DEBORAH WISHON, HUSBAND AND
WIFE; LAWRENCE L. LEACH AND
DRISTA EL. LEACH, HUSBAND AND
WIFE; JUSTO JAIMERENA AND
MARIA JAIMERENA, HUSBAND AND
WIFE; MICHAEL HAYES AND
GERTRUDE HAYES, TRUSTEES OF
THE HAYES FAMILY TRUST; ELMER
A. HANSEN, TRUSTEE OF THE
ELMER A. HANSEN REVOCABLE
TRUST; DONALD MCMURTREY; PAUL
THOMAS BRUNELLE AND SUSAN
GAYLENE BRUNELLE, TRUSTEES OF
THE BRUNELLE FAMILY TRUST;
JOHN FISHER AND JOCELYN
FISHER, HUSBAND AND WIFE;
CONRAD CHARLES MARCIONE, JR.,
AND SUZANNE LYNNE MARCIONE,
TRUSTEES OF THE RESTATEMENT
AND AMENDMENT OF
DECLARATION OF MARCIONE
FAMILY REVOCABLE TRUST; TROY
D. GRIGGS AND MARTHA A. GRIGGS,
HUSBAND AND WIFE; KERMIT M.
KROYER, TRUSTEE OF THE KM
KROYER TRUST; MARIA E. BOONE,
TRUSTEE OF THE 2003 BOONE
FAMILY TRUST; PEGGY PARKER;
GEORGE B. SCHENCK; LAURIE
HENNESSEY; LAUREN HAYES;
ROBERT BETTENCOURT AND
PAMELA BETTENCOURT, HUSBAND
AND WIFE; SYDNEY QUINN; AND
DEBORAH L. AMES AND ANTHONY
HAYES AND CONSTANCE HAYES
TRUSTEES OF THE HAYES FAMILY
TRUST,
Real Parties in Interest.
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ORDER DENYING PETITION FOR WRIT OF MANDAMUS
This is an original petition for a writ of mandamus challenging
a district court order denying a motion to dismiss a complaint.
Real parties in interest (collectively, Porter) filed a complaint
seeking a deficiency judgment against petitioners Charles Dornbach and
Jake Huber (collectively, Dornbach). Dornbach appeared by filing a
motion to dismiss the complaint pursuant to NRCP 12(b)(5). Due to the
passing of Churchill County's only sitting district court judge and related
delays in the district court, this motion was not addressed for
approximately eleven months. While this motion was pending, Dornbach
did not file an answer to the complaint. Dornbach eventually filed a
separate motion to dismiss the complaint due to Porter's failure to comply
with NRCP 16.1(e), which requires a plaintiff to hold a case conference
and file a case conference report within specific deadlines. The district
court denied the motion, explaining that the death of the judge and the
resulting delays constituted extraordinary circumstances excusing Porter's
delay and justifying extending the time to comply with NRCP 16.1(e).
Dornbach then petitioned this court for a writ of mandamus to compel the
district court to dismiss the complaint.
"A writ of mandamus is available to compel the performance of
an act that the law requires as a duty resulting from an office, trust, or
station[,] or to control an arbitrary or capricious exercise of discretion."
Int? Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197,
179 P.3d 556, 558 (2008); NRS 34.160. It is within this court's discretion
to determine if a writ petition will be considered. Smith v. Eighth Judicial
Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). Petitioners bear
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the burden of demonstrating that extraordinary relief is warranted. Pan
v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004).
NRCP 16.1(e) provides that a district court may dismiss a case
without prejudice if a plaintiff fails to hold an early case conference within
180 days of a defendant's appearance or file a case conference report
within 240 days of a defendant's appearance.' NRCP 16.1(e)(1)-(2). We
review a district court's decision on a motion to dismiss due to failure to
comply with NRCP 16.1(e) deadlines for an abuse of discretion. Arnold v.
Kip, 123 Nev. 410, 415, 168 P.3d 1050, 1053 (2007). When deciding such
motions, district courts should consider factors such as "the length of the
delay, . . . whether the delay has otherwise impeded the timely prosecution
of the case, [and] general considerations of case management." Id. at 415-
16, 168 P.3d at 1053.
Here, the district court explicitly found that the substantial
delays resulting from the judge's death constituted extraordinary
circumstances justifying extending the NRCP 16.1(e) deadlines. The
record does not refute this finding, and we conclude that the district court
did not abuse its discretion by considering the court's internal delays when
denying Dornbach's motion to dismiss and extending the NRCP 16.1(e)
deadlines. See id. Having considered the petition, answer, reply, and
an alternative basis on which to deny the petition,. Porter argues
that the deadlines set forth in NRCP 16.1(e) do not begin to run until a
defendant files an answer, and therefore they had not expired when
Dornbach moved to dismiss the complaint. Because the deadlines set
forth in NRCP 16.1(e)(1) and (2) clearly begin to run upon "an appearance
by a defendant," we reject this argument.
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appendix filed in this matter, we conclude that Dornbach has not
demonstrated that our intervention by way of extraordinary relief is
warranted. Accordingly, we
ORDER the petition DENIED.
C.J.
Gibbons
J.
Pickert.y.
,
J.
usiesty
— 11,•% J.
Parraguirre
Douglas
cc: Hon. Thomas L. Stockard, District Judge
Robison Belaustegui Sharp & Low
Jeffrey K. Rahbeck
Churchill County Clerk
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