R.J. REYNOLDS TOBACCO CO. v. DIST. CT. (CAMACHO)

138 Nev., Advance Opinion 55
IN THE SUPREME COURT OF THE STATE OF NEVADA
R.J. REYNOLDS TOBACCO COMPANY, No. 83724
A FOREIGN CORPORATION,
INDIVIDUALLY AND AS SUCCESSOR-
BY-MERGER TO LORILLARD
TOBACCO COMPANY AND AS :
SUCCESSOR-IN-INTEREST TO THE P L E
UNITED STATES TOBACCO
BUSINESS OF BROWN &
WILLIAMSON TOBACCO
CORPORATION, WHICH IS THE
SUCCESSOR-BY-MERGER TO THE
AMERICAN TOBACCO COMPANY,
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
NADIA KRALL, DISTRICT JUDGE,
Respondents,
and
SANDRA CAMACHO, INDIVIDUALLY;
ANTHONY CAMACHO,
INDIVIDUALLY; PHILIP MORRIS USA,
INC., A FOREIGN CORPORATION;
LIGGETT GROUP, LLC, A FOREIGN
CORPORATION; AND ASM
NATIONWIDE CORPORATION, D/B/A
SILVERADO SMOKES & CIGARS, A
DOMESTIC CORPORATION,
Real Parties in Interest.
Original petition for a writ of mandamus challenging a district
court order granting reconsideration of a prior order dismissing a party in
a civil action.
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Petition denied.
Bailey Kennedy and Dennis L. Kennedy, Joseph A. Liebman, and Rebecca
L. Crooker, Las Vegas; King & Spalding LLP and Val Leppert, Atlanta,
Georgia; King & Spalding LLP and Ursula Marie Henninger, Charlotte,
North Carolina,
for Petitioner.
Claggett & Sykes Law Firm and Sean K. Claggett, Matthew S. Granda, and
Micah S. Echols, Las Vegas; Kelley Uustal and Kimberly L. Wald, Michael
A. Hersh, and Fan Li, Fort Lauderdale, Florida,
for Real Parties in Interest Sandra Camacho and Anthony Camacho.
Lewis Roca Rothgerber Christie LLP and Daniel F. Polsenberg,
J. Christopher Jorgensen, and Abraham G. Smith, Las Vegas,
for Real Party in Interest Liggett Group, LLC.
Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, and D. Lee Roberts, Jr.,
Las Vegas,
for Real Parties in Interest Philip Morris USA, Inc., and ASM Nationwide
Corporation.
BEFORE THE SUPREME COURT, SILVER, CADISH, and PICKERING,
JJ.
OPINION
By the Court, CADISH, J.:
Petitioner challenges a district court order reinstating a
deceptive trade practices complaint, arguing that real parties in
interest/plaintiffs lack standing to bring that claim against petitioner
because they never used petitioner’s products and thus cannot show that
they are victims of consumer fraud who sustained damages from petitioner’s
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allegedly deceptive trade practices under NRS 41.600(1). As NRS 41.600
creates a cause of action for victims of consumer fraud, which includes
deceptive trade practices under the Nevada Deceptive Trade Practices Act
(NDTPA), and nothing in the NDTPA limits consumer fraud victims to only
those who used a manufacturer’s product, we conclude that the district
court correctly granted reconsideration and reinstated the complaint, as its
prior order granting petitioner’s motion to dismiss rested on an overly
narrow interpretation of NRS 41.600(1). We further conclude that plaintiffs
pleaded sufficient facts, including that they were directly harmed by
petitioner’s false and misleading advertising, to bring an NDTPA claim
against petitioner. Thus, mandamus relief is not warranted, and we deny
the petition.
FACTS AND PROCEDURAL HISTORY
Real party in interest Sandra Camacho began smoking
cigarettes in 1964 and continued to smoke until 2017. She smoked L&M
cigarettes, which were manufactured by real party in interest Liggett
Group, LLC, and Marlboro and Basic cigarettes, which were manufactured
by real party in interest Philip Morris USA, Inc. Sandra concedes that she
did not purchase or use any of petitioner R.J. Reynolds Tobacco Company’s
products. In March 2018, Sandra was diagnosed with laryngeal cancer
caused by her cigarette use. Sandra and her husband, real party in interest
Anthony Camacho, filed suit against Liggett, Philip Morris, and Reynolds.
The Camachos raised several claims, including fraud and products-liability-
based claims against Philip Morris and Liggett, and a civil conspiracy claim
against all three cigarette manufacturers alleging that they “acted in
concert to accomplish an unlawful objective for the purposes of
harming...Sandra,” namely by concealing, omitting, or otherwise
misrepresenting the health hazards of cigarettes in various public
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statements and marketing materials. The Camachos also asserted a claim
for violating the NDTPA, alleging that Reynolds and the other defendants
knowingly made false representations in their advertisements.
Reynolds filed a motion to dismiss the two claims against it. It
argued that although the Camachos labeled their claims as a violation of
the NDTPA and civil conspiracy, the claims were effectively products-
liability claims. Reynolds asserted that those claims failed as a matter of
law because product use “is a fundamental requirement” of a products-
liability claim, and Sandra did not use a Reynolds product. Similarly,
Reynolds contended that the Camachos’ NDTPA claim failed, as there was
“no connection between Reynolds’ alleged deceptive trade practices as they
relate to the health risk of its particular products and |Sandra’s] alleged
laryngeal cancer” because Sandra never used a Reynolds product.
