                                                   130 Nev., Advance Opinion 33
                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                 CHARLES DORNBACH; AND JAKE                           No. 62771
                 HUBER,
                 Petitioners,
                 vs.
                 THE TENTH JUDICIAL DISTRICT
                                                                            FILED
                 COURT OF THE STATE OF NEVADA,                               MAY 15 2014
                 IN AND FOR THE COUNTY OF                                   4AK. LINDEMAN
                 CHURCHILL; AND THE HONORABLE                          CL
                                                                       BY 1  : 10 -
                 THOMAS L. STOCKARD, DISTRICT                             CHIEF DA CLEFTK

                 JUDGE,
                 Respondents,
                    and
                 FRANCIS A. ELLINGWOOD, TRUSTEE
                 OF THE FRANCIS A. ELLINGWOOD
                 TRUST; PAUL THOMAS BRUNELLE
                 AND SUSAN GAYLENE BRUNELLE,
                 TRUSTEES OF THE BRUNELLE
                 FAMILY TRUST; EDELTRAUT
                 RUPPEL, SUCCESSOR TRUSTEE OF
                 THE RUPPEL FAMILY TRUST;
                 STUART V. DAWSON, TRUSTEE OF
                 THE STUART V. DAWSON
                 REVOCABLE TRUST; JURGE
                 SCHLICKER; MICHAEL J.
                 SOUTHARD, SUCCESSOR TRUSTEE
                 OF THE JEAN PIERRE IRISSARY 2005
                 RESTATEMENT OF THE 1993
                 REVOCABLE TRUST; AND JOSEPH
                 LOUDEN AND LINDA LOUDEN,
                 HUSBAND AND WIFE,
                 Real Parties in Interest.

                            Original petition for a writ of mandamus challenging a district
                 court order denying a motion to dismiss a complaint under NRCP 16.1(e).
                            Petition denied.


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                   Robison, Belaustegui, Sharp & Low and Mark G. Simons, Reno,
                   for Petitioners.

                   Jeffrey K. Rahbeck, Zephyr Cove,
                   for Real Parties in Interest.




                   BEFORE THE COURT EN BANG.

