FRANK PECK v. THE STATE OF NEVADA NEVADA DEPARTMENT OF CORRECTIONS JAMES DZURENDA DR EDCOMB DR KAREN GEDNEY DR MAR RN HENDERSON RN DANIEL AND RN MITCHIL (2025)

ORDER OF AFFIRMANCE

Frank M. Peck appeals from a district court order dismissing his case under NRCP 41(e)’s five-year rule. First Judicial District Court, Carson City; Kristin Luis, Judge.

Peck filed his complaint on February 6, 2017, alleging several causes of action stemming from the death of his brother. Respondents subsequently filed an answer to Peck's complaint. The parties thereafter filed numerous motions and other documents in the district court. In addition, Peck pursued two appeals that were dismissed by the Nevada Supreme Court, see Peck v. First Jud. Dist. Ct., No. 77850, 2019 WL 5790660 (Nev. Nov. 5, 2019) (Order Dismissing Appeal); Peck v. State, Dep't of Corr., No. 75171, 2018 WL 1448537 (Nev. Mar. 22, 2018) (Order Dismissing Appeal), and he unsuccessfully sought extraordinary relief via a petition for a writ of prohibition, see Peck v. State, Dep't of Corr., No. 75141-COA, 2018 WL 3913433 (Nev. Ct. App. Aug. 2, 2018) (Order Denying Petition for Writ of Prohibition). The record indicates that the parties exchanged correspondence regarding scheduling this matter for trial in 2021, but Peck did not thereafter bring this matter to trial.

On December 5, 2024, respondents filed a motion to dismiss under NRCP 41(e) for want of prosecution. Respondents noted that more than five years had passed since Peck filed his complaint and stated that the parties had not reached a stipulation to extend the five-year period. Peck, who is an inmate in the custody of the Nevada Department of Corrections (NDOC), opposed the motion to dismiss, contending that his failure to prosecute should be excused for various reasons, including his assertion that staffing issues at NDOC following the COVID-19 pandemic caused the prison to be locked down. Peck also contended NDOC concluded his casefile, which he alleged contained his brother's medical information, was unauthorized and accordingly confiscated it.

The district court on December 23, 2024, issued a written order granting respondents’ motion to dismiss. The court noted that Peck filed his complaint in 2017 and that the parties had not reached a stipulation to extend the time to bring this matter to trial. The district court accordingly dismissed this matter pursuant to NRCP 41(e)(2)(B). This appeal followed.

Peck contends the district court erred by dismissing his complaint for failure to bring the case to trial prior to the expiration of the five-year rule. Peck asserts his failure to bring this matter to trial in a timely manner should be excused because of the lockdowns at the prison and based on the confiscation of his casefile.

We review de novo a district court's dismissal for failure to prosecute under NRCP 41(e)’s five-year rule. Power Co., Inc. v. Henry, 130 Nev. 182, 186, 321 P.3d 858, 860-61 (2014); Monroe v. Columbia Sunrise Hosp. & Med. Ctr., 123 Nev. 96, 99, 158 P.3d 1008, 1010 (2007) (stating “[b]ecause application of NRCP 41(e) is an issue of law, we review” arguments concerning application of NRCP 41(e) de novo). Generally, the district court must dismiss an action for want of prosecution when “a plaintiff fails to bring the action to trial within 5 years after [it] was filed.” NRCP 41(e)(2)(B). NRCP 41(e)’s five-year rule “is clear and unambiguous and requires no construction other than its own language.” D.R. Horton, Inc. v. Eighth Jud. Dist. Ct., 131 Nev. 865, 872, 358 P.3d 925, 929 (2015) (internal quotation marks omitted). Under the five-year rule, “where a case has not been brought to trial after five years, dismissal is mandatory, affording the district court no discretion.” Id. It is the plaintiff's obligation to ensure compliance with NRCP 41(e)’s five-year rule, Morgan v. Las Vegas Sands, Inc., 118 Nev. 315, 321, 43 P.3d 1036, 1040 (2002), and “NRCP 41(e) does not allow for examination of the equities of dismissal or protection of a plaintiff who is the victim of unfortunate circumstances,” Monroe, 123 Nev. at 99-100, 158 P.3d at 1010.

We conclude Peck fails to demonstrate the district court erroneously granted respondents’ motion to dismiss. Peck's contentions concerning prison lockdowns and his casefile were insufficient to excuse the district court's mandatory duty to dismiss this matter under NRCP 41(e)’s five-year rule. See id.; see also Johnson v. Harber, 94 Nev. 524, 526, 582 P.2d 800, 801 (1978) (“Although appellant appears to be the victim of unfortunate circumstances, [the supreme 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.”). And Peck's allegations do not fall into one of the limited “exceptions to the mandatory nature of NRCP 41(e),” such as the entry of a stay order, D.R. Horton, Inc., 131 Nev. at 872, 358 P.3d at 930, or a stipulation to extend the five-year period, Prostack v. Lowden, 96 Nev. 230, 231, 606 P.2d 1099, 1099-1100 (1980).¹ In light of the foregoing, we conclude the district court did not err by dismissing this matter pursuant to NRCP 41(e)(2)(B). Accordingly, we

ORDER the judgment of the district court AFFIRMED.²

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   Peck did not allege he was prevented from bringing this action to trial by reason of a stay order, cf. Boren v. City of N. Las Vegas, 98 Nev. 5, 6, 638 P.2d 404, 405 (1982) (“Any period during which the parties are prevented from bringing an action to trial by reason of a stay order shall not be computed in determining the five-year period of Rule 41(e).”), and he has thus forfeited any argument related to the same, see Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) (providing that issues an appellant does not raise on appeal are forfeited).

2.   Insofar as Peck raises arguments that are not specifically addressed in this order, we have considered the same and conclude that they do not present a basis for relief.