identified four factors that may aid in assessing
whether a party exercised diligence in attempting, but failing, to meet the
deadline: (1) the explanation for the untimely conduct, (2) the importance
of the requested untimely action, (3) the potential prejudice in allowing
the untimely conduct, and (4) the availability of a continuance to cure such
prejudice. S&W Enters., 315 F.3d at 536. However, the four factors are
nonexclusive and need not be considered in every case because, ultimately,
if the moving party was not diligent in at least attempting to comply with
the deadline, "the inquiry should end." Johnson, 975 F.2d at 609. Thus, of
the four factors, the first (the movant's explanation for missing the
deadline) is by far the most important and may in many cases be decisive
by itself. Id. ("Although the existence or degree of prejudice to the party
opposing the modification might supply additional reasons to deny a
motion, the focus of the inquiry is upon the moving party's reasons for
seeking modification."). Lack of diligence has been found when a party
was aware of the information behind its amendment before the deadline,
yet failed to seek amendment before it expired. See Perfect Pearl Co. v.
Majestic Pearl & Stone, Inc., 889 F. Supp. 2d 453, 457 (S.D.N.Y 2012) ("A
party fails to show good cause when the proposed amendment rests on
information that the party knew, or should have known, in advance of the

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deadline." (internal quotation marks omitted)). In addition, "carelessness
is not compatible with a finding of diligence and offers no reason for a
grant of relief." Johnson, 975 F.2d at 609.
Even where good cause has been shown under NRCP 16(b),
the district court must still independently determine whether the
amendment should be permitted under NRCP 15(a). See Grochowski, 318
F.3d at 86. Thus, when a party seeks leave to amend a pleading after the
expiration of the deadline for doing so, it must first demonstrate "good
cause" under NRCP 16(b) for extending the deadline to allow the merits of
the motion to be considered by the district court before the merits of the
motion may then be considered under NRCP 15(a). See S&W Enters., 315
F.3d at 536 ("Only upon the movant's demonstration of good cause to
modify the scheduling order will the more liberal standard of Rule 15(a)
apply to the district court's decision to grant or deny leave.").
In this case, the district court did not make findings in
conformance with NRCP 16(b) but rather only applied the standards
associated with NRCP 15(a). Notwithstanding this omission, the record
demonstrates the district court's conclusion would have been correct even
under the standards of NRCP 16(b). Nutton's motion sought to
fundamentally change the factual premise of his negligence claim after the
deadline for amending pleadings had elapsed, with only a short time
remaining to conduct discovery. The district court concluded that, under
the scheduling order then in place, insufficient time remained in discovery
for Sunset Station to explore the new allegations and for both parties to
prepare for trial, which was then only a few months away.
Nutton argues that the district court's conclusion was
erroneous because both parties explored the effect Nutton's street shoes

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may have played in his fall during discovery already conducted in the case.
For example, Nutton was asked questions about his shoes by opposing
counsel during his deposition, and witnesses for Sunset Station testified
during depositions that Sunset Station's policies required bowlers to wear
bowling shoes while bowling. From this, Nutton argues that permitting
him to file his amended pleadings would actually have required very little
additional discovery because much discovery had already been completed.
But this argument is something of a double-edged sword because, if we
accept Nutton's characterization to be true and agree that both Nutton
and Sunset Station had already thoroughly investigated the role his street
shoes played in the fall, then the question arises why Nutton waited until
after the expiration of the NRCP 16(b) deadline to try to add the claim to
the case. The district court reasonably concluded that Nutton acted
dilatorily in failing to seek to file the amendment months earlier,
especially when he apparently realized much earlier that his street shoes
may have played a role in causing the fall. See Perfect Pearl, 889 F. Supp.
2d at 457 (good cause not shown "when the proposed amendment rests on
information that the party knew, or should have known, in advance of the
deadline" (internal quotation marks omitted)).
Nutton also contends that allowing his proposed amendment
would not have resulted in any prejudice to Sunset Station because the
new claim merely proffered a "refined theory of liability" not dissimilar to
his original negligence claim. 3 The district court concluded that the

