NICKOLAS CARTER v. ASHLEY REPP (2026)

ORDER OF AFFIRMANCE

This is an appeal from a district court order granting an anti-SLAPP special motion to dismiss appellant's counterclaims for defamation, civil conspiracy, and other torts. Eighth Judicial District Court, Clark County; Joseph Hardy, Jr., Judge.

FACTS AND PROCEDURAL HISTORY

This is the third appeal to come before us that addresses an anti-SLAPP motion challenging defamation counterclaims filed by appellant Nickolas Carter against women who have accused him of sexual assault. Ruth v. Carter, No. 86582, 2024 WL 4903262 (Nev. Nov. 26, 2024) (Order Affirming in Part, Reversing in Part and Remanding); Schuman, Henschel v. Carter, No. 87531, 2025 WL 325874 (Nev. Jan. 28, 2025) (Order of Affirmance). This order focuses on facts specific to the action between Carter and respondent Ashley Repp.

In 2023, Repp sued Carter for sexual assault and negligent and intentional infliction of emotional distress. She alleged that in 2003, when she was 15, she visited the Carter family compound in Marathon, Florida, where 23-year-old Carter provided her with alcohol and coerced her into having sex. A few months later, Repp reported this to authorities in Pennsylvania, where she was living, but those authorities declined to pursue charges.

In response to Repp's suit, Carter filed counterclaims for defamation, civil conspiracy, intentional interference with prospective economic advantage and contractual relations, and abuse of process. These counterclaims were predicated on Repp's statements calling Carter a “rapist” and “serial rapist,” identified in four social media posts and through her participation in two documentaries, which Carter asserted were part of a broader conspiracy to defame and extort him. On Carter's motion, Repp's case was consolidated with a similar suit filed by another accuser, Shannon Ruth, in which Carter filed similar counterclaims alleging a conspiracy between Ruth, Melissa Schuman Henschel, Jerome Schuman, and others. Regarding the substance of Repp's allegations, Carter acknowledged—and later affirmed in a sworn declaration—that he had sex with Repp in 2003 but averred that the sex was consensual and that it only occurred because Repp misrepresented that she was 18.

Repp filed an anti-SLAPP special motion to dismiss Carter's counterclaims. While she incorporated the pleadings and other evidence previously submitted in hers and Ruth's consolidated case, Repp's anti-SLAPP argument relied almost entirely on two key facts: (1) Carter's admission that he had sex with Repp in 2003, and (2) that Repp was 15 at the time. In Repp's view, because these two facts, taken together, satisfied the technical definition of statutory rape (i.e., sex between an adult (Carter, age 23) and a minor (Repp, age 15)), her statements about Carter were true and thus entitled to protection under anti-SLAPP law. She did not, however, verify her complaint or submit an affidavit or declaration attesting to the truthfulness of her pleadings.

After first permitting Repp to supplement her initial motion with a sworn declaration verifying her age and affirming that she made the communications at issue in good faith, the district court dismissed Carter's counterclaims, finding that Carter's undisputed conduct of having sex with Repp in 2003 constituted statutory rape and that, therefore, Repp's statements were entitled to the absolute defense of truth.

DISCUSSION

On appeal, Carter argues that under the law of the case doctrine, prior rulings in Ruth and Schuman Henschel compel the denial of Repp's anti-SLAPP motion, at least in part. Carter also argues that the district court erred by deriving adverse judicial admissions from his pleadings and by failing to deny Repp's thin initial special motion as facially deficient. Regarding the substance of the district court's anti-SLAPP analysis, Carter asserts that it erred by both (a) concluding that Repp's statements were entitled to the absolute defense of truth in reliance upon a Florida criminal statute, and (b) failing to conclude that Carter met his burden to show actual malice under the summary judgment standard applied at the second prong of the anti-SLAPP analysis. None of these arguments establishes a basis for reversal.

Under Nevada anti-SLAPP law, a “party may file a special motion to dismiss if an action is filed in retaliation to the [movant's] exercise of free speech.” Coker v. Sassone, 135 Nev. 8, 11-12, 432 P.3d 746, 749 (2019); NRS 41.660. This court “review[s] a decision to grant or deny an anti-SLAPP special motion to dismiss de novo.” Smith v. Zilverberg, 137 Nev. 65, 67, 481 P.3d 1222, 1226 (2021).

