Document Yr8O4LrNz8oDGJXjzMR3YmQLD

TO: FROM: RE: DATE: MEMORANDUM J. Randall Jones, Gary T. Foremaster Charles H. McCrea, sr\u H f- Nevada Power v. Monsanto Company et Petition For Rehearing With Suggestion Banc. al; Defendants' For Rehearing En February 24, 1992 Attached is a copy of the subject Petition and Suggestion.. With respect to the Petition, Rule [F.R.A.P.] 40(a) provides in pertinent part, "Oral argument in support of the petition will not be permitted. No answer to a petition for rehearing will be received unless requested by the court, but a petition for rehearing will ordinarily not be granted in the absence of such a request." Rule 35(b), which addresses the Suggestion For Rehearing En Banc, is even more high handed than Rule 41. Whereas Rule 41 specifies that "no answer to a petition for rehearing will be received." simply informing counsel that they will be wasting their time if they file an answer, Rule 35(b) admonishes counsel that "No response shall be filed unless the court shall so order," presumably subjecting counsel to reprimand or sanction for even attempting to make the suggestion. What conclusion to draw from all of this? The court prefers supplicants (who obsequiously grovel for relief) to those (or their counsel) who have the temerity to make "suggestions" to persons of exalted rank unaccustomed to such effrontery. 2 STATEMENT OF THE CASE Plaintiff Nevada Power seeks recovery of costs for replacement of electrical equipment containing PCBs, which it purchased be tween 1950 and 1970. Plaintiff began incurring these replacem ent costs in 1979, after it became convinced by EPA regulations that PCBs were "hazardous," and after EPA banned future produc tion o f PCBs. In 1989, ten years later, N evada Pow er sued, claim ing that defendants had intentionally misrepresented that PCBs were "safe" an d /o r failed to provide adequate warnings about alleged PCB dangers. Nevada Power also claimed in warranty, negligence, and strict liability, and for indemnity. The District Court granted defendants' motion for summary judgm ent on all claims. Nevada Power appealed dismissal of its claims for fraud, fail ure to warn, and indemnity, but conceded that all other claims are time-barred. This C ourt unanimously affirmed dismissal o f the indem nity claim, but by a 2-1 vote reversed the ruling on th e fraud and warnings claims. The M ajority Opinion acknowledges N evada Pow er's admission th at it believed PCBs were not safe, as defendants allegedly represented, more than ten years before tiling suit. Nevertheless, despite plaintiffs adm itted knowledge, the passage of time, and plaintiffs admission that all other claims for the same injury are time-barred, the Majority holds that sum mary judgment on the fraud and failure to warn claims is im proper at this time because Nevada Power presented evidence that it m ay not have discovered defendants' alleged deceptive intent until 1988. T he M ajority rem ands for further proceedings. Judge Skopil, in dissent, votes to affirm the dismissal of the fraud and warnings claims, holding th at discovery of defendants' al leged deceptive intent is not necessary to trigger the fraud lim ita tions period because th e statute started to run in 1979 when plain tiff admittedly believed PCBs were hazardous. STATEMENT OF PURPOSE Pursuant to Rules 35 and 40 o f the Federal Rules o f Appellate Procedure and the Circuit Rules of the Ninth Circuit, defendants submit this Petition for Rehearing and Suggestion for En Banc t Ty V \t * 2 Rehearing. The Petition seeks rehearing of the M ajority's ruling reversing dismissal o f plaint iflPs fraud and w arnings claims. T he Petition is filed pursuant to R ule 40 because th e M ajority has "overlooked or m isapprehended" several "points of law or fact" : (i) by applying the wrong Nevada statute o f limitations to the warnings claim (Section I); (ii) by failing to follow clear Nevada statute of limitations law on the fraud claim (Section II); (iii) by applying a statute of limitations rule of decision that clearly con flicts with prior decisions of this C ourt (Section III); and (iv) by misstating and misconstruing, without any supporting citation, defendants' positions and arguments (Section IV). En banc rehearing is appropriate because the M ajority Opinion directly conflicts with opinions of