3 Nutton argues that, under NRCP 15(b), he could have amended his
pleadings even during trial itself to conform to the evidence, and therefore
Sunset Station cannot be prejudiced by an amendment before trial, even if
after the technical deadline. As an initial observation, such amendments
continued on next page...
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proposed amendment set forth a "totally different theory of [the] case"
than had been originally pleaded and observed the original complaint
alleged "not one thing" about street shoes. This observation was factually
correct.
Under these circumstances, the record demonstrates that
Nutton did not act diligently in filing his motion when he did. In
particular, Nutton proffered no explanation as to why he could not have
filed his motion before the deadline for doing so, especially since he
asserted that both parties had already conducted discovery relating to his
proposed new claim. Rather than filing the motion before the deadline, he
inexplicably let the deadline elapse by three weeks. Thus, Nutton's
motion would have been properly denied under NRCP 16(b).
The futility exception to NRCP 15(a)
The district court also determined that Nutton's motion was
likely futile "given the results of the discovery already conducted."
Under NRCP 15(a), leave to amend, even if timely sought,
need not be granted if the proposed amendment would be "futile." Allum
v. Valley Bank of Nev., 109 Nev. 280, 287, 849 P.2d 297, 302 (1993); see
also Halcrow Inc. v. Eighth Judicial Dist. Court, 129 Nev. „ 302
P.3d 1148, 1152 (2013). A proposed amendment may be deemed futile if

...continued
are permitted when a matter has been tried by "consent," NRCP 15(b), and
it is not clear that Sunset Station would have "consented" to litigate
Nutton's new claim at trial. Moreover, because this motion was resolved
before trial, that question is not before us in this appeal. In any event,
whether Sunset Station might have consented to litigate a new claim in a
future trial has nothing to do with whether Nutton's motion complied with
NRCP 16(b) at the time it was filed.

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the plaintiff seeks to amend the complaint in order to plead an
impermissible claim, such as one which would not survive a motion to
dismiss under NRCP 12(b)(5) or a "last-second amendment[] alleging
meritless claims in an attempt to save a case from summary judgment."
Soebbing v. Carpet Barn, Inc., 109 Nev. 78, 84, 847 P.2d 731, 736 (1993).
Few Nevada cases explain precisely how the futility exception
is to be properly applied. In theory, the exception is intended to mean that
an amendment should not be allowed if it inevitably will be considered to
be a waste of time and resources on which the movant has no realistic
chance of prevailing at trial. But in practical application, a question exists
regarding to what extent a district court may consider the ultimate merits
of a proposed amendment at a time when all it has before it might be only
the pleading itself, perhaps coupled with a few strands of discovery
conducted under the auspices of the prior, unamended, pleading. In many
such instances, improper or careless application of the futility exception to
NRCP 15(a) could create an irreconcilable conflict between the loose
pleading standards of NRCP 8, which governs what must be pleaded, and
the more demanding evidentiary standards of NRCP 56, which governs
whether what has been pleaded is entitled to proceed to trial.
The Nevada Supreme Court originally adopted the "futility"
exception to NRCP 15(a) in Allum, 109 Nev. at 287, 849 P.2d at 302.
There, the court affirmed a district court's denial of leave to amend when
the Racketeer Influenced and Corrupt Organization Act (RICO) claim
plaintiff sought to add failed to adequately plead the occurrence of a
"predicate act" required by the RICO statute. In reaching its decision, the
Nevada Supreme Court expressly adopted the "futility" exception from the
United States Court of Appeals for the Ninth Circuit's decision in Reddy v.