                                                    OPINION
                   By the Court, PARRAGUIRRE, J.:
                               NRCP 16.1(b) directs plaintiffs in civil cases to meet and
                   confer with defendants concerning how to best manage the litigation and
                   discovery. Thereafter, a report on the case conference must be filed.
                   NRCP 16.1(c). When a plaintiff fails to meet the deadlines for complying
                   with these provisions, a district court may dismiss the complaint without
                   prejudice under NRCP 16.1(e).
                               In this original writ proceeding, we discuss the extent to which
                   a district court has discretion to deny an NRCP 16.1(e) motion to dismiss
                   and to order the parties to meet and confer beyond the rule's deadlines.
                   We conclude that a district court may consider its own internal delays
                   when deciding an NRCP 16.1(e) motion to dismiss, and that, here, the
                   district court properly exercised its discretion by extending the deadlines
                   of NRCP 16.1 after finding that compelling and extraordinary
                   circumstances warranted the extension. Accordingly, we deny the petition
                   for a writ of mandamus.
                                    FACTS AND PROCEDURAL HISTORY
                               On December 6, 2011, real party in interest Francis A.
                   Ellingwood, as trustee for the Francis A. Ellingwood Trust, and other
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                 plaintiffs (collectively, Ellingwood) filed a complaint for a deficiency
                 judgment against petitioners Charles Dornbach and Jake Huber
                 (collectively, Dornbach) in the Churchill County district court. On
                 February 27, 2012, Dornbach filed a motion to dismiss for failure to state a
                 claim pursuant to NRCP 12(b)(5). Due to the death of Churchill County's
                 only sitting district judge and related delays in the district court, the
                 hearing on the NRCP 12(b)(5) motion did not occur until January 7, 2013,
                 and the motion was eventually denied. While the motion remained
                 pending, Dornbach did not file an answer to Ellingwood's complaint.
                             On December 6, 2012, 284 days after Dornbach filed the
                 NRCP 12(b)(5) motion, Dornbach filed a motion to dismiss the case
                 without prejudice due to Ellingwood's failure to comply with NRCP
                 16.1(e), which allows a district court to dismiss a case if the plaintiff fails
                 to hold an early case conference and file the case conference report within
                 set deadlines. The district court implicitly recognized that Ellingwood
                 failed to comply with the rule but denied Dornbach's motion, explaining
                 that the death of the district judge and the significant resulting delays
                 constituted compelling and extraordinary circumstances that justified
                 extending the NRCP 16.1 deadlines. Dornbach then sought a writ of
                 mandamus from this court to compel the district court to dismiss the case.
                                                DISCUSSION
                             In this petition, Dornbach argues that the district court
                 improperly denied the NRCP 16.1 motion to dismiss and ordered the
                 parties to meet and confer after the NRCP 16.1 deadlines expired.
                 Whether to consider the petition for a writ of mandamus
                             We have discretion to consider a petition for a writ of
                 mandamus.     Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124
                 Nev. 193, 197-98, 179 P.3d 556, 558-59 (2008). "A writ of mandamus is
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                available to compel the performance of an act that the law requires as a
                duty resulting from an office, trust, or stationE,1 or to control an arbitrary
                or capricious exercise of discretion." Id. at 197, 179 P.3d at 558. A writ is
                not available, however, "when an adequate and speedy legal remedy
                exists."   Id.    Generally, we "decline to consider writ petitions that
                challenge interlocutory district court orders denying motions to dismiss"
                because an appeal from a final judgment is an adequate legal remedy.       Id.
                Nevertheless, we may consider such petitions if "an important issue of law
                needs clarification and considerations of sound judicial economy and
                administration militate in favor of granting the petition." Id. at 197, 179
                P.3d at 559.
                               Because NRCP 16.1 is relevant in nearly all civil cases, its
                construction and application involve important legal issues in need of
                clarification.   See id. at 198, 179 P.3d at 559. Moreover, although we
                ultimately determine that writ relief is not warranted, our consideration of
                this petition promotes judicial economy and administration because
                questions concerning the early case conference necessarily arise early in
                the proceedings, affect the remainder of the case, and cannot be
                adequately addressed on appeal after a case has proceeded through the
                full extent of litigation. Therefore, we will consider the petition.
                The meaning of "appearance" in NRCP 16.1(e)
                               NRCP 16.1(b)(1) requires a plaintiff to hold an early case
                conference, where the parties must "confer and consider the nature and
                basis of their claims and defenses and the possibilities for a prompt
                settlement." NRCP 16.1(c) requires the parties to file a report regarding
                the conference with the district court. In order "to promote the
                prosecution of litigation within adequate timelines," Arnold v. Kip, 123
                Nev. 410, 415, 168 P.3d 1050, 1053 (2007), deadlines are given for both the
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                  early case conference and the report. NRCP 16.1(b)(1) provides that the
                  early case conference must be held within 30 days after the defendant files
                  an answer to the complaint, and this deadline may be extended no later
                  than 180 days from when the defendant's appearance is served, unless
                  compelling and extraordinary circumstances justify an extension. The
                  case conference report must be filed within 30 days after the conference.
                  NRCP 16.1(c). NRCP 16.1(e) provides, in relevant part, that the district
                  court may dismiss a case if these deadlines, with any extensions, are not
                  followed:
                                   (1) If the conference ... is not held within
                              180 days after an appearance by a defendant, the
                              case may be dismissed as to that defendant upon
                              motion or on the court's own initiative, without
                              prejudice, unless there are compelling and
                              extraordinary circumstances for a continuance
                              beyond this period.
                                    (2) If the plaintiff does not file a case
                              conference report within 240 days after an
                              appearance by a defendant, the case may be
                              dismissed as to that defendant upon motion or on
                              the court's own initiative, without prejudice.
                  (Emphases added.)
                              While Dornbach and Ellingwood agree that NRCP 16.1(e)'s
                  deadlines began running when Dornbach made his first "appearance" in
                  district court, they disagree as to when this appearance occurred.
                  Dornbach argues that he first appeared by filing the NRCP 12(b)(5)
                  motion to dismiss and that NRCP 16.1(e)'s deadlines ran from this date.
                  Ellingwood argues that a defendant does not appear for purposes of NRCP
                  16.1(e) until filing an answer to the complaint. According to Ellingwood,
                  because Dornbach had not yet answered Ellingwood's complaint when
                  Dornbach filed the NRCP 16.1(e) motion to dismiss, the rule's deadlines
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                  had not expired, and the district court therefore properly denied
                  Dornbach's motion.
                              Ellingwood points to NRCP 16.1(b)(1)'s requirement that the
                  early case conference be held "within 30 days after filing of an answer by
                  the first answering defendant." (Emphasis added.) Because NRCP
                  16.1(b)(1) uses the word "answer" while NRCP 16.1(e) uses the word
                  "appearance," Ellingwood argues that the rule is ambiguous and this court
                  should interpret "appearance" in NRCP 16.1(e) as being synonymous with
                  "answer." We find this argument unpersuasive.
                              "A district court's interpretation of court rules is reviewed de
                  novo." Moon v. McDonald, Carano & Wilson, L.L.P., 126 Nev.             ,
                  245 P.3d 1138, 1139 (2010). "[T]he rules of statutory interpretation apply
                  to Nevada's Rules of Civil Procedure." Webb ex rel. Webb v. Clark Cnty.
                  Sch. Dist., 125 Nev. 611, 618, 218 P.3d 1239, 1244 (2009). Unambiguous
                  language in a rule "is given 'its ordinary meaning unless it is clear that
                  this meaning was not intended." State, Dep't of Taxation v. Am. Home
                  Shield of Nev., Inc., 127 Nev.     „ 254 P.3d 601, 603 (2011) (quoting
                  State, Dep't of Taxation v. DaimlerChrysler Servs. N. Am., L.L.C., 121 Nev.
                  541, 543, 119 P.3d 135, 136 (2005)).
                              An "appearance" is "[a] coming into court as a party or
                  interested person, . . . esp[ecially] a defendant's act of taking part in a
                  lawsuit. . . by an answer, demurrer, or motion." Black's Law Dictionary
                  113 (9th ed. 2009) (emphasis added). In contrast, an "answer" is "[a]
                  defendant's first pleading that addresses the merits of the case."    Id. at
                  107. Because "appearance" and "answer" have different, well-settled
                  definitions, we conclude that the time periods set forth in NRCP 16.1(e)