The Camachos opposed the motion to dismiss, arguing that
under Nevada law neither a civil conspiracy claim nor a deceptive trade-
practice claim includes a product-use requirement. They contended that
the cases Reynolds relied on in support of a product-use requirement
involved claims for negligence, strict products liability, or fraud, as opposed
to an NDTPA- or civil-conspiracy-based theory of liability. Regarding the
NDTPA claim specifically, the Camachos asserted that they adequately
pleaded causation, as they alleged that but for cigarette manufacturers
engaging in “concerted actions” to misrepresent the health risks of smoking,
Sandra would not have continued to smoke cigarettes. The district court
granted Reynolds’ motion to dismiss, concluding that Sandra was not a
consumer fraud victim under NRS 41.600(1) because she did not use a
Reynolds product.
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The Camachos filed a motion for reconsideration, asserting that
a deceptive trade practice under the NDTPA includes a _ business’s
knowingly false representation regarding the product for sale and that a
sale under the NDTPA includes an attempt to sell. Because a sale includes
an attempt to sell, and an attempt to sell implies a failure to sell, the
Camachos argued that the district court clearly erred by reading a product-
use requirement into the NDTPA. Because NRS 41.600(1) confers standing
on victims of consumer fraud, which includes victims of deceptive trade
practices as defined by the NDTPA, the Camachos asserted they pleaded
viable claims against Reynolds, even though Sandra never used a Reynolds
product.
The district court granted reconsideration over Reynolds’
opposition, concluding that the earlier dismissal order was clearly
erroneous because it added an atextual product-use requirement or legal-
relationship requirement into the NDTPA. It also pointed to Nevada
precedent stating “that an NDTPA claim is easier to establish than common
law fraud.” Because the court reinstated the NDTPA claim, it reinstated
the derivative civil conspiracy claim. Reynolds now seeks mandamus relief
directing the district court to vacate its order granting reconsideration and
to reinstate the dismissal order. !
DISCUSSION
“The decision to entertain a petition for a writ of mandamus is
within our sole discretion.” Canarelli v. Eighth Judicial Dist. Court, 138
Nev., Adv. Op. 12, 506 P.3d 334, 337 (2022). While we may issue mandamus
‘Although labeled petition for writ of mandamus or prohibition,
Reynolds’ petition does not contain argument as to or actually seek a writ
of prohibition.
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“to compel an act that the law requires” or to correct a lower court’s “clear
and indisputable’ legal error,” Archon Corp. v. Eighth Judicial Dist. Court,
133 Nev. 816, 819-20, 407 P.3d 702, 706 (2017) (quoting Bankers Life & Cas.
Co. v. Holland, 346 U.S. 379, 384 (1953)), writ relief is not appropriate
where there is a “plain, speedy, and adequate remedy in the ordinary course
of law,” NRS 34.170, such as the right to appeal from a final judgment,
Archon Corp., 133 Nev. at 820, 407 P.3d at 706. However, even if traditional
mandamus is not appropriate, we may issue advisory mandamus “when the
issue presented is novel, of great public importance, and likely to recur.”
Archon. Corp., 133 Nev. at 822, 407 P.3d at 708 (quoting United States v.
Horn, 29 F.3d 754, 769 (1st Cir. 1994)). It should only issue where the legal
question presented is “likely of significant repetition prior to effective
review.” Id. at 822-23, 407 P.3d at 708 (quoting In re Bushkin Assocs., Inc.,
864 F.2d 241, 247 (1st Cir. 1989)).
Although traditional mandamus is inappropriate because, in
granting reconsideration, the district court essentially denied Reynolds’
NRCP 12(b)(5) motion to dismiss, and Reynolds can appeal from any
adverse final trial decision, see Smith v. Eighth Judicial Dist. Court, 118
Nev. 1343, 1344-45, 950 P.2d 280, 281 (1997) (observing that this court
generally will not consider writ petitions challenging orders denying
motions to dismiss), we exercise our discretion to entertain this petition
because the issue of whether a nonuser of a product may qualify as a victim
with standing to bring an NDTPA suit against a product manufacturer
presents a novel legal question of statewide importance requiring
clarification. Moreover, this issue in this matter implicates substantial
public-policy concerns regarding the scope of liability for deceptive trade
practices, and “[olur intervention is further warranted because district
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courts are reaching different conclusions on this very issue.” Ly/ft, Inc. v.
Highth Judicial Dist. Court, 137 Nev., Adv. Op. 86, 501 P.3d 994, 998 (2021).
The district court did not manifestly abuse its discretion in granting the
Camachos’ motion for reconsideration
While we ordinarily review a district court’s decision to grant or
deny a motion for reconsideration for an abuse of discretion, see AA Primo
Builders, LLC v. Washington, 126 Nev. 578, 589, 245 P.3d 1190, 1197
(2010), we may only grant writ relief if the district court manifestly abused
its discretion, Round Hill Gen. Improv. Dist. v. Newman, 97 Nev. 601, 603-
04, 637 P.2d 534, 536 (1981). The district court “may reconsider a
previously decided issue if... the decision is clearly erroneous.” Masonry
& Tile Contractors Ass’n of S. Nev. v. Jolley, Urga & Wirth, Ltd., 113 Nev.
737, 741, 941 P.2d 486, 489 (1997).
As it did in district court, Reynolds contends that not only did
the Camachos fail to show that the dismissal order was clearly erroneous,
but also the dismissal order correctly applied the law.? It asserts that the
Camachos are not victims under NRS 41.600(1) because Sandra did not use
a Reynolds product and, thus, cannot show any direct harm from Reynolds’
allegedly deceptive trade practices. Moreover, Reynolds argues that the
Camachos’ attempted sale argument “misses the mark” because the
2Reynolds also argues that the Camachos’ motion for reconsideration
was untimely filed in violation of EDCR 2.24(b) (providing that a party
seeking reconsideration “must file a motion for such relief within 14 days
after service of written notice of the order or judgment”). However, EDCR
2.24(b) allows the district court to enlarge the time to file a motion for
reconsideration. Here, the district court acknowledged Reynolds’ timeliness
argument but concluded that it nonetheless retained the authority to
reconsider its prior decision under NRCP 54(b). Thus, we conclude that the
district court’s order implicitly enlarged the time to file a motion for
reconsideration under EDCR 2.24.