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Litton Industries, Inc., in which the Ninth Circuit affirmed a district
court's denial of leave to amend when the allegations of the complaint
itself made clear that the movant's claims were not cognizable. 912 F.2d
at 291, 296 (9th Cir. 1990) ("His complaint makes clear that his injury was
caused by his alleged wrongful termination. . . . It would not be possible
for [plaintiff] to amend his complaint to allege a completely new injury
that would confer standing to sue without contradicting any of the
allegations of his original complaint."). Similarly, in Halcrow, 129 Nev. at
, 302 P.3d at 1152-54, the Nevada Supreme Court affirmed the district
court's denial of leave to add additional claims that were barred on their
face by the "economic loss" doctrine, concluding that, under that doctrine,
the movant "cannot assert claims of negligent misrepresentation against
Halcrow."
In these three cases, the question of futility was resolved only
with reference to the proposed amendment itself, because the court
concluded that the amendments were facially futile without having to look
outside the four corners of the pleadings. However, in the instant case,
Sunset Station asked the district court to find Nutton's proposed
amendments to be futile based on evidence lying almost entirely outside of
the pleadings. The legal question before us inquires to what extent NRCP
15(a) permits a district court to look beyond the face of the proposed
amendment and consider whether the amendment is likely to prove
victorious before allowing it to be made.
In Nevada, pleadings are governed by NRCP 8, which requires
only general factual allegations, not itemized descriptions of evidence. See
NRCP 8 (complainant need only provide "a short and plain statement of
the claim showing that the pleader is entitled to relief'); see also Breliant

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v. Preferred Equities Corp., 109 Nev. 842, 846, 858 P.2d 1258, 1260 (1993)
("The test for determining whether the allegations of a complaint are
sufficient to assert a claim for relief is whether [they] give fair notice of the
nature and basis of a legally sufficient claim and the relief requested.").
Thus, a pleading need only broadly recite the "ultimate facts" necessary to
set forth the elements of a cognizable claim that a party believes can be
proven at trial. A pleading is not required to identify the particular
"evidentiary facts" that will be employed to prove those allegations. See
Jack Friedenthal, Mary Kane & Arthur Miller, Civil Procedure § 5.5 (4th
ed. 2005) (discussing distinction between "ultimate facts" upon which a
party bears the burden of proof, such as whether a breach of duty
occurred, and the "evidentiary facts" such as particular testimony or
exhibits that may be used to meet that burden of proof).
Furthermore, Nevada is a "notice pleading" state, which
means that the ultimate facts alleged within the pleadings need not be
recited with particularity (except when required by NRCP 9, which is not
at issue in this appeal), much less supported by citations to evidence and
testimony within the pleading. See Hall v. SSF, Inc., 112 Nev. 1384, 1391,
930 P.2d 94, 98 (1996) ("[A] complaint need only set forth sufficient facts
to demonstrate the necessary elements of a claim for relief so that the
defending party has adequate notice of the nature of the claim and the
relief sought.") (internal quotation marks omitted); Pittman v. Lower
Court Counseling, 110 Nev. 359, 365, 871 P.2d 953, 957 (1994) ("Nevada is
a notice pleading jurisdiction and we liberally construe pleadings to place
matters into issue which are fairly noticed to the adverse party."),
overruled on other grounds by Nunez v. City of N. Las Vegas, 116 Nev. 535,
1 P.3d 959 (2000). Thus, a plaintiff is entitled under NRCP 8 to set forth

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only general allegations in its complaint and yet be able to rely in trial
upon specific evidentiary facts never mentioned anywhere in its pleadings.
In contrast, the question of whether a claim would survive
summary judgment under NRCP 56 is one that typically depends on
evidence lying almost entirely outside the scope of the pleadings. A
successful summary judgment motion requires the moving party to
demonstrate both the absence of genuinely contested material facts as well
as a prima facie entitlement to judgment as a matter of law based upon
undisputed evidence that would be admissible at trial (or upon a lack of
evidence if the nonmoving party bears the burden of persuasion at trial).
Only after both showings have been made does the burden shift to the
opposing party to prove the existence of genuinely disputed material facts.
NRCP 56(e) (when a motion for summary judgment relies upon affidavits,
the affidavits must set forth "such facts as would be admissible in
evidence"); see Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598,
602-03, 172 P.3d 131, 134 (2007) (moving party must make initial showing
of both an absence of genuinely disputed material facts as well as
entitlement to judgment as a matter of law before burden shifts to
opposing party); Collins v. Union Fed. Say. & Loan Ass'n, 99 Nev. 284,
302, 662 P.2d 610, 621 (1983) (evidence in support of or in opposition to
summary judgment must be evidence that would be admissible at trial).
Summary judgment cannot be granted unless and until all of these
requirements are satisfied.
Consequently, a disparity exists between the general, and
relatively lax, requirements of NRCP 8 and the highly specific evidentiary
and procedural requirements of NRCP 56. In this case, Sunset Station
argued that Nutton's amendment should be deemed futile not because it

