Maduka v. Eighth Judicial Dist. Court of Nev.

• Decision Date: 19 September 2011
• Docket Number: No. 57299.,57299.
• Parties: Godwin MADUKA, M.D.; Las Vegas Pain Institute and Medical Center, Llc; and Godwin Maduka, M.D., a Professional Corporation, Petitioners, v. The EIGHTH JUDICIAL DISTRICT COURT of the STATE of Nevada, in and for The COUNTY OF CLARK; and The Honorable James M. Bixler, District Judge, Respondents, and Shelly Romero; and John Romero, Real Parties in Interest.
• Court: Nevada Supreme Court

373 P.3d 938 (Table)

Godwin MADUKA, M.D.; Las Vegas Pain Institute and Medical Center, Llc; and Godwin Maduka, M.D., a Professional Corporation, Petitioners
v.
The EIGHTH JUDICIAL DISTRICT COURT of the STATE of Nevada, in and for The COUNTY OF CLARK; and The Honorable James M. Bixler, District Judge, Respondents
and
Shelly Romero; and John Romero, Real Parties in Interest.

No. 57299.

Supreme Court of Nevada.

Sept. 19, 2011.

Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas

Harris Law Office

ORDER GRANTING PETITION FOR WRIT OF MANDAMUS

This is an original petition for a writ of mandamus or prohibition challenging a district court order denying a motion to dismiss, brought pursuant to NRCP 41(e)'s five-year rule, in a tort action.

BACKGROUND

Under NRCP 41(e), “[a]ny action ... shall be dismissed ... on motion of any party ... unless such action is brought to trial within 5 years after the plaintiff has filed the action, except where the parties have stipulated in writing that the time may be extended.”

On April 27, 2005, real parties in interest Shelly and John Romero filed a complaint in the underlying case. On February 2, 2010, during a district court hearing regarding the case, the parties entered into an oral stipulation regarding the NRCP 41(e) period. While no transcript apparently exists for this hearing, the district court minutes provide that “[the attorney for petitioners] stated that he will WAIVE the five year rule until the trial date of 7/12/10, COURT SO ORDERED.” Thereafter, between the time that the oral stipulation was agreed to and the scheduled July trial date, the case was reassigned to four different judicial departments, based on the Eighth Judicial District's approach to case management. During the last reassignment, the July 12 trial date was also vacated. Specifically, a notice of department reassignment was filed, with a box checked noting that the reassignment was the result of a peremptory challenge to a district court judge. The notice also stated that “[a]ny trial date is vacated and will be reset by the new department.”

The NRCP 41(e) five-year period passed without the matter being brought to trial. On August 30, 2010, the district court held another hearing regarding the case. Again, no transcript appears to exist from this hearing. Nevertheless, the district court minutes reflect that the district “COURT NOTED the Five Year Rule was previously waived [on] 02/01/10.” The minutes make no mention of the limited nature of the February extension of the five-year period and provide no explanation of why the district court determined that the February stipulation was a waiver.

On September 13, 2010, petitioners' filed a motion to dismiss the case under NRCP 41(e). Real parties in interest opposed the motion, and petitioners filed a reply. The district court subsequently held a hearing on the motion, and, on November 5, 2010, entered an order denying petitioners' motion to dismiss. This petition followed, and, as directed, an answer and reply have been filed. Thereafter, this court heard oral argument.

DISCUSSION

Availability of extraordinary relief

In cases in which there is no plain, speedy, and adequate legal remedy, extraordinary relief may be available. NRS 34.170 ; NRS 34.330. A writ of mandamus is available to compel the performance of an act that the law requires or to control an arbitrary or capricious exercise of discretion. NRS 34.160 ; International Game Tech. v. Dist. Ct., 124 Nev. 193, 197, 179 P.3d 556, 558 (2008). A writ of prohibition may issue to confine the district court to the proper exercise of its prescribed jurisdiction when the court has acted in excess of its jurisdiction. NRS 34.320. Mandamus and prohibition are extraordinary remedies, and it is within this court's discretion to determine if such petitions will be considered. Smith v. District Court, 107 Nev. 674, 818 P.2d 849 (1991). This court has previously concluded that one situation in which it may exercise its discretion to consider a writ petition is when the dismissal of a case is required under NRCP 41(e). Smith v. District Court, 113 Nev. 1343, 1345 n. 1, 950 P.2d 280, 281 n. 1 (1997). Accordingly, we will consider this petition.

The parties' arguments

Petitioners argue that NRCP 41(e)'s five-year rule to bring an action to trial is mandatory and that petitioners never waived the NRCP 41(e) rule, but instead only agreed to a limited extension of the five-year period, until July 12, 2010. Petitioners also argue that once that date passed without the case being brought to trial, the district court lost jurisdiction over the action.

In opposing the petition, real parties in interest argue that the NRCP 41(e) five-year period was waived by petitioners, as demonstrated by the February 2010 oral stipulation, and that petitioners' attempt to now argue that this waiver was merely limited or conditional, misstates the parties' actual understanding. Real parties in interest further note that the August 2010 district court minutes support their argument that the NRCP 41(e) period was completely waived. They alternatively argue that it was petitioners' actions that prevented the matter from being tried before July 12, 2010, because petitioners filed a peremptory challenge, which real parties in interest assert should be construed as an implied extension of any limited waiver of the NRCP 41(e) period. In their reply, petitioners dispute real parties in interest's arguments.

The parties' February 2010 stipulation

This court has previously recognized that limited extensions of the NRCP 41(e) period are permissible. See, e.g., Massey v. Sunrise Hospital 102 Nev. 367, 368, 724 P.2d 208, 209 (1986) (noting that the parties had stipulated to, in the court's words, “waive” the NRCP 41(e) period until six months after the remittitur of an appeal); Johann v. Aladdin Hotel Corp., 97 Nev. 80, 81, 624 P.2d 493, 493–94 (1981) (acknowledging a limited written stipulation entered into between the parties extending the NRCP 41(e) period); see also NRCP 41(e) (providing that the five-year period “may be extended”).

Under this authority, we conclude that...