The law of the case doctrine does not apply to this appeal

Carter argues that, under the law of the case doctrine, our prior rulings in Ruth and Schuman Henschel require the denial of Repp's anti-SLAPP motion, at least insofar as those cases relate to the conspiracy Carter alleges involving Repp, Ruth, and the Schumans.

Whether the law of the case doctrine applies is a question of law reviewed de novo. Litchfield v. Tucson Ridge Homeowners Ass'n, 140 Nev., Adv. Op. 57, 555 P.3d 267, 269 (2024). The law of the case doctrine provides that “[w]hen an appellate court states a principle or rule of law necessary to a decision, [that] principle or rule becomes the law of the case and must be followed throughout its subsequent progress, both in the lower court and upon subsequent appeal.” Wickliffe v. Sunrise Hosp., Inc., 104 Nev. 777, 780, 766 P.2d 1322, 1324 (1988); see also Dickinson v. Cosby, 250 Cal. Rptr. 3d 350, 362 (Ct. App. 2019) (applying the law of the case doctrine to orders resolving anti-SLAPP motions). “The defining feature of the law-of-the-case doctrine is that it applies only within the same case.” Edmonds v. Smith, 922 F.3d 737, 739 (6th Cir. 2019). This limitation preserves “the bedrock principle of due process that ‘one is not bound by a judgment ․ in a litigation in which he is not designated as a party’ ” and also maintains the distinction between the law of the case doctrine and related concepts like claim and issue preclusion, which do operate across different cases. GMAC Mortg., LLC v. McKeever, 651 F. App'x 332, 339 (6th Cir. 2016) (quoting Hansberry v. Lee, 311 U.S. 32, 40 (1940)) (“Unlike claim or issue preclusion, however, the law-of-the-case doctrine is not used to prevent relitigation of the same issues across different cases; rather, the purpose ․ is to ensure that the same issue presented a second time in the same case . . . should lead to the same result.” (internal quotation marks omitted)). Relevant here, consolidated cases are not considered the same case. Id. (recognizing that consolidation does not merge suits into a single action); see also In re Estate of Sarge, 134 Nev. 866, 870-71, 432 P.3d 718, 722 (2018) (“Consolidated cases retain their separate identities ․”).

Carter's appeal arises from a different case than Ruth and Schuman Henschel, despite the factual overlap and consolidation. As discussed below, this case presents unique factual and legal issues not addressed in the other cases, arising from Repp's status as a minor at the time of the alleged sexual assault. The law of the case doctrine therefore does not apply to this appeal. Moreover, “the deep-rooted historic tradition that everyone should have his own day in court” further cautions against importing past rulings in Carter's favor into a different case involving a different party and different legal considerations. Taylor v. Sturgell, 553 U.S. 880, 892-93 (2008) (internal quotation marks omitted) (disapproving the concept of virtual representation and declining to find that one plaintiff's lawsuit precluded a later suit by his friend). We thus proceed with de novo review of the district court order while nonetheless recognizing Ruth and Schuman Henschel for their persuasive precedential value.

The district court did not err by taking narrow judicial admissions from Carter's pleadings

Carter also argues that the district court took his pleadings out of context and improperly interpreted them as an adverse admission.

Judicial admissions are “deliberate, clear, unequivocal statements by a party about a concrete fact within that party's knowledge.” Reyburn Lawn & Landscape Designers, Inc. v. Plaster Dev. Co., 127 Nev. 331, 343, 255 P.3d 268, 276 (2011) (internal quotation marks omitted). “The general rule is That a pleading containing an admission is admissible against the pleader ․’ ” Whittlesea Blue Cab Co. v. McIntosh, 86 Nev. 609, 611, 472 P.2d 356, 357 (1970) (quoting Dolinar v. Pedone, 146 P.2d 237, 241 (Cal. Dist. Ct. App. 1944)); Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 227 (9th Cir. 1988) (“[S]tatements of fact contained in a brief may be considered admissions of the party in the discretion of the district court.”).

