Morgan v. Las Vegas Sands, Inc. , 118 Nev. 315 ( 2002 )

Leavitt, J.,

with whom Maupin, C. J., and Rose, J., agree,

dissenting:

The language of NRCP 41(e) is mandatory. The district court has no discretion to exercise;¹ if an action is not brought to trial within five years, it must be dismissed.² However, the rule does not mention whether any time periods may be excluded from the five-year period. This court has allowed two time periods to toll the mandatory dismissal period under the rule: the time a medical malpractice case is pending before a medical screening panel,³ and the time a case is stayed by district court order.⁴

Once a case is referred to the mandatory court-annexed arbitration program, it cannot proceed to trial in district court until the arbitration proceedings are finalized. NAR 21 provides that trials de novo will be processed in the ordinary course of the district court’s calendar and will not be given preference as to trial settings. A plaintiff is bound by the five-year limitation period, yet can do nothing to expedite the case while it is still in the court-annexed arbitration program.

In Boren v. City of North Las Vegas, we determined that a court-imposed stay order tolled the running of the five-year period under NRCP 41(e).⁵ We concluded that “[f]or a court to prohibit the parties from going to trial and then to dismiss their action for failure to bring it to trial is so obviously unfair and unjust as to be unarguable.”⁶ There is no distinction between Boren and this case. Public policy favors a trial on the merits. The time during which a party is prevented from obtaining a trial setting should toll the period under the five-year rule and avoid the harsh result of a dismissal where a plaintiff is prohibited from moving a matter to trial in the district court. I would reverse the district court’s order and remand this case for trial.

1 Lindauer v. Allen, 85 Nev. 430, 435, 456 P.2d 851, 854 (1969); see also Thran v. District Court, 79 Nev. 176, 380 P.2d 297 (1963) (granting writ of mandamus compelling district court to dismiss action under NRCP 41(e)).

2 Home Sav. Ass’n v. Aetna Cas. & Surety, 109 Nev. 558, 563, 854 P.2d 851, 854 (1993).

3 Baker v. Noback, 112 Nev. 1106, 922 P.2d 1201 (1996).

4 Boren v. City of North Las Vegas, 98 Nev. 5, 638 P.2d 404 (1982).

5 Id. at 6, 638 P.2d at 405.

6 Id. at 5-6, 638 P.2d at 404.