this Circuit (Section III) and of at least two other courts of appeals (Senior IV). The M ajority Opinion also "substantially affects a rule of national application in which there is an overriding need for national uniform ity" because it exposes defendants in the Ninth Circuit to stale claims, eliminates the concept of repose, and encourages plaintiffs to bring unwarranted fraud claims in this Circuit. ARGUMENT I. REHEARING SHOULD BE GRANTED BECAUSE TH E M AJORITY APPLIES TH E WRONG NEVADA STAT U T E O F L IM IT A T IO N S T O P L A IN T IF F 'S F A IL U R E T O WARN CLAIM. The M ajority applies the statute of limitations for fraud claims, Nev. Rev. Stat. 11.190(3)(d), both to N evada Pow er's failure to warn claim and to its fraud claim, stating that the parties agreed that this provision applies to both claims. (Op. at 1179, 1181)1 The M ajority plainly errs on both counts. Section 11.190(3)(d) expressly applies only to claims for fraud and mistake, while Nev. 1 Citations to the Opinion filed February 5, 1992, are denoted "Op------- ." Citations to the Brief of Defendants-Appellees are denoted "Defs. Br------- to the Brief of Plaintiff and Reply Brief of Plaintiff as "PI. Br_____" and "PJ. Reply Br_____respectively. Citations to the transcript of the argument on appeal are denoted "A rgum ent____ " Defendants attach an Addendum to this Petition setting forth the rele vant statutes of limitation. Citations to the Addendum are denoted as "Add." W' 3 Rev. Stat. 11.220 applies to failure to warn claims. See Add. Moreover, all parties agree that 11.220 applies to plaintiff's warnings claim. (Defs. Br. at 14; PI. Reply Br. at 2). By applying the wrong limitations provision, the M ajority fails to follow the 1990 N evada Supreme C ourt opinion in Tahoe Vil lage Homeowners Ass'n v. D oughs County, 106 Nev. 113, 799 P.2d 556 (1990), which construes 11.220 and makes clear that the pertinent discovery rule does not toll the limitations period until plaintiff discovers defendants' alleged wrongful knowledge.2 In Tahoe Village, plaintiff claim ed th a t defendant county w rong fully issued construction perm its for real property it knew had construction defects. The claim required that plaintiff plead and prove defendant's knowledge o f th e defects at the tim e o f the permitting. In considering whether the claim was time-barred, the Nevada Supreme Court held that the limitations period of 11.220 begins to run when plaintiff discovered th defect and its injury.3Id. at 558. The Nevada court remanded for a factual determination regarding when the plaintiff learned o f its injury. T he Tahoe Village court did not discuss when, if ever, plaintiff discovered evidence concerning defendants* state o f inind. In deed, Tahoe Village clearly does not require plaintiff to discover defendants* alleged wrongful knowledge or intent to activate 11.220. The lim itations period begins when plaintiff discovers a defect and an injury. T h e M ajority does not discuss, o r even cite, Tahoe Village, which applies directly to Nevada Power's failure to warn claim. As the M ajority points out, Nevada Power knew of the alleged warnings defects (PCBs were not "safe" as allegedly represented), and knew o f its injury no later than 1979. (Op. at 1179, 1181-82) U nder the Tahoe Village standard, Nevada Pow er discovered its 2 None of the briefs on appeal discusses or cites Tahoe Village. Defendants cited (but could not discuss) Tahoe Village in their supple mental luting of authorities, and referred to it in oral argument. (Argu ment at 8) 3 As the court stated, "[t]he four year limitations period begins to run at the time the plaintiff learns, or in the exercise of reasonable diligence should have learned, of harm to the property caused by the construction defect." Id. at 558. 