On June 7, 2013, appellant filed an unopposed motion to
extend the time for filing the opening brief, asking that he be allowed until
June 14, 2013, so that counsel could continue to confer with respondent's
counsel in preparing the joint appendix and other matters related to
briefing the appeal and to accommodate appellant's counsel's schedule
with regard to important family-related matters. On June 17, 2013,
counsel filed a motion for a third extension of time asking for "1 additional
day, from Friday, June 14 up to and including Monday, June 15, 2013 to
file his opening brief and appendix." Appellant's counsel stated that he
was continuing to work on preparing the joint appendix and other matters
related to briefing. Although the motion asked for an extension until June
15 (a Saturday, which had already passed), it seems that counsel was
asking that he be allowed until Monday, June 17 to file the brief. Counsel,
however, did not file the brief by that date.
On June 18, 2013, appellant filed an unopposed motion for a
fourth extension, from June 17 to June 21, stating that the parties were
working on compiling the joint appendix and other matters related to
briefing. On June 24, 2013, appellant filed a motion to exceed the page
limit for the opening brief. The proposed oversized opening brief was
submitted to this court for filing on June 24. The proposed joint appendix
was submitted on June 25.
On June 25, respondent opposed the motion to exceed the page
limit and filed a countermotion to dismiss the appeal. Respondent argues
that appellant's motion to exceed the page limit failed to comply with
NRAP 32(7)(D), in that appellant did not show diligence or good cause for
exceeding the page limit except to say that the appeal raises 6 issues and
the record is 1,230 pages, appellant did not file his motion before any of
the brief s potential due dates (either June 6, June 14, June 15, or June
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21, depending on which motion for extension of time is relied upon), and
he did not submit a copy of the brief with his motion. See NRAP 32(7)(D).
In arguing for the appeal's dismissal, respondent contends
that although appellant submitted an eight-volume "joint" appendix,
respondent has not joined in the appendix. Respondent argues that it
agreed to allow an extra two weeks to brief the matter, but always with
the understanding that appellant would not submit the joint appendix
without first obtaining respondent's joinder and at no time during the
time when appellant's counsel was asking respondent to agree to more
time did he ever mention that he would be seeking to file a 69-page brief.
Respondent states that although it twice agreed to accommodate
appellant's counsel by not opposing the second and fourth requests for
extensions of time, appellant failed to meet any of the agreed-upon
deadlines. Respondent argues that granting appellant any additional time
to cure his derelictions would reward him for a seemingly endless series of
delays. Respondent asks this court to reject the late-submitted, oversized
brief, to reject the joint appendix in which respondent has not joined, and
to dismiss the appeal.
Appellant opposes the motion to dismiss and argues that the
proposed opening briefs size is reasonable based on the case.' Appellant
states that his motion for excess pages was not late because his attorney
submitted it for electronic filing "a little before midnight on Friday, June
'On July 15, respondent filed a notice of nonopposition and request
for an order of dismissal on the basis that appellant had not opposed the
motion to dismiss. Appellant, however, submitted his opposition to the
motion to dismiss to this court for filing on July 3, although the opposition
was not filed until July 22, 2013. Thus, appellant timely opposed the
motion to dismiss.
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21, 2013," and although the proposed brief was not submitted with the
motion on June 21, that was an "oversight." Appellant's counsel argues
that his procedural derelictions, although regrettable, are minor and did
not cause any additional delay and have not prejudiced respondent.
Counsel contends that dismissal would be too harsh of a sanction and
unfair to appellant.
Having considered the parties' arguments, we deny appellant's
three pending motions for extensions of time and his motion to file the
opening brief with excess pages, and we grant respondent's motion to
dismiss this appeal. In our May 29 order, this court pointed out
appellant's counsel's failure to comply with court rules and meet
deadlines, and while granting more time, we warned appellant that the
brief was due by June 6, 2013, and that further extensions would not be
granted absent extreme or unforeseeable circumstances. Despite these
warnings, appellant sought three additional extensions on the ground that
his attorney was conferring with respondent on a joint appendix and
"other matters related to the briefing of the appeal," neither of which
amount to extreme or unforeseeable circumstances. Additionally,
although respondent did not oppose two of the requests for more time,
respondent contends that it did so on the belief that appellant would not
submit the joint appendix without first obtaining respondent's joinder and,
despite appellant's counsel's representation that he was conferring with
respondent about "other matters related to the briefing for the appeal," at
no time before or after asking respondent to agree to more time did
appellant ever mention that he would be seeking to file an oversized brief.
Additionally, although appellant submitted his motion for excess pages to
this court on June 21, he did not submit the brief with the motion as
required under NRAP 32(7)((D). The brief was therefore not timely
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submitted by the June 6 deadline imposed by this court or within any of
the three additional requests for time extensions that appellant proposed.
NRAP 31(d); Weddell v. Stewart, 127 Nev. , 261 P.3d 1080 (2011),
(declining to reconsider an appeal's dismissal based on counsel's failures to
comply with court rules and directives). Accordingly, we
ORDER this appeal DISMISSED. 2
Hardesty
Parraeuirre
cc: Hon. Ronald J. Israel, District Judge
Lansford W. Levitt, Settlement Judge
Sterling Law, LLC
Louis A. Ling
Eighth District Court Clerk
2 The clerk of this court shall return, unfiled, the proposed opening
brief and joint appendix, which were provisionally received in this court on
June 24 and 25, 2013, respectively.
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