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Jepson v. Cynthia Joanne New5/10/1990
dered by trial courts in exercising that discretion. The conflicting tests adopted by different departments of the court of appeals reflect the need for articulating such a standard.
We note initially that the very nature of the discretionary portion of the provision requires a case-by-case application and evaluation. Any standard, therefore, must be flexible. Moreover, the standard must ensure that the statute is not misused as a safe haven for the dilatory and a loophole through which parties may avoid the applicable rules of practice and procedure. Additionally, the standard must serve the policies underlying the equitable tolling doctrine. Courts should consider whether the purposes of the statute of limitations are being served, even where a savings statute has been enacted. Professor William D. Ferguson, The Statutes of Limitation: Saving Statutes 58 (1978).
In Hosogai, we noted that the primary policy underlying the statute of limitations is the protection of defendants and courts "from litigation of stale claims where plaintiffs have slept on their rights and evidence may have been lost or witnesses' memories faded." 145 Ariz. at 232, 700 P.2d at 1332 (quoting Brooks v. Southern Pacific Company, 105 Ariz. 442, 444, 466 P.2d 736, 738 (1970)). We found that the purposes of the statute of limitations are furthered where the statute is equitably tolled after consideration of the following criteria:
(1) timely notice to the defendant in filing the first claim;
(2) lack of prejudice to the defendant in gathering evidence to defend against the second claim;
(3) reasonable and good faith conduct by the plaintiff in prosecuting the first action and diligence in filing the second action.
145 Ariz. at 233, 700 P.2d at 1333.
We consider the plaintiff's diligence important. The test applied by the court of appeals in Flynn accomplishes the purposes and promotes the policies of statutes
of limitations by including diligence among the factors considered in determining whether to grant relief. Moreover, the Flynn test serves what we believe is the legislative purpose of the savings statute: to provide a " limited extension to prevent injustice." Flynn, supra, 160 Ariz. at 192, 772 P.2d at 15 (emphasis in original).
We quote with approval the standard adopted by the court in Flynn :
A mere balancing of prejudice to each party should not constitute the sole factor considered by the trial court. Several factors must be considered in determining whether to permit a plaintiff to refile. The court should ascertain whether the plaintiff acted reasonably and in good faith, whether he prosecuted his case diligently and vigorously, whether a procedural impediment exists which affects his ability to file a second action, and whether either party will be substantially prejudiced. * * *
The burden is on the plaintiff to present the particular circumstances that justify relief under ยง 12-504.
160 Ariz. at 192, 772 P.2d at 15 (emphasis added; citations omitted).
In adopting the Flynn standard, we necessarily reject the standard utilized in Jepson. The Jepson court, in rejecting Flynn, noted that "diligence is no longer the hallmark" when relief is sought under the savings statute as opposed to Rule 60(c)(6). 160 Ariz. at 201, 772 P.2d at 24. "Rathe
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