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MDSM

1 MARK B. SCHELLERUP
Nevada Bar No. 7170
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mschellerup@messner.com
AARON S. MOTSCHENBACHER
3 Nevada Bar No. 12046
amotschenbacher@messner.com
4 ANDREW R. GUZIK
Nevada Bar No. 12758
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aguzik@messner.com
MESSNER REEVES LLP
6 5556 S. Fort Apache Road, Suite 100
Las Vegas, Nevada 89148
7 Telephone: (702) 363-5100
Facsimile: (702) 363-5101
8 Attorneys for Defendant, Old Republic
Home Protection Company, Inc.
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DISTRICT COURT

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ATTORNEYS AT LAW

MESSNER REEVES LLP

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CLARK COUNTY, NEVADA

BOARD OF TRUSTEES OF THE


12 PLUMBERS AND PIPEFITTERS LOCAL
525 HEALTH AND WELFARE TRUST AND
13 PLAN; BOARD OF TRUSTEES OF THE
PLUMBERS AND PIPEFITTERS UNION
14 LOCAL 525 PENSION PLAN; AND BOARD
OF TRUSTEES OF PLUMBERS AND
15 PIPEFITTERS LOCAL UNION 525
APPRENTICE AND JOURNEYMAN
16 TRAINING TRUST FOR SOUTHERN
NEVADA,
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Plaintiffs,
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vs.
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LOWES HOME CENTERS, LLC, a North
20 Carolina limited liability company; OLD
REPUBLIC HOME PROTECTION
21 COMPANY, INC., a California corporation,
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Case No.:
Dept No.:

A-14-704846-C
XXIII

DEFENDANT OLD REPUBLIC HOME


PROTECTION COMPANY, INC.S
MOTION TO DISMISS PLAINTIFFS
FIRST AMENDED COMPLAINT

Defendants.

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COMES NOW, Defendant, OLD REPUBLIC HOME PROTECTION COMPANY, INC.

26 (hereinafter Defendant), by and through its attorneys of record MESSNER REEVES LLP,
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1 hereby moves this Honorable Court to dismiss Plaintiffs First Amended Complaint because the
2 complaint fails to state a claim against defendant upon which relief can be granted as follows:
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This Motion to Dismiss is made and based upon all pleadings and papers on file herein,

4 upon the affidavit of counsel attached hereto, the attached Memorandum of Points and Authorities
5 and upon oral argument of counsel at the time of the hearing of such Motion.
December
, 2014.
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MESSNER REEVES LLP
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By
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MARK B. SCHELLERUP
Nevada Bar No. 7170
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AARON S. MOTSCHENBACHER
Nevada Bar No. 12046
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5556 S. Fort Apache Road, Suite 100
Las Vegas, Nevada 89148
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Telephone: (702) 363-5100
Facsimile: (702) 363-5101
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Attorneys for Defendants Old Republic Home
Protection Company, Inc.
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NOTICE OF MOTION

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TO:

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ALL PARTIES AND THEIR ATTORNEYS OF RECORD

YOU AND EACH OF YOU WILL PLEASE TAKE NOTICE that the undersigned will
bring the foregoing MOTION TO DISMISS PLAINTIFFS FIRST AMENDED COMPLAINT on
for hearing in District Court, Clark County, Nevada, Dept. XXIII, on the ____ day of
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, at ______ _ .m., or as soon thereafter as counsel may be heard.


