 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Smith v. Eighth Judicial Dist. Court In and For County of Clark12/17/1997
titioners moved the district court to dismiss Chang's cross-claim. Petitioners argued that the cross- claim was not served within 120 days from the date it was filed as required by NRCP 4(i), and that Chang did not have good cause for the delay in service. Chang opposed the motion, and on October 27, 1995, the district court denied the motion without any Discussion. This petition followed.
In this court, petitioners argue that Chang's cross- claim must be dismissed because it was not served within t20 days from the date it was filed as required by NRCP 4(i). Chang counters that his cross-claim is not governed by NRCP 4(i). According to Chang, NRCP 4(i) applies only to original complaints, and other pleadings must be served pursuant to NRCP 5. Thus, Chang asserts that since there are no time limits for service in NRCP 5, his cross-claim could be served at any time on counsel for an opposing party. We conclude that both parties' arguments are incorrect because the arguments are based on a fundamental misunderstanding of the difference between a pleading and a claim.
NRCP 7(a) sets forth a list of the pleadings that are permissible in a civil action in Nevada, as follows:
(a) Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross- claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.
(Emphasis added.) Thus, the only pleadings allowed are complaints, answers and replies. A claim is not a pleading; it is "a demand as one's own or as one's right." Black's Law Dictionary 224 (5th ed. 1979). Such a demand, to be legally cognizable, must be asserted in a pleading. Counterclaims and cross-claims are types of claims, not types of pleadings.
This construction of NRCP 7(a) is supported by other rules of civil procedure. For example, NRCP 8 states that " pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain .... [the pleader's] demand for judgment for the relief to which he deems himself entitled." Thus, a claim, however designated, must be set forth in a pleading. Similarly, NRCP 13(a) begins with the phrase " pleading shall state as a counterclaim any claim," and NRCP 13(g) begins with the phrase " pleading may state as a cross-claim any claim."
Counterclaims and cross-claims must be set forth in pleadings authorized by NRCP 7, because "o other pleading shall be allowed." NRCP 7(a); see Langer v. Monarch Life Ins. Co., 966 F.2d 786, 808-11 (3d Cir. 1992) (filing a cross-claim as a separate document instead of asserting it in an answer was a violation of Rule 11 warranting sanctions); In Re Cessna Distributorship Antitrust Litigation, 532 F.2d 64, 67 n.7 (8th Cir. 1976) ("A cross-claim must be stated in a pleading. At the same time, it is not itself a pleading."). This concept has been further explained as follows:
The answer must include all compulsory counterclaims against any opposing party, and may include permissive counterclaims against any opposing party and cross-claims against any co-party. New parties may also be joined in counterclaims and cross-claims. Counterclaims and cross-claims are not separate pleadings, but are claims for relief that may be set forth in answers and complaints. If a counterclaim or cross- claim is presented as a separate pleading, amendment of the party's prior pleading to include the
Page 1 2 3 Nevada Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|