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failed to facially plead a cognizable claim under NRCP 12, but because it
supposedly had no chance of succeeding on its merits under NRCP 56.
When a district court is asked to apply the standards of NRCP 56 to
determine the validity of a pleading that is only required to comply with
NRCP 8 and 12, the court is asked to compare the general allegations of a
pleading against specific evidence already uncovered during discovery (or
that might possibly be uncovered later in discovery). This exercise must
be done with great care and with considerable deference to the pleadings
so that the court does not deny amendments that might have considerable
merit. 4 The liberality embodied in NRCP 15(a) requires courts to err on
the side of caution and permit amendments that appear arguable or even
borderline, because denial of a proposed pleading amendment amounts to
denial of the opportunity to explore any potential merit it might have
had. 5 See generally Foman v. Davis, 371 U.S. 178, 182 (1962) ("If the

4NRCP 12(b) permits a court to look at evidence outside of the
pleadings in some instances to determine whether a proper claim has been
stated, but only if the parties are "given reasonable opportunity to present
all material made pertinent to such a motion by Rule 56." Thus, when
considering matters outside of the pleadings, the district court must apply
the standards of NRCP 56 rather than NRCP 12(b).

5 Motions seeking leave to amend a pleading ordinarily must be filed
before the close of discovery; indeed, filing such a motion after discovery
has already closed has been held to be one reason to deny such a motion.
See McNall v. Credit Bureau of Josephine Count 689 F. Supp. 2d 1265,
1269 (D. Or. 2010) ("The timing of a motion to amend after completion of
ega discovery. . . weighs heavily against allowing amendment."). Sunset
Station's argument thus creates a potential paradox. Under Sunset
Station's argument, a party should not be permitted leave to amend a
pleading unless it is prepared to defeat a motion for summary judgment
challenging the amendment, but the party might not possess the evidence
needed to do that until discovery has closed. Furthermore, a party might
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underlying facts or circumstances relied upon by a party may be the
proper subject of relief, he ought to be afforded an opportunity to test his
claim on the merits."); DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186
(9th Cir. 1987) ("rule 15's policy of favoring amendments to pleadings
should be applied with extreme liberality" [and] "amendment is to be
liberally granted where from the underlying facts or circumstances, the
plaintiff may be able to state a claim" (internal quotation marks omitted)).
In the case at bar, the district court determined that Nutton's
proposed amendment was not self-evidently futile on its face, but rather
that the amendment was unlikely to ultimately prevail at trial "given the
results of the discovery already conducted." Thus, the district court
implicitly compared the facts pleaded in the proposed amendment against
the discovery already conducted in the case and concluded that Nutton
could not prevail either at trial or in response to a future motion for
summary judgment. However, no motion for summary judgment had yet
been filed, and thus Sunset Station had not yet met its initial burden of
demonstrating a facial entitlement to judgment under NRCP 56.
Furthermore, because no summary judgment motion had yet been filed
and discovery was still open, this is not a case in which the only obvious
motive for Nutton's motion was to serve as a transparent, last-ditch effort

...continued
possess limited means to conduct discovery relating to claims that have
not already been pleaded while discovery was open. In short, Sunset
Station's approach could effectively permit a proposed pleading
amendment to be denied because the movant had not uncovered evidence
supporting the amendment before any such discovery had actually been
conducted and at a time when any such discovery might not even have
been permitted.

