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You Won, Now What? Time Periods for Litigating Upon Remand

In Nevada, a case must be dismissed if it is not brought to trial within five years from the date it was filed.  NRCP 41(e).  Although dismissal is mandatory, the district court has discretion to dismiss with or without prejudice.  See NRCP 41(e); see also Harvey’s Wagon Wheel, Inc. v. Van Blitter, 959 F.2d 153, 156 (9th Cir. 1992).

There is a different timeline to bring a case to trial after an appeal.  When an appeal is taken, and the matter is remanded, the plaintiff has three years to bring the action to trial.  NRCP 41(e).

Three Years from What Date?

The three-year date runs from the date that remittitur is issued, not the date of the order of remand.  NRCP 41(e).

If a stay is in effect pending the appeal, the three-year deadline will not commence if the stay prevents the parties from immediately bringing the action back into active litigation before the district court upon remittitur.  Duke v. Simon, 124 Nev. 1464, 238 P.3d 808 (2008).  For example, in Duke, the appellant won and the matter was remanded.  However, the appellant had obtained a stay pending appeal of a set amount of time.  That stay wound up being in effect 280 days after remittitur was issued.  Once the stay was lifted, the clock on the three-year deadline began ticking.  Id.

Three Years from an Appeal vs. Three Years from a Writ

 A party who successfully takes a matter up on a writ does not get an extra three years to bring the action to trial under Rule 41(e).   The three-year deadline only applies to appeals, not writ petitions.  Monroe v. Columbia Sunrise Hosp. & Med. Ctr., 123 Nev. 96, 102, 158, P.3d 1008, 1011-12 (2007).  NRCP 41(e)’s five-year deadline applies when the matter is taken up on a writ.  Id.   Keep in mind that appellate review of a writ petition can take up to one year (or more).  Additional reasons why you may want to just wait to appeal are listed HERE.

Bring to Trial v. Deciding an Issue

Finally, the Nevada Supreme Court has made it clear that when Rule 41(e) says “trial” it means “TRIAL.”  Sort of.  It means all claims are resolved. Even if one claim is tried or litigated via dispositive motion work within the three-year period, the other claims must still be dismissed.  Allyn v. McDonald, 117 Nev. 907, 910, 34 P.3d 584, 586 (2001).

The Nevada Supreme Court has also made it clear that it will uphold dismissals even if there are equitable circumstances which would otherwise warrant reversal of the district court’s dismissal.  Id.  Rule 41(e) dismissals are mandatory, not discretionary.  The plaintiff, not the district court, is the one who filed the case and the one who assumes the responsibility to ensure that all crucial dates are met.  Id.  

The moral of this story is to remember your deadline for trying the case.  If you went up on appeal, it is three years from the date of remittitur.  If you went up on a writ, you had better get it done five years from the date of filing.