dissenting:
The error that leads the majority to find a reversible abuse of discretion by the district court originated with the appellant, Carstarphen, and his counsel, not the district court. Because a civil *64litigant may not secure reversal of an adverse judgment based on an error he invited, I respectfully dissent. I also disagree with, and therefore dissent from, the test the majority announces for judging preferential-trial-setting motions in the NRCP 41(e) context. In my view, the new test is incomplete and, in its incompleteness, potentially disruptive and unfair.
RELEVANT FACTS AND PROCEDURAL HISTORY
Carstarphen filed this case on March 3, 2003. Under NRCP 41(e), he had until March 3, 2008, to bring the action to trial. In October 2007, Carstarphen changed counsel; his new counsel recognized that the existing May 12, 2008, trial date went beyond NRCP 41(e)’s five-year limit. This led Carstarphen to file two alternative motions in the district court. The first asked the district court to find that “the parties . . . implicitly agreed to waive the five[-]year rule” when, in August 2007, they had stipulated to vacate an earlier trial date and reset it for May 2008. The second asked the district court to grant Carstarphen “an order of preference in setting [the] case for trial” before March 3, 2008, when the five-year rule otherwise would run.
In the district court, Carstarphen presented these as alternative motions and expressed a distinct preference for the first, the implicit-waiver motion. Thus, Carstarphen described the second, preferential-setting motion as a “fallback”; acknowledged that the relief it sought would impose a “burden [on the district] Court, the parties and their counsel, and the prospective jury in this case of having to bring this case to trial prior to the expiration of the five[-]year rule”; and affirmed that “Carstarphen and his counsel are fine with the current May 12, 2008, trial date so long as the Five Year [implicit-waiver] Motion is again granted.’ ’ Carstarphen advised the court that “[i]f the Five Year Motion [is] granted, this Motion [for preferential trial setting] will be moot.”
Consistent with his strategic preference for the implicit-waiver motion—and the extra weeks of trial-preparation time it bought his newly substituted counsel—Carstarphen did not counter Milsner’s showings, in opposition to the preferential-setting motion, that: (1) Carstarphen still owed Milsner long-promised party and expert discovery; (2) Carstarphen had protectively refiled his case in federal court in case his five-year-rule motions failed; (3) expert witness availability was doubtful; and (4) Milsner’s counsel had two trials scheduled already for February, making a trial in February instead of May in this action difficult, if not impossible. Unlike Carstarphen, who offered mainly argument, not evidence, to support his motions, Milsner substantiated his arguments with affi*65davits, requests for judicial notice, and exhibits, which were included in respondent’s separate appendix on this appeal.
Given this record, it is not surprising that, on December 14, 2007, the district court granted the first of Carstarphen’s alternative motions (the implicit-waiver motion) and summarily denied the second (the preferential-setting motion). It did so in terms taken almost verbatim from Carstarphen’s papers: “The Court finds Defendants, by stipulating to vacate the October trial date and agreeing to set trial in May 2008, implicitly agreed to extend the five-year rule of NRCP 41(e).” (Emphasis added.) No further motions were filed in the case until March 5, 2008, when Milsner moved to dismiss based on Prostack v. Lowden, 96 Nev. 230, 231, 606 P.2d 1099, 1099-1100 (1980), which holds that only an express agreement, not an implicit one, will suspend NRCP 41(e).
ANALYSIS
Prostack’s facts are similar, if not identical, to those presented here. The plaintiffs moved for and were granted a preferential trial setting to avert an impending five-year rule dismissal. Id. at 230, 606 P.2d at 1099. Thereafter, to deal with a late-disclosed witness, the defendants moved to vacate the existing trial date. Id. at 231, 606 P.2d at 1099. The plaintiffs did not oppose the motion, and the district court reset the trial to a date beyond the five-year rule deadline. Id. After the five-year rule deadline had passed, the defendants moved to dismiss under NRCP 41(e). Id. The plaintiffs argued that, implicit in the defendants’ unopposed request for additional discovery and a new trial date, was their agreement to waive the five-year rule. Id. The district court disagreed and dismissed the case. Id. This court affirmed, holding that “[o]ur previous decisions construing NRCP 41(e) clearly indicate that mandatory dismissal for failure to bring an action to trial within five years from the filing of the complaint can be avoided only by a written stipulation between the parties extending the time.’ ’ Id. (citing Johnson v. Harber, 94 Nev. 524, 582 P.2d 800 (1978)). We further stated that “[i]t is upon the plaintiffs, the appellants here, that the duty rests to bring the case to trial within the period specified by the rule.” Id. at 231, 606 P.2d at 1100.