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Camachos failed to show how a person can be a victim of deceptive trade
practices if the defendant attempted, but ultimately failed, to sell the
product to the person. Alternatively, Reynolds contends that even if an
individual can be victimized by deceptive trade practices in ways other than
buying or using the product, the individual must show that he or she was
directly harmed, which the Camachos cannot do here. For the reasons
discussed below, we disagree.
We review questions of statutory interpretation de novo, “even
in the context of a writ petition.” Intl Game Tech., Inc. v. Second Judicial
Dist. Court, 124 Nev. 193, 198, 179 P.3d 556, 559 (2008). When interpreting
a statute, we look to the statute’s plain language. Arguello v. Sunset
Station, Inc., 127 Nev. 365, 370, 252 P.3d 206, 209 (2011). “Ifa statute’s
language is plain and unambiguous, we enforce the statute as written,
without resorting to the rules of construction.” Smith v. Zilverberg, 137
Nev. 65, 72, 481 P.3d 1222, 1230 (2021).
Under NRS 41.600(1), “any person who is a victim of consumer
fraud” may bring an action against the alleged perpetrator. Consumer
fraud includes “[a] deceptive trade practice” as defined by the NDTPA. NRS
41.600(2)(e). As relevant here, a deceptive trade practice occurs when a
business operator “[klnowingly makes a false representation as to the
characteristics, ingredients, uses, benefits, alterations or quantities of goods
or services for sale or lease.” NRS 598.0915(5) (emphasis added). “Sale’
includes any sale, offer for sale or attempt to sell any property for any
consideration.” NRS 598.094 (emphasis added).
The scope of the word “victim” under NRS 41.600(1) has been
disputed in other contexts, with courts consistently concluding that “a
‘victim of consumer fraud’ need not be a ‘consumer’ of the defendant’s goods
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(9th Cir. 2011). As the statute does not limit victims to consumers, a
Nevada federal district court interpreting NRS 41.600(1) concluded that a
business competitor may be a victim if it can show that it was “directly
harmed” by the alleged consumer fraud. S. Serv. Corp. v. Excel Bldg. Servs.,
Inc., 617 F. Supp. 2d 1097, 1099, 1100 (D. Nev. 2007); see also Prescott v.
Slide Fire Sols., LP, 410 F. Supp. 3d 1123, 1145 (D. Nev. 2019) (“[Clourts
have found standing under NRS 41.600 beyond just ‘business competitors’
of a defendant or ‘consumers’ of a defendant’s goods or services.”).
The Ninth Circuit Court of Appeals’ decision in Del Webb
Communities, Inc., is instructive on the scope of victims protected by the
NDTPA. There, defendant Mojave Construction inspected several homes in
a Del Webb retirement community for purposes of construction-defect
claims, despite lacking the proper license. 652 F.3d at 1147, 1149. It also
misrepresented its relationship with Del Webb. Jd. at 1148. Del Webb sued
Mojave, alleging that its actions violated the NDTPA and harmed Del
Webb’s relationship with consumers and its reputation. Jd. at 1149. The
district court agreed and issued a permanent injunction prohibiting Mojave
from soliciting and/or performing residential inspections for any Del Webb
developments. Jd. Mojave appealed, contending that Del Webb lacked
standing under NRS 41.600(1) because it was neither a business competitor
of Mojave nor a consumer of Mojave’s services. Jd. at 1152. The court of
appeals affirmed on the standing issue, recognizing that the statute “allows
‘any person’ who is a ‘victim of consumer fraud” to sue, id. (quoting NRS
41.600(1)), and explaining that “[t]he word ‘consumer’ modifies ‘fraud,’ but
does not limit ‘any person’ or ‘victim,” id. Thus, the court concluded that
“[t]here is no basis in the text of NRS 41.600 [or caselaw interpreting it] to
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limit standing to a group broader than consumers but no broader than
business competitors.” Jd. at 1153. Instead, the court held that standing
depended on “whether Mojave’s business practices ‘directly harmed’ Del
Webb,” and because the district court’s findings on direct injury to Del Webb
were uncontested, it correctly concluded that Del Webb had standing to sue
for deceptive trade practices. Id.We agree with Del Webb Communities, Inc.’s analysis of NRS
41.600(1) and conclude that the district court in this matter properly
rejected Reynolds’ narrow reading of the scope of plaintiffs who may qualify
as consumer fraud victims under the NDTPA. In fact, to read “victim” to
mean only a person who used the product would needlessly narrow the
remedial reach of the NDTPA, see Poole v. Nev. Auto Dealership Inus., LLC,
135 Nev. 280, 286-87, 449 P.3d 479, 485 (Ct. App. 2019) (“[T]he NDTPA is
a remedial statutory scheme.”), which is contrary to the liberal construction
that applies to such statutes, see Welfare Div. of State Dep’t of Health,
Welfare & Rehab. v. Washoe Cty. Welfare Dep’t, 88 Nev. 635, 637, 503 P.2d
457, 458 (1972) (recognizing that a statute that is “remedial in
nature...should be afforded liberal construction to accomplish its
beneficial intent”).
Turning to the case at hand, we further conclude that the plain
language of the NDTPA contemplates situations in which liability may be
found even when, like here, an individual did not actually purchase or use
the product. Specifically, NRS 598.0915(5) provides that an individual is
lable for consumer fraud if he or she “[klnowingly makes a false
representation” as to the product “for sale.” As already noted, “sale”
includes an “attempt to sell” the product or service. See NRS 598.094. An
“attempt to sell” contemplates a failure to sell the product, and thus,
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individuals violate the NDTPA when they make a knowingly false
representation regarding the product in an attempt to sell the product and
the claimant suffered a direct harm from the attempted sale, regardless of
whether the claimant purchased the at-issue product. See S. Serv., 617 F.
