Consolidated appeals from district court orders granting a
motion to dismiss in a tort action and awarding attorney fees
and costs. Eighth Judicial District Court, Clark County;
Tierra Danielle Jones, Judge.
& Kemp and James P. Kemp, Las Vegas, for Appellant.
Hill PLLC and Deanna L. Forbush and Jeremy J. Thompson, Las
Vegas, for Respondent.
THE COURT EN BANC.
these appeals, we clarify the applicable limitations period
for wrongful termination claims and resolve a challenge to a
district court order awarding attorney fees. In doing so, we
conclude that claims for wrongful termination are subject to
the limitations period prescribed by NRS 11.190(4)(e) for
injuries or death caused by another person's wrongful act
or neglect. Because the district court properly applied the
two-year limitations period set forth in NRS 11.190(4)(e)
when it granted respondent's motion to dismiss under NRCP
12(bX5), we affirm its order of dismissal in Docket No.
76062. As we have not previously addressed the appropriate
limitations period for a wrongful termination claim, this
presented a matter of first impression, and the district
court therefore should not have awarded attorney fees on the
basis that appellant's claim was untimely filed and thus
groundless under NRS 18.010(2)(b). Accordingly, we reverse
its order awarding attorney fees in Docket No. 76636.
AND PROCEDURAL HISTORY
appeal arises from a former employee's wrongful
termination claim against her former employer. Appellant
Antonette Patush alleged that respondent Las Vegas Bistro
terminated her employment in retaliation for a then-recent
workers' compensation claim that Patush made for an
injury that she suffered while at work. Patush was fired on
July 3, 2014, and filed her complaint alleging wrongful
termination on March 21, 2018. Las Vegas Bistro moved to
dismiss the complaint, arguing that the two-year statute of
limitations under NRS 11.190(4)(e) applied because wrongful
termination is an action in tort and that the limitations
period had therefore expired. The district court agreed that
Patush's claims were time-barred and granted the motion
to dismiss. The district court also awarded Las Vegas Bistro
attorney fees and costs. This appeal followed.
appeal, Patush argues that dismissal was improper because NRS
11.190(4)(e) should not have applied to her wrongful
termination claim and that attorney fees were not warranted
because her claim involved an issue of first impression. We
rigorously review NRCP 12(b)(5) dismissals on appeal,
presuming all factual allegations in the complaint as true
and drawing all inferences in the complainant's favor.
Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev.
224, 227-28, 181 P.3d 670, 672 (2008). Dismissal is
appropriate "only if it appears beyond a doubt that [the
plaintiff] could prove no set of facts, which, if true, would
entitle [the plaintiff] to relief." Id. at 228,
181 P.3d at 672. Where the statute of limitations has run,
dismissal is appropriate. In re Amerco Derivative
Litig., 127 Nev. 196, 228, 252 P.3d 681, 703 (2011).
Whether dismissal based on the two-year limitations period in
NRS 11.190(4Xe) was warranted here presents a question of law
that we review de novo. See Perry v. Terrible Herbst,
Inc., 132 Nev. 767, 769, 383 P.3d 257, 259 (2016)
(reviewing judgment on the pleadings under NRCP 12(c) on
statute of limitations grounds de novo). We review
Patush's challenge to the district court's attorney
fees award for an abuse of discretion. See Baldonado v.
