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Jepson v. Cynthia Joanne New5/10/1990
t be used to win a case by avoiding trial on the merits, unless the case, in fact, is not being prosecuted vigorously . . . . Bickerstaff is not a weapon to be used to deny relief to those who are pursuing their claims and seeking their day in court.
152 Ariz. at 183, 731 P.2d at 78.
We went on to caution that where Rule V transforms a dismissal without prejudice into one with prejudice because the statute of limitations has run, trial courts should take "an especially hard look at the actual circumstances of the case before it." Id.
We are not saying that relief under Rule 60(c)(6) is always available if the parties have not abandoned the case. Lawyers who fail to comply with Uniform Rule V(e) do so at their peril. Bickerstaff, supra. However, trial courts should
consider carefully a Rule 60 motion to set aside a Uniform Rule V(e) dismissal when, as here, there is evidence that (1) the parties were vigorously pursuing the case, (2) the parties were taking reasonable steps to inform the court of the case's status, and (3) the moving party will be substantially prejudiced by, for example, the running of the limitations period if the dismissal is not set aside. If all these factors are present, even doubtful cases should be resolved in favor of the party moving to set aside the dismissal. Walker [v. Kendig], 107 Ariz. at 513, 489 P.2d at 852. .
152 Ariz. at 183-184, 731 P.2d at 78-79.
In Jepson, the court of appeals analyzed Rule 60(c) by focusing on Bickerstaff and Gorman and found that the facts fell within "a large intermediate area of cases neither vigorously prosecuted nor practically abandoned," where "the trial court's discretion counts for much." Jepson, 160 Ariz. at 198, 772 P.2d at 21. The court could not conclude the trial court had abused that discretion in finding that the Jepsons' discovery initiative was minor and that they were not "actively pursuing the case." Id.
The facts in Gorman and those in Jepson are strikingly similar. In both cases, there was little activity for nearly a year after the complaints were filed. Thereafter, the parties engaged in active discovery, even after the dismissal date passed, and filed their list of witnesses and exhibits, clearly believing the case to be very much alive. To the surprise of all parties in both cases, judgments of dismissal for lack of prosecution were entered in the midst of active litigation.
In determining whether a case is being diligently and vigorously prosecuted, as contemplated by the Gorman test, trial courts should look at the activities of all parties involved, not just the plaintiff's. Although the record must show that the plaintiff is actively pursuing the case, it may be that discovery initiated by other parties benefits the plaintiff as well. Additionally, discovery need not be formal to evince vigorous prosecution. As in Jepson, where authorizations are provided for the release of medical information, discovery may be conducted by informal means.
Courts should also consider factors which may inhibit vigorous prosecution, notwithstanding diligence, such as impediments to serving defendants, a party's unstable medical condition and difficulties locating witnesses for either investigatory or formal discovery purposes. Based upon the totality of the circumstances, we find that the Jepsons were prosecuting their case with sufficient diligence and vigor.
In addition, we find that the parties were
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