Document Type

Case Summary

Publication Date

1-1-2004

Case Synopsis

On January 23, 1993, appellant David Rickard was involved in an incident at the Montgomery Ward store. On April 20, 1993, he filed a complaint in the Clark County District Court alleging various claims against the store. Approximately four years after the complaint was filed in court, Ward filed a chapter 11 bankruptcy proceeding with the United States Bankruptcy Court in the District of Delaware. In accordance with federal bankruptcy law, Rickard’s action in the Nevada district court was stayed. On August 25, 1998, Rickard filed a motion for relief from stay in order to further his action against Ward. The bankruptcy court granted Rickard’s motion and on January 27, 1999, Rickard notified Ward that he had received relief from the stay. Rickard then filed a motion for a trial with the district court. The motion was unopposed and the district court entered its order setting a jury trial for August 3, 1999. On July 23, 1999, Ward filed a motion to dismiss based on Rickard’s failure to bring the matter to trial within five years as required by NRCP 41(e).2 The motion was denied and Ward never took any further action on that motion. On January 23, 2001, at a status check for Rickard’s case, the district court judge requested that the parties file points and authorities indicating all significant dates to help explain why the five-year rule had not run on Ward. On April 19, 2001, the district court heard argument regarding dismissal of Rickard’s action pursuant to NRCP 41(e) and concluded that the five-year period had run as to Ward and dismissed Rickard’s case. This appeal followed. On appeal, Rickard asserted the primary theory that, pursuant to 11 U.S.C. § 108(c)3, the five-year prescriptive period in NRCP 41(e) was tolled of the time period during which Ward was under the protection of the bankruptcy court. The Nevada Supreme Court concluded that although 11 U.S.C. § 108(c) in itself does not toll the five-year period, there is no reason to distinguish between a court ordered stay and the automatic stay imposed by federal bankruptcy law under 11 U.S.C. § 362(a). Therefore, Rickard’s claim was not tolled under NRCP 41(e).

Download

Share

COinS