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                  unambiguously begin to run when a defendant appears, regardless of
                  whether that appearance is by motion or answer.
                                 It is undisputed that Dornbach filed the NRCP 12(b)(5) motion
                  more than 240 days before filing the NRCP 16.1(e) motion. Filing the
                  NRCP 12(b)(5) motion constituted Dornbach's appearance, and because
                  the NRCP 16.1(e) time periods begin to run when a defendant appears, the
                  NRCP 16.1(e) deadlines expired before Dornbach filed the NRCP 16.1(e)
                  motion to dismiss.
                  The district court did not arbitrarily or capriciously exercise its discretion
                  by denying Dornbach's motion to dismiss
                                 NRCP 16.1(e)(1) and (2) provide that a "case may be
                  dismissed" if a plaintiff fails to comply with the rule's deadlines.
                  (Emphasis added.) Based on this permissive language, this court has
                  repeatedly recognized a district court's discretion to dismiss a case under
                  NRCP 16.1(e). For example, in Arnold v. Kip, we upheld a district court's
                  order of dismissal, explaining that "Wile decision to dismiss an action
                  without prejudice for a plaintiffs failure to comply with the timing
                  requirements of NRCP 16.1(e)(2) remains within the district court's
                  discretion."    123 Nev. at 415, 168 P.3d at 1053 (emphasis added). In
                  evaluating an NRCP 16.1(e)(2) dismissal in Moon v. McDonald, Carano &
                  Wilson, L.L.P., we again noted that "the district court exercised its
                  discretion to dismiss [the plaintiffs] case." 126 Nev. at , 245 P.3d at
                  1140 (emphasis added).
                                 Nevertheless, Dornbach argues that the district court's
                  reasoning was arbitrary and capricious because a district court's internal
                  delays are not among the relevant factors for deciding an NRCP 16.1(e)
                  motion to dismiss. When exercising its discretion under NRCP 16.1(e), a
                  district court should consider factors such as "the length of the delay,
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                 whether the defendant ... caused the delay, whether the delay has
                 otherwise impeded the timely, prosecution of the case, general
                 considerations of case management. . . , or whether the plaintiff has
                 provided good cause for the delay." Arnold, 123 Nev. at 415-16, 168 P.3d
                 at 1053. This list of factors is "nonexhaustive," id., and we have
                 recognized, "as a proper guide to the exercise of discretion, the basic
                 underlying policy to have each case decided upon its merits."    Hotel Last
                 Frontier Corp. v. Frontier Props., Inc., 79 Nev. 150, 155, 380 P.2d 293, 295
                 (1963). Further, although the NRCP 16.1(e) deadlines unambiguously
                 begin to run upon a defendant's appearance, we have stated that it may be
                 "fruitless" to hold a case conference before a defendant has filed an answer
                 to the complaint simply for the purpose of complying with NRCP 16.1.
                 Dougan v. Gustaveson, 108 Nev. 517, 522, 835 P.2d 795, 799 (1992),
                 abrogated on other grounds by Arnold, 123 Nev. at 415, 168 P.3d at 1053.
                             Here, Dornbach's NRCP 12(b)(5) motion to dismiss remained
                 pending for several months due to the district court's own delays, and
                 while this motion was pending, Dornbach did not file an answer to the
                 complaint. Although Elling-wood had a duty to hold the early case
                 conference and file the case conference report even without Dornbach
                 having answered the complaint, doing so may have been fruitless.         See
                 Dougan, 108 Nev. at 522, 835 P.2d at 799. In addition, the district court's
                 internal delays are relevant to "general considerations of case
                 management." See Arnold, 123 Nev. at 416, 168 P.3d at 1053. Therefore,
                 we conclude that the district court's consideration of its internal delays
                 and their effects on the progression of the case was not improper, and
                 thus, the district court did not arbitrarily or capriciously exercise its
                 discretion by denying Dornbach's motion to dismiss.

