(Reprinted with amendments adopted on April 14, 2015)
S.B. 444
FIRST REPRINT

SENATE BILL NO. 444–COMMITTEE ON JUDICIARY
MARCH 23, 2015
____________
Referred to Committee on Judiciary
SUMMARY—Revises provisions
(BDR 3-1137)

governing

civil

actions.

FISCAL NOTE: Effect on Local Government: No.
Effect on the State: No.
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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

AN ACT relating to civil actions; revising provisions governing the
dismissal of certain claims based on the right to petition
and the right to free speech under certain circumstances;
revising provisions relating to special motions to dismiss
such claims; repealing provisions authorizing certain
monetary awards in proceedings related to special
motions to dismiss such claims; and providing other
matters properly relating thereto.
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Legislative Counsel’s Digest:
Existing law establishes certain provisions to deter frivolous or vexatious
lawsuits (Strategic Lawsuits Against Public Participation, commonly known as
“SLAPP lawsuits”). (Chapter 387, Statutes of Nevada 1997, p. 1363; NRS 41.63541.670) A SLAPP lawsuit is characterized as a meritless suit filed primarily to
discourage the named defendant’s exercise of First Amendment rights. “The
hallmark of a SLAPP lawsuit is that it is filed to obtain a financial advantage over
one’s adversary by increasing litigation costs until the adversary’s case is weakened
or abandoned.” (Metabolic Research, Inc. v. Ferrel, 693 F.3d 795, 796 n.1 (9th Cir.
2012))
Existing law provides that a person who engages in good faith communication
in furtherance of the right to petition or the right to free speech in direct connection
with an issue of public concern is immune from civil liability for claims based upon
that communication. (NRS 41.650) Section 4 of this bill defines, for the purposes
of statutory provisions concerning SLAPP lawsuits, an issue of public concern as
any topic that concerns the general public beyond a mere curiosity or general
interest. Section 12 of this bill provides that any cause of action arising from a
communication in furtherance of the right to petition or the right to free speech in
direct connection with an issue of public concern is subject to a special motion to
dismiss.

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Section 5 of this bill requires a special motion to dismiss to be filed within 20
days after service of the complaint, and to be limited to the issue of whether the
claim arises from a communication in furtherance of the right to petition or the
right to free speech in direct connection with an issue of public concern. If the court
determines that such a claim does not arise from a communication in furtherance of
the right to petition or the right to free speech in direct connection with an issue of
public concern, section 6 of this bill requires the court to deny the special motion to
dismiss. If the court determines that the claim does arise from a communication in
furtherance of the right to petition or the right to free speech in direct connection
with an issue of public concern, section 7 of this bill requires the plaintiff to
establish prima facie evidence supporting each and every element of the claim other
than elements requiring proof of the subjective intent or knowledge of the
defendant. Section 7 further requires the court to determine whether the plaintiff
has established such prima facie evidence within 20 judicial days after the
plaintiff’s filing of briefs and supporting evidence.
Section 8 of this bill provides that, if a court determines that the plaintiff
established prima facie evidence of each and every element of its claim other
than elements requiring proof of the subjective intent or knowledge of the
defendant, the court must deny the special motion to dismiss. If the court
determines that the defendant filed the special motion to dismiss in bad faith,
section 8 requires the court to award the plaintiff reasonable attorney’s fees and
costs. If a court determines that the plaintiff has not established the required prima
facie evidence, section 9 of this bill requires the court to dismiss the claim and
award the defendant reasonable attorney’s fees and costs.
Section 15 of this bill repeals provisions authorizing additional awards of
compensation when a court dismisses a claim arising from a communication in
furtherance of the right to petition or the right to free speech in direct connection
with an issue of public concern.