Across his counterclaims, his briefing below and before this court, and his sworn declaration, Carter repeatedly affirmed that he had sex with Repp in 2003, though he characterized the nature of the interaction differently than Repp did, asserting that it was consensual and that he believed she was of legal age. From those affirmations, the district court adopted a single underlying fact—that Carter and Repp had sex—and reasoned from there to reach a legal conclusion about that fact's significance (e.g., that Repp's rape accusations were technically true because, as a minor, she was not legally capable of consent). Carter thus takes issue with the district court's legal determination regarding the effect of the admission, rather than with the fact itself. But the district court did not err by treating this undisputed fact as an admission and incorporating it into its analysis.

The district court did not abuse its discretion by permitting Repp to submit a supplemental declaration

Carter argues that because anti-SLAPP procedure is strictly applied, the district court should have rejected Repp's initial special motion due to Repp's failure to provide sufficient supporting evidence (i.e., age verification) up front. He further argues that the district court erred by permitting her to cure that initial failure with a supplementary declaration.

NRS 41.660(3)(a) requires that an anti-SLAPP movant show by a preponderance of the evidence that their communications were made in good faith and in furtherance of a First Amendment right. See Spirtos v. Yemenidjian, 137 Nev. 711, 718, 499 P.3d 611, 618 (2021) (explaining that an anti-SLAPP motion must provide “a factual basis for why [the movant] believed [their] alleged [defamatory] statement ․ was true”). To assess whether a movant has met their burden, courts may broadly “[c]onsider such evidence, written or oral, by witnesses or affidavits, as may be material in making a determination.” NRS 41.660(3)(d). While affidavits or declarations may be sufficient to carry the burden, they are not required, and courts may evaluate other forms of evidence, such as pleadings. See Coker, 135 Nev. at 11, 432 P.3d at 749 (citing California law permitting consideration of pleadings to resolve anti-SLAPP motions); Barnes v. Scotch Pine Homeowners Ass'n, No. 82348, 2022 WL 17087693, at *2 (Nev. Nov. 18, 2022) (Order of Reversal and Remand) (“[W]hen no affidavit is attached, courts look to the [other] evidence the movant provides to show that statements were made in good faith.”).

Further, courts generally have discretion to allow supplemental pleadings as they see fit, even where “the original pleading is defective in stating a claim or defense.” NRCP 15(d). In the anti-SLAPP context, courts may accept declarations even after an initial special motion is filed, as long as such declarations do not introduce entirely new evidence. See, e.g., Barrett v. Negrete, Nos. 03-56663, 04-55193, 2005 WL 663506, at *2 n.2 (9th Cir. 2005) (concluding that the district court's exclusion of a supplemental declaration in evaluating an anti-SLAPP motion was clear error); RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., 270 Cal. Rptr. 3d 425, 442 (Ct. App. 2020) (rejecting the argument that courts cannot accept declarations on reply to supplement points in the moving papers); Jay v. Mahaffey, 161 Cal. Rptr. 3d 700, 711-12 (Ct. App. 2013) (same). Moreover, while the anti-SLAPP scheme does impose certain restrictions, it nonetheless grants courts substantial discretion in applying those restrictions and nothing in NRS 41.660 eliminates the discretion to elicit clarification where necessary. See, e.g., NRS 41.660(6) (permitting courts to “modify any deadlines pursuant to this section ․ if such modification would serve the interests of justice”); Chitsazzadeh v. Kramer & Kaslow, 130 Cal. Rptr. 3d 910, 916 (Ct. App. 2011) (recognizing judicial discretion to consider untimely anti-SLAPP motions “if it appears that the motion has merit”).

We agree with Carter that Repp's initial showing was thin; she certainly took a risk staking her entire anti-SLAPP motion on the argument that Carter conceded a crucial fact—that the two had sex—without providing the age verification necessary to make that fact determinative. But while the district court could have summarily denied her special motion on that basis, it had discretion to permit Repp to supplement her initial showing with additional evidence. Rather than impermissibly provide entirely new evidence, Repp's declaration supplemented allegations already made in her initial motion—namely, regarding her age and the good faith nature of her statements. The district court did not abuse its discretion by soliciting and accepting this supplemental evidence.

