The Supreme Court Addresses The Meaning of “Prospectively” in NRCP 60(b)(5) - The Writ

The Nevada Supreme Court recently took the opportunity to interpret the word “prospectively” in NRCP 60(b)(5) to conclude that the rule does not provide an avenue for relief from an order of dismissal with prejudice. In Willard, et al. v. Berry-Hinckley Industries, et al., 139 Nev. Adv. Op. 52 (2023), the Court followed persuasive federal authority to conclude that orders of dismissal are not “prospective” within the meaning of NRCP 60(b)(5). On that basis, and finding no abuse of discretion in the district court’s analysis under NRCP 60(b)(1) and NRCP 60(b)(6), the Court affirmed the district court’s denial of Plaintiffs’ motions to set aside the judgment.

Factual Background

Willard involved a lease dispute. After three years in which Plaintiffs failed to comply with discovery requirements and various court orders or diligently prosecute their case, the Defendants moved for case-ending sanctions. Plaintiffs did not oppose the motion, the district court granted it, and Plaintiffs did not appeal.

Plaintiffs then moved to set aside the order of dismissal under NRCP 60(b)(1), which allows a district court to “relieve a party... from a final judgment, order, or proceeding” on grounds of “mistake, inadvertence, surprise, or excusable neglect.” According to Plaintiffs, their lead attorney’s mental health issues had caused him to constructively abandon the case.

 The district court denied the NRCP 60(b)(1) motion, and Plaintiffs appealed, arguing that the district court failed to address the factors set forth in Yochum v. Davis, 98 Nev. 484, 653 P.2d 1215 (2018). These are: “(1) a prompt application to remove the judgment; (2) the absence of an intent to delay the proceedings; (3) a lack of knowledge of procedural requirements; and (4) good faith.” The Supreme Court agreed with Plaintiffs, reversed and remanded for further proceedings.

On remand, the district court analyzed the four Yochum factors and again denied Plaintiffs’ motion. Plaintiffs appealed. While that appeal was pending, Plaintiffs moved for relief under NRCP 60(b)(5) – authorizing relief if “applying [the dismissal order] prospectively is no longer equitable” – and NRCP 60(b)(6) – for “any other reason that justifies relief.” Plaintiffs argued that their attorney’s admission in disciplinary proceedings that he violated the rules of professional conduct constituted a change in conditions that made application of the sanctions order prospectively no longer equitable.

The district court denied that motion as well, and Plaintiffs appealed. The Supreme Court consolidated the two cases for disposition.  

The Court’s Analysis

As to Plaintiffs’ request for relief under NRCP 60(b)(1), the Court concluded that the district court properly analyzed the Yochum factors. The Court noted the district court’s findings that Plaintiffs knew the discovery requirements yet did not comply, and knew their attorney was not responding to communications yet took no steps to replace him. The district court found that Plaintiffs engaged in “intentional, strategic and … bad faith” conduct that impeded a resolution on the merits. Accordingly, the Court held the district court did not abuse its discretion in denying NRCP 60(b)(1) relief.

Plaintiffs additionally argued that because their attorney admitted violating the rules of professional conduct by way of a conditional guilty plea in disciplinary proceedings, it was no longer equitable to maintain the sanctions order of dismissal, warranting relief under NRCP 60(b)(5). Looking to federal cases interpreting FRCP 60(b)(5), the Court rejected this argument. “[A] final judgment or order has prospective application for purposes of Rule 60(b)(5) only where it is executory or involves the supervision of changing conduct or conditions.” Tapper v. Hearn, 833 F.3d 166, 170-71 (2d Cir. 2016). Although “every court order causes at least some reverberations into the future, … that … does not necessarily mean that it has 'prospective application’ for the purposes of Rule 60(b)(5).” Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988). Adopting the reasoning in these cases, the Court concluded that orders of dismissal are not “prospective” within the meaning of NRCP 60(b)(5).

Finally, because relief may not be sought under NRCP 60(b)(6) where it would have been available under NRCP 60(b)(1)-(5), the Court concluded the district court did not abuse its discretion to deny Plaintiffs’ request on all grounds raised. The Court therefore affirmed.