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
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Section 1. Chapter 41 of NRS is hereby amended by adding
thereto the provisions set forth as sections 2 to 9.5, inclusive, of this
act.
Sec. 2. 1. The Legislature finds and declares that:
(a) Meritless lawsuits that arise from the public’s exercise of
the right to petition for the redress of grievances and the right of
free speech as it relates to matters of public concern are Strategic
Lawsuits Against Public Participation, commonly known as
SLAPP suits; and
(b) Such lawsuits have a chilling effect on the exercise of such
rights.
2. The Legislature reaffirms its support of the provisions of
Section 9 of Article 1 of the Nevada Constitution which provide
for the rights of every citizen of this State to freely speak, write and
publish his or her thoughts on all subjects, while being responsible
for the abuse of such rights.

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3. To avoid the chilling effect of meritless SLAPP suits while
still providing a remedy when free speech rights have been abused,
it is the Legislature’s intent to provide for the early termination of
SLAPP suits.
Sec. 3. NRS 41.635 to 41.660, inclusive, and sections 2 to 9.5,
inclusive, of this act may be referred to as the Nevada anti-SLAPP
Law.
Sec. 3.5. “Defendant” means any person against whom a
claim is asserted, including, without limitation, a counterclaim or
cross-claim.
Sec. 4. “Issue of public concern” means any topic that
concerns not only the speaker and the speaker’s audience, but the
general public, and is not merely a subject of curiosity or general
interest.
Sec. 4.5. “Plaintiff” means any person asserting a claim,
including, without limitation, a counterclaim or cross-claim.
Sec. 5. 1. A special motion to dismiss filed pursuant to NRS
41.660 must be:
(a) Filed within 20 days after service of the complaint, unless
the court provides an extension of time for good cause shown; and
(b) Limited to the issue of whether the claim arises from a
communication in furtherance of the right to petition or the right
to free speech in direct connection with an issue of public concern.
2. The plaintiff has 10 judicial days to file an opposition to a
special motion to dismiss filed pursuant to subsection 1, and the
defendant has 5 judicial days to reply to such an opposition.
3. Within 20 judicial days after service of a special motion
filed pursuant to subsection 1, the court shall hear and determine
whether the defendant has established, by a preponderance of the
evidence, that the claim arises from a communication in
furtherance of the right to petition or the right to free speech in
direct connection with an issue of public concern. The court shall
enter written findings of fact and conclusions of law on the record
supporting the determination of the court.
4. Except as otherwise provided in this subsection, all
discovery must be stayed pending a ruling by the court on a special
motion to dismiss filed pursuant to subsection 1. Upon a showing
by the plaintiff that information necessary to oppose the special
motion to dismiss is in the possession of the defendant or a third
party and is not reasonably available to the plaintiff without
discovery, the court shall allow limited discovery for the purpose
of ascertaining such information. The court may modify briefing
and hearing schedules for the special motion to dismiss to
accommodate limited discovery pursuant to this subsection.

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Sec. 6. 1. If the court determines that a claim does not arise
from a communication in furtherance of the right to petition or
the right to free speech in direct connection with an issue of public
concern, the court shall deny the special motion to dismiss.
2. If the court determines that the defendant filed the special
motion to dismiss without a reasonable basis to contend that the
claim arose from a communication in furtherance of the right to
petition or the right to free speech in direct connection with an
issue of public concern, the court must award the plaintiff
reasonable attorney’s fees and costs incurred in opposing the
special motion to dismiss.
Sec. 7. 1. If the court determines that the claim arises from
a communication in furtherance of the right to petition or the
right to free speech in direct connection with an issue of public
concern, the plaintiff has 15 judicial days after the court enters an
order making such a determination to file such briefs, declarations
and evidence necessary to establish prima facie evidence
supporting each and every element of the claim, except such
elements that require proof of the subjective intent or knowledge
of the defendant.
2. The defendant has 10 judicial days to file an opposition to
briefs, declarations and evidence filed pursuant to subsection 1,
and the plaintiff has 5 judicial days to reply to such an opposition.
3. Within 20 judicial days after the plaintiff serving the briefs,
declarations and evidence required pursuant to subsection 1, the
court shall:
(a) Determine whether the plaintiff has established prima facie
evidence of each and every element of the claim, except such
elements that require proof of the subjective intent or knowledge
of the defendant; and
(b) Enter written findings of fact and conclusions of law on
the record supporting the determination of the court.
4. Except as otherwise provided in this subsection, all
discovery must be stayed pending a ruling by the court on whether
the plaintiff has established prima facie evidence of each and
every element of the claim, except such elements that require
proof of the subjective intent or knowledge of the defendant
pursuant to subsection 1. Upon a showing by the plaintiff that the
information necessary to make such a prima facie showing is in
the possession of the defendant or a third party and is not
reasonably available to the plaintiff without discovery, the court
shall allow limited discovery for the purpose of ascertaining such
information. The court may modify briefing and hearing
schedules for the special motion to dismiss to accommodate
limited discovery pursuant to this subsection.