The district court did not err by finding that Repp met her first-prong burden under the anti-SLAPP framework

We now turn to the merits of the district court's anti-SLAPP analysis. NRS 41.660 establishes the two-prong burden-shifting framework that governs anti-SLAPP motions like Repp's. The first prong requires the moving party to show, “by a preponderance of the evidence, that the [challenged action targets] a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern.” NRS 41.660(3)(a). The communication(s) at issue must both (1) fall within one of four statutorily defined categories of speech, one of which is speech “made in direct connection with an issue of public interest in a place open to the public or in a public forum”; and (2) have been made truthfully or without knowledge of its falsehood. NRS 41.637(4); Stark v. Lackey, 136 Nev. 38, 40, 458 P.3d 342, 345 (2020). Then, under the second prong, the nonmoving party must provide “prima facie evidence [of] a probability of prevailing on [their] claim[s].” NRS 41.660(3)(b).

Conducting the anti-SLAPP analysis requires first understanding which communications are at issue. See Thomson v. Helix Elec. of Nev., LLC, Nos. 80889, 81159, 81892, 84216, 2023 WL 8291871, at *4 (Nev. Nov. 30, 2023) (Order Affirming in Part, Reversing in Part and Remanding) (noting that the moving party “must identify the [communications] alleged in the complaint that it asserts are protected”) (alteration in original) (quoting Bonni v. St. Joseph Health Sys., 491 P.3d 1058, 1066 (Cal. 2021)). In her anti-SLAPP motion, Repp identified numerous types of communications, ranging from her social media posts to the sexual assault complaint itself, that may have prompted Carter's counterclaims. But Carter's response indicates that his argument is focused on six of Repp's communications in particular: four of her social media posts and her participation in two documentaries describing Carter as a “rapist.” We thus limit our analysis to those communications. See Ruth, 2024 WL 4903262, at *1 n.2 (limiting analysis to statements found in Carter's counterclaims).

The parties do not dispute that the communications at issue fit the statutory categories of protected speech. Indeed, the communications were made in a public forum or in a place open to the public (i.e., social media, documentaries) and in connection with accusations involving a prominent public figure (Carter). NRS 41.637(4); see also Ruth, 2024 WL 4903262, at *2 (addressing similar accusations). The crux of the issue is instead whether the challenged statements were made in good faith. On that point, what matters is that “the ‘gist or sting’ of the communications as a whole” are substantially true or were, at least, made without knowledge of their falsehood. Rosen v. Tarkanian, 135 Nev. 436, 437, 453 P.3d 1220, 1222 (2019). As the moving party, Repp faces “a far lower burden of proof than [Carter, the nonmoving party] must meet under prong two to prevail on his defamation claims.” Id. at 440, 453 P.3d at 1224. She need not comprehensively catalog the truth of every communication. Stark, 136 Nev. at 43, 458 P.3d at 347 (accepting an affidavit that testified to general truthfulness but “did not address the individual factual allegations in the statements or specifically attest to the truthfulness of the speaker”). But a movant's evidence of good faith will only be accepted “absent contradictory evidence in the record.” Id.

We divide Repp's statements into two categories based on their distinct meanings: those calling Carter a “rapist” and those calling him a “serial rapist.” See Ruth, 2024 WL 4903262. at *2 (distinguishing between statements alleging sexual assault of the speaker and those alleging “serial” sexual assault of others). Regarding the first set of statements (that Carter is a “rapist”), the district court concluded that Repp was entitled to an absolute defense of truth based on Repp's declaration and the district court's finding that Carter's conduct fit the definition of statutory rape according to dictionaries and relevant law in Florida. Repp's declaration attested to her good faith belief that she was statutorily raped in 2003 because she “was a minor and unable to consent to sexual intercourse.” Carter argues that a discretionary Florida statute under which he was not charged is irrelevant to a Nevada civil proceeding, but because subjective belief is relevant to the good faith requirement, see NRS 41.637 (treating as relevant the speaker's “knowledge”), we credit the district court's use of relevant dictionary and legal definitions to the extent that they inform Repp's own understanding of her encounter with Carter and how to characterize it. Carter also attempts to refute Repp's truthfulness by asserting that she consented to having sex with him, she told him she was 18 at the time, and he did not know her true age, but Florida law specifically excludes such elements from the definition of statutory rape. See Fla. Stat. Ann. §§ 800.04(2)-(3) (West 2022) (stating that “[n]either the victim's lack of chastity nor the victim's consent is a defense” and that “[t]he perpetrator's ignorance of the victim's age, the victim's misrepresentation of his or her age, or the perpetrator's bona fide belief of the victim's age cannot be raised as a defense”); Khianthalat v. State, 935 So. 2d 583, 586 (Fla. Dist. Ct. App. 2006) (discussing the rationale for eliminating consent as a defense under Fla. Stat. § 800.04). Where the undisputed facts align with the definition of statutory rape, it is not false to use that label. Because the evidence does not show that Repp made the “rapist” statements knowing that it was false to do so absent the “statutory” qualifier, the statements therefore pass the first prong of the anti-SLAPP analysis.

