Elements of Nevada's Theories of Liability

Civil Conspiracy

Civil Conspiracy

Elements

An actionable civil conspiracy is:

  • a combination of two or more persons who,
  • by some concerted action,
  • intend to accomplish some unlawful objective for the purpose of harming another
  • which results in damage.

Collins v. Union Federal Sav. & Loan Ass’n, 99 Nev. 284, 303, 662 P.2d 610, 622 (1983).

Example Cases

Collins v. Union Federal Sav. & Loan Ass’n, 99 Nev. 284, 303, 662 P.2d 610, 622 (1983).

Proof

  • Agreement necessary

To prevail in a civil conspiracy action, a plaintiff must prove an agreement between the tortfeasors, whether explicit or tacit.
GES, Inc. v. Corbitt, 17 Nev. 265, 270–71, 21 P.3d 11, 15 (2001).

  • Sine qua non

The sine qua non of a conspirational agreement is the knowledge on the part of the alleged conspirators of its unlawful objective and their intent to aid in achieving that objective. Schick v. Bach, 193 Cal.App.3d 1321, 1329, 238 Cal.Rptr. 902, 907 (1987). The alleged facts must show either expressly or by reasonable inference that Defendant had knowledge of the object and purpose of the conspiracy, that there was an agreement to injure the Plaintiff, that there was a meeting of the minds on the objective and course of action, and that as a result one of the defendants committed an act resulting in the injury. Id., 238 Cal.Rptr. at 907.
Ungaro v. Desert Palace, Inc., 732 F.Supp. 1522, 1533, n3 (D. Nev. 1989).

  • Purpose to harm

[t]he primary purpose of a conspiracy must be to cause injury to another…. So long as the object of the combination is to further its own fair interest or advantage, and not the injury of another, its members are not liable for any injury which is merely incidental. The purpose requirement is related to what is referred to as a “malice” requirement which “… does not mean merely ill will. It means the intentional doing of an injurious act without justification or excuse.” Bliss, 212 Or. 634, 321 P.2d at 328. An act may also be the basis for a civil conspiracy when, although done without a direct intention to injure another, it is “done to benefit the conspirators, [and] its natural and necessary consequences is the prejudice of the public or the oppression of individuals. Hotel Riviera, Inc. v. Short, 80 Nev. 505, 396 P.2d 855, 859-60 (1964).
Ungaro v. Desert Palace, Inc., 732 F.Supp. 1522, 1533, n3 (D. Nev. 1989).

  • Intent an issue of fact

Because intent is an element of a claim of conspiracy, such a claim often cannot be decided via a motion for summary judgment. Fonda v. Gray, 707 F.2d 435, 438 (9th Cir.1983). The mere fact that a conspiracy is alleged, however, will not defeat an adequately supported motion. Ibid.
Condos v. Conforte, 596 F.Supp. 197, 201 (D. Nev. 1984).

  • Agreement

Civil conspiracy in Nevada differs from concert of action as defined in Section 876 in that civil conspiracy requires that the defendants have an intent to accomplish an unlawful objective for the purpose of harming another, while concert of action merely requires that the defendants commit a tort while acting in concert.
Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 970 P.2d 98 (Nev. 1998).
 

  • Agreement

To prevail in a civil conspiracy action, a plaintiff must prove an agreement between the tortfeasors, whether explicit or tacit. See Eikelberger v. Tolotti, 96 Nev. 525, 528 n. 1, 611 P.2d 1086, 1088 n. 1 (1980).
Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 970 P.2d 98 (Nev. 1998).

Damages

  • Damages are from underlying tort

The damage for which recovery may be had in a civil action is not the conspiracy itself but the injury to the plaintiff produced by specific overt acts. The charge of conspiracy in a civil action is merely the string where by the plaintiff seeks to tie together those who, acting in concert, may be held responsible in damages for any act or acts….
Aldabe v. Adams, 81 Nev. 280, 402 P.2d 34, 35 (1965).

Defenses

  • Parent company can’t conspire with subsidiaries

A parent company and its subsidiaries have no separate legal existence; thus it appears “impossible for a civil conspiracy to have occurred.”
Nanopierce Technologies, Inc. v. Depository Trust and Clearing Corp., 168 P.3d 73, 85 (Nev. 2007)(quoting Laxalt v. McClatchy, 622 F.Supp. 737, 745-46 (D.Nev.1985))

  • Need underlying tort

“Thus, an underlying cause of action for fraud is a necessary predicate to a cause of action for conspiracy to defraud.”
Jordan v. State, 121 Nev. 44, 74-75 110 P.3d 30 (Nev. 2005) (overruled on other grounds by Buzz Stew, LLC v. City of North Las Vegas, 181 P.3d 670 (Nev. 2008)).

