A Look At The Changes To NRCP 68

The Nevada Rules of Civil Procedure underwent extensive changes that went into effect March 1, 2019, including NRCP 68 regarding Offers of Judgment (“OOJ”).  Some of these changes are significant, and counsel and parties must be aware of them in evaluating OOJs moving forward.

First, the deadline to serve an offer was modified and now is “any time more than 21 days before trial” per NRCP 68(a).  The rule change applies to existing cases as well as newly filed matters, so it is important for litigants to check their trial date and adjust their deadlines accordingly. 

Second, the rule change notes that “unless otherwise specified, an offer made under this rule is an offer to resolve all claims in the action between the parties to the date of the offer, including costs, expenses, interest, and if attorney fees are permitted by law or contract, attorney fees.”  One should read the OOJ very carefully to determine if any of the above items are not referenced and/or specifically excluded.  There have been cases where the OOJ does not mention attorneys’ fees.  In the past, that meant a defendant could accept an OOJ thinking the exposure is “capped”, but then face a motion for attorney’s fees in addition to the OOJ, which could substantially increase the exposure.  Recent OOJs served by plaintiffs have often been silent as to fees.  Although one can argue that such an offer does not comply with the rule change, such an offer should nonetheless be approached with caution, because the offering attorney may not be leaving the fees or costs out by “accident.”

NRCP 68(d)(1) also changes the timing for acceptance.  The rule now provides for 14 days.  In addition, under NRCP 68(d)(2), if a written acceptance is sent, the accepting party has 21 days from that notice of acceptance to pay.  During that 21- day period, the judgment cannot be filed. 

NRCP 68(d)(3) also notes that “the court must allow costs in accordance with NRS 18.110 unless the terms of the offer preclude a separate award of costs.”  Although this is in the section regarding entering the judgment, litigants should be cautious with OOJs that are sent and received to avoid a potential for additional exposure/recovery. 

Finally, NRCP 68(f)(2) now provides that when multiple offers are conveyed and rejected, the penalties run from the offer earliest in time that is more favorable than the judgment.  Subsequent offers do not negate the prior offers as in the past.  This change was included to facilitate settlements.  

Parties and their counsel should remember to update their OOJ “forms” accordingly.  Parties should also remember that once served an OOJ cannot be withdrawn – that aspect has not changed with the new revisions.