4 failure to warn claim by 1979, and the four-year lim itations pe riod of 11.220 expired six years before Nevada Pow er filed the claim. Thus, by failing to apply 11.220 and Tahoe Village, the M ajority errs in reversing the district court ruling that Nevada Pow er's warnings claim is barred by 11.220.4 D . REHEARING SHOULD BE GRANTED BECAUSE TH E M AJO RITY M ISCONSTRUES TH E NEVADA FRAUD LIM ITATIONS STATUTE AND APPLICABLE CASE LAW. T h e M ajority's ruling th a t 11.190(3Xd) is tolled until N evada Pow er discovered defendants' alleged fraudulent intent is not the law in Nevada. N o Nevada case has ever held that a plaintiff m ust discover evidence of defendant's alleged deceptive intent to trig ger the fraud limitations provision. A . Nevada Law Triggers 11.190(3) (d) O n Discovery O f Facts Contrary To The Alleged Respresentations That Are The Basis O f PlaintifTs Fraud Claim. As Judge Skopil states in dissent, Nevada law triggers 11.190(3Xd) on plaintiff's knowledge o f its injury and o f facts contrary to a defendant's representations. (Op. at 1188) Every fraud limitations case the M ajority and Judge Skopil cite applies this standard.5 Judge Skopil's dissent provides an excellent anal 4 Moreover, the district court ruling produces a consistent statute of limitations result for negligence, strict liability, and warning claims. At argument, plaintiff admitted that its negligence and strict liability claims are time-barred and should not have been brought. (Argument at 22; PI. Br. at 5-6) A failure to warn claim is a hybrid claim--it joins a strict liability claim with an element of negligence. Prosser, Law o f Torts, 99 at 697 (5lh ed. 1984); see also Jeffers v. Bob Kaufman Machinery, 101 Nev. 684,685,707 P.2d 1153,1154 (Nev. 1985) (failure to warn liability arose in negligence and/or strict liability). By applying the wrong limi tations provision, the Majority fails to time-bar a warning claim when even plaintiff admits its negligence and strict liability claims are timebarred. 5 E.g., Sierra Diesel Injection Serv. v. Burroughs Corp., Inc., 648 F. Supp. 1148 (D. Nev. 1986), reconsideration denied, 651 F. Supp. 1371 (D. Nev. 1987); Oak Grove Investors v. Bell A. Gossett Co., 99 Nev. 616, 668 P.2d 1075 (Nev. 1983); Millspaugh v. Miilspaugh, 96 Nev. 446, 611 P.2d 201 (Nev. 1980); Sierra Pacific Power Co. v. Nye, 80 Nev. 88, 389 P.2d 387 (Nev. 1964); Howard v. Howard, 69 Nev. 12, 239 P.2d 584 (Nev. 1952). 5 ysis of the seminal N evada case of Howard v. Howard, 69 Nev. 12, 239 P.2d 584 (Nev. 1952), dem onstrating that there is no Nevada requirem ent for a plaintiff to discover a defendant's de ceptive intent to trigger 11.190(3Xd). (Op. at 1188-89) The Nevada Supreme C ourt has reaffirmed Howard. Millspaugh v. Millspaugh, 96 Nev. 446, 611 P.2d 201 (Nev. 1980). Millspaugh involved claims of fraud arising out of defendant's alleged misrepresentation concerning a deed for certain real prop erty. Plaintiff executed a deed tendered by defendant, believing it conveyed the property on her death, when in fact the deed con veyed an immediate interest. Applying Howard, the Millspaugh court held that 11.190(3Xd) begins to run when plaintiff discov ered that the deed did not operate as represented. T he Millspaugh court did not toll 11.190(3Xd) until plaintiff discovered defen d a n t's deceptive intent o r knowledge.6 A s discussed above, Tahoe Village Homeowners Ass*n v. Douglas County, supra, fu rth er reaf firms the principles stated in Howard. Because plaintiff's discovery o f deceptive intent is irrelevant to the triggering of 11.190(3)(d), the M ajority errs by reversing on grounds that there is a fact issue regarding whether Nevada Power discovered defendants' alleged deceptive knowledge within the limitations period. In short, the M ajority errs by finding a fact dispute on an issue that is irrelevant, as a m atter of law, to 11.190(3Xd). 6 Nevada and California have identically worded statutes of limita tion for fraud. Compare Cal. Civ. Proc. Code 338(d) (Deering 1992) and Nev. Rev. Slat. 11.190(3Xd) (1986). Nevada follows California case law construing the fraud statute. Howard, 239 P.2d at 588. As in Nevada, California triggers the fraud limitations period on discovery of facts contrary to a defendant's representation. California does not toll the statute until plaintiff discovers defendant's alleged deceptive intent. Miller v. Bechtel Corp., 33 Cal. 3d 868, 875, 191 Cal. Rptr. 619, 623, 663 P.2d 177, 181 (1983) (affirming lower court ruling that statute begins to run when plaintiff could have discovered that value of property not as represented; no requirement that plaintiff have discover] decep tive intent). In this regard, the M ajority's reliance (Op. a t 1183) on Sierra Diesel injection Serv. v. Burroughs C o r p In c ., 648 F. Supp. 1148 (D . Nev. 1986), reconsideration denied, 651 F . Supp. 1371 (D. Nev. 1987), is misplaced. Sierra Diesel does not toll 11.190(3Xd) until deceptive intent is discovered; rather, th a t decision correctly applies Nevada law and follows the cases Judge Skopil discusses. T he Sierra Diesel lawsuit arose out o f the purchase of defen dant B urroughs' B-80 com puter system in 1977. T he system had trouble processing plaintiff's financial and accounting data as promised. Defendant proposed modifications to improve perfor mance and then switched plaintiff to another system, but the difficulties continued. In 1982, an independent consultant in spected the system and reported that it was " impossible" for the system to perform the required multi-programming, and that the system "could never be modified so as to perform these tasks." Sierra Diesel, 648 F. Supp. at 1148. Plaintiff filed its fraud claim in 1984, two years later. Defendant sought summary judgm ent under 11.190(3)(d), claiming that the limitations period commenced when the system was first installed and did not perform as represented. Contrary to the M ajority's description (Op. at 1183), the Sierra Diesel court did not determ ine, as a m atter o f law, th a t th e system 's initial difficulties provided sufficient evidence th at defendant's represen tations were inaccurate. Rather, the trial court,denied summary judgm ent because these initial problems with the system posed ju ry questions: w hether these difficulties implied defendant's rep resentations were false; whether plaintiff should have investigat ed; and whether an investigation would have revealed the false representations. Id. at 1151. However, w hatever th e significance o f th e system 's early failures, the consultant's report triggered 11.190(3Xd) as a m atter of law because it unquestionably in formed plaintiff that the computer systems would never perform as represented. Id. In other words, the Sierra Diesel court holds that the indepen dent report triggers 11.190(3Xd) because it presents plaintiff 7 with facts contrary to defendant's representations. Sierra Diesel is ruling consistent with defendants' position and directly con trary to the M ajority's holding, and it never states that 11.190(3Xd) is tolled until a plaintiff discovers a defendant's deceptive intent. The consultant's report, while concluding the defendant's representations w ere false, did not claim or report that defendant knew that its systems would never perform as promised. Thus, consistent with well-established Nevada law, Si erra Diesel triggers 11.190(3Xd) when plaintiff discovers the representations were false. Here, as the M ajority points out, in 1979 N evada Pow er un questionably believed that PCBs were hazardous, relying on in form ation it obtained from HPA. (Op. at 1179) Defendants do not argue that any further knowledge or investigation was necessary to trigger the limitations statute. The independent information from E P A is ju st like th e consultant's report in Sierra Diesel, and plaintiff's discovery of this inform ation triggered 11.190(3)(d) no later than 1979. A s a result, the three-year lim itations period expired in 1982, and the M ajority errs in reversing the district co u rt's order tim e-barring the fraud claim. B. The M ajority' Misapplies The Plain M eaning O f 11.190(3Xd). T h e M ajority's holding th at discovery o f deceptive intent is necessary to trigger 11.190(3)(d) tolls the statute until plaintiff has discovered all elements of a cause of action. (Op. at 1185-86) However, the plain language of 11.190(3Xd) activates the limi tations period when plaintiff discovers the *Tacts constituting the fraud." As all of the above cases hold, this statutory wording does not require that plaintiff discover all elements of its fraud cause of action. By contrast, where the Nevada legislature intends to trigger the limitations provision only after a plaintiff discovers all elements of its cause of action, it says so unambiguously. See Add. For example, Nev. Rev. Stat. 11.207(1) (for m alpractice actions) 8 begins to run when "plaintiff.sustains damage and discovered or through the exercise of reasonable diligence should have discov ered the material facts which constitute the cause o f action" (em phasis added). Nevada case law construes this statutory language to mean that a cause of action for malpractice accrues only when