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Jepson v. Cynthia Joanne New5/10/1990
-504 solely on the type of relief sought -- reinstatement of a cause of action under the rule, as opposed to commencement of a new action under the savings statute.
In my view, this approach fails to articulate the difference between the substantive analysis applicable to the rule and that applicable to the statute. Despite a valiant struggle, the opinion simply does not explain how the standard for relief under the statute differs from that under the rule. If diligence is the hallmark for relief under the rule, see Gorman v. City of Phoenix, 152 Ariz. 179, 183, 731 P.2d 74, 78 (1987), and diligence is also the prime requisite for relief under the statute as interpreted by the majority, then why would the legislature have enacted the statute to supplement the rule? We must assume that the legislature was aware of the existence of the Rules of Civil Procedure; the statute, therefore, must have been intended to provide some form of relief not otherwise available under the existing rules of procedure.
Thus, I agree with the views expressed by Judge Fidel in Jepson v. New :
By conditioning savings statute relief upon a showing of diligent prosecution, [the court in Flynn has] blurred the issue of refiling under § 12-504 with the issue of reinstatement under Rule 60(c)(6). The two are separate and distinct. As we have previously pointed out, a plaintiff able to respond to Rule V dismissal by showing reasonable diligence would qualify for reinstatement under 60(c)(6) and under Gorman ; he thus would have no reason to invoke § 12-504. Correlatively, under Flynn, a plaintiff who had failed to show sufficient diligence to achieve reinstatement under Rule 60(c)(6) would likewise fail to qualify for refiling under the savings statute. The impact of Flynn would thus be to excise dismissals for lack of prosecution from the ambit of § 12-504. In our view, this contravenes both the explicit language and remedial purpose
of [the statute]. For these reasons, we decline to follow Flynn.
Jepson v. New, 160 Ariz. 193, 201, 772 P.2d 16, 24 (Ct.App.1989) (citing Flynn v. Cornoyer-Hedrick Architects and Planners, Inc., 160 Ariz. 187, 772 P.2d 10 (Ct.App.1988)).
Therefore, in order to give the statute meaning, I would adopt the standard applied by the court of appeals in Jepson, which focuses on comparative prejudice, and reject that applied in Flynn, which focuses strictly on diligence. Any other position fails to give meaning to the legislation.
CORCORAN, J., did not participate in this decision; pursuant to Ariz. Const. art. 6, § 3, LACAGNINA, J., Court of Appeals, Division Two, was designated to sit in his stead.
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