December ____, 2014.
MESSNER REEVES LLP
By

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MARK B. SCHELLERUP
Nevada Bar No. 7170
AARON S. MOTSCHENBACHER
Nevada Bar No. 12046
ANDREW R. GUZIK
Nevada Bar No. 12758
5556 S. Fort Apache Road, Suite 100
Las Vegas, Nevada 89148
Telephone: (702) 363-5100
Facsimile: (702) 363-5101
Attorneys for Defendant, Old Republic
Home Protection Company, Inc.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO


DISMISS THE AMENDED COMPLAINT

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STATEMENT OF FACTS

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Defendant Old Republic Home Protection Company, Inc. (Old Republic), a California
Corporation, provides home protection warranty contracts to homeowners1 through its office in
Las Vegas. These contracts provide for repair or replacement protection for certain systems or
appliances in residential dwellings for a limited term.2 Old Republics home warranty plans
provide that covered systems and appliances that become inoperable during the contract term due
to normal wear and tear will be repaired or replaced at Old Republics expense, or the plan holder
will be provided with payment in lieu of repair or replacement.3 Old Republic does not repair or
replace covered systems itself, but rather maintains a network of independent contractors that it
can dispatch to a plan holders home to perform the service.4 As a home protection warranty
provider, Old Republic does not engage in construction projects or acts as a contractor but
rather it repairs or replaces home appliances of a plan holder based on a home warranty.
On September 15, 2014, the Board of Trustees of the Plumbers and Pipefitters Local 525
Health and Welfare Trust and Plan, the Board of Trustees of the Plumbers and Pipefitters Union
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Old Republic Home Protection Co. v. Superior Court of Riverside County, Civil Case No. E053099, Cal. Ct. App.
4th Appellate Dist. (2nd Div. 2011).
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Campion v. Old Republic Home Protection Co., Inc., 861 F.Supp.2d 1139, 1142 ((S.D. Cal. 2012).
Id.
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Id.
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1 Local 525 Pension Plan, and Board of Trustees of Plumbers and Pipefitters Local Union 525
2 Apprentice and Journeyman Training Trust for Southern Nevada (collectively Plaintiffs) filed a
3 Complaint against Lowes Home Centers, LLC, a North Carolina limited liability company; and
4 Old Republic Home Protection Company, Inc.. (Compl. 1-2). Plaintiffs allege that, All Seasons
5 Interior & Exterior Maintenance, Inc. (All Seasons), a Nevada corporation, employed
6 individuals covered by a Collective Bargaining Agreement between All Seasons and Plumbers and
7 Pipefitters Union Local 525. (Compl. 2). Plaintiffs also allege that they provide health and
8 welfare, pension, and training benefits to Covered Employees under the Employee Retirement
9 Income Security Act of 1974 (ERISA). Plaintiffs also claim that demand has been made to All
10 Seasons to remit delinquent contributions and other amounts due to Plaintiffs, but All Seasons
11 failed and refused to pay the amounts. (Compl. 2).
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According to Plaintiffs Complaint, Old Republic was the original contractor that hired

13 All Seasons to work on various projects in or near Las Vegas, Nevada. (Compl. 3). Plaintiffs
14 claim that, as original contractor, Old Republic is liable for All Seasons indebtedness for labor
15 pursuant to N.R.S. 608.150. (Id.). Plaintiffs are demanding from Old Republic, among others,
16 an amount demonstrated at trial. (Compl. 4).
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ARGUMENT
I.

STANDARD FOR MOTIONS TO DISMISS


Pursuant to Rule 12(b)(5) of the Nevada Rules of Civil Procedure, courts may dismiss a

21 complaint or a portion of a complaint for failure to state a claim upon which relief may be granted.
22 See NEV. R. CIV. P. 12(b)(5)(2005). When entertaining a motion to dismiss pursuant to Rule 12(b)
23 (5), this Courts task is to determine whether or not the challenged pleading sets forth allegations
24 sufficient to make out the elements of a right to relief. Edgar v. Wagner, 101 Nev. 226, 227, 699
25 P.2d 110, 111 (1985). In making this determination, the allegations in the complaint must be
26 taken at face value and must be construed favorably in the plaintiffs behalf. Id. At 227-28, 11127 12 (citation omitted).
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Although Nevada is a notice pleading jurisdiction, a party must be given reasonable

2 advance notice of an issue to be raised and an opportunity to respond. Anastassatos v.


