TAE-SI KIM, AN INDIVIDUAL; AND JIN-SUNG HONG, AN INDIVIDUAL, Appellants,
DICKINSON WRIGHT, PLLC, A NEVADA PROFESSIONAL LIMITED LIABILITY COMPANY; JODI DONETTA LOWRY, ESQ., AN INDIVIDUAL; JONATHAN M.A. SALLS, ESQ., AN INDIVIDUAL; ERIC DOBBERSTEIN, ESQ., AN INDIVIDUAL; AND MICHAEL G. VARTANIAN, ESQ., AN INDIVIDUAL; Respondents.
from a district court order granting a motion to dismiss in a
legal malpractice action. Eighth Judicial District Court,
Clark County; James Crockett, Judge.
Brandon L. Phillips, Attorney at Law, PLLC, and Brandon L.
Phillips, Las Vegas, for Appellants.
Law Group and Steve L. Morris and Ryan M. Lower, Las Vegas,
THE COURT EN BANC. 
case allows us to clarify the interplay between Nevada's
litigation malpractice tolling rule and 28 U.S.C. §
1367(d) (2012), a federal tolling statute, on a legal
malpractice claim. We first address the application of §
1367(d), which tolls the statute of limitations for a
state-law claim joined with a federal claim under
supplemental jurisdiction while the state-law claim is
pending in federal court, and for at least 30 days
after the state-law claim's dismissal from federal court.
We clarify that § 1367(d) distinguishes between an
"action" and a "claim," and thus, the
state-law claim's dismissal is sufficient to end the
federal tolling period. Finally, we reaffirm our prior
holdings that the litigation malpractice tolling
does not apply to non-adversarial proceedings.
28 U.S.C. § 1367(d) tolled claims brought by appellants
Tae-Si Kim and Jin-Sung Hong (collectively, Kim) only until
the claims were dismissed, we hold that the district court
erred by finding that Kim's claims against Charles M.
Damus, Esq., were tolled until the remaining claims in the
federal action were also dismissed. Furthermore, because the
litigation malpractice tolling rule does not apply to the
claims against Damus, Kim's claims against Damus
potentially became barred by the statute of limitations
during respondents' representation of Kim. Since the
litigation malpractice tolling rule does apply to the claims
against respondents, we further hold that the district court
erred by finding that Kim's claims against respondents
were timed-barred by Nevada's statute of limitations for
legal malpractice claims.
AND PROCEDURAL HISTORY
hired Damus to handle a real property dispute in December
2008. Damus failed to file a complaint to protect Kim's
interest in the property, and the property was foreclosed on.
Kim fired Damus in September 2009. One month prior to firing
Damus, Kim hired the law firm of Gibson Lowry Burris LLP (the
Gibson firm) to also pursue claims related to the property
dispute. Under the Gibson firm's representation, Kim
filed a complaint regarding the property in Nevada's
federal district court. Kim later amended the complaint on
March 2, 2010, to include claims against Damus for legal
malpractice, negligent undertaking to perform services, and
unjust enrichment for his failure to file a complaint
stopping the foreclosure of the property. During this time,
respondent Dickinson Wright, PLLC, absorbed the Gibson firm.
Damus filed a motion to dismiss the claims against him for
lack of subject matter jurisdiction, which the federal court
granted on December 6, 2010.
entered into an amended and restated legal services agreement
with Dickinson Wright, during which time Kim's federal
action was still ongoing. More than three years later, Kim
emailed a Dickinson Wright attorney asking whether the Gibson
firm had previously filed Kim's malpractice claims
against Damus in state court. The attorney responded that the
Gibson firm had not filed a state action against Damus, that
Dickinson Wright would not do so because it was terminating
its representation of Rim, and that Kim should contact other
counsel if they wished to pursue such claims. The federal
district court dismissed the remaining federal claims with
prejudice on September 4, 2015.
filed a malpractice complaint in state court against
Dickinson Wright on June 12, 2017. Kim argued that Dickinson
Wright failed to sue Damus in state court and thereafter
allowed the statute of limitations on those claims to run.
Kim argued that 28 U.S.C. § 1367(d) only tolled the
claims against Damus until the federal court dismissed the
claims and, therefore, the statute ran during the firm's
representation. Kim also argued that Nevada's litigation
malpractice tolling rule did not apply to the claims against
Damus, such that those claims are now barred, but it did
apply to toll the claim against Dickinson Wright during the
federal litigation, and therefore, the claim against
Dickinson Wright was not time-barred. Conversely, Dickinson
Wright argued that § 1367(d) and Nevada's litigation
malpractice tolling rule tolled Kim's claims against
Damus until the federal action ended and, therefore, Kim had
plenty of time to sue the attorney but let the statute of
limitations run. Further, Dickinson Wright argued that
Kim's malpractice claim against it was time-barred.
district court granted the motion to dismiss, finding that
(1) 28 U.S.C § 1367(d) tolled the statute of limitations
on any state action against Damus until September 4, 2015,
when the federal action was dismissed, so Kim could have
brought suit then as advised by Dickinson
Wright; (2) under Nevada's litigation
malpractice tolling rule, Kim's legal malpractice claim
against Damus did not accrue until the end of the federal
action when damages were certain; and (3) Kim's claim
against Dickinson Wright was time-barred under NRS
11.207. Kim appealed.
rigorously review an order granting an NRCP 12(b)(5) motion
to dismiss, recognizing all factual allegations in the
complaint as true and drawing all inferences in the
plaintiffs' favor, and reviewing all legal conclusions de
novo. Buzz Stew, LLC v. City of N. Las Vegas, 124
Nev. 224, 227-28, 181 P.3d 670, 672 (2008). "A complaint
should only be dismissed for failure to state a claim if it
appears beyond a doubt that it could prove no set of facts,
which, if true, would entitle it to relief."