Biscay v. MGM Resorts Int’l (Nev. Supreme Ct. – July 2, 2015)
The issue is whether dismissal is appropriate under NRS 18.130(4) when a nonresident plaintiff files security with the court clerk for the defendant’s costs more than 30 days after receiving notice that the security is required, but before the district court has dismissed the case.
Biscay slipped and fell at a hotel owned by MGM Resorts International (MGM). Biscay filed a complaint against MGM for various torts relating to her fall. On September 26, 2012, MGM filed a demand for security of costs pursuant to NRS 18.130. Over six months later, Biscay filed a notice stating that she had filed the required security with the court clerk. Nine days after Biscay filed her bond, MGM moved the court to dismiss the case pursuant to NRS 18.130(4), which the district court ultimately did.
The district court concluded that NRS 18.130(4) required that plaintiffs file security with the court clerk within 30 days of receiving notice that security is required. Thus, the district court concluded that even though Biscay filed the required bond before MGM moved the court to dismiss the case, dismissal was appropriate because Biscay filed her bond well outside of 30 days from receiving notice that security was required. Biscay appealed.
Biscay argued that pursuant to NRS 18.130(4), dismissal is inappropriate as long as the plaintiff files the required security with the court clerk before the case is dismissed.
NRS 18.130 allows defendants to protect themselves from the dangers of litigating against nonresident plaintiffs. In cases where security is required by the defendant, all proceedings in the action are stayed until tthe plaintiff files the security. NRS 18.130(4) provides that after the lapse of 30 days from the service of notice that security is required, upon proof thereof, and that no undertaking as required has been filed, the court or judge may order the action to be dismissed.
Based on a plain reading, the Nevada Supreme Court concluded that neither NRS 18.130(1) nor 18.130(4) gives a mandatory time frame in which the security must be filed. Instead, upon providing proof that 30 days has passed and no security has been filed, the defendant may move to dismiss the case or the district court may dismiss the case on its own. Thus, the 30-day requirement is a prerequisite for dismissal, not filing the security. The Court explained that once 30 days has passed, the defendant has the right to ask the district court to dismiss the case, or the district court has the authority to dismiss the case on its own. Until the case is dismissed, however, the plaintiff is still free to file the security.
The Court concluded that it is an abuse of discretion for the district court to dismiss the case if the plaintiff has filed the required security with the court clerk at any time before the court dismisses the case. Accordingly, because Biscay filed her bond before the case was dismissed, the Court found that the district court abused its discretion in granting MGM’s motion to dismiss.