3 Anastassatos, 112 Nev. 319, 320, 913 P.2d 652, 653 (1996). The test for determining whether the
4 allegations of a cause of action are sufficient to assert a claim for relief is whether the allegations
5 give fair notice of the nature and basis of the claim for relief is whether the allegations give fair
6 notice of the nature and basis of the claim and the relief requested. Ravera v. City of Reno, 100
7 Nev. 68, 70, 675 P.2d 407, 408 (1984). Notably, the United States Supreme Court recently
8 heightened the sufficiency of pleading requirement. Namely, in Bell Atlantic Corp. v. Twombly,
9 550 U.S. 544, 127 S. Ct. 1955, 1964-65 (2007), the Supreme Court held that notice pleading
10 requires more than mere legal conclusions to defeat a motion to dismiss. See Carpenters
11 Southwest Administrative Corp. v. Thomas & Associates Manufacturing, 799 F.Supp.2d 1166 (D.
12 Nev. 2010) (holding that although a dismissal is appropriate only when the complaint does not
13 give the defendant fair notice of a legally cognizable claim and the grounds on which it rests, the
14 court is not required to accept as true allegations that are merely conclusory, unwarranted
15 deductions of fact or unreasonable inferences).
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In Twombly, the Supreme Court stated specifically that a plaintiff is obligated to provide

17 the grounds of his entitle(ment) to relief beyond mere labels and conclusions. Id. The
18 Supreme Court also held that a formulaic recitation of the elements of a cause of action will not
19 do. Id. As a result, a plaintiff must provide [f]actual allegationsto raise a right to relief above
20 the speculative levelon the assumption that all the allegations in the complaint are true (even if
21 doubtful in fact). Id. In Ashcrof v. Iqbal, 556 U.S. 662, ___, 29 S.Ct. 1937, 1951 (2009), the
22 United States Supreme Court further reaffirmed Towmbly and clarified that it applies to all civil
23 actions and proceedings in the United States district courts.5
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Plaintiffs Complaint fails to state a claim upon which relief can be granted against

25 Defendant. Therefore, this Court should dismiss Plaintiffs Complaint with prejudice.
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Although Twombly and Iqbal are federal decisions, they are highly instructive because the Nevada Rules of Civil
Procedure are modeled after their federal counterparts. See Preface, NEVADA RULES OF CIVIL PROCEDURE (2013)
(stating that the draft of the rules are based primarily on the federal rules).

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II.

PLAINTIFFS CLAIM SHOULD BE DISMISSED FOR LACK OF JURISDICTION


FOR BEING NON-JUSTICIABLE BECAUSE PLAINTIFFS FAILED TO
EXHAUST THEIR ADMINISTRATIVE REMEDIES BEFORE THE LABOR
COMMISSIONER.
The Nevada Rules of Civil Procedure provide that the defense of lack of jurisdiction over

the subject matter may, at the option of the defendant, be made by motion. Morrison v. Beach City

6 LLC, 116 Nev. 34, 991 P.2d 982, 983 (2000). NRCP 12(b)(1). NRCP 12(h)(3) provides that
7 [w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of
8 the subject matter, the court shall dismiss the action. Id. The burden of proving the jurisdictional
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requirement is properly placed on the plaintiff. Id.


Nevada Administrative Code 607.075 grants the Labor Commissioner jurisdiction to hear

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and decide claims for unpaid wages:


