to file the brief. Based on appellants' failure to timely submit the brief by
the May 13 requested deadline, this court entered an order on May 24,
2013, denying as moot appellants' April 12 motion for a second extension
of time. As a courtesy before dismissing the appeals as abandoned, this
court's May 24 order allowed appellants 11 days, until June 4, 2013, to file
and serve the opening brief and appendix and warned that failure to do so
could result in the dismissal of these appeals as abandoned. Appellants
did not file and serve the opening brief and appendix by June 4.
On June 10, respondents filed their motion to dismiss these
appeals. Appellants oppose the motion and have filed a motion again
asking for more time to file the opening brief, seeking what they refer to as
an additional six-day extension, until June 12, 2013. Appellants' counsel,
Beau Sterling, states that the "short amount of additional time is
requested in order to help spread out the deadlines slightly on a number of
matters, including this one, that all fell due around the same time, and
most of which are similarly urgent." Counsel then points out that he
recently filed briefs in other matters and prepared for two oral arguments
and attended his son's high school graduation. Counsel states that his
motion for an extension of time was late because he wanted to be sure he
could complete the brief by any new deadline requested before making the
motion.
Respondents oppose any additional extension of time, arguing
that although appellants' latest motion for an extension of time explains
that Mr. Sterling was on his way out of town when this court entered its
May 24 order, the motion provides no explanation regarding how long Mr.
Sterling was out of town, when he became aware of the order, or why he
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did not seek relief from the order before the 11-day time limit expired,
instead waiting 17 days without explanation for the delay.
Appellants have replied, stating that this court did not
preclude appellants from requesting any additional extensions of time to
comply with the "new deadline" specified in the May 24 order, which they
say "is not surprising given that, because of the timing of service of the
[May 24] order (late Friday afternoon before the 3-day Memorial Day
weekend), the period covered by the 11-day order included only 6 business
days." Appellants also state that the additional time requested "is not a
substantial delay, and, in fact, the opening brief and appellants' 7-volume
appendix were submitted to the Court and served on opposing counsel on
the newly requested due date," June 12.
In reply to appellants' opposition to their motion to dismiss,
respondents state that although this court's May 24 order denied the
second motion for an extension of time, as an accommodation to Mr.
Sterling, it allowed an 11-day grace period for filing the opening brief and
that order could not "possibly have lead Mr. Sterling to believe the court
would grant another extension or that the 11-day time limit in the order
could be ignored." Respondents also state that although Mr. Sterling
represented that he attempted to contact attorney Dane Anderson to
confer on a third extension of time, Mr. Anderson is not counsel in this
appeal, and never has been, and Mr. Sterling knows it.
On June 14, 2013, appellants electronically filed in this court a
"certificate of service" for the opening brief and appendix, indicating that
on June 12, 2013, they submitted to this court and served on respondents
by United States mail the opening brief and appendix. The brief and
appendix, however, were not submitted to this court for filing with the
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certificate of service. Only the certificate of service was filed. The opening
brief and appendix were subsequently provisionally received in this court
on June 17, 2013.
Appellants, in their motion practice, appear to blame this
court for their delays and failure to abide by court rules and comply with
court orders based on this court entering an order allowing them an
additional 11 days to file their already overdue brief on a Friday before a
three-day weekend. According to appellants, by entering the order on a
Friday before a holiday weekend, this court narrowed the deadline for
appellants to file their opening brief to only six days. What appellants fail
to recognize, however, is that they missed all deadlines that this court
extended to them for filing the opening brief and appendix. Appellants'
opening brief was originally due on March 12, 2013. This court granted a
30-day extension of time, making the new deadline April 11, 2013.
Appellants then asked that they be allowed until May 13, 2013, to file the
brief. When they failed to submit the brief by that date, this court entered
an order on May 24, 2013, which, instead of dismissing the appeal as
abandoned, allowed appellants yet another 11 days (until June 4, 2013) to
file the brief. Appellants failed to file the brief by June 4, and failed to
seek more time before that date. Respondents moved to dismiss based on
appellants' failures. Although appellants asked that they be allowed until
June 12 to file the brief, they did not submit the brief for filing by June 12,
but instead electronically filed only a certificate of service for the brief on
June 14, indicating that the brief and appendix were submitted to this
court and served on respondents on June 12 via U.S. mail. The brief and
appendix were subsequently provisionally received in this court on June
17, but that submission is nevertheless beyond the June 4 deadline that
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this court extended to Mr. Sterling as a courtesy before dismissing these
appeals. These repeated failures to timely comply with this court's rules
and directives have unnecessarily delayed these appeals and increased
this court's workload and they cannot be condoned. See Weddell v.
Stewart, 127 Nev. , 261 P.3d 1080 (2011) (addressing repeated failures
to follow court rules and court directives in declining to reconsider an
order dismissing an appeal based on such failures).
Accordingly, appellants' untimely motion for an extension of
time is denied, respondents' motion to dismiss is granted, and we hereby
dismiss these appeals.
Counsel's referral to the State Bar of Nevada
Appellants' attorney Beau Sterling was recently ordered to
appear before the en bane court to show cause why he should not be
barred from practicing before this court based on repeated failures to
comply with briefing deadlines, Nevada Rules of Appellate Procedure, and
this court's orders and directives. In so ordering, this court noted that Mr.
Sterling's failure to comply with this court's rules, notices, and orders had
significantly delayed the appeals for which he was ordered to appear and
was unacceptable. See RPC 1.1 (requiring attorneys to provide competent
representation to their clients); RPC 1.3 ("A lawyer shall act with
reasonable diligence and promptness in representing a client."). At the
same time that counsel was ordered to appear and show cause, this court
referred counsel to the Nevada State Bar for investigation. In so doing,
this court outlined multiple civil and criminal appeals in which Mr.
Sterling repeatedly missed deadlines, thus significantly delaying the
appeals to the potential detriment of his clients. When counsel appeared
before this court, he represented that he had regained control of his
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caseload and had implemented plans to alleviate such delays in the future.
Despite these representations, counsel failed to timely file the opening
brief and appendix, in violation of the rules of appellate procedure, and
failed to comply with this court's order directing him to file the overdue
brief by June 4, 2013, which, to the detriment of his client, resulted in this
order dismissing these appeals. Accordingly, as a result of Mr. Sterling's
failure to meet deadlines and follow court rules and orders, we refer him to
the State Bar of Nevada to pursue such investigation and discipline as it
sees fit. See Weddell, 127 Nev. at n.9, 261 P.3d at 1085 n.9 (noting
that counsel may be referred to the State Bar for investigation for failure
to comply with this court's rules, notices, orders, or other directives). The
clerk of this court is directed to mail to the State Bar copies of all motions,
oppositions, and responses filed in these appeals since March 8, 2013,
when appellants filed their first motion for an extension of time, as well as
this court's May 24, 2013, order denying as moot appellants' second
motion for an extension of time.
It is so ORDERED. 1
, J.
Hardesty
Parre.guirre
1 The
clerk of this court is directed to return, unfiled, the opening
brief and appendix, which were provisionally received in this court on
June 17, 2013.
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cc: Hon. Jerome Polaha, District Judge
James Georgeson, Settlement Judge
Sterling Law, LLC
Hoffman Test Guinan & Collier
Lemons, Grundy & Eisenberg
Wm. Patterson Cashill
State Bar of Nevada
Washoe District Court Clerk
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