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to avoid summary judgment that otherwise might have been imminently
granted.
Moreover, the briefing and exhibits before the district court in
connection with Nutton's NRCP 15(a) motion contained at least one
factual dispute that would have precluded the court from granting
summary judgment based upon the evidence then before it. Specifically,
Sunset Station's futility argument relied in part upon photographs of
warning signs advising bowlers to wear bowling shoes. However, as
Nutton correctly noted in his reply briefing, Sunset Station failed to
provide admissible evidence proving that those signs were in place on the
date of the fall. Thus, Sunset Station would not have been entitled to
summary judgment based on the materials presented to the district court
in connection with Nutton's motion. The district court fell into the trap of
surmising that Nutton's proposed amendment would eventually prove to
be futile under the standards of NRCP 56 before a sufficient legal basis
existed to warrant this conclusion. 6

6The district court's reaction was understandable in view of Nutton's
deposition testimony which facially contradicted the factual premise of his
proposed amendment. Nevertheless, had Sunset Station actually filed a
motion for summary judgment against the amended claim, Nutton
conceivably could have defended against it by seeking sanctuary under
NRCP 56(f). NRCP 56(f) ("Should it appear from the affidavits of a party
opposing the motion that the party cannot for reasons stated present by
affidavit facts essential to justify the party's opposition, the court may
refuse the application for judgment or may order a continuance to permit
affidavits to be obtained or depositions to be taken or discovery to be had
or may make such other order as is just"); see Francis v. Wynn Las Vegas,
127 Nev. , 262 P.3d 705 (2011) (court may deny summary judgment if
additional discovery necessary to fully respond). But here, it is not clear
whether such a mechanism would have been available to Nutton in
replying to an opposition to a motion originally filed under NRCP 15(a).
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Sunset Station's futility argument noted that Nutton's new
cause of action depended upon facts apparently contradicted by his prior
deposition testimony. Specifically, Nutton had testified during his
deposition that he did not believe his street shoes played a role in his fall,
yet his proposed new claim asserted exactly that. Sunset Station thus
contended that the amendment could not survive summary judgment
because Nutton should not be allowed to change his story so late in the
game. But the inconsistency cited by Sunset Station related to a matter of
opinion regarding the ultimate cause of Nutton's fall, and not an
observation of fact at all; merely because Nutton expressed a personal
opinion (as an untrained layperson) that his shoes played no role in his
fall does not necessarily mean his opinion was scientifically accurate.
Nutton's personal opinion regarding the cause of the fall might have been
admissible under the rules of evidence, see NRS 50.265 & 50.295, but it
was not necessarily conclusive upon the jury, and denial of the
amendment meant that Nutton was deprived of the opportunity to explain
to a jury that his personal opinion may have been legitimately mistaken or
simply a layperson's impression of events that did not match the physics of
the fall.
The mere fact that a party seeks to proffer apparently
inconsistent testimony or assert apparently inconsistent positions at some
point during the course of litigation does not, by itself, justify the granting

...continued
The only opportunity for Nutton to have requested relief under NRCP
56(f) would have been in his reply brief, and it is not clear that the district
court would have permitted Sunset Station to file a sur-reply so that
Nutton's request could be fully considered.

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of summary judgment against that party. The general rule is that a party
cannot defeat summary judgment by contradicting itself in response to an
already-pending NRCP 56 motion. See Aldabe v. Adams, 81 Nev. 280,
284-85, 402 P.2d 34, 36-37 (1965) (refusing to credit sworn statement
made in opposition to summary judgment that was in direct conflict with
an earlier statement of the same party), overruled on other grounds by
Siragusa v. Brown, 114 Nev. 1384, 1393, 971 P.2d 801, 807 (1998); see also
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 07 (1999). But
-

here, no summary judgment motion was pending at the time Nutton filed
his motion. When a contradiction is not necessarily driven by a desperate
attempt to avoid a pending summary judgment motion that appears
meritorious on its face, a party's inconsistent testimony actually creates a
question of credibility for the jury to resolve, unless the district court
affirmatively concludes that the conflicting testimony either creates
judicial estoppel or represents a legal "sham" designed solely to avoid
summary judgment, and was not the result of an honest discrepancy, a
mistake, or newly discovered evidence. 7 See Breliant v. Preferred Equities