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Sec. 8. 1. If the court determines that the plaintiff has
established prima facie evidence of each and every element of its
claim, except such elements that require proof of the subjective
intent or knowledge of the defendant, the court shall deny the
special motion to dismiss.
2. If the court determines that the defendant filed the special
motion to dismiss in bad faith, the court shall award the plaintiff
reasonable attorney’s fees and costs incurred in opposing the
special motion to dismiss.
3. The court shall ensure that a determination made pursuant
to this section:
(a) Will not be admitted as evidence at any later stage of the
underlying action or subsequent proceeding; or
(b) Will not affect the burden of proof required in the
underlying action or subsequent proceeding.
Sec. 9. 1. If the court determines that the plaintiff has not
established prima facie evidence of each and every element of the
claim except such elements that require proof of the subjective
intent or knowledge of the defendant, the court shall dismiss the
claim and award the defendant reasonable attorney’s fees and
costs incurred in bringing the special motion to dismiss.
2. If the court dismisses the action pursuant to subsection 1,
the dismissal operates as an adjudication upon the merits.
Sec. 9.5. If the court denies a special motion to dismiss filed
pursuant to NRS 41.660, an interlocutory appeal lies to the
appellate court of competent jurisdiction pursuant to the rules
fixed by the Supreme Court pursuant to Section 4 of Article 6 of
the Nevada Constitution.
Sec. 10. NRS 41.635 is hereby amended to read as follows:
41.635 As used in NRS 41.635 to [41.670,] 41.660, inclusive,
and sections 2 to 9.5, inclusive, of this act, unless the context
otherwise requires, the words and terms defined in NRS 41.637 and
41.640 and sections 3.5, 4 and 4.5 of this act have the meanings
ascribed to them in those sections.
Sec. 11. NRS 41.637 is hereby amended to read as follows:
41.637 [“Good faith communication] “Communication in
furtherance of the right to petition or the right to free speech in
direct connection with an issue of public concern” means any:
1. Communication that is aimed at procuring any governmental
or electoral action, result or outcome;
2. Communication of information or a complaint to a
Legislator, officer or employee of the Federal Government, this state
or a political subdivision of this state, regarding a matter reasonably
of concern to the respective governmental entity;