Supp. 2d at 1100; see also Fairway Chevrolet Co. v. Kelley, No. 72444, 2018
WL 5906906, at *1 (Nev. Nov. 9, 2018) (observing that the definition of
“victim’ connotes some sort of harm being inflicted on the ‘victim”’). Here,
while Sandra did not use any Reynolds products, she pleaded that Reynolds
violated the NDTPA by making “false and misleading statements” that
denied cigarettes are addictive, claimed “it was not known whether
cigarettes were harmful or caused disease,” advertised various types of
cigarettes as either safe, “low tar,” or “low nicotine,” and made several other
knowingly false statements regarding the potential health risks of
cigarettes. The Camachos also alleged that they were directly harmed
because Sandra relied on those representations to smoke generally, even
though she did not smoke Reynolds products, which resulted in her cancer.
Thus, the district court did not manifestly abuse its discretion when it
granted reconsideration of its order dismissing Reynolds, as the dismissal
order was clearly erroneous in imposing a product-use requirement on
NDTPA claims in contradiction to the plain language of NRS 41.600(1),
NRS 598.0915(5), and NRS 598.094.?
3Our conclusion is consistent with our decision in Leigh-Pink v. Rio
Properties, LLC, 138 Nev., Adv. Op. 48, 512 P.3d 322 (2022). There, we
concluded that individuals who “assert only economic injurlies]” but
“received the true value of their goods or services” cannot bring a claim for
a violation of the NDTPA. Jd. at 327-28. Here, the crux of the Camachos’
NDTPA claim is that the tobacco companies made several knowing
misrepresentations regarding “the characteristics, ingredients, uses,
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This interpretation of consumer fraud victim, while broader
than Reynolds would prefer, is consistent with earlier Nevada decisions
liberally construing claims brought under the NDTPA and refusing to “read
in” requirements for suing under the NDTPA. See, e.g., Betsinger v. D.R.
Horton, Inc., 126 Nev. 162, 165-66, 232 P.3d 433, 435-36 (2010) (recognizing
that while the NDTPA “sound|s] in fraud, which, under the common law,
must be proven by clear and convincing evidence,” we “cannot conclude that
deceptive trade practices claims are subject to a higher burden of proof”
because “[s]tatutory offenses that sound in fraud are separate and distinct
from common law fraud” (citations omitted)); Poole, 185 Nev. at 284, 286-
87, 449 P.3d at 483-85 (concluding that “knowingly” under the NDTPA
means “that the defendant is aware that the facts exist that constitute the
act or omission,” not that “the defendant intend[ed] to deceive” the victim,
because the former interpretation better serves the NDTPA’s “remedial
purpose” while the latter interpretation imposes a higher standard for
proving an NDTPA violation and makes the NDTPA redundant with
common law fraud). Such an interpretation is also consistent with how
other states apply analogous consumer fraud protection and deceptive trade
practices acts. For example, in rejecting a standing argument in a consumer
benefits, alterations or quantities” of their tobacco products in violation of
NRS 598.0915. Thus, Sandra did not receive the “true value” of the tobacco
products she purchased because the tobacco companies misled her
regarding the “true value” of those products. See id. (holding that the
plaintiffs had not been injured for NDTPA purposes by the defendant’s
failure to inform the plaintiffs of the potential for exposure to Legionnaires’
disease because they did not contract the disease and the legionella bacteria
did not prevent the plaintiffs from using all of the defendant’s amenities,
and thus, the plaintiffs received the true value of the defendant’s services
as marketed).
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protection action, the Washington Supreme Court reasoned that,
“lallthough the consumer protection statutes of some states require that the
injured person be the same person who purchased goods or services, there
is no language in the Washington act which requires that a [Consumer
Protection Act] plaintiff be the consumer of goods or services.”* Wash. State
Physicians Ins. Exch. & Ass’n v. Fisons Corp., 858 P.2d 1054, 1061 (Wash.
1993): see also Maillet v. ATF-Davidson Co., 552 N.E.2d 95, 98-99 (Mass.
1990) (rejecting the defendant’s argument that Massachusetts’s consumer
protection statute was limited to consumers in privity with the defendant
because the statute provides a cause of action for “[alny person ... who has
been injured by another person’s use or employment of any method, act or
practice declared to be unlawful” (internal quotation marks omitted)).
Reynolds’ contrary arguments are not persuasive. First, our
conclusion does not “undermine” the Legislature’s statutory scheme, as the
interpretation merely gives the statutory scheme’s plain language its
natural meaning. See Platte River Ins. Co. v. Jackson, 187 Nev., Adv. Op.
82, 500 P.3d 1257, 1262 (2021) (“[Wle may not adopt an interpretation
contrary to a statute’s plain meaning merely because we ‘disagreel | with
the wisdom of the Legislature’s policy determinations.” (second alteration
4The Washington Consumer Protection Act (CPA) provides that “la]ny
person who is injured in his or her business or property by a violation of
RCW 19.86.020...may bring a civil action...to recover the actual
damages sustained by him or her... .” Wash. State Physicians Ins. Exch.
& Ass'n v. Fisons Corp., 858 P.2d 1054, 1060-61 (Wash. 1993) (emphasis
omitted) (quoting Wash. Rev. Code § 19.86.0090). Washington courts have
defined the elements of a private CPA claim as: “(1) an unfair or deceptive
act or practice; (2) which occurs in trade or commerce; (3) that impacts the
public interest; (4) which causes injury to the plaintiff in his or her business
or property; and (5) which injury is causally linked to the unfair or deceptive
act.” Id. at 1061.
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in original) (quoting Anthony v. State, 94 Nev. 338, 341, 580 P.2d 939, 941
(1978))).