NAC607.075Claim for wages: Review by
Commissioner; notice of claim; action by employer;
issuance of determination. (NRS 233B.050, 607.160,
607.170)
1.Upon the filing with the Commissioner of a
claim for wages, the Commissioner will review the claim to
determine whether to take jurisdiction of the claim.
2.If the Commissioner, after reviewing the
claim and conducting such further inquiry as he deems
necessary, determines that the complainant has the ability to
employ private counsel or that the information submitted
with the claim is insufficient to substantiate the claim, the
Commissioner may decline to take jurisdiction of the claim
or may return the claim to the complainant for further
information necessary to substantiate the claim.
3.If the Commissioner takes jurisdiction of the
claim, the Commissioner will issue a notice of claim for
wages to the employer who is the subject of the claim and
cause a copy of the notice of claim for wages to be served
upon the employer.
4.A notice of claim for wages will set forth the
claim of the employee and include:

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(a)The name of the employer;


(b)The name of the employee;
(c)A copy of the claim for wages;
(d)A citation to the statute or regulation alleged
to have been violated;
(e)The hourly wage or commission rate claimed
by the employee;
(f)The wages alleged to be owed to the
employee;
(g)The basis on which the wages alleged to be
owed to the employee were calculated;
(h)Any penalties proposed by the
Commissioner; and
(i)Notice to the employer that he may object to
the notice of claim for wages.
5.Upon receiving a notice of claim for wages
pursuant to this section, the employer may:

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(a)If he does not object to the claim, settle the


claim by forwarding to the Commissioner for disbursement
to the employee the amount due the employee, including
any penalties, as set forth in the notice of claim for wages;
or
(b)If he objects to the claim, provide written
notice of his objection to the Commissioner within 15 days
after the date of service of the notice of claim for wages.
The written notice must provide the specific reasons upon
which the employer is objecting to the claim and the facts
that substantiate those reasons.
6.If the employer fails to respond to the notice
of claim for wages by either settling or objecting to the
claim as provided in subsection 5, the Commissioner may
issue a determination to the employer based on the facts as
set forth in the claim. If the Commissioner issues such a
determination, the Commissioner will cause service of the
determination to be effected in accordance with the
provisions of subsection 2 of NAC 607.065.
Nev. Admin. Code 607.075 (2014) (Emphasis added).
Nevada Administrative Code 608.155 (1) requires that before an employee may file a
claim for unpaid wages, the employee must make a good faith attempt to collect any wages due
from the employer at the usual place and method of payment of such wages:
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608.155 Claims for wages unpaid when due.


1. Before an employee may file a claim for
wages unpaid when due, the employee shall make a
good faith attempt to collect any wages due the
employee from an employer at the normal place and in
the normal method that payment is made to employees
of the employer.
Nev. Admin. Code 608.155 (1) (2014).

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A person generally must exhaust all available administrative remedies before initiating a

8 lawsuit, and failure to do so renders the controversy nonjusticiable. Mesagate Homeowners Assn.
9 v. City of Fernley, 124 Nev. 1092, 1098-99, 194 P.3d 1248, 1252-53 (2008). Failure to exhaust all
10 available administrative remedies before proceeding in district court renders the matter unripe for
11 district court review. Allstate Ins. Co. v. Thorpe, 123 Nev. 565, 170 P.3d 989, 993 (2007). The
12 purpose of the administrative process is to provide complainants with a system of expertise and
13 efficiency in dealing with their claims. Palmer v. State of Nevada, 106 Nev. 151, 154, 787 P.2d
14 803, 805 (1990). The exhaustion doctrine gives administrative agencies an opportunity to correct
15 mistakes and conserves judicial resources, so its purpose is valuable. Mesagate Homeowners
16 Assn., 124 Nev. 1092, 194 P.3d at 1252 (2008). Requiring exhaustion of administrative remedies
17 often resolves disputes without the need for judicial involvement. Id. Thus, a district court
18 properly dismisses a complaint for lack of subject matter jurisdiction based on the plaintiffs
19 failure to exhaust their administrative remedies before filing a complaint. Malecon Tobacco, LLC
20 v. State of Nevada ex rel. Dept. of Taxation, 118 Nev. 837, 59 P.3d 474, 477 (2002).
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III. THE COMPLAINT SHOULD BE DISMISSED FOR FAILING TO STATE A


