Appealing in Nevada : Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

Successive dispositive motions weren’t exactly the issue in Dictor v. Creative Management Services, but the Court did cite the two week old 9^th Circuit decision in Hoffman v. Tonnemacher, [discussed here] with approval.  Therefore, it looks like the Court will follow the federal court lead on this issue.

In Dictor, the Nevada Supreme Court clarified the law of the case doctrine and choice of law decisions. 

In this case, involving an insurance subrogation claim, the Court had previously determined in an unpublished decision that because the neither the insured nor the claimant were Nevada residents, NRS 687A.095, which bars suit against an insured of an insolvent insurer, did not apply. 

On remand, the District court determined that a similar Missouri statute barred the suit, and granted summary judgment again.

Dictor appealed again, claiming that the Missouri law should not have applied, because the Supreme Court had decided that statutory defenses did not apply. It seems an amicus brief filed days before the oral argument in the first appeal had raised the Missouri statute. However, the Court had not considered or ruled on the applicability of that statute.  

The Court stated the rule of the case doctrine bars reconsideration only of issues actually decided by the appellate court, and does not apply if the issue  presented in a subsequent appeal differ from those previously presented.   Application of the Missouri statute had not been addressed in the previous appeal, and the Court’s remand order had not prevent consideration of other statutory defenses.

The Court also addressed choice of law considerations for subrogation, adopting the comment d to Restatement of Conflicts, § 145, which states “the local law of the state where the parties are domiciled, rather than the local law of the state of conduct and injury, may be applied to determine whether one party is immune from tort liability to the other.”  This is consistent with the Court’s previous adoption of the Restatement analysis for choice of law decisions in General Motors Corp. v. District Court, 122 Nev. 466, 134 P.3d 111 (2006), and emphasizes that whichever Restatement section is most specific to the facts should apply.

3-0 decision authored by Hardesty, with Parraguirre and Pickering concurring.

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Joining 5 other circuits, the Ninth Circuit ruled in Hoffman v. Tonnemacher  that FRCP 56 gives the district court the discretion to consider successive motions for summary judgment. 

Here, in a medical malpractice case, the district court had partially denied a pre-trial motion for summary judgment and denied a motion for judgment as a matter of law on the remaining issues following presentation of evidence at trial. The jury deadlocked. After receiving permission to designate a new expert witness, the defendant filed another motion for summary judgment, which the court granted. The plaintiff challenged both the ruling and the consideration of the motion. While the Court found consideration of the motion was not an abuse of discretion, the grant of summary judgment was reversed in a separate memorandum disposition.

While the ruling makes clear that consideration of successive summary judgment motions is within the district court’s discretion, the decision is not exactly ground breaking. The Court had previously ruled such motions were permissible on the issue of qualified immunity, and had previously noted that  summary judgment decisions are subject to reconsideration at any time.  The language of FRCP 56 itself expressly grants a court discretion to alter the default timing limits on summary judgment motions.

The Court did note that district courts “retain discretion to weed out frivolous or simply repetitive motions."

The Court joined the 2d, 5^th, 6^th, 7^th, and 8^th Circuits on this issue. 

Opinion issued January 21, 2010, authored by Graber, joined by Tashima and Bybee.

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