plaintiff discovers all elements of the claim.7 The Nevada legisla ture has never amended 11.190(3Xd) to incorporate a similar requirement. Thus, the different statutory language of 11.207(1) and 11.190(3Xd), and the different judicial interpretations of these provisions, confirm that Nevada law does not toll 11.190(3X d) until plaintiff discovers defendant's intent. See Add. C. The M ajority M isstates Defendants* Position On Several Points. C ontrary to th e M ajority's statem ent (Op. at 1182), defendants do not concede they lied to plaintiff, or that before 1988 Nevada Pow er lacked knowledge of all facts needed to plead fraud. D e fendants deny they lied to plaintiff, and have only stated that the issue of the tru th or falsity of the alleged representations is irrele vant to the statute of limitations issues. (Defs. Br. at 23-26; A r gum ent at 6). Defendants also claim th at plaintiff could have, and should have, filed its fraud claim in the early 1980s at the latest. (Defs. Br. at 16). Defendants have never argued, as the Majority states (Op. at 1182), th at beginning in 1979 Nevada Pow er should have discovercd, w ith proper diligence, th e facts necessary to trigger 11.190(3Xd). To the contrary, defendants have repeatedly argued that the uncontroverted evidence shows that by the early 1980s at the latest, plaintiff had actual knowledge of the facts necessary to trigger 11.190(3Xd). (Def. Br. 223-26; A rgum ent at 2-6) 7 Oak Grove Investors v. Bell A Gossett C a, 99 Nev. 616, 622, 668 P.2d 1075, 1078-79 (Nev. 1983); Sorenson v. Pavlikowski, 94 Nev. 440, 443, 581 P.2d 851, 853 (Nev. 1978). j ik I i i j | i I | ! | ! 9 III. TH E PETITIO N FOR r e h e a r in g o r e n b a n c r e h e a r in g SHOULD BE GRANTED BECAUSE THE M A JO RITY O PIN IO N CONFLICTS W ITH PR IO R DECISIONS O F TH IS COURT THAT DO NOT RE Q U IR E KNOW LEDGE O F DEFENDANTS' INTENT TO TRIGGER TH E STATUTE O F LIM ITATIONS FO R FRAUD. T he M ajority's interpretation o f Nev. Rev. Stat. 11.190(3Xd) directly contradicts at least two previous decisions of this Circuit construing the identically worded California fraud statute of lim itations (Cal. Civ. Proc. C ode 338(d) (Deering 1992)). Jablon v. Dean Witter & Co., 614 F.2d 677 (9th Cir. 1980); Stitt v. Wil liams, 919 F.2d 516 (9th Cir. 1990) (Pregerson, J.). In both cases the Ninth Circuit affirmed summary judgment orders dismissing time-barred fraud claims. In both cases this Circuit held that plaintiff's discovery of the falsity of defendant's representations activated the California fraud limitations statute: in Jablont the trigger was plaintiff's knowledge that the prices of certain securi ties had declined instead of increased, as defendant stockbroker predicted (Jablon, 614 F.2d at 682); in Stitt, the statute ran when plaintiffs learned that their partnership interests were smaller than defendant represented (Stitt, 919 F.2d at 523). In neither case did this Court link the trigger to discovery of alleged decep tive intent. IV. TH E M AJO RITY O PIN IO N DIRECTLY CONFLICTS W ITH OPIN IO N S OF TH E SIXTH AND TENTH CIR CUITS, W ARRANTING AN EN BANC REHEARING. Pursuant to the Federal Rules of Appellate Procedure 35 and Circuit Rule 35, en banc consideration on a petition for rehearing is appropriate where the opinion is (i) in direct conflict with an opinion o f another court of appeals and (ii) the opinion ''substan tially affects a rule of national application in which there is an . overriding need for national uniformity." As demonstrated be low, defendants have met the above standards and request that the appeal be reheard en banc. T he M ajority states that " '[i]n diversity cases, whether an issue is one of law for the court to decide o r one of fact for th e ju ry to V -i * ' i ' '< ** 10 determ ine is governed by federal law.