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Nevada Rules of Civil Procedure

Rule 41. Dismissal of Actions

(a)     Voluntary Dismissal: Effect Thereof.

(1)     By the Plaintiff.

(A) Without a Court Order. Subject to Rules 23(f), 23.1, 23.2, 66, and any applicable statute, the plaintiff may dismiss an action without a court order by filing:

(i)    a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or

(ii)      a stipulation of dismissal signed by all parties who have appeared.

(B)   Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.

(C)   Filing Fees. Unless otherwise stipulated, the plaintiff must repay the defendant’s filing fees.

(2) By Order of Court; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiffs request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff’s motion to dismiss, the action may be dismissed over the defendant’s objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under Rule 41(a)(2) is without prejudice.

(b)    Involuntary Dismissal: Effect. If the plaintiff fails to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against the defendant. Unless the dismissal order or an applicable statute provides otherwise, a dismissal under Rule 41(b) and any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits.

(c)    Dismissing a Counterclaim, Crossclaim, or Third-Party Claim. This rule applies to a dismissal of any counterclaim, crossclaim, or third-party claim. A claimant’s voluntary dismissal under Rule 41(a)(l)(A)(i) must be made:

(1)    before a responsive pleading is served; or

(2)   if there is no responsive pleading, before evidence is introduced at a hearing or trial.

(d)      Costs of a Previously Dismissed Action. If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court:

(1)     may order the plaintiff to pay all or part of the costs of that previous action; and

(2)      may stay the proceedings until the plaintiff has complied.

(e)       Dismissal for Want of Prosecution.

(1)      Procedure. When the time periods in this rule have expired:

(A)      any party may move to dismiss an action for lack of prosecution; or

(B)     the court may, on its own, issue an order to show cause why an action should not be dismissed for lack of prosecution. After briefing, the court may hold a hearing or take the matter under submission, as provided by local rules on motion practice.

(2)      Dismissing an Action Before Trial.

(A)     The court may dismiss an action for want of prosecution if a plaintiff fails to bring the action to trial within 2 years after the action was filed.

(B)     The court must dismiss an action for want of prosecution if a plaintiff fails to bring the action to trial within 5 years after the action was filed.

(3)      Dismissing an Action After a New Trial is Granted. The court must dismiss an action for want of prosecution if a plaintiff fails to bring the action to trial within 3 years after the entry of an order granting a new trial.

(4)      Dismissing an Action After an Appeal.

(A)   If a party appeals an order granting a new trial and the order is affirmed, the court must dismiss the action for want of prosecution if a plaintiff fails to bring the action to trial within 3 years after the remittitur was filed in the trial court.

(B)   If a party appeals a judgment and the judgment is reversed on appeal and remanded for a new trial, the court must dismiss the action for want of prosecution if a plaintiff fails to bring the action to trial within 3 years after the remittitur was filed in the trial court.

(5)    Extending Time; Computing Time. The parties may stipulate in writing to extend the time in which to prosecute an action. If two time periods requiring mandatory dismissal apply, the longer time period controls.

(6)    Dismissal With Prejudice. A dismissal under Rule 41(e) is a bar to another action upon the same claim for relief against the same defendants unless the court provides otherwise in its order dismissing the action.

Advisory Committee Note—2019 Amendment

The amendments generally conform Rules 41(a), (b), (c), and (d) to their federal counterparts, but retain Nevada-specific provisions in Rule 41(a)(1)(C), respecting reimbursement of filing fees, and Rule 41(e), addressing dismissals for non-prosecution. The reorganization of Rule 41(e) is stylistic and not intended to change existing caselaw interpreting former NRCP 41(e). Rule 41(e)(5) is new and clarifies that if two time periods requiring mandatory dismissal apply, the longer period controls.

About the Author

Jay Young is a Las Vegas, Nevada attorney. His practice focuses on acting as an Arbitrator and Mediator.

Mr. Young can be reached at 702.667.4868 or at jay@h2law.com.

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