Dorman v. Venetian Casino Resort ( 2015 )

 because NRS 18.130(1) stays the action until security is posted. The
Venetian responds that dismissal under NRS 18.130(4) is permissible and
appropriate because Dorman missed the deadline by 14 months, did not
request an enlargement of time, and NRS 18.130(4) does not prohibit a
motion to dismiss after a plaintiff posts his security. The Venetian also
argues that NRS 18.130(1) should not toll Dorman's obligations under
NRCP 16.1 because it is Dorman's actions that release the NRS 18.130(1)
stay.
Regarding NRS 18.130(4), this court "give[s] effect to the
statute's plain meaning . . . when the language of a statute is plain and
unambiguous, such that it is capable of only one meaning." MGM Mirage
v. Nev. Ins. Guar. Ass'n, 125 Nev. 223, 228-29, 209 P.3d 766, 769 (2009).
NRS 18.130(4) provides that "[a]fter the lapse of 30 days from the service
of notice that security is required, or of an order for new or additional
security, upon proof thereof, and that no undertaking as required has been
filed, the court or judge may order the action to be dismissed." Neither
NRS 18.130(1) nor (4) gives a mandatory time frame in which the
undertaking must be filed; rather, upon providing proof that 30 days has •
passed and no security has been posted, the defendant may move to
dismiss the case or the district court may dismiss it. The 30-day
requirement is thus a prerequisite for dismissal, not posting security.
Here, Dorman posted his NRS 18.130(1) security before the
Venetian's motion to dismiss, thus precluding dismissal under NRS
18.130(4). Accordingly, the district court abused its discretion in
dismissing the action on this basis. Brion v. Union Plaza Corp., 104 Nev.
553, 555, 763 P.2d 64, 64 (1988) (holding that this court reviews dismissal
under NRS 18.130 for an abuse of discretion).
SUPREME COURT
OF
NEVADA
2
M 1947A e
Regarding NRCP 16.1(e)(2), NRS 18.130(1) provides that "all
proceedings in the action shall be stayed until an undertaking" is posted.
NRS 18.130(1) does not distinguish between the plaintiffs and defendant's
obligations. Thus, both parties' obligations under NRCP 16.1(e)(2) are
stayed until security is posted. Accordingly, the NRCP 16.1 requirements
were stayed, and the district court abused its discretion in dismissing the
action based on NRCP 16.1(e)(2). Moon ix McDonald, Caron° & Wilson,
LLP, 126 Nev. , 245 P.3d 1138, 1139 (2010) ("This court reviews a
district court's dismissal of a case for failure to comply with the
requirements of NRCP 16.1(e)(2) for an abuse of discretion.").'
Having concluded that both bases on which the district court
dismissed the underlying action were improper, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for further proceedings.
p ....
...,...
Parraguir
' J.
Douglas Cherry
'While the Venetian presented arguments concerning NRCP 41(e),
the district court did not base its order on NRCP 41(e). Nevertheless, we
note that Dorman filed his complaint on September 20, 2010, and the
Venetian filed its motion to dismiss on March 21, 2012, and thus, the two-
year period for discretionary dismissals under NRCP 41(e) had not yet
passed.
SUPREME COURT
OF
NEVADA
3
(01 1947A
cc: Hon. Douglas Smith, District Judge
William C. Turner, Settlement Judge
Thomas Michaelides
Royal & Miles, LLP
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
4
(0) I94Th cligE)0