* *' (Op. at 1182 n.2) (quot ing Deland v. Old Republic Life Ins. Co., 758 F .2d 1331, 1335 (9th Cir. 1985)). In this case, the M ajority concludes th at th e suffi ciency of a plaintiff's knowledge of its fraud claim, for statute of limitations purposes, is a jury question, even where the plaintiff knew both the alleged falsity of the representations and its injury within the lim itations period. (Op. at 1183-84) T his conclusion is in direct conflict with the decision of the Sixth Circuit in Electric Power Bd. v. Monsanto Co., 879 F.2d 1368 (6th Cir. 1989), cert, denied, 493 U.S. 1022 (1990) ("EPB") and th e decisions o f th e T enth C ircuit in Jones v. Ford Motor Co., 599 F.2d 394,399 (10th Cir. 1979) ("Jones**) and Ohio v. Peterson, Lowry, Rail, Barber & Ross, 651 F.2d 687, 695 (10th Cir.), cert, denied, 454 U.S. 895 (1981) ("Peterson**), each o f which granted sum m ary judgm ent barring fraud claims where plaintiffs adm itted they knew that defendants' representations were false but allegedly did not know o f defendants* "state o f mind** or intent w ithin the lim itations period.8 A s the dissent notes, EPB was "a case almost identical to the one before us'*(Op. at 1189) involving the sale of PCB equipm ent to electric utilities m any years before the complaint was filed. Like this case, EPB involved a fraud claim alleging that General Electric, Westinghouse, and Monsanto intentionally misrepre sented the safety of PCBs. In addition, the EPB plaintiffs alleged that defendants had fraudulently concealed the alleged hazards of PCBs in an effort to toll the statute of limitations. Although plaintiffs admitted monitoring the federal PCB regulations since the 1970s, they claimed no knowledge of alleged PCB dangers, o r defendants* ' 'state o f mind** o r intent regarding defendants* m isrepresentations about PCBs until three years before filing their claim. 8 The Majority's Opinion also directly conflicts with the Supreme Court's recent holdings on the important role of summary judgment, which declare that Rule 56 is not a disfavored procedural shortcut to be rejected in favor of a trial. Cebtex Corp. v. Catrett, 477 U.S. 317,327 (1986). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 11 The Sixth Circuit in EPB affirmed the dismissal o f all the utili ties* claims, including the fraud claim, as tim e-barred because the utilities learned of the alleged PCB dangers--the facts allegedly misrepresented--many years before filing their claim. W here the plaintiff knew the falsity of the representations within the lim ita tions period, the Sixth Circuit held that plaintiffs knowledge of its fraud claim is not a jury question--the opposite o f the M ajority's ruling in this case. T he EPB plaintiffs knew little o f defendants' "state of mind," just as Nevada Power asserts here, and the Sixth Circuit concluded, as a m atter of law, that plaintiffs' lack of knowledge concerning defendants' fraudulent intent did not preclude summary judgment dismissing a time-barred fraud claim.* The M ajority Opinion in this case also conflicts with the Tenth Circuit decisions in Jones and Peterson for the sam e reason th at it conflicts with EPB. In both Jones and Peterson, neither o f which was addressed in the M ajority's opinion, the court granted summary judgm ent dismissing a fraud claim as time-barred be cause plaintiff's claim accrued when it discovered th e representa tions at issue were false. In both cases that knowledge alone trig gered the fraud limitations period. In neither case did the Tenth C ircuit require knowledge o f defendant's "state o f m ind" o r in- 9 Moreover, the Sixth Circuit rejected plaintiffs' fraudulent conceal ment claim as legally deficient because plaintiffs knew about the alleged dangers of PCBs within the limitations period. As with fraud, defen dants' "state of mind'' is legally irrelevant to fraudulent concealment. As the Sixth Circuit stated: [e]ven if the defendants look "affirmative action" to conceal the hazards of PCBs in their use in electrical equipment, the utilities cannot meet the second requirement for making out a claim of fraudulent concealment . . . [because they] knew or should have known of the [alleged] hazards of the use of PCBs in electrical equipment at least four years before their suit was filed. Thus, they cannot show that they failed "to discover the operative facts that are the basis of [their] cause of action within the limitations peri od." EPB, 879 F.2d at 1377-78 (citations omitted). tc*; ZL ' 12 te n t as a pre-condition for accrual. A s the Peterson court ex pressly stated: Although scienter is a necessary element o f a 10(b) private action in m any cases scienter will emerge only as an infer ence from the facts before the jury. This circumstance cannot be used as a basis for emasculating the statute of limitations. Petersonf 651 F .2 d