EBEL v. BRIGGS (2021)

ORDER DISMISSING APPEAL

This is an appeal from a district court order granting a motion to dismiss for failure to state a claim. Eighth Judicial District Court, Clark County; Jacqueline M. Bluth, Judge.

On February 22, 2021, the parties filed a stipulation for a second extension of time for appellant to file the opening brief. In support of the stipulation, counsel for appellant stated that he had not yet received the requested transcripts. On February 26, 2021, this court entered an order treating the stipulation as a motion, see NRAP 31(b)(2) (parties may stipulate to one 30-day extension of time from due date established by NRAP 31(a)(1)), granting the motion, and directing appellant to file and serve the opening brief and appendix by March 26, 2021.¹ The order cautioned that no further extensions would be permitted absent extraordinary circumstances and extreme need, NRAP 31(b), and that failure to timely file the opening brief and appendix could result in the imposition of sanctions, including the dismissal of this appeal, NRAP 31(d). The order also noted that the transcript request form filed by appellant was deficient because it did not bear the file-stamp of the district court clerk as required and was not addressed to the responsible court recorder. See NRAP 9(a)(3)(A), (C). This court directed appellant to file an amended transcript request form within 7 days that fully complied with NRAP 9(a). The order stated that failure to comply could result in the imposition of sanctions. NRAP 9(a)(7).

Appellant filed an amended transcript request form on March 1, 2021. But the amended transcript request form was rejected by the clerk of this court on that same date because it did not bear the file-stamp of the district court clerk. Later that day, appellant filed a file-stamped transcript request form.

Appellant has now filed an untimely motion for a third extension of time to file the opening brief. In support of the motion, counsel for appellant states that he has not yet received all requested transcripts. Respondents oppose the motion and countermove to dismiss this appeal based on the failure to timely file the opening brief or timely move for an extension of time. Although appellant filed the opening brief and appendix on April 5, 2021, appellant did not file an opposition to the motion to dismiss.

A motion for an extension of time to file a brief must be filed on or before the due date for the brief. NRAP 31(b)(3) (stating that “[a] motion for extension of time for filing a brief may be made no later than the due date for the brief”). Counsel for appellant does not explain why the current extension motion was not timely filed. And this court is not convinced that counsel demonstrates extraordinary circumstances and extreme need in support of a third extension of time where it appears the delay in receiving the transcripts was due to counsel's failure to properly request the transcripts in a timely manner. Under these circumstances, and given that appellant has not filed an opposition to the motion to dismiss, the extension motion is denied and the countermotion is granted. This appeal is dismissed. The clerk shall strike the opening brief and appendix filed on April 5, 2021.

It is so ORDERED.

Attachment

ORDER GRANTING MOTION

The parties have filed a stipulation for a second extension of time to file the opening brief. The stipulation is treated as a joint motion for an extension of time. See NRAP 31(b)(2) (parties may stipulate to one 30-day extension of time from due date established by NRAP 31(a)(1)). In support of the extension, the parties state that the requested transcripts have not yet been produced.

Review of appellant's transcript request form reveals that it is deficient. The document does not bear the file-stamp of the district court clerk as required by NRAP 9(a)(3)(1). And the transcript request form is not addressed to the responsible court recorder. See NRAP 9(a)(3)(C) (requiring an appellant to “examine the district court minutes to ascertain the name of each court reporter or recorder who recorded the proceedings for which transcripts are necessary” and “prepare a separate transcript request form addressed to each court reporter or recorder who recorded the necessary proceedings”).

Accordingly, appellant shall have 7 days from the date of this order to serve and file, in this court, an amended transcript request form that fully complies with NRAP 9(a). Failure to comply with this order may result in the imposition of sanctions. NRAP 9(a)(7). The extension motion is granted. NRAP 31(b). Appellant shall have until March 26, 2021, to file and serve the opening brief and appendix. No further extensions shall be permitted absent extraordinary circumstances and extreme need. Id. Counsel's caseload normally will not be deemed such a circumstance. Cf. Varnum v. Grady, 90 Nev. 374, 528 P.2d 1027 (1974). Failure to timely file the opening brief and appendix may result in the imposition of sanctions, including the dismissal of this appeal. NRAP 31(d).

It is so ORDERED.

FOOTNOTES

1.   A copy of this order is attached.