Second, the plain language of the pertinent statutes
contemplates imposing Hhability even if a plaintiff did not use the
manufacturer’s product so long as the plaintiff can still show a direct harm
arising from the manufacturer’s deceptive trade practices. See NRS
598.094.5 Moreover, contrary to Reynolds’ assertion, the Camachos pleaded
sufficient facts of a direct harm, as they contended that Sandra would not
have smoked cigarettes and developed cancer but for all defendants’—
including Reynolds’—deceptive trade practices. See Buzz Stew, LLC v. City
of North Las Vegas, 124 Nev. 224, 228, 181 P.3d 670, 672 (2008) (explaining
that dismissal of a complaint is proper only where “it appears beyond a
doubt that [appellant] could prove no set of facts, which, if true, would
entitle [appellant] to relief”).
Third, Reynolds’ claim that the Camachos are asserting a strict
products-liability claim, which precludes lability for nonuse of a product, is
unpersuasive. The Camachos asserted a strict products-hability claim
against Philip Morris and Liggett, the parties who manufactured the
tobacco products that Sandra used. But while the claims against Reynolds
5Reynolds also argues that this court should not consider NRS
598.094 because NRS 41.600(2\(e) references only NRS 598.0915 to
598.0925. While Reynolds is correct that NRS 41.600(2)(e) does not directly
reference NRS 598.094, Reynolds ignores that NRS 598.094 defines “sale”
as used in the NDTPA, including NRS 598.0915. See NRS 598.0903. Thus,
it is appropriate to use NRS 598.094 to define “sale” under NRS 598.0915.
See S. Nev. Homebuilders Ass’n v. Clark County, 121 Nev. 446, 449, 117
P.3d 171, 173 (2005) (explaining that when “interpretling] provisions within
a common statutory scheme,” we must read them in harmony and in
accordance with the overall purpose of the statutes).
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acknowledge the harm caused by smoking, those claims are based on
Reynolds’ alleged knowing misrepresentation of the dangers of smoking,
which is distinct from a products-lability claim, despite relying on similar
facts. Compare NRS 598.0915 (explaining that a deceptive trade practice
occurs when a person engaged in the course of his or her business
“knowingly” engages in several enumerated false advertising behaviors),
with Fyssakis v. Knight Equip. Corp., 108 Nev. 212, 214, 826 P.2d 570, 571
(1992) (explaining that a strict products-liability claim exists when the
plaintiff alleges (1) “the product had a defect which rendered it
unreasonably dangerous,” (2) “the defect existed at the time the product left
the manufacturer,” and (3) “the defect caused the plaintiffs injury”).
Fourth, the fact that the Camachos raised the attempted sale
argument for the first time in their motion for reconsideration does not
mean that they waived the argument. See Masonry & Tile Contractors
Ass’n of S. Nev., 113 Nev. at 741, 941 P.2d at 489 (providing that “la] district
court may reconsider a previously decided issue if substantially different
evidence is subsequently introduced or the decision is clearly erroneous”
(emphasis added)). Rather, a party may assert new legal arguments in a
motion for reconsideration, and this court will consider such arguments so
long as (1) “the reconsideration motion and order are part of the record on
appeal” and (2) the district court “entertained the [reconsideration] motion
on its merits.” Cohen v. Padda, 138 Nev., Adv. Op. 18, 507 P.3d 187, 190
(2022). Moreover, a court may grant reconsideration when the challenged
decision is “clearly erroneous,” regardless of whether new evidence exists.
See Masonry & Tile Contractors Ass’n of S. Nev., 113 Nev. at 741, 941 P.2d
at 489. Finally, because the court correctly reinstated the NDTPA claim, it
properly revived the crvil conspiracy claim, as that claim is derivative of the
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NDTPA claim. See Sahara Gaming Corp. v. Culinary Workers Union Local
226, 115 Nev. 212, 219, 984 P.2d 164, 168 (1999) (affirming the dismissal of
a civil conspiracy claim when the underlying cause of action was barred by
the fair report privilege). Accordingly, we conclude that the district court
did not manifestly abuse its discretion when it granted reconsideration of
its order dismissing the claims against Reynolds.®
CONCLUSION
Under NRS 41.600(1), a “victim” is any person who can show he
or she was directly harmed by consumer fraud. There is no product-use
requirement—a “victim” can be a consumer, a business competitor, or as
applicable here, “any person” who suffered harm from the defendant’s
consumer fraud. While Sandra did not use Reynolds’ product, she pleaded
that she would not have smoked tobacco and, consequently, would not have
suffered cancer, but for the deceptive trade practices engaged in by
Reynolds and the other tobacco companies. Such an allegation is sufficient,
STo the extent Reynolds argues that the district court did not rely on
the Camachos’ attempted-sale argument in granting reconsideration, that
argument is not persuasive. First, the district court implicitly relied on the
attempted-sale argument when it concluded that the dismissal order
“erroneously add[led]” several atextual requirements into the NDTPA.
Second, even if the order did not address the Camachos’ statutory-
interpretation argument, the Camachos raised it in their motion for
reconsideration, and the Camachos “may defend the judgment in [their]
favor with any argument that is supported by the record.” Univ. of Nev. v.
Tarkanian, 110 Nev. 581, 603, 879 P.2d 1180, 1194 (1994) (internal
quotation marks omitted). Moreover, we “will affirm a district court’s order
if the district court reached the correct result, even if for the wrong reason.”
Saavedra-Sandoval v. Wal-Mart Stores, Inc., 126 Nev. 592, 599, 245 P.3d
1198, 1202 (2010).
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at the motion to dismiss stage, for the Camachos to proceed on their claim
against Reynolds under NRS 41.600(1) for an NDTPA violation, as they
alleged a direct harm from Reynolds’ allegedly deceptive trade practices.
Accordingly, we deny Reynolds’ petition for writ relief.
Cadish
I concur:
Sb Luor , od.
