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Jepson v. Cynthia Joanne New5/10/1990
r, the focus shifts from diligence to good faith and comparison of prejudice when a party already denied 60(c)(6) reinstatement seeks permission for refiling under § 12-504." Id. (emphasis in original). In granting relief on the facts in Jepson, the court of appeals focused primarily on the balancing of prejudice to the parties, and concluded that the defendants had shown no prejudice while the Jepsons showed the prejudice to them, the loss of their personal injury action, was great. In criticizing the standard articulated in Flynn, the Jepson court stated that " y conditioning savings statute relief upon a showing of diligent prosecution, they have blurred the issue of refiling under § 12-504 with the issue of reinstatement under Rule 60(c)(6)." Id. Specifically, the court pointed out that if the plaintiff showed such diligence under the standard set forth in Gorman, Rule 60(c)(6) relief would be available; thus, where the plaintiff could not show sufficient diligence for Rule 60(c)(6) relief, the court stated, relief under A.R.S. § 12-504 would also be unavailable.
We disagree. First, where the statute of limitations has run and the test focuses primarily upon a balancing of prejudices, there would be an automatic exercise of discretion in favor of the plaintiff. There can hardly be any prejudice greater than the complete loss of a cause of action. Even where the defendant would be greatly prejudiced, such as where evidence has been lost or witnesses are no longer available, the defendant may not have the opportunity to demonstrate the prejudice because the relief is often sought ex parte. Regardless of the reason for the termination of the action, therefore, relief would almost always be granted, rendering meaningless the legislature's distinction between the first sentence of paragraph A of § 12-504, and the second sentence of the paragraph.
Second, the Flynn test does not blur the distinction between relief under Rule 60(c)(6) and relief under the savings statute, nor does our interpretation of the statute render it superfluous, redundant or trivial. The distinction between Rule 60(c)(6) and A.R.S. § 12-504 is readily discernible. The relief sought under the two provisions is entirely different. Under Rule 60(c), the litigant is seeking reinstatement of the prior lawsuit; the savings statute, however, allows commencement of an entirely new action.
Also, 60(c) relief requires satisfaction of certain criteria that the statute does not. The provisions of Rule 60(c)(1) through (5) specify that the request for relief may be