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Jepson v. Cynthia Joanne New5/10/1990
on and denying his motion for Rule 60(c) relief.
Rule V(e) provides in part as follows:
(e) Inactive Calendar. The clerk of the court or court administrator shall place on the Inactive Calendar every case in which a Motion to Set and Certificate of Readiness has not been filed within nine months after the commencement thereof, . . . . All cases remaining on the Inactive Calendar for two months shall be dismissed without prejudice for lack of prosecution, and the court shall make an appropriate order as to any bond or other security filed therein, unless prior to the expiration of such two months period:
(1) A proper Motion to Set and Certificate of Readiness is filed; or
(2) The court, on motion for good cause shown, orders the case to be continued on the Inactive Calendar for a specified period of time without dismissal.
In exercising its discretion to grant a continuance, the trial court considers the same conditions that permit relief under
Rule 60(c), provided that the good cause required by Rule V(e)(2) is shown. Campbell v. Deddens, 93 Ariz. 247, 251, 379 P.2d 963, 965 (1963); Hyman v. Arden-May Fair, Inc., 150 Ariz. 444, 448, 724 P.2d 63, 67 (App.1986). Thus, the litigant must first establish any of the Rule 60(c) bases for relief and, where the basis is under Rule 60(c)(6), the litigant must show extraordinary circumstances of hardship or injustice justifying relief. Davis v. Davis, 143 Ariz. 54, 57, 691 P.2d 1082, 1085 (1985). Where the case will be dismissed for lack of prosecution under Rule V(e), the court also considers the factors set forth in Gorman : (1) vigorous pursuit of the case, (2) steps taken to inform the court of the case's status, and (3) prejudice to the moving party, such as the running of the statute of limitations. 152 Ariz. at 183, 731 P.2d at 78. The movant must also show that he acted promptly in seeking the continuance and that his claim is meritorious. Id.
Whether the facts establish good cause under Rule V(e)(2) is a matter left to the sound discretion of the trial court. Walker v. Kendig, 107 Ariz. 510, 489 P.2d 849 (1971). Applying the Gorman test, the court of appeals concluded that Flynn had failed to demonstrate good cause to continue the case on the inactive calendar and, therefore, did not demonstrate that he was entitled to relief. We agree.
The record reveals that Flynn's trial counsel communicated with the defendants' insurance carriers in September 1985, almost two years after the accident and approximately three months before the complaint was filed. Flynn contends there were settlement discussions with the defendants' carriers, although the record fails to reveal the extent of these negotiations; the last discussion was apparently in mid-August 1986. Flynn did not serve the defendants until he received the Rule V notice; he never served the defendants with discovery. He did not file a motion to continue the case on the inactive calendar until four days before the dismissal date. Additionally, Flynn did not ask for accelerated oral argument on his motion and the case was automatically dismissed with prejudice for lack of prosecution on December 2.
Additionally, where the sole reason given for the failure to prosecute a case is that the parties were engaging in settlement negotiations, good cause has not been shown. Settlement negotiations may be considered by the trial court in exercising its discre
Page 1 2 3 4 5 6 7 8 9 10 11 12 Arizona Personal Injury Attorneys
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