CLAIM FOR WHICH RELIEF MAY BE GRANTED BECAUSE OLD REPUBLIC
CANNOT BE CONSIDERED AS AN ORIGINAL CONTRACTOR UNDER N.R.S.
608.150 LIABLE FOR INDEBTEDNESS FOR LABOR INCURRED BY THE
SUBCONTRACTOR AND THE COMPLAINT FAILS TO STATE THE TIME OF
THE TRANSACTIONS ALLEGED TO HAVE OCCURRED AND NO AMOUNT OF
CLAIM IS STATED.
A. OLD REPUBLIC CANNOT BE CONSIDERED AS AN ORIGINAL CONTRACTOR
UNDER N.R.S. 608.150.

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B. THE COMPLAINT FAILS


TIMELY MANNER

TO

ALLEGE THE TIME WHETHER IT WAS FILED

IN

NRS11.209Actions against principal contractors


by employees of subcontractors for wages or benefits.
1.No action against a principal contractor for the
recovery of wages due an employee of a subcontractor or
contributions or premiums required to be made or paid on
account of the employee may be commenced more than:
(a)Two years, if the principal contractor is
located in Nevada; or
(b)Three years, if the principal contractor is
located outside this state,

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after the date the employee should have received


those wages from or those contributions or premiums
should have been made or paid by the subcontractor.
2.No action against a principal contractor for
the recovery of benefits due an employee of a subcontractor
may be commenced more than:
(a)Three years, if the principal contractor is
located in Nevada; or
(b)Four years, if the principal contractor is
located outside this state,
after the date the employee should have received
those benefits from the subcontractor.

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Rule 8(a) of the Nevada Rules of Civil Procedure requires that the complaint contain an
amount representing damages:

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(a)Claims for Relief.A pleading which sets


forth a claim for relief, whether an original claim,
counterclaim, cross-claim, or third-party claim, shall
contain (1) a short and plain statement of the claim showing
that the pleader is entitled to relief, and (2) a demand for
judgment for the relief the pleader seeks. Relief in the
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alternative or of several different types may be demanded.


Where a claimant seeks damages of more than $10,000, the
demand shall be for damages in excess of $10,000
without further specification of amount.

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Nev. R. Civ. P. 8(a)(2014).

A complaint must set forth sufficient facts to establish all necessary elements of a claim for

6 relief so that the adverse party has adequate notice of the nature of the claim and relief sought.
7 Hay v. Hay, 100 Nev. 196,___, 678 P.2d 672, 674 (1984).
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Nevada courts determine jurisdiction solely on the basis of damages claimed in the

10 complaint. Morrison v. Beach City LLC, 116 Nev. 34, 991 P.2d 982, 983 (2000). In Royal
11 Insurance v. Eagle Valley Construction, Inc., 110 Nev. 119, 120, 867 P.2d 1146, 1147 (1994), the
12 district courts jurisdictional limit was not met because the claimed damages were less than the
13 jurisdictional amount as set forth in NRS 4.370(1)(b), and attorney fees and costs would not be
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considered in order to raise the amount in controversy above the jurisdictional limit of the district
court.
Where the issue of subject matter jurisdiction is raised, the District Court does not have the

18 option of simply looking the other way. The District Court must determine whether the case has a
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value of less than $10,000 and if so, the District Court must act. The Nevada Supreme Court has
said that subject matter jurisdiction is never waived. Issues of subject matter jurisdiction can be
raised at any time during the proceedings, and in almost any manner. See Meinhold v. Clark

23 County School District, 89 Nev. 56, 59, 506 P.2d 420, 422 (1973).
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The first problem that arises is who is included in the definition of original contractor. There is
no definition of original contractor in Chapter 608 of the Nevada Revised Statutes. Elsewhere,
the Nevada legislature has provided definitions of general building contractor,[1] general
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1 engineering contractor,[2] specialty contractor,[3] prime contractor,[4] higher-tier