Silver
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PICKERING, J., concurring in result only:
I agree that we should deny the petition. The district court’s
order granting reconsideration and denying Reynolds’ motion to dismiss did
not involve clear legal error; the right of appeal from any adverse final
judgment affords Reynolds an adequate legal remedy; and this case does
not present an important legal question dividing courts statewide that will
evade review if not resolved via writ petition. This case thus does not
qualify for extraordinary writ relief.
I would decide the writ on that basis, without deciding the
motion to dismiss on the merits. Our caselaw strongly counsels against
allowing mandamus to erode the final judgment rule by too readily giving
merits-based writ review to orders denying motions to dismiss or for
summary judgment. See Archon Corp. v. Eighth Judicial Dist. Court, 133
Nev. 816, 824, 407 P.3d 702, 709 (2017) (declining merits review of a
mandamus petition contesting an order denying a motion to dismiss, noting
how “disruptive” mandamus is in this context and that “l[a] request for
mandamus following the denial of a motion to dismiss presents many of the
inefficiencies that adherence to the final judgment rule seeks to prevent—
an increased [appellate] caseload, piecemeal litigation, needless delay, and
confusing litigation over this court’s jurisdiction”); Int’l-Game Tech., Inc. v.
Second Judicial Dist. Court, 124 Nev. 198, 197, 179 P.3d 556, 558 (2008)
(stating that “because an appeal from the final judgment typically
constitutes an adequate and speedy legal remedy, we generally decline to
consider writ petitions that challenge interlocutory district court orders
denying motions to dismiss”); State, Dep’t of Transp. v. Thompson, 99 Nev.
358, 362, 662 P.2d 1338, 1340 (1983) (stating general rule against granting
merits review of writ petitions contesting orders denying motions to dismiss
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and for summary judgment because such petitions “have generally been
quite disruptive to the orderly processing of civil cases in the district courts,
and have been a constant source of unnecessary expense for litigants”).
That counsel carries special force here, because the proceedings in district
court have progressed well beyond the motion-to-dismiss stage, and trial
starts next month.! The legal issues the majority reaches out to resolve will
be reviewable on direct appeal from the final judgment entered after trial,
and we will have the benefit of a fully developed legal and factual record.
While I join the judgment denying the writ, I do so solely on the basis the
petition does not qualify for writ relief. I do not join and otherwise dissent
from the majority’s opinion affirming the denial of petitioner’s NRCP
12(b)(5) motion to dismiss.
“[Mjandamus is an extraordinary remedy, reserved for
extraordinary causes.” Archon, 133 Nev. at 819, 407 P.3d at 706. As
petitioner, Reynolds bears the burden of showing it qualifies for
extraordinary writ relief. Id. at 821, 407 P.3d at 707; see Cheney v. U.S.
Dist. Court, 542 U.S. 367, 381 (2004) (holding that, to obtain extraordinary
writ relief, “the petitioner must satisfy the burden of showing that [its] right
to issuance of the writ is clear and indisputable”) (internal quotations
omitted). Whether to grant extraordinary relief is entrusted to this court’s
discretion. State, Dep’t of Transp., 99 Nev. at 360 & n.2, 662 P.2d at 1339
&n.2. But that discretion is not untrammeled. Consistent with the goal of
not allowing writs to subvert the final judgment rule, courts have developed
'The reconsideration process delayed the filing of Reynolds’ writ
petition. The Camachos filed an earlier petition that they withdrew after
the district court granted reconsideration.
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guidelines for deciding writ petitions, which the Ninth Circuit synthesized
in Bauman v. United States District Court as follows:
(1) The party seeking the writ has no other
adequate means, such as a direct appeal, to attain
the relief he or she desires. (2) The petitioner will
be damaged or prejudiced in a way not correctable
on appeal. (This guideline is closely related to the
first.) (3) The district court’s order is clearly
erroneous as a matter of law. (4) The district
court’s order is an oft-repeated error, or manifests
a persistent disregard of the [applicable court]
rules. (5) The district court’s order raises new and
important problems, or issues of law of first
impression.
557 F.2d 650, 654-55 (1977) (citations omitted); see 16 Charles Alan Wright,
Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure:
Jurisdiction § 3933, at 638-39 (3d ed. 2012) (reprinting the Bauman
guidelines and describing them as “[plerhaps the most influential set of
contemporary guidelines for exercising writ authority”); Archon, 133 Nev.
at 824, 407 P.3d at 824 (citing Bauman with approval in denying writ
review of an order denying a motion to dismiss). As Bauman recognizes,
the guidelines are intended to be helpful, not to establish bright-line rules—
“rarely if ever will a case arise where all the guidelines point in the same
direction or even where each guideline is relevant or applicable.” 557 F.2d
at 655.
Reynolds argues for both traditional and advisory mandamus.
Taking traditional mandamus first, Nevada law requires the petitioner at
minimum to meet the criteria stated in the first and third Bauman
guidelines to qualify for such writ relief. NRS 34.160 (providing for
mandamus to compel the performance of an act the law requires “as a duty
resulting from an office, trust or station”); NRS 34.170 (providing for
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mandamus to issue in cases “where there is not a plain, speedy and
adequate remedy in the ordinary course of law”); see Archon, 133 Nev. at
819-20, 407 P.3d at 706 (discussing the requirements for traditional
mandamus). As the majority correctly holds, Reynolds’ petition fails to meet
these threshold criteria for traditional mandamus.
