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Should I make a motion to dismiss for want of prosecution?

Las Vegas, NV |

I received a lawsuit in Las Vegas Justice court for a debt from 2010. The suit was filed in February 2012. I filed an answer in August 2012 denying all the allegations, pro se. The debt was for a broken lease. I selected all affirmative defenses including statute of limitations. It has been 2 years 4 months since filed and the plaintiff is not doing anything. The statute of limitations has expired on the debt (4 years in NV, I believe). Should I file a motion to dismiss for want of prosecution or should I do nothing and see what the plaintiff does. Plaintiff is represented by attorney and I am not.

Attorney Answers 2

Posted

Based on the facts provided the statute of limitations in Nevada is 6 years (NRS 11.190). Pursuant to JCRCP 16(1)(a), you were required to have a document exchange within 30 days of you filing the answer. At some point, the Court is either going to set a status check or set a hearing date or dismiss the case. I would not suggest filing a motion for want of prosecution. You may want to consult with an attorney who could review the court docket and advise you how to proceed.

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6 comments

Asker

Posted

Thank you Andrew, I have no documents to exchange and I was not provided with any or a list of any witnesses by the attorney. Does this mean the case is dead in the water?

Andrew H. Pastwick

Andrew H. Pastwick

Posted

What does the court docket say?

Asker

Posted

OTHER EVENTS AND HEARINGS 02/17/2012 Start Time Tracking: JCRCP 41(e) - 2 years 02/17/2012 Start Time Tracking: JCRCP 41(e) - 5 years 02/17/2012 Start Time Tracking: JCRCP 4(i) 02/17/2012 Civil Complaint - $2500.01 to $5,000.00 Complaint $2154.80 02/17/2012 Initial Appearance Fee Disclosure Initial Appearance Fee Disclosure 02/23/2012 Civil Summons Issued (Efiling) 03/13/2012 Affidavit of Service Affidavit of Service 01/01/2013 Administrative Reassignment to Department 8 Case reassigned from Department 03 (Judge Janiece Marshall) 09/24/2013 Answer Civil Answer 11/19/2013 Substitution of Attorney Substitution of Counsel 01/01/2014 Administrative Reassignment to Department 5 Case reassigned from Department 08 (Judge Ann E. Zimmerman)

Andrew H. Pastwick

Andrew H. Pastwick

Posted

Based on the information provided, this is what may have happened. The Plaintiff (Creditor) switched attorneys after you filed your answer. This happens all the time with creditor attorneys (debt collection firms). I would suggest not doing anything. I would wait five years from the date the complaint was filed and then file a JCRCP 41(e) motion. I know the rules say it can be 2 years if the plaintiff does not move for trial but the Court has discretion for the 2 year mark and generally they will grant the plaintiff some leeway, but they are not so nice at the 5 year mark. I cannot solicit clients through avvo, but if you have any further questions, I am sure that you can find an attorney who specializes is debt collection on avvo.

Asker

Posted

Again, Thank you Andrew. I suspect that they were trying to get a default judgment (easy win) and when that did not happen they have nothing else to go with. You have been very helpful, thank you!

Andrew H. Pastwick

Andrew H. Pastwick

Posted

Thanks, if you want to add a comment to my client reviews, it would be greatly appreciated.

Posted

While I agree with Attorney's Andrew's answer, however, you can still file motion to dismiss, or expedite. Again, filing affirmative defenses does not mean that you have a meritorious defense by itself. The plaintiffs should have contemplated discovery during this time period. In actuality, they file bundles of such cases, with the expectation that they would get lots of default judgment. They are shocked when someone oppose their lawsuit. Also, this cause them more of attorneys fees.

Only see a licensed attorney before you make any decision. This answer may not be perfect in any given situation. However, more fact may be required by your local attorney.

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1 comment

Asker

Posted

Thank you Malik, I think the common denominator here is that they were looking for a default. Is there any advantage to seeking dismiss or expedite. I really believe this will sit on the books for 2 more years without any action by the plaintiff. As Andrew pointed out the SOL is not up yet so pushing it doesn't seem to make sense.

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