Kirsch v. Traber

414 P.3d 818
CourtNevada Supreme Court
DecidedApril 5, 2018
DocketNo. 70854
StatusPublished
Cited by4 cases

This text of 414 P.3d 818 (Kirsch v. Traber) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kirsch v. Traber, 414 P.3d 818 (Neb. 2018).

Opinion

By the Court, STIGLICH, J.:

Under the doctrine of issue preclusion, a Nevada court defers to a foreign court's final judgment resolving an issue between litigants if those same litigants previously litigated the same issue before the foreign court. However, the Nevada court does not defer to the foreign court's final judgment if it contravenes a final judgment previously entered by a Nevada court.

The question to be resolved in this appeal is whether a Nevada district court's order denying a motion to dismiss constituted a final judgment on the issue of demand futility. To the extent that we have not previously defined "final judgment" within this context, we take this opportunity to clarify that Nevada applies the definition set forth within section 13 of the Restatement (Second) of Judgments. Applying that definition to the facts of this case, we agree with the district court that its denial of a motion to dismiss was not *820a final judgment on the issue of demand futility. Therefore, it was proper for the district court to accord preclusive effect to a subsequent final judgment from a foreign court. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

Galectin Therapeutics, Inc. (Galectin) is a pharmaceutical company incorporated in Nevada and headquartered in Georgia. Beginning in October 2013, the directors of Galectin commenced a "stock promotion scheme" in which they published glowing reviews of Galectin in third-party publications. In July 2014, shortly after news of that promotion scheme became public, Galectin's share price dropped approximately 50 percent.

In August 2014, several Galectin shareholders filed shareholder derivative actions against Galectin's officers and directors in the United States District Court for the District of Nevada. Appellant Siu Yip was a named plaintiff in one of those federal cases, which were consolidated and transferred to the Northern District of Georgia.

Shortly after the federal cases were filed, appellant Michael Kirsch filed the instant derivative shareholder suit in Clark County district court against Galectin's officers and directors (here, respondents). In his complaint, Kirsch conceded that he did not make a demand on Galectin's board of directors prior to filing suit. He alleged that such a demand would have been futile. Siu Yip later intervened in Kirsch's suit.

Respondents moved to dismiss Kirsch's complaint pursuant to NRCP 23.1, which requires a plaintiff in a shareholder derivative action either to make a demand upon the corporation's directors prior to filing suit or to plead particularized facts demonstrating that such a pre-suit demand would have been futile. At a hearing on the motion, the district court noted that Kirsch's complaint contained "conclusory allegations" that a pre-suit demand would have been futile. Nonetheless, the district court denied the motion to dismiss, commenting: "The allegations related to the conflicted directors who may face personal liability are not the best I've ever seen, but they are not enough to merit dismissal at this point." The district court granted Kirsch leave to amend his complaint to add additional plaintiffs, advising him "to beef up [the] factual allegations" in the amended complaint. Finally, the district court sua sponte stayed the case pending a decision in the parallel shareholder derivative action filed in federal court.

The United States District Court for the Northern District of Georgia dismissed the federal action in an order. See In re Galectin Therapeutics, Inc. Derivative Litig. , No. 1:15-CV-208-SCJ, 2015 WL 12806566 (N.D.). That order held that the Nevada district court's denial of defendants' motion to dismiss was not "a final ruling on the merits with respect to the issue of demand futility." Id. at *4. Turning to the merits of the demand futility issue, the federal court "conclude[d] that Plaintiffs have not set forth particularized allegations that a majority of the board of directors face a substantial likelihood of liability." Id. at *5.

Armed with the federal court's order of dismissal in the federal action, respondents moved again to dismiss Kirsch's suit, this time on the grounds of issue preclusion. In ruling on that motion, the Nevada district court concluded that "the parties are identical" between the Nevada and federal cases, "the issue of demand futility is identical," and the federal court's dismissal constituted a final order as to the issue of demand futility. Therefore, the district court granted respondents' motion to dismiss. Kirsch and Siu Yip appeal from the order of dismissal.

DISCUSSION

This case turns on whether the Nevada district court's order was a final judgment on the issue of demand futility.1 If it was, then the district court erred in according issue preclusive effect to the federal court's subsequent decision. While a district court is free to revisit and reverse its own rulings upon request of a party, see *821EDCR 2.24, it may not reverse its own final judgment simply because a subsequent foreign judgment resolved the issue differently. Reversing on that ground alone would be giving the foreign judgment "greater credit and respect than the prior decree of our own state lawfully entered." Colby v. Colby , 78 Nev. 150, 157, 369 P.2d 1019, 1023 (1962). We review de novo the district court's legal conclusion that its order of denial was not a "final judgment" within the context of issue preclusion. See Alcantara v. Wal-Mart Stores, Inc ., 130 Nev. 252, 256, 321 P.3d 912, 914 (2014) ("We review a district court's conclusions of law, including whether claim or issue preclusion applies, de novo.").

Nevada defines "final judgment " as set forth in section 13 of the Restatement (Second) of Judgments

Before turning to the merits of this case, we must first determine what it means for a judgment to be "final" such that it is immune from the potential preclusive effects of a subsequent foreign judgment. In defining that term, we will keep in mind the purpose of the issue preclusion doctrine: "to prevent multiple litigation causing vexation and expense to the parties and wasted judicial resources by precluding parties from relitigating issues." Univ. of Nev. v. Tarkanian, 110 Nev. 581, 598, 879 P.2d 1180, 1191 (1994) (describing the purpose of res judicata generally, of which issue preclusion is one of two "species"), holding modified on other grounds by Exec. Mgmt., Ltd. v. Ticor Title Ins.

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Bluebook (online)
414 P.3d 818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirsch-v-traber-nev-2018.