The errors Reynolds asserts—the district judge’s decisions,
first, to reconsider her predecessor’s dismissal order and, second, to deny
the motion to dismiss—do not involve the kind of “clear and indisputable”
legal error that mandamus protects against. Archon, 133 Nev. at 820, 407
P.3d at 706 (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384
(1953)). Although district judges hesitate to reconsider prior interlocutory
rulings in a case, especially by a predecessor judge, the rules limiting the
practice do not forbid it outright, instead leaving it to the successor judge’s
discretion and the particular reasons shown. See John A. Glenn, Propriety
of Federal District Judge’s Overruling or Reconsidering Decision or Order
Previously Made in Same Case by Another District Judge, 20 A.L.R. Fed. 13§ 5(c) (1974). Traditional mandamus does not lie to correct a claimed abuse
of discretion; more must be shown. Walker v. Second Judicial Dist. Court,
136 Nev. 678, 680, 476 P.3d 1194, 1197 (2020) (holding that “traditional
mandamus relief does not lie where a discretionary lower court decision
‘result[s] from a mere error in judgment’; instead, mandamus is available
only where ‘the law is overridden or misapplied, or when the judgment
exercised is manifestly unreasonable or the result of partiality, prejudice,
bias or ill will”) (alteration in original) (quoting State v. Eighth Judicial
Dist. Court (Armstrong), 127 Nev. 927, 932, 267 P.3d 777, 780 (2011)). Nor
did the district court commit clear error in denying the motion to dismiss.
Whether the NDTPA affords the Camachos a right of action against
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Reynolds despite that Mrs. Camacho never bought or smoked a cigarette
that Reynolds manufactured or sold presents a close, open, and to some
extent fact-dependent question of Nevada law. With no binding precedent
one way or the other, clear error does not appear. See In re Van Dusen, 654
F.3d 838, 845 (9th Cir. 2011) (“The absence of controlling precedent weighs
strongly against a finding of clear error.”).
Reynolds likewise fails to establish that it lacks other adequate
means to attain the relief it seeks, or that it will be damaged or prejudiced
in a way not correctable on appeal unless granted extraordinary writ relief.
Reynolds acknowledges that it can appeal any judgment entered against it
and raise on appeal the issues its petition asks us to decide now. “[T]he
right to appeal is generally an adequate legal remedy that precludes writ
relief.” Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 224, 88 P.3d 840,
841 (2004); accord Archon, 133 Nev. at 820, 407 P.3d at 706. Not only does
an eventual appeal afford adequate review, but the record developed en
route to final judgment makes that review superior, since it affords this
court “the advantage of having the whole case before us,” with judicially
determined facts and fully vetted law, before weighing in. Walker, 136 Nev.
at 681, 476 P.3d at 1197 Gnternal quotations omitted). Reynolds complains
that it will incur “significant expense in defending this lawsuit and going
through a multi-week trial” if writ relief does not issue. But this occurs in
every case a motion to dismiss or for summary judgment is denied and does
not make direct appeal an inadequate legal remedy. For an appeal to be an
inadequate remedy, “there must be some obstacle to relief beyond litigation
costs that renders obtaining relief not just expensive but effectively
unobtainable,” In re Depuy Orthopaedics, Inc., 870 F.3d 345, 353 (5th Cir.
2017) (internal quotations omitted), which Reynolds has not shown.
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In sum, this petition fails to meet Bauman’s first (appeal is an
adequate legal remedy), second (prejudice not correctable on appeal), and
third (clear legal error) guidelines. This defeats traditional mandamus. See
Walker, 136 Nev. at 683, 476 P.3d at 1198. The fourth Bauman guideline—
does the district court’s order involve “an oft-repeated error, or manifest] |
a persistent disregard of the [applicable court] rules,” 557 F.2d at 655—is
not argued by either side as applicable. This leaves the fifth Bawman
guideline (“[t]he district court’s order raises new and important problems,
or issues of law of first impression,” id.), which is more appropriately
discussed in evaluating advisory mandamus.
The Bauman guidelines apply to advisory mandamus, much as
they do to traditional mandamus, but with different priorities. See 16
Charles Alan Wright, et al., supra, § 3934.1, at 679-83; Archon, 133 Nev. at
822-23, 407 P.3d at 708-09; D.R. Horton, Inc. v. Eighth Judicial Dist. Court,
125 Nev. 449, 453-54, 215 P.3d 697, 700 (2009). The fifth Bauman
guideline—the importance of the issue the petition presents—plays a
greater role in advisory than traditional mandamus. Courts differ in their
descriptions of how “important” an issue must be to qualify for advisory
mandamus. Compare United States v. Horn, 29 F.3d 754, 770 (1st Cir. 1994)
(explaining that “advisory mandamus is reserved for big game”), and In re
Bushkin Assocs., Inc., 864 F.2d 241, 247 (lst Cir. 1989) (questions
warranting advisory mandamus are “hen’s-teeth rare” and should be
“plockbuster|s]”), with In re Bendectin Prods. Liab. Litig., 749 F.2d 300, 307
(6th Cir. 1984) (finding an issue of first impression sufficiently important
because “the sheer magnitude of the case makes the disposition of these
issues crucial as several hundred litigants are waiting for a decision before
proceeding with their cases”), and Int'l Game Tech., 124 Nev. at 197-98, 179
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P.3d at 559 (entertaining a petition for extraordinary writ relief that,
despite not qualifying for traditional mandamus, “raises an important legal
issue in need of clarification, involving public policy, of which this court’s
review would promote sound judicial economy and administration”). In
general, for advisory mandamus to issue, the petition should present issues
that are important, that are dividing the district courts, and that will evade
review by other means. 16 Charles Alan Wright, et al., supra, § 3934.1, at
681-82; (stating that, for advisory mandamus, the petition must present
issues that are “new, important, and likely to evade review by other
means”); see Archon, 1383 Nev. at 822-23, 407 P.3d at 708; Shoen v. State
Bar of Nev., 136 Nev. 258, 260, 464 P.3d 402, 404 (2020). Nevada cases also
consider whether granting the writ will promote “sound judicial economy
and administration.” Intl Game Tech., 124 Nev. at 197-98, 179 P.3d at 559.