We next evaluate Repp's statements calling Carter a “serial rapist,” which carries additional and somewhat different connotations. Upon review of the challenged statements, the specific communication at issue is a tweet calling Carter a “#serialrapist,” authored by another user and retweeted by Repp. Repp attested in her sworn declaration only that she “believe[d] in good faith that ․ Carter raped other girls besides [her]self.” On appeal, she responds that Carter failed to establish that Repp knew that the other women's claims were false, and in fact it was understandable for her to believe those other women given her belief that Carter had statutorily raped her. In Ruth, this court reviewed much of the same evidence Carter relies on here and concluded that it did not sufficiently address Ruth's knowledge about Carter's encounters with others; therefore, Carter had not successfully disputed Ruth's first-prong burden. 2024 WL 4903262, at *4. Similarly, here, Carter's direct evidence against Repp consists mostly of her social media pledges of support for Ruth, Schuman Henschel, and others, from which we cannot evaluate her good faith. Carter's most salient evidence regarding good faith, or the absence thereof, is the declaration from Shawn Coyle, a renounced coconspirator, stating that Repp was “on board” with the effort to expose Carter's misconduct. But Coyle admitted that he never interacted with Repp directly, undermining the value of his declaration as it pertains to Repp, and the fact that Repp agreed to publicize her story and then tweeted in support of others sharing similar stories does not demonstrate that Repp knew those other stories were false. Repp therefore satisfied her first-prong burden as to this set of statements as well.¹

In sum, Carter's evidence fails to contradict Repp's sworn declaration attesting that her communications were made in good faith. We thus conclude that Repp met her first-prong burden.

The district court did not err by finding that Carter did not meet his second-prong burden under the anti-SLAPP framework

Finally, Carter argues that the district court erroneously concluded that he could not meet his burden under the second prong of the anti-SLAPP framework.

Once the first prong of the anti-SLAPP analysis has been satisfied, the nonmovant must provide “prima facie evidence [of] a probability of prevailing on [their] claim[s].” NRS 41.660(3)(b). For public figure defamation claims, this burden is met where the basis for the nonmovant's claim is “sufficient for a jury, by clear and convincing evidence, to reasonably infer that the [anti-SLAPP defendant's] publication was made with actual malice.” Ruth, 2024 WL 4903262, at *6 (quoting Wynn v. Associated Press, 140 Nev., Adv. Op. 56, 555 P.3d 272, 278 (2024), cert. denied, ___U.S. ___, 145 S. Ct. 1434 (2025)); see also Gruber v. Baker, 20 Nev. 453, 477, 23 P. 858, 865 (1890) (requiring the evidence to be “so strong and cogent as to satisfy the mind and conscience of a common man”). “[A]ctual malice is proven when a statement is published with knowledge that it was false or with reckless disregard for its veracity,” and “[r]eckless disregard for the truth may be found when the ‘defendant entertained serious doubts as to the truth of the statement, but published it anyway.” ’ Pegasus v. Beno Newspapers, Inc., 118 Nev. 706, 722, 57 P.3d 82, 92 (2002) (quoting Posadas v. City of Reno, 109 Nev. 448, 454, 851 P.2d 438, 443 (1993)). Under defamation law, “[this] test is subjective, with the focus on what the defendant believed and intended, to convey, not what a reasonable person would have understood the message to be.” Nev. Indep. Broad. Corp. v. Allen, 99 Nev. 404, 415, 664 P.2d 337, 344 (1983). At this stage of the anti-SLAPP analysis, courts apply the summary judgment standard, viewing “the evidence, and any reasonable inferences [to be] drawn from it ․ in [the] light most favorable to the” nonmovant (here, Carter). Wynn, 140 Nev., Adv. Op. 56, 555 P.3d at 279 (second alteration in original) (internal quotation marks omitted).