Applying Prostack, the district court’s dismissal should be affirmed, not reversed. Carstarphen made a legal error when he assumed, as the plaintiffs did in Prostack, that a stipulation to vacate and reset an existing trial date implicitly waives the five-year rule. This legal error led Carstarphen to commit three additional errors: (1) to urge the district court to deny his preferential-setting motion as moot if it granted his implicit-waiver motion; (2) not to develop his motion for a preferential trial setting or respond mean*66ingfully to Milsner’s opposition to it; and (3) to fail to recognize the error in the December 14, 2007, “implicit waiver” order until the five-year rule ran on March 4, 2008.1
“ ‘The doctrine of “invited error” embodies the principle that a party will not be heard to complain on appeal of errors which he himself induced or provoked the [district] court ... to commit.’ ’ ’ Pearson v. Pearson, 110 Nev. 293, 297, 871 P.2d 343, 345 (1994) (quoting 5 Am. Jur. 2d Appeal and Error § 713 (1962)). Reversal based on errors Carstarphen “induced or provoked” is inappropriate. The invited error doctrine applies, not just to the failure to recognize that Prostack defeats the implicit-waiver argument on which Carstarphen chiefly relied, but also to Carstarphen’s failure to recognize and argue that the preferential-setting motion had to be granted or certain dismissal would follow under NRCP 41(e). I am hard-pressed to find, consistent with Pearson, an abuse of discretion by the district court in failing to recognize the dire consequences to Carstarphen of crediting his lawyer’s arguments. Cf. Nelson v. Napolitano, 657 F.3d 586, 590-91 (7th Cir. 2011) (“the district court [is not] obliged to research and construct legal arguments for parties, especially when they are represented by counsel,” “is not obliged to grant relief from a lawyer’s mistaken reading of a rule or statute,” and “abuses its discretion only when no reasonable person could agree with [its] decision”).
Carstarphen’s failure to develop a record on the preferential-trial-setting motion leads the majority to adopt a rule that is so broad as to be unworkable: A district court commits an abuse of discretion when it denies a cursory preferential-setting motion if the record demonstrates some diligence and the motion is made more than three months before trial. While I agree that, in an appropriate case, a district court has discretion to grant a litigant a preferential trial setting to avoid NRCP 41(e)’s five-year rule, the factors that inform that discretion, and our deferential review *67of its exercise, should be much more inclusive than the majority suggests.
Nevada has historically consulted California law, which also has a five-year rule, in interpreting NRCP 41(e). Thran v. District Court, 79 Nev. 176, 179, 380 P.2d 297, 299 (1963). In Salas v. Sears, Roebuck & Co., 721 P.2d 590, 594 (Cal. 1986), the California Supreme Court, after considerable debate, set out the factors that should guide a district court in assessing a motion for preferential trial setting to avoid a five-year deadline like that in NRCP 41(e):
a trial court does not have a mandatory duty to set a preferential trial date, even when the five-year deadline approaches. Its discretion is not wholly unfettered: it must consider the “total picture,” . . . including the condition of the court calendar, dilatory conduct by plaintiff, prejudice to defendant of an accelerated trial date, and the likelihood of eventual mandatory dismissal if the early trial date is denied.
Applying a “total picture” approach, Carstarphen cannot demonstrate an abuse of discretion (assuming, arguendo, he could avoid the invited error doctrine). While the record shows some case activity and Carstarphen’s motions were filed three months before the five-year rule would run, he failed to address the prejudice to Milsner, the mitigating factor of the parallel federal suit, the discovery he (Carstarphen) still owed, the availability of witnesses, including experts, Milsner’s trial counsel’s calendar, the case’s complexity, and the district court’s calendar. These factors needed to be vetted in the district court but they were not, because Carstarphen did not press the motion for preferential trial setting. On this record, an abuse of discretion has not been shown.
Respectfully, I dissent.
These errors, while understandable, differ little from the errors held insufficient to overcome NRCP 41(e)’s mandatory five-year rule in our established precedent. See Allyn v. McDonald, 117 Nev. 907, 912, 34 P.3d 584, 587 (2001) (“except in very limited circumstances, we uphold NRCP 41(e) dismissals without regard to the plaintiffs reasons for allowing the mandatory period to lapse” (footnote omitted)); Johnson, 94 Nev. at 526, 582 P.2d at 801 (“Although appellant appears to be the victim of unfortunate circumstances, this Court has consistently held that dismissal pursuant to NRCP 41(e) for failure to bring to trial a claim within five years of filing the complaint is mandatory.” (citing cases)); Thran v. District Court, 79 Nev. 176, 181, 182, 380 P.2d 297, 300 (1963) (dismissal is mandatory when the five-year mark is passed: “the exercise of discretion is not involved” and “[prejudice is presumed”); see also De Santiago v. D and G Plumbing, Inc., 65 Cal. Rptr. 3d 882, 887 (Ct. App. 2007) (“The exercise of reasonable diligence includes a duty ‘to monitor the case in the trial court to ascertain whether any filing, scheduling or calendaring errors have occurred.’ ” (quoting Tamburino v. Combined Ins. Co. of America, 54 Cal. Rtpr. 3d 175, 184 (2007)).