Before the Court en banc. Opinion by Justice Cherry. Justice Pickering dissenting.
In this appeal from an order dismissing a case for failure to bring it to trial within five years, the Court reaffirmed its factors for evaluating a motion for a preferential trial setting and resolved an inconsistency in the case law regarding the allowable time to bring an action to trial following a reversal and remand. A district court has discretion to grant a preferential trial date, but must consider (1) the time remaining in the five-year period when the motion is filed, and (2) the diligence of the moving party and his or her counsel in prosecuting the case. Resolving a conflict between a decision that gave three years to bring a case to trial after a remand and a case that gave “a reasonable time” to bring a case to trial, the Court concluded that the three-year rule was more clear and certain rule was the three-year rule. As such, when an erroneous judgment or dismissal is reversed on appeal, a plaintiff has three years from the date of the remittitur to bring the action to trial. In dissent, Justice Pickering asserted that because the appellant had argued for the decision of the district court that lead to the error, the doctrine of invited error barred his arguments on appeal. Justice Pickering would have affirmed the district court’s dismissal. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
