Warner v. Dillon, 92 Nev. 677, 679 (Nev. 1976) (“In determining whether to grant a motion to dismiss, the court is required to accept as true all evidence and reasonable inferences therefrom presented by the plaintiff. Gunlock v. New Frontier Hotel, 78 Nev. 182, 370 P.2d 682 (1962).”)
“However, in deciding whether to dismiss a complaint pursuant to NRCP 12 (b)(5), “[a]ll allegations pled must be accepted as true.” Bergmann v. Boyce, 109 Nev. 670, 674, 856 P.2d 560, 563 (1993). As * attr(page-number) Bergmann makes clear, the dispositive resolution of questions of fact is not a part of a motion to dismiss on the pleadings.
Brinson v. Jackson, No. CV412-105, at *2 (S.D. Ga. Mar. 20, 2013) (“the Court can only grant a dismissal motion if it is legally supported”)
A motion to dismiss is not considered a responsive pleading, so a plaintiff is free to amend his complaint to eliminate questions about its legal sufficiency, the 4th DCA said.
Federal Rule of Civil Procedure (FRCP) 12 governs federal motions to dismiss. A defendant making a motion to dismiss must do so before filing an answer or other responsive pleading, and the motion is generally due when the defendant’s answer would have been due (see FRCP 12(b)).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.
Manuela Rubio v. Nevada, 124 Nev. 1032, 1044 (Nev. 2008) (“As other jurisdictions have required, we recognize that district courts should hold an evidentiary hearing for colorable claims of affirmative misrepresentation.”)
A failure to plead with sufficient particularity does not warrant a dismissal of the action with prejudice”.”
Occhiuto v. Occhiuto, 97 Nev. 143, 146 (Nev. 1981) (“Although appellant has not stated the claimed fraud with particularity and thus has failed to comply with NRCP 9(b) upon the authority of Savage v. Salzmann, supra, “A failure to plead with sufficient particularity does not warrant a dismissal of the action with prejudice”.”)
A motion to dismiss under NRCP 12(b)(5) is subject to a rigorous standard of review on appeal
Nevada Power Co. v. Haggerty, 115 Nev. 353, 358 (Nev. 1999) (“In reviewing orders granting motions to dismiss, this court considers whether the challenged pleading sets forth allegations sufficient to establish the elements of a right to relief. Pemberton v. Farmers Ins. Exchange, 109 Nev. 789, 792, 858 P.2d 380, 381 (1993). In making its determination, this court is to accept all factual allegations in the complaint as true. Id. at 792, 858 P.2d at 381 (citing Marcoz v. Summa Corporation, 106 Nev. 737, 739, 801 P.2d 1346, 1347 (1990)).”)
A motion to dismiss is not considered a responsive pleading, so a plaintiff is free to amend his complaint to eliminate questions about its legal sufficiency
Seput v. Lacayo, 122 Nev. 499, 501 (Nev. 2006) (“A motion to dismiss under NRCP 12(b)(5) is subject to a rigorous standard of review on appeal. “All factual allegations in the complaint are [viewed] as true, and all inferences are drawn in favor of the non-moving party.” Further, “[a] complaint should only be dismissed if it appears beyond a reasonable doubt that the plaintiff could prove no set of facts, which, if true, would entitle him to relief. Dismissal is proper where the allegations are insufficient to establish the elements of a claim for relief.” The district court’s conclusions of law are subject to our de novo review.”)
Hampe v. Foote, 118 Nev. 405, 408, 47 P.3d 438, 439 (2002).
Keife v. Logan, 119 Nev. 372, 374, 75 P.3d 357, 359 (2003).
Squires v. Sierra Nev. Educational Found, 107 Nev. 902, 905 (Nev. 1991) (“The standard of review for dismissals under NRCP 12(b)(5) is rigorous. The court “must construe the pleading liberally and draw every fair intendment in favor of the [appellant].” Merluzzi v. Larson, 96 Nev. 409, 411, 610 P.2d 739, 741 (1980) (citing San Diego Prestressed Concrete Co. v. Chicago Title Ins. Corp., 92 Nev. 569, 573, 555 P.2d 484, 487 (1976)). However, the appellant must have presented some relevant legal authority in support of his contention. Plankinton v. Nye County, 95 Nev. 12, 588 P.2d 1025 (1979). In addition, all factual allegations of the complaint must be accepted as true. Hynds Plumbing v. Clark Co. Sch. Dist., 94 Nev. 776, 777, 587 P.2d 1331, 1332 (1978).”)
Mesi v. Mesi, 478 P.3d 366, 371 (Nev. 2020) (“Although efficiency is normally “best served when motions to stay proceedings are discouraged,” see Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court , 128 Nev. 635, 649, 289 P.3d 201, 210 (2012) (internal quotation marks omitted), the situation is different when a court has already decided to defer jurisdiction and is only choosing whether to stay or dismiss. Cf. id. at 649 n.5, 289 P.3d at 210 n.5 (noting that “courts occasionally find a stay will in fact promote judicial efficiency”). If the first-filed suit is dismissed, the second court’s stay can be lifted and the action can proceed without the need for a wasteful new filing. See Alltrade , 946 F.2d at 629. Conversely, if the first court determines that it does have jurisdiction, the second action can be dismissed without difficulty. See id.”)