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3. Written or oral statement made in direct connection with an
issue under consideration by a legislative, executive or judicial
body, or any other official proceeding authorized by law; or
4. Communication made in direct connection with an issue of
public [interest] concern in a place open to the public or in a public
forum . [,
¬ which is truthful or is made without knowledge of its falsehood.]
Sec. 12. NRS 41.650 is hereby amended to read as follows:
41.650 A cause of action against a person [who engages in a
good faith] arising from a communication in furtherance of the
right to petition or the right to free speech in direct connection with
an issue of public concern [is immune from any civil action for
claims based upon the communication.] is subject to a special
motion to dismiss, and that motion must be granted by the court
unless the plaintiff establishes that the claim is not meritless
pursuant to section 8 of this act.
Sec. 13. NRS 41.660 is hereby amended to read as follows:
41.660 [1.] If an action is brought against a person [based
upon] arising from a [good faith] communication in furtherance of
the right to petition or the right to free speech in direct connection
with an issue of public concern:
[(a)] 1. The person against whom the action is brought may
file a special motion to dismiss; and
[(b)] 2. The Attorney General or the chief legal officer or
attorney of a political subdivision of this State may defend or
otherwise support the person against whom the action is brought. If
the Attorney General or the chief legal officer or attorney of a
political subdivision has a conflict of interest in, or is otherwise
disqualified from, defending or otherwise supporting the person, the
Attorney General or the chief legal officer or attorney of a political
subdivision may employ special counsel to defend or otherwise
support the person.
[2. A special motion to dismiss must be filed within 60 days
after service of the complaint, which period may be extended by the
court for good cause shown.
3. If a special motion to dismiss is filed pursuant to subsection
2, the court shall:
(a) Determine whether the moving party has established, by a
preponderance of the evidence, that the claim is based upon a good
faith communication in furtherance of the right to petition or the
right to free speech in direct connection with an issue of public
concern;
(b) If the court determines that the moving party has met the
burden pursuant to paragraph (a), determine whether the plaintiff

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has established by clear and convincing evidence a probability of
prevailing on the claim;
(c) If the court determines that the plaintiff has established a
probability of prevailing on the claim pursuant to paragraph (b),
ensure that such determination will not:
(1) Be admitted into evidence at any later stage of the
underlying action or subsequent proceeding; or
(2) Affect the burden of proof that is applied in the
underlying action or subsequent proceeding;
(d) Consider such evidence, written or oral, by witnesses or
affidavits, as may be material in making a determination pursuant to
paragraphs (a) and (b);
(e) Stay discovery pending:
(1) A ruling by the court on the motion; and
(2) The disposition of any appeal from the ruling on the
motion; and
(f) Rule on the motion within 7 judicial days after the motion is
served upon the plaintiff.
4. If the court dismisses the action pursuant to a special motion
to dismiss filed pursuant to subsection 2, the dismissal operates as
an adjudication upon the merits.]
Sec. 14. The amendatory provisions of this act apply to an
action commenced on or after October 1, 2015.
Sec. 15. NRS 41.670 is hereby repealed.
TEXT OF REPEALED SECTION

41.670 Award of reasonable costs, attorney’s fees and
monetary relief under certain circumstances; separate action for
damages; sanctions for frivolous or vexatious special motion to
dismiss; interlocutory appeal.
1. If the court grants a special motion to dismiss filed pursuant
to NRS 41.660:
(a) The court shall award reasonable costs and attorney’s fees to
the person against whom the action was brought, except that the
court shall award reasonable costs and attorney’s fees to this State or
to the appropriate political subdivision of this State if the Attorney
General, the chief legal officer or attorney of the political
subdivision or special counsel provided the defense for the person
pursuant to NRS 41.660.

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(b) The court may award, in addition to reasonable costs and
attorney’s fees awarded pursuant to paragraph (a), an amount of up
to $10,000 to the person against whom the action was brought.
(c) The person against whom the action is brought may bring a
separate action to recover:
(1) Compensatory damages;
(2) Punitive damages; and
(3) Attorney’s fees and costs of bringing the separate action.
2. If the court denies a special motion to dismiss filed pursuant
to NRS 41.660 and finds that the motion was frivolous or vexatious,
the court shall award to the prevailing party reasonable costs and
attorney’s fees incurred in responding to the motion.
3. In addition to reasonable costs and attorney’s fees awarded
pursuant to subsection 2, the court may award:
(a) An amount of up to $10,000; and
(b) Any such additional relief as the court deems proper to
punish and deter the filing of frivolous or vexatious motions.
4. If the court denies the special motion to dismiss filed
pursuant to NRS 41.660, an interlocutory appeal lies to the Supreme
Court.
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