Nutton v. Sunset Station, Inc.

• Decision Date: 11 June 2015
• Docket Number: No. 62878.,62878.
• Citation: 357 P.3d 966,131 Nev. Adv. Op. 34
• Parties: Brandon Douglas NUTTON, an Individual, Appellant v. SUNSET STATION, INC., a Nevada Corporation D/B/A Sunset Station Hotel & Casino, Respondent.
• Court: Nevada Court of Appeals

357 P.3d 966

131 Nev. Adv. Op. 34

Brandon Douglas NUTTON, an Individual, Appellant

v.SUNSET STATION, INC., a Nevada Corporation D/B/A Sunset Station Hotel & Casino, Respondent.

No. 62878.

Court of Appeals of Nevada.

June 11, 2015.

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

Pyatt Silvestri and Robert P. Molina and Jay 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 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.

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 “[t]he 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 “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 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.”¹

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.” 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 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...