Moor v. State ( 2015 )

 second case. Moor appeals; our review is de novo. Jacobs v. Adelson, 130
Nev., Adv. Op. 44, 325 P.3d 1282, 1285 (2014).
Though the parties dispute when Moor's claim accrued, Moor
filed his second case more than two years after any of the triggering dates
the parties propose. NRS 41.036(1) (two-year statute of limitations period
for tort claims against the State or its agencies). Moor submits that the
district court should have equitably tolled the statute of limitations from
the time he filed his first case to when it was dismissed, which would
render his second case timely, citing Wisenbaker v. Farwell, 341 F. Supp.
2d 1160 (D. Nev. 2004) for support. See Seino v. Emp'rs Ins. Co. of Nev.,
121 Nev. 146, 152, 111 P.3d 1107, 1112 (2005) (where "the danger of
prejudice to the defendant is absent, and the interests of justice so require,
equitable tolling of the limitations period may be appropriate") (internal
quotations omitted). However, Moor's situation is materially distinct from
that of the pro se incarcerated plaintiff in Wisenbaker. In Wisenbaker, the
federal district court equitably tolled the statute of limitations for the
duration of the plaintiffs first case to make the plaintiffs second case
timely, where the first case was filed before the plaintiff exhausted his
administrative remedies, and was dismissed for that reason. 341 F. Supp.
2d at 1165-66. The federal court reasoned that, because the facts
otherwise demonstrated the inmate's diligence, it would have been
"inequitable to permanently deny Plaintiff his day in court simply because
he attempted to preserve his rights by filing before the running of the
statute of limitations without knowing that this Court would toll the time
in which he pursued his administrative remedies." Id. at 1166.
Moor's first case, however, was dismissed due to his failure to
comply with NRCP 16.1's mandatory conferencing rules. See NRCP
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16.1(g) (stating that even parties not represented by counsel must comply
with Rule 16.1). So while the result here resembles that in Wisen baker-
dismissalof the first case without prejudice amounts to a dismissal with
prejudice because the statute of limitations ran during the first case—this
is due to Moor's lack of diligence in prosecuting his first case, not to his
engaging the court system too early, without first exhausting his
administrative remedies. Also, Moor was not particularly diligent in
pursuing his first case: after the defendants answered Moor took no action
for seven months, when he filed a first request for production of
documents, which was followed by the respondents' motion to dismiss and
Moor's belated request for an early case conference. And while Moor filed
his second case within four weeks of the district court dismissing his first
case, this does not negate his previous lack of diligence in his first case.
Also missing in this matter is any further equitable consideration that
weighs in Moor's favor, beyond what Moor submits is the inherent
unfairness in dismissing a claim before reaching the merits, such as that
the plaintiff relied on an agency's misleading representation or only
became aware of the relevant facts after the limitations period had run.
See, e.g., Copeland v. Desert Inn Hotel, 99 Nev. 823, 825, 827, 673 P.2d
490, 491-92 (1983) (summary judgment improper because plaintiffs
allegations that an agency representative made misleading statements
upon which she relied and which caused her untimely complaint raised a
genuine issue of fact as to whether equitable tolling could excuse the
untimely filing); City of N. Las Vegas v. State Local Gov't Emp.-Mgmt.
Relations Bd., 127 Nev., Adv. Op. 57, 261 P.3d 1071, 1077 (2011)
(employee's delay in filing prohibited labor practices claim with agency
excused by equitable tolling where the employee had not learned that his
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employer treated him differently than another employee until after the
time to bring a claim had expired). Therefore, Moor has not shown that
the equitable tolling doctrine should apply to excuse the untimely filing of
his second case.
Alternatively, Moor requested in his briefs that the court
remand with instructions that the district court consider a motion for
relief from the judgment in his first case under NRCP 60(b) because, had
Moor been versed in the civil procedure rules, he would have filed a Rule
60(b) motion in the first case and not pursued a second case at all But the
court does not have authority to remand with instructions that the district
court take action in a case other than the one on appeal. Cf. Univ. &
Cmty. Coll. Sys. of Nev. v. Nevadans for Sound Gov't, 120 Nev. 712, 720,
100 P.3d 179, 186 (2004) ("[T]he duty of every judicial tribunal is to decide
actual controversies by a judgment which can be carried into effect, and
not to give opinions upon moot questions or abstract propositions, or to
declare principles of law which cannot affect the matter in issue before it.")
(internal quotations omitted). Whatever argument Moor has for NRCP
60(b) relief must be made in the first case, not this appeal from the order
of dismissal in the second case. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
de."--122-, tA" Th J.
Pickering
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cc: Hon. James Todd Russell, District Judge
Holley, Driggs, Walch, Puzey & Thompson/Las Vegas
Attorney General/Carson City
Carson City Clerk
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