2 contractor,[5] and lower-tier contractor;[6] but no definition of original contractor. In 1974, a
3 Nevada U.S. District Court held that a property owner who retained all the financial responsibility
4 and control over a construction project but did not have a contractors license, was in fact acting
5 within the capacity as a contractor under Nevada law.[7] Since that time, UBTFs have tried to
6 use MGM to claim that property owners are original contractors under NRS 608.150. Only one
7 such attempt, however, has resulted in a reported decisionand it was a loss for the UBTF.
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[8]

Nevertheless, many owners who have faced such claims have not taken the cases beyond the

9 complaint stage, because the economics of fighting the cases do not justify the expenditure of
10 attorneys fees and costs to do so. Therefore, claims under NRS 608.150 have been on the rise,
11 many times because the UBTFs think owners in these positions would rather settle than pay
12 lawyers to litigate their merits.[9]
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December ____, 2014.


MESSNER REEVES LLP
By

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MARK B. SCHELLERUP
Nevada Bar No. 7170
AARON S. MOTSCHENBACHER
Nevada Bar No. 12046
ANDREW R. GUZIK
Nevada Bar No. 12758
5556 S. Fort Apache Road, Suite 100
Las Vegas, Nevada 89148
Telephone: (702) 363-5100
Facsimile: (702) 363-5101
Attorneys for Defendant, Old Republic
Home Protection Company, Inc.

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PROOF OF SERVICE
Board of Trustees of Plumbers and Pipefitters Local 525 v. Lowes Home Centers, LLC
Case No.: A-14-704846-C
I, Ruth M. Lynch, declare:

I am over the age of eighteen (18) years and not a party to the within entitled action. I am
4 employed by Messner Reeves LLP, 5556 S. Fort Apache Road, Suite 100, Las Vegas, Nevada
89148. I am readily familiar with Messner Reeves LLP, s practice for collection and processing of
5 documents for delivery by way of the service indicated below.
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On

__, 2014, I served the following document(s):

7 DEFENDANT OLD REPUBLIC HOME PROTECTION COMPANY, INC.S MOTION TO


DISMISS PLAINTIFFS FIRST AMENDED COMPLAINT
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on the interested party(ies) in this action as follows:
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Adam P. Segal, Esq.
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Bryce C. Loveland, Esq.
Brownstein Hyatt Farber Schreck, LLP
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100 North City Parkway, Suite 1600
Las Vegas, NV 89106-4614
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Tel: 702-382-2101
Fax: 702-382-8135
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asegal@bhfs.com
bloveland@bhfs.com
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By Mail. By placing said document(s) in an envelope or package for collection and
15 mailing, addressed to the person(s) at the address(es) listed above, following our ordinary business
practices. I am readily familiar with the firm's practice for collection and processing of mail.
16 Under that practice, on the same day that mail is placed for collection and mailing, it is deposited
in the ordinary course of business with the U.S. Postal Service, in a sealed envelope or package
17 with the postage fully prepaid.

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By Facsimile Transmission. Based on an agreement of the parties to accept service


by facsimile transmission or by Court order; or as a courtesy copy, I caused said document(s) to be
19 transmitted to the person(s) at the facsimile number(s) listed above. The facsimile transmission
was reported as complete and a copy of the transmission report will be maintained with the
20 document(s) in this office.
By Electronic Service. Pursuant to Administrative Order 14-2 and Rule 9 of the
NEFCR I caused said documents(s) to be transmitted to the person(s) identified in the E-Service
22 List for this captioned case in Odyssey E-File & Serve of the Eighth Judicial District Court,
County of Clark, State of Nevada. A service transmission report reported service as complete and a
23 copy of the service transmission report will be maintained with the document(s) in this office.
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I declare under penalty of perjury under the laws of the State of Nevada that the foregoing
is true and correct.

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Ruth M. Lynch

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