7 Even where a summary judgment motion has already been filed
and a party seeks to defeat it by presenting last-minute inconsistent
testimony, under federal jurisprudence, the general rule is that an
apparent contradiction between an affidavit submitted in opposition to a
summary judgment motion and the same witness's prior deposition
testimony presents a question of credibility for the jury, unless the court
affirmatively concludes that the later affidavit constitutes a "sham." See
Radobenko v. Automated Equip. Corp., 520 F.2d 540, 544 (9th Cir. 1975)
(citing Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.
1969)). In Kennett Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir.
-

1980), the Fifth Circuit stated:

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Corp., 112 Nev. 663, 669, 918 P.2d 314, 318 (1996) (stating that when a
change in testimony "represent[s] a legitimate abandonment of a clearly
unsupportable theory of the case, rather than an attempt. . . to 'have it
both ways,' judicial estoppel does not bar a change in party's testimony);
see also Mainor v. Nault, 120 Nev. 750, 765, 101 P.3d 308, 318 (2004)
(explaining that "judicial estoppel is an extraordinary remedy that should
be cautiously applied only when a party's inconsistent position arises from
intentional wrongdoing or an attempt to obtain an unfair advantage" and
"does not preclude changes in position not intended to sabotage the

...continued
The gravamen of the Perma Research-Radobenko
line of cases is the reviewing court's determination
that the issue raised by the contradictory affidavit
constituted a sham. Certainly, every discrepancy
contained in an affidavit does not justify a district
court's refusal to give credence to such evidence.
In light of the jury's role in resolving questions of
credibility, a district court should not reject the
content of an affidavit even if it is at odds with
statements made in an earlier deposition.

See also Miller v. A.H. Robins Co., 766 F.2d 1102, 1104 (7th Cir. 1985)
("An inconsistent affidavit may preclude summary judgment. . . if the
affiant was confused at the deposition and the affidavit explains those
aspects of the deposition testimony or if the affiant lacked access to
material facts and the affidavit sets forth the newly-discovered evidence.");
Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365 (8th Cir.
1983) (inconsistent affidavit may be accepted if it was not a sham but
rather was an attempt to explain certain aspects of the confused
deposition testimony and therefore was not really inconsistent). Thus,
before excluding an apparently inconsistent affidavit, "the district court
must make a factual determination that the contradiction was actually a
'sham' [and not] the result of an honest discrepancy, a mistake, or the
result of newly discovered evidence." Kennedy v. Allied Mut. Ins., 952 F.2d
262, 267 (9th Cir. 1991).
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judicial process" (internal quotation marks omitted)). The district court's
futility analysis in this case noted the apparent contradiction, but the
court did not make the affirmative findings allowing it to discount the
change in Nutton's testimony and conclude there would have been nothing
for the jury to resolve. Consequently, the apparent contradiction in this
case represented a question of credibility for the jury to resolve, and
summary judgment would not necessarily have been inevitable.
Accordingly, in this case, the district court's futility analysis
was flawed. Nonetheless, Nutton failed to demonstrate "good cause"
permitting the district court to even consider the merits of his belated
motion seeking leave, and therefore this error was harmless under the
circumstances. 8
CONCLUSION
While the district court failed to determine whether "good
cause" existed under NRCP 16(b) before reviewing the merits of Nutton's
motion under NRCF' 15(a), the error was harmless under the
circumstances because the record demonstrates the motion would properly
have been denied under the standards of NRCP 16(b). The district court

8 Nutton also appeals the district court's order granting summary
judgment and its order granting attorney fees and costs, but the only error
ascribed to the district court was that the court did not allow him to
amend his complaint prior to summary judgment being granted. Because
we conclude herein that the district court did not err in denying Nutton's
motion for leave to amend his complaint, we necessarily must conclude
that the district court also did not err in granting summary judgment in
favor of Sunset Station on Nutton's original claim that Nutton expressly
conceded was not valid.

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did not err in granting summary judgment in favor of Sunset Station and
awarding attorney fees and costs. We therefore affirm.

Tao

We concur:

C.J.

•
Silver

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