The district court concluded that because Repp's statements were entitled to the absolute defense of truth, Carter was unable to establish actual malice by clear and convincing evidence. We agree insofar as that conclusion applies to Repp's use of the term “rapist,” based on the above analysis of Carter's admitted conduct and the definition of statutory rape. But it was a much closer call for the district court to extend the absolute defense of truth to Repp's use of the term “serial rapist,” given that this statement relies upon the allegations of other women that do not implicate the statutory rape definition.

We thus separately analyze Carter's likelihood of success in challenging the use of “serial rapist.” The question there is whether Carter provided clear and convincing evidence that Repp either knew that the accusations by Ruth, Schuman Henshel, and others were false, or at least entertained serious doubts about their truth enough to doubt that Carter was a “serial rapist.” See Pegasus, 118 Nev. at 722, 57 P.3d at 92.

As the district court determined, much of the evidence Carter provides, such as the evidence of Repp's unrelated misdemeanors and sexual conduct, is irrelevant to the actual malice issue. Similarly, his dossier of social media activity, which mostly contains evidence of Repp retweeting or being tagged in others’ posts without adding commentary of her own, does nothing to call into question Repp's knowledge about the truth of the other women's stories. Repp's own original tweets likewise fail to provide insight into the genuineness of her belief. The closest Carter gets to showing actual malice is with Coyle's sworn declaration stating that “[d]uring [Coyle's] participation in the video calls [involving other alleged co-conspirators but not Repp], [he] learned that the group was fabricating the sexual assaults” and that Repp was ‘ “on board’ with their scheme.” This declaration conveys Coyle's lack of trust in those with whom he spoke (e.g., Schuman Henschel); but again, Coyle never spoke to Repp and has no direct evidence regarding what Repp knew or did not know to be true. Thus, as was the case in Ruth, 2024 WL 4903262, at *6, Carter's evidence was insufficient to show actual malice in regard to Repp's belief in other women's stories. Even assuming that the other women falsified their allegations of sexual assault, Carter's evidence does not adequately show that Repp knew those allegations were false or had serious doubts about their veracity, nor does it contradict or overcome Repp's affidavit of good faith. We thus conclude that Carter has not met his second-prong burden.

CONCLUSION

In light of the above, the district court was correct to grant Repp's anti-SLAPP motion to dismiss Carter's counterclaims. We note that although the district court's anti-SLAPP analysis only addressed elements of Carter's defamation counterclaim (e.g., actual malice), it concluded by dismissing all of his counterclaims against Repp on the basis that all of her claims against him were subject to the absolute defense of truth. We are concerned that painting with such a broad brush misses nuances present within these counterclaims. But Carter does not contest this conclusion or seek to salvage his nondefamation counterclaims, so it is therefore appropriate to affirm the district court's ruling as applied to all the counterclaims. Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) (stating that arguments not raised are deemed waived); see also Ruth, 2024 WL 4903262, at *6 (deciding that because Ruth's arguments on appeal only addressed elements of Carter's defamation counterclaim, it would uphold the district court's order as it pertained to all other counterclaims); Schuman Henschel, 2025 WL 325874, at *2 (addressing only the defamation counterclaims).

In sum, Carter has not demonstrated that reversal of the district court's order granting Repp's anti-SLAPP motion is required. Accordingly, we

ORDER the judgment of the district court AFFIRMED.

Pickering, J.

Parraguirre, J.

Bell, J.

FOOTNOTES

1.   Because we accept Repp's argument regarding her belief of the other women, we decline to address her remaining arguments on this issue.