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                  The district court did not arbitrarily or capriciously exercise its discretion
                  by ordering the parties to comply with NRCP 16.1 after the deadlines
                  expired
                                Dornbach also argues that the district court improperly
                  ordered the parties to comply with NRCP 16.1 after the deadlines expired.
                  NRCP 16.1(b)(1) provides in relevant part: "Absent compelling and
                  extraordinary circumstances, neither the court nor the parties may extend
                  the time [for holding the conference] to a day more than 180 days after an
                  appearance is served by the defendant in question."
                                We have recognized "the inherent power of the judiciary to
                  economically and fairly manage litigation." Borger v. Eighth Judicial Dist.
                  Court, 120 Nev. 1021, 1029, 102 P.3d 600, 606 (2004). Adherence to
                  deadlines promotes the efficient prosecution of cases, Arnold, 123 Nev. at
                  415, 168 P.3d at 1053, but so does allowing district courts to manage the
                  cases before them. See Burger, 120 Nev. at 1029, 102 P.3d at 606.
                                Here, the district court explicitly found that the death of the
                  district judge and the resulting delays were extraordinary circumstances
                  that justified an extension of the deadline for the conference. But
                  Dornbach argues that the district court's own delays could not justify an
                  extension because they did not impact Ellingwood's ability to hold the
                  conference.
                                Even though NRCP 16.1(b)(1) generally precludes a district
                  court from extending the deadline for the NRCP 16.1 conference, a district
                  court also has inherent authority to manage a case, including the
                  authority to order parties to meet and confer.      See Burger, 120 Nev. at
                  1029, 102 P.3d at 606. Moreover, a district court has the express
                  authority to extend the deadline for the conference where warranted by
                  compelling and extraordinary circumstances. NRCP 16.1(b)(1). NRCP

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                16.1(b)(1) does not explicitly state that these compelling and extraordinary
                circumstances cannot arise from within the district court itself, and we
                decline to determine that the rule implicitly creates such a limitation.    See
                Webb, 125 Nev. at 618, 218 P.3d at 1244 (stating that "the rules of
                statutory interpretation apply to Nevada's Rules of Civil Procedure").
                Therefore, a district court's consideration of its own internal delays may,
                in certain circumstances, be relevant to determining whether compelling
                and extraordinary circumstances justify an extension under NRCP
                16.1(b)(1).
                              In this case, we conclude that the district court did not
                arbitrarily or capriciously exercise its discretion by finding that the judge's
                death and the substantial resulting delays constituted compelling and
                extraordinary circumstances. Indeed, the record shows that Dornbach's
                NRCP 12(b)(5) motion to dismiss was pending for approximately 11
                months because of these delays. It was entirely reasonable for Ellingwood
                to want a ruling on this motion prior to holding the conference in order to
                maximize the conference's utility.      Cf. NRCP 16.1(b)(1) (requiring the
                parties to "consider the nature and basis of their claims and defenses" at
                the early case conference);    Dougan, 108 Nev. at 522, 835 P.2d at 799
                (recognizing that, in certain circumstances, it may be "fruitless" to hold a
                case conference simply for the purpose of complying with NRCP 16.1's
                deadlines). As a result, we conclude that the district court did not act
                arbitrarily or capriciously by extending the deadline for the NRCP 16.1
                conference beyond 180 days.
                                               CONCLUSION
                              The deadlines set forth in NRCP 16.1(e) clearly begin to run
                upon a defendant's appearance, not the filing of an answer, and therefore
                these deadlines expired before Dornbach filed a motion to dismiss
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                Ellingwood's complaint pursuant to NRCP 16.1(e). But the district court
                explicitly found that compelling and extraordinary circumstances excused
                Ellingwood's delay and justified an extension of time to complete the
                conference and the report. As a result, we cannot conclude that the rule
                requires dismissal here, or that the district court acted arbitrarily and
                capriciously by denying Dornbach's motion to dismiss and ordering the
                parties to meet and confer. Accordingly, we deny the petition for a writ of
                mandamus.



                                                    Parraguirre




                                               C.J.



                      Pitt
                Pickering      7               J.



                                AA;            J.
                Hardesty


                                               J.




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