Wynn Las Vegas, LLC, 124 Nev. 951, 967, 194 P.3d 96, 106
termination statute of limitations
11.190(4)(e) provides a two-year limitations period for
"an action to recover damages for injuries to a person
or for the death of a person caused by the wrongful act or
neglect of another." Where a statute does not set forth
an express limitations period for a particular cause of
action, as is the case for wrongful termination, we consider
analogous causes of action for which express limitations
periods are available. Perry, 132 Nev. at 770-71,
383 P.3d at 260. This consideration requires us to first
determine the nature of a cause of action for wrongful
termination. See Stalk v. Mushkin, 125 Nev. 21, 25,
199 P.3d 838, 841 (2009). A wrongful termination claim
provides a former employee with a remedy where her employer
has wronged her by terminating her employment in violation of
public policy, such as by retaliating against the employee
for exercising workers' compensation rights. See
Hansen v. Harrah's, 100 Nev. 60, 63-65, 675 P.2d
394, 396-97 (1984). More broadly, the claim involves injury
to a person by violating her rights to engage in certain
behavior that is protected by public policy, such as seeking
workers' compensation, performing jury duty, or refusing
to violate the law. D'Angelo v. Gardner, 107
Nev. 704, 712, 819 P.2d 206, 212 (1991). Because a wrongful
termination claim involves an injury to an ex-employee's
personal rights caused by a wrongful act of another, we
conclude that the claim is analogous to the cause of action
described in NRS 11.190(4)(e) and that NRS 11.190(4)(e)
therefore sets forth the relevant limitations period. As the
district court applied this limitations period in concluding
that Patush's complaint was time-barred, the district
court did not err in this regard.
determination that the two-year period set forth in NRS
11.190(4)(e) applies to wrongful termination claims accords
with our caselaw in an analogous context, analogous federal
authority, and other jurisdictions' caselaw. Where we
have previously addressed the appropriate limitations period
for an employment discrimination claim, we have similarly
applied a two-year limitations period for a different type of
employment-rights suit. Palmer v. State, 106 Nev.
151, 153, 787 P.2d 803, 804 (1990); see also Torre v.
J.C. Penney Co., 916 F.Supp. 1029, 1030 (D. Nev. 1996)
(taking Palmer for the proposition that a two-year
limitations period applied to a wrongful termination claim).
Where the Ninth Circuit has considered the Nevada limitations
period for a claim alleging a civil rights violation, it too
has concluded that NRS 11.190(4)(e) provided the appropriate
term within which to seek relief for a different type of
violation of personal rights. Perez v. Seevers, 869
F.2d 425, 426 (9th Cir. 1989). The Ninth Circuit upheld as
well the use of the personal-injury limitations period for
wrongful termination claims in applying Arizona law.
Felton v. Unisource Corp., 940 F.2d 503, 512 (9th
Cir. 1991). And the Fifth Circuit likewise held that the
personal-injury limitations period provided the most
analogous limitations period for a claim alleging wrongful
termination for refusing to perform an illegal act.
Riddle v. Dyncorp Int'l Inc., 666 F.3d 940, 943
(5th Cir. 2012) (applying Texas law).
unpersuaded by Patush's arguments against applying the
NRS 11.190(4Xe) limitations period. First, we reject
Patush's argument that the "catch-all"
provision in NRS 11.220 provides a four-year limitations
period for wrongful termination claims because that provision
does not apply where the court has found an analogous cause
of action with an express statute of limitations. See NRS
11.220 ("An action for relief, not hereinbefore provided
for, must be commenced within 4 years after the cause of
action shall have accrued."); Perry, 132 Nev.
at 773-74, 383 P.3d at 262 (applying the most closely
analogous period rather than NRS 11.220). We next reject
Patush's argument that the claim is more analogous to an
action based on an unwritten contract. See NRS
11.190(2)(c) (providing a four-year limitations period for
"[a]n action upon a contract, obligation or liability
not founded upon an instrument in writing"). While a
wrongful termination action arises out of the
employee-employer special relationship, 1 it does not require
and is not based on an employment contract, whether written
or not. D'Angelo, 107 Nev. at 712, 819 P.2d at
212. As we have discussed, the claim fundamentally seeks
redress for a violation of personal rights protected by
public policy, not of a contractual dispute. We also reject
Patush's argument that NRS 11.190(4)(e) is void as
unconstitutionally vague in violation of due process. NRS
11.190(4)(e) applies to "[a]n action to recover damages