The NDTPA issue that Reynolds’ writ petition presents does not
qualify for advisory mandamus. As discussed above, the petition does not
meet any of the first four Bauman guidelines, leaving only the fifth. The
issue Reynolds raises is doubtless important to the parties. But the
majority is incorrect and overstates matters considerably when it says that
district courts across the state are “reaching different conclusions on [the]
very issue” presented here. Majority op. at 6-7 (quoting Lyft, Inc. v. Eighth
Judicial Dist. Court, 137 Nev., Adv. Op. 86, 501 P.3d 994, 998 (2021)). Not
counting the district court case underlying this petition, the record supports
that there are just three pending cases that present the NDTPA issue
Reynolds raises. All are individual plaintiff cases filed by the same law firm
in Clark County—and in each, the district judge has denied the motion to
dismiss filed by the Reynolds-counterpart defendant. Rowan v. Philip
Morris USA, Inc., No. A-20-811091-C (Eighth Jud. Dist. Ct. Apr. 19, 2022)
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(Order Granting Reconsideration and Denying Motion to Dismiss);? Speed
v. Philip Morris USA, Inc., No. A-20-819040-C (Eighth Jud. Dist. Ct. Mar.
23, 2021) (Order Denying Motion to Dismiss); Tudly v. Philip Morris USA,
Inc., No. A-19-807657-C (Eighth Jud. Dist. Ct. July 8, 2020) (Order Denying
Motion to Dismiss). The issue is not one dividing district courts across
Nevada; it is limited to the parties in three cases besides this one, all venued
in Clark County. That the issue only arises now, after the NDTPA has been
on the books for nearly half a century, further undercuts its claimed
pervasiveness.
Nor will the issue evade review if advisory mandamus does not
issue. As noted, trial in this case starts next month. If Reynolds loses, it
can directly appeal. This court will then have before it a fully developed
legal and factual record on which to decide the issues involved. The district
court docket sheets in the three other cases show that they, too, have
progressed to the point of final pretrial proceedings, including substantive
motion practice. Should summary judgment be granted to one of the
Reynolds-counterpart defendants, NRCP 54(b) certification would afford
the plaintiff the opportunity to seek and obtain immediate interlocutory
review. See State v. AAA Auto Leasing & Rental, Inc., 93 Nev. 483, 485,
487, 568 P.2d 1230, 1231, 1232 (1977) (affirming the dismissal of a claim
under the NDTPA brought to this court on an interlocutory order certified
“The Reynolds-counterpart defendant in Rowan has filed a petition
challenging the order denying its motion to dismiss with this court. Philip
Morris USA Inc. v. Eighth Judicial Dist. Court (Rowan), No. 84805 (filed
June 2, 2022). Reynolds references two other cases, also individual plaintiff
cases filed in Clark County by the lawyers representing Camacho—Estate
of Cleveland Clark v. Philip Morris USA Inc., No. A-19-802987-C and Kelly
v. Philip Morris USA, Inc., No. A-20-820112-C—raising the NDTPA issue,
but the docket sheets in those cases show that they have settled.
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as final under NRCP 54(b)). And in each case, including this one, the losing
party will have a right of direct appeal, with the plenary review that an
appeal from a final judgment affords. Unlike in International Game
Technology, where we granted advisory mandamus review of an order
denying a motion to dismiss because “an appeal [was] not an adequate and
speedy legal remedy, given the early stages of [the] litigation,” 124 Nev. at
198, 179 P.3d at 559, this case and its companions are sufficiently advanced
that the advantages plenary review on direct appeal affords outweigh the
need for immediate writ review.
Last, granting advisory mandamus to review the order denying
the motion to dismiss on the merits does not promote and instead may
disserve “sound judicial economy and administration.” Intl Game Tech.,
124 Nev. at 197-98, 179 P.3d at 559. Having undertaken to decide the
merits of the motion to dismiss, the majority holds that the NDTPA allows
the Camachos’ claim to proceed because NRS 598.094 defines “sale” to
include “any sale, offer for sale or attempt to sell,” Majority op. at 8, 10;* it
further holds that because the NDTPA is “remedial,” it should be “liberally
construed,” without reference to the common law, id. at 10, 12. These are
close issues and could go either way. The NDTPA provides for both private
damage actions, NRS 41.600, and civil and criminal enforcement actions by
the government, NRS 598.0963; NRS 598.0999. A reasonable argument can
’The Camachos did not make this argument in their opposition to the
original motion to dismiss, and the district court did not address it in either
its original order granting the motion to dismiss or its reconsideration order,
denying the motion to dismiss. This also militates against merits
mandamus review. See Archon, 133 Nev. at 823, 407 P.3d at 708 (declining
to grant advisory mandamus where the issue pressed in the petition was
not raised and resolved in district court).
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be made that NRS 598.094’s “attempt to sell” reference applies to
government enforcement actions, not private actions by victims seeking
damages. Also reasonable is the argument that the NDTPA should be
construed consistent with the common law because nothing in its text
directs otherwise. See NRS 1.030 (“The common law of England, so far as
it is not repugnant to or in conflict with the... laws of this State, shall be
the rule of decision in all the courts of this State.”); Leigh-Pink v. Rio Props.,
LLC, 138 Nev., Adv. Op. 48, 512 P.3d 322, 328 (2022) (construing the
NDTPA consistently with the common law, following what the court deemed
one of the “first principles of statutory construction”). The merits
determination here is being made by a two-to-one vote of a three-justice
panel. Should the issue come to the en bane court on appeal from an
eventual final judgment, the full court could depart from or refine the
panel’s merits determination, creating confusion and inconsistency.
For these reasons, while I concur in the judgment denying the
writ, I do so on the grounds this petition does not qualify for extraordinary
writ review. I respectfully dissent from my colleagues’ advisory mandamus
and merits determinations.
Proper ticp
, Jd.
Pickering J
10