at 695.10 In short a clear conflict exists between the M ajority Opinion and at least three decisions from other circuits. Because this con flict affects the federal standard for sum m ary judgm ent on all fraud claims where a statute of limitations defense is asserted the lack of national uniformity jeopardizes the " twin policies of pro tecting defendants from defending stale claims and promoting repose." (Op. a t 1190) T he M ajority's Opinion virtually precludes summary judgm ent for many fraud claims barred in the Sixth and Tenth Circuits inevitably leading to forum shopping and a pro cession of fraud claims in the N inth Circuit. C O N C L U SIO N F or the foregoing reasons defendants respectfully request that this C ourt grant its Petition and order a rehearing or in the alternative, order rehearing en banc, o f th e P anel's February 5, 1992 O rder reversing the D istrict C ourt's O rder dismissing Ne vada Pow er's fraud and failure to w arn claims as tim e-barred under the applicable statutes of limitations. t i ' ? 10 The differences between the Majority Opinion in this case and these three decisions cannot be attributed to any unique aspect of Ne vada law on accrual. The Nevada rule as to accrual of a fraud claim is set forth in Howard, supra. This same rule applies under Tennessee law, as the Sixth Circuit construed it in EPB, as well as under the Federal statute which the Tenth Circuit construed in Peterson and Jones. , $ \ DATED: February 1 Respectfully submitt Kirkland & Ellis Bruce A. Featherstoi John H. Tatlock 1999 Broadway, Suit D enver, Colorado 8C (303) 291-3000 Attorneys fo r Monsai Company Thorndal, Backu Maupin & Arms' John L. Thorndal Peggy A. Leen 1100 East Bridger A P.O. Drawer 2070 Las Vegas, Nevada f (702) 366-0622 Attorneysfo r Monsai Company and Westinghouse Elec Corporation D A T E D : February 18, 1992. . Respectfully submitted, K irkland & Ellis Bruce A. Featherstone John H. Tatlock 1999 Broadway, Suite 4000 Denver, Colorado 80202 (303) 291-3000 Attorneys fo r Monsanto Company Thorndal, Backus, Ma upin & Armstrong John L. Thorndal Peggy A. Leen 1100 East Bridger Avenue P.O. Drawer 2070 Las Vegas, Nevada 89125-2070 (702) 366-0622 Attorneysfo r Monsanto Company and Westinghouse Electric Corporation Weil, Gotshal & Manges Jeffrey S. K lein Eric Ordway John H. Bae 767 Fifth Avenue New York, New York Attorneysfo r Westinghouse Electric Corporation Al verson, Taylor, Mortenson & Nelson J. Bruce AJverson David R. Clayson 3821 W est Charleston Boulevard Las Vegas, Nevada 89102 (702)385-7000 Attorneys fo r General Electric Company 14 CERTIFICATE O F M AILING I hereby certify that on th e 18th day o f February, 1992 tw o copies o f D efendants-Appellees' Petition F or R ehearing W ith Suggestion For R ehearing En Banc were served on the following by mailing a copy thereof, first class m ail, postage prepaid, to: J. Randall Jones, Esq. Charles H. M cCrea, Sr., Esq. N ik Skrinjaric, Esq. Jones, Jones, Close & Brown, Chartered 700 Valley Bank Plaza , 300 South Fourth Street Las Vegas, Nevada 89101-6026 David McCrea, Esq. McCrea & McCrea P .O .B ox 1310 Bloomington, IN 47402-1310 Paul E. Merrell, Esq. 7493 East Five Rivers Road Tidewater, O R 97390 / s / Ann e Swenson 92, two EARING rved on postage iON AT. ADDENDUM i A -l ADDENDUM Relevant Nevada Statutes of Limitation N.R.S. 11.190. Periods of limitation. 3. W ithin 3 years: (d) An action for relief on the ground of fraud or mistake, but the cause of action in such a case shall be deemed to accrue upon the discovery by the aggrieved party o f the facts constituting thefra u d or mistake, [em phasis added] N .R .S. 11.220. Action for relief not otherwise provided for. A n action for relief, not hereinbefore provided for, m ust be commenced within 4 years after the cause o f action shall have accrued, [emphasis added] ** N .R.S. 11.207. M alpractice actions against accountants, attor neys, veterinarians. 1. N o action against any accountant, attorney o r veteri narian to recover damages for malpractice, whether based on a breach of duty or contract, may be commenced m ore than 4 years after th e plaintiff sustains damage and discovers or through the use o f reasonable diligence should have discovered the material facts which constitute the cause o f action, [em phasis added] Nevada Revised Statutes (1986)