                               Here, there is no dispute that when BR Construction filed its
                   motion to dismiss in December 2014, five years had passed since the filing
                   of Holbrook's complaint on July 31, 2009. Rather, Holbrook argues that
                   the parties' settlement agreement stayed the action until December 10,
                   2013, when the district court lifted the stay, and that the stay operated to
                   toll the five-year period. Further, Holbrook argues that BR Construction's
                   "subterfuge" in asking to vacate the trial date and then not filing for
                   bankruptcy as indicated should toll the period. Finally, Holbrook asks
                   that any dismissal be entered without prejudice.
                               Because the district court did not order the stay and the
                   parties did not explicitly agree to extend the five-year period, the five-year
                   period was not tolled. Boren v. City of N. Las Vegas, 98 Nev. 5, 5-6, 638
                   P.2d 404, 404 (1982) (holding that court-ordered stays extend the five-year
                   period); Prostack v. Lowden, 96 Nev. 230, 231, 606 P.2d 1099, 1099-1100
                   (1980) (explaining that a stipulation must expressly extend the five-year
                   deadline; a stipulation to continue the trial date that makes no mention of
                   the five-year rule does not suffice, and a defendant's "(w)ords and conduct,
                   short of a written stipulation' cannot estop a defendant from asserting the
                   mandatory dismissal rule" (quoting Thran v. First Judicial Dist. Court, 79
                   Nev. 176, 181, 380 P.2d 297, 300 (1963))). Accordingly, the district court
                   was required to dismiss the action.
                               With regard to Holbrook's request that any dismissal be
                   entered without prejudice, "the district court has broad discretion in
                   determining whether an NRCP 41(e) dismissal should be with or without
                   prejudice." Home Say. Ass'n v. Aetna Cas. & Sur. Co., 109 Nev. 558, 563-
                   64, 854 P.2d 851, 854 (1993). The district court has not yet considered this
                   proposal, and thus, this court's intervention would be premature as to that


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                issue. See Kochendorfer v. Bd. of Cnty. Comm'rs.,      93 Nev. 419, 422, 566
                P.2d 1131, 1133 (1977) (explaining that mandamus cannot be used to
                control the proper exercise of discretion or to substitute the judgment of
                this court for that of the district court). Thus, without deciding the
                prejudice issue, mandamus is warranted, NRS 34.160 (providing that
                mandamus will issue to compel an act enjoined by law); Smith v. Eighth
                Judicial Din. Court, 113 Nev. 1343, 1344-45 & n.1, 1348, 950 P.2d 280,
                281 & n.1, 283 (1997), and we
                            ORDER the petition GRANTED AND DIRECT THE CLERK
                OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
                district court to grant the motion to dismiss under NRCP 41(e).



                                                                                         ,J.
                                                           Parraguirre




                cc:   Chief Judge, The Ninth Judicial District Court
                      Hon. David R. Gamble, Senior Judge
                      James J. Rankl
                      Oshinski & Forsberg, Ltd.
                      Douglas County Clerk




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