Pleading

  • No heightened standard for defamation conspiracy

Because no Nevada authority suggests that a heightened pleading requirement applies to civil conspiracy, and because the states Nevada has relied upon in defining civil conspiracy do not have such a requirement, the Court finds there is no heightened pleading requirement for a civil conspiracy predicated upon defamation in Nevada.
Flowers v. Carville, 266 F.Supp 1245, 1250-51 (D. Nev. 2003).

  • Basic pleading requirements

To state a cause of action for conspiracy, the complaint must allege:
1) the formation and operation of the conspiracy;
2) the wrongful act or acts done pursuant thereto; and
3) the damage resulting from such act or acts.
Ungaro v. Desert Palace, Inc., 732 F.Supp 1522, 1534 n.3 (D. Nev. 1989).

  • Must plead facts to support conspiracy theory

However, conspiracy allegations must be more than mere conclusory statements. Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.1979); Lockary v. Kayfetz, 587 F.Supp. 631, 639 (N.D.Cal.1984). Plaintiff’s complaint states no facts in support of his allegations that the defendants conspired to deprive him of his civil rights. Plaintiff’s conspiracy allegations are thus conclusory and must fall along with his other claims under 42 U.S.C. § 1983.
Williams v. Sumner, 648 F.Supp. 510, 513 (D. Nev. 1986).

  • Conspiracy to commit fraud

Plaintiffs’ third claim for relief alleges that various Defendants engaged in a conspiracy to “deprive Plaintiffs of their property through fraud and misrepresentation that would result in Plaintiffs entering into loan agreements for which they were ultimately not qualified and which would eventually result in Plaintiffs’ inability to make payments and stay in their homes.” (Am. Compl. ¶ 168(# 47).) Under Nevada law, an actionable civil conspiracy-to-defraud claim exists when there is (1) a conspiracy agreement; (2) an overt act of fraud in furtherance of the conspiracy; and (3) resulting damages to the plaintiff. Jordan v. State ex rel. Dept. of Motor Vehicles and Public Safety, 121 Nev. 44, 110 P.3d 30, 51 (2005). “Thus, an underlying cause of action for fraud is a necessary predicate to a cause of action for conspiracy to defraud.” Id. A showing of fraud, in turn, requires (1) a false representation, (2) knowledge or belief that the representation was false, (3) intent to induce reliance on the representation, (4) that the reliance must be justifiable, and (5) damages. Lubbe v. Barba, 91 Nev. 596, 540 P.2d 115, 117 (1975).
Goodwin v. Executive Tr. Servs., LLC, 680 F.Supp.2d 1244, 1253-54 (D. Nev. 2010).

  • Conspiracy to commit fraud – particularity

A claim for conspiracy to commit fraud must be pled with the same particularly as the fraud itself. SeeWanetick v. Mel’s of Modesto, Inc., 811 F.Supp. 1402, 1406 n. 3 (N.D.Cal.1992) (so stating). Thus, under Rule 9(b), a party must state with particularity the circumstances constituting the conspiracy. See Fed.R.Civ.P. 9(b). Allegations of conspiracy must be accompanied by “the who, what, when, where, and how of the misconduct charged.” See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.2003) (so stating, with respect to fraud) (internal quotation marks omitted). Thus, to state a claim for conspiracy “a plaintiff must allege with sufficient factual particularity that defendants reached some explicit or tacit understanding or agreement. It is not enough to show that defendants might have had a common goal unless there is a factually specific allegation that they directed themselves towards this wrongful goal by virtue of a mutual understanding or agreement.” S. Union Co. v. Sw. Gas Corp., 165 F.Supp.2d 1010, 1020-21 (D.Ariz.2001) (internal citations and quotation marks omitted).

Goodwin v. Executive Tr. Servs., LLC, 680 F. Supp. 2d 1244, 1254 (D. Nev. 2010)..

 

Misc

  • Accrual of action

an action for civil conspiracy accrues when the plaintiff discovers or should have discovered all of the necessary facts constituting a conspiracy claim.
Siragusa v. Brown, 114 Nev. 1384, 971 P.2d 801, 806 (1998).

  • Justification can be defeated

When an act done by an individual is not actionable because justified by his rights, though harmful to another, such act becomes actionable when done in pursuance of combination of persons actuated by malicious motives and not having same justification as the individual.
Short v. Hotel Riviera, Inc., 79 Nev. 94, 106, 378 P.2d 979, 986 (Nev. 1963).

  • Underlying tort must be an intentional tort

Civil conspiracy must be based on an intentional tort. See Dow Chemical Co. v. Mahlum, 99 Nev. 1468, 1488-89 (1998).
Robinson v. Ocwen Loan Servicing, LLC, Case No. 2:10-CV-321 JCM , 2010 WL 2834895 (D. Nev. 2010).