                                                       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 11 2015
                   STATION HOTEL & CASINO,                                        :IE K. LINDEMAN

                   Respondent.                                                             _
                                                                             CHLF DEVLIPTCLI:IFK




                               Appeal from a district court summary judgment entered in a
                   personal injury action. Eighth Judicial District Court, Clark County;
                   Susan Johnson, Judge.
                               Affirmed.


                   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
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                   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
                   Mile. 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 "ftihe 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, Mutton 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 Mutton'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 Mutton'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
                   Mutton'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 [Mutton'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



                         Where the Nevada Rules of Civil Procedure parallel the Federal
                         2

                   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. Co,
                   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.
                               Mutton 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 I5(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 County, 689 F. Supp. 2d 1265,
                   1269 (D. Or. 2010) ("The timing of a motion to amend after completion of
                   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 Mutton
                   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.       SeeS 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 Mitt. 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 NRCP 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




                         8Nutton   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.




                                                                               ,J.



                   We concur:



                                               , CA.




                                                J.
                   Silver




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