Motion to Dismiss For Failure to Prosecute in Nevada

Background

“It is the duty of each plaintiff to be sufficiently diligent to preclude entry of a 41(e) dismissal.” (Johnson v. Harber (1978) 94 Nev. 524, 527.)

“It is the plaintiff's obligation to ensure compliance with NRCP 41(e)'s five-year rule.” (Rotes v. Suncrest Builders, Inc., No. 76180, at *3 [Nev. Dec. 19, 2019] citing Morgan v. Las Vegas Sands, Inc. (2002) 118 Nev. 315, 321.)

General Information for Complaints and Motions

“Under NRCP 41(e), ‘[a]ny action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced ... unless such action is brought to trial within 5 years after the plaintiff has filed the action.’” (Saticoy Bay LLC v. JPMorgan Chase Bank, N.A. (2017) 388 P.3d 226, 229 quoting NRCP 41(e).)

“The district court does not have discretion to dismiss an action pursuant to NRCP 41(e).” (Saticoy Bay LLC, supra, id., citing Johnson v. Harber (1978) 94 Nev. 524, 526.)

The Court of Appeals has “previously explained that:

‘NRCP 41(e) gives five years for a trial of an ‘action’, not of a ‘claim.’ Unlike a claim, an action includes the original claim and any crossclaims, counterclaims, and third-party claims.... Thus, the original claim and any crossclaims, counterclaims and third party claims are all part of one ‘action.’”

(Saticoy Bay LLC, supra, 388 P.3d at 229 quoting United Ass'n of Journeymen & Apprentices of the Plumbing & Pipe Fitting Indus. v. Manson (1989) 105 Nev. 816, 820.)

Standard of Review and Burdens of Proof

An appellate court will “review de novo a district court's dismissal for failure to prosecute under the five-year rule.” (Rotes v. Suncrest Builders, Inc., No. 76180, at *3 [Nev. Dec. 19, 2019] citing Power Co., Inc. v. Henry (2014) 130 Nev. 182, 186.)

The Court’s Decision

“[I]n the absence of a written stipulation extending time, a district court must dismiss a trial not brought to trial within five years.” (Tripi v. Johnson, No. 79099, at *2 [Nev. Jan. 15, 2021] quoting Thran v. First Judicial Dist. Court (1963) 79 Nev. 176, 181.)

“[C]ourts throughout this state, when circumstances warrant it, have set trials on the calendar to avoid NRCP 41(e) problems. However, the district court is not compelled to monitor for a potential NRCP 41(e) problem, sua sponte, giving a case any preference in setting the trial prior to a deadline pursuant to NRCP 41(e).” (Morgan v. Las Vegas Sands, Inc. (2017) 118 Nev. 315, 321.)