from a district court order granting a motion to dismiss in a
defamation action. Eighth Judicial District Court, Clark
County; Rob Bare, Judge.
& Kemp and James P. Kemp and Victoria L. Neal, Las Vegas,
Billboards, LLC, in Pro Se.
Vincent Bartello, in Pro Se.
PICKERING, GIBBONS AND HARDESTY, JJ.
appeal, we address whether allegedly defamatory statements
made by an employer regarding an employee's alleged abuse
of the workers' compensation program to obtain
prescription pain medication, a violation of NRS 616D.300,
are absolutely privileged. While we have recognized that the
common law absolute privilege applies to quasi-judicial
proceedings, NRS 616D.020 provides a conditional privilege
for statements alleging a violation of NRS 616D.300. Because
the district court erred in finding that the allegedly
defamatory statements in this case were absolutely privileged
and did not determine whether the conditional privilege in
NRS 616D.020 applied, we reverse the order of dismissal and
remand this matter to the district court for further
AND PROCEDURAL HISTORY
Sean Fitzgerald was employed as a head fleet mechanic by
respondent Mobile Billboards, LLC, which is owned by
respondent Vincent Bartello (collectively, respondents).
Shortly after the start of his employment, appellant
sustained a work-related injury. Appellant filed a
workers' compensation claim with respondents'
insurance company. Thereafter, respondents made statements to
the insurance company expressing concern regarding
appellant's usage of prescription pain medication, and
the insurance company informed appellant of these statements
in a letter. The insurance company also repeated the
statements to appellant's workers' compensation
filed a complaint in the district court against respondents
for defamation, alleging that respondents' statements
were false and harmed his reputation and livelihood. In
particular, appellant alleged that respondents stated,
"[appellant] was attempting to obtain more and different
prescription painkillers after his industrial injury, that
multiple prescription painkillers, and prescriptions for
additional painkillers, were found in [appellant's]
personal property." Respondents filed a motion to
dismiss pursuant to NRCP 12(b)(5), arguing that their
statements were immune under the absolute privilege. The
district court agreed with respondents and dismissed the
case. This appeal followed.
court reviews a district court's decision to dismiss a
complaint pursuant to NRCP 12(b)(5) rigorously, with all
alleged facts in the complaint presumed true and all
inferences drawn in favor of the plaintiff. Buzz Stew,
LLC v. City of N. Las Vegas, 124 Nev. 224, 227-28, 181
P.3d 670, 672 (2008). A complaint should be dismissed for
failure to state a claim only when "it appears beyond a
doubt that [the plaintiff] could prove no set of facts,
which, if true, would entitle [him] to relief."
Id., at 228, 181 P.3d at 672. Further, this court
reviews a party's legal entitlement to claim an absolute
or conditional privilege de novo. Clark Cty. Sch, Dist.
v. Virtual Educ. Software, Inc., 125 Nev. 374, 382, 213
P.3d 496, 502 (2009).