Gholson v. Siegel Suites ( 2014 )

 Our review of the record reveals that appellant failed to file a
case conference report within 240 days of respondent's appearance by
motion.' See Dornbach v. Tenth Judicial Dist. Court, 130 Nev. ,
P.3d (Adv. Op. No. 33, May 15, 2014) (noting that an
appearance may be by motion). The district court entered a finding to this
effect and noted that roughly 500 days had elapsed between respondent's
first appearance and the date of the district court's dismissal order. Thus,
we conclude that the district court did not abuse its discretion in entering
its order dismissing appellant's case. Moon, 126 Nev. at n.5, 245 P.3d
at 1140 n.5 (affirming the district court's dismissal of appellants' case
where appellants failed to file their case conference report within the 240-
day period).
Appellant argues that the district court should have entered a
default judgment against respondent. A default judgment, however, is not
appropriate when the court clerk has not entered a default against a
party, and respondent was not in default by virtue of appellant having
filed documents asserting that respondent was in default. Jacobs v.
Sheriff, 108 Nev. 726, 728-29, 837 P.2d 436, 437-38 (1992) (holding that a
default judgment cannot be entered until after a valid default has been
'The district court erroneously applied the version of NRCP
16.1(e)(2) that applies to family division and domestic relations
proceedings and calculates its deadlines based on service of the summons
and complaint; nevertheless, dismissal is appropriate based on the date of
respondent's appearance by motion. Moon, 126 Nev. at n.5, 245 P.3d
at 1140 n.5. Further, even if appellant's motion to set forth an order for
pretrial discovery were construed as a request for assistance from the
district court in scheduling the NRCP 16.1 case conference, we note that
this motion was not filed until after NRCP 16.1's time frames had already
elapsed.
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entered); see Opaco Lumber & Realty Co. v. Phipps, 75 Nev. 312, 314, 340
P.2d 95,96 (1959) (noting that the court clerk does not automatically enter
a default on receiving a plaintiffs request for entry of default). Thus, we
conclude that appellant's argument does not warrant a contrary
disposition. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
j.
Parraguirre
, J.
Saitta
PICKERING, J., dissenting:
Time and time again, this court has recited that, at the
pleading stage, a reviewing court must "accept[ I all of the plaintiffs
factual allegations as true and draw [ ] every reasonable inference in the
plaintiffs favor." E.g., Jacobs v. Adelson, 130 Nev. „ 325 P.3d 1282,
1285 (2014). Accepting its factual assertions as true, appellant's
complaint states significant claims for violation of his civil rights.
Appellant was acting as his own lawyer, at times from the Indian Springs
Correctional Facility Rather than convene the early case conference and
file the case conference report, appellant moved directly to written
discovery and an attempt to obtain and enforce a default judgment, and
so, despite all his case activity, appellant's suit was dismissed for not filing
the case conference report required by NRCP 16.1. While our rules do not
exempt a person proceeding in propria persona from the obligations
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imposed by NRCP 16.1, see NRCP 16.1(g), he nonetheless did not neglect
this proceeding and tried diligently to advance it. In the circumstances of
this case, the district court should have warned appellant clearly that he
needed to conduct an early case conference in accordance with NRCP 16.1
to conduct discovery and litigate his suit on its merits. See Balistreri v.
Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (recognizing that
the court "has a duty to ensure that pro se litigants do not lose their right
to a hearing on the merits of their claim due to ignorance of technical
procedural requirements"); Eldridge v. Block, 832 F.2d 1132, 1135-36 (9th
Cir. 1987) (noting that courts provide a pro se litigant with notice of
pleading deficiencies in order to ensure that the litigant's claims are
adjudicated on their merits). As I believe the dismissal without such
instruction to have been an abuse of discretion, I respectfully dissent.
cc: Hon. Rob Bare, District Judge
Darryl E. Gholson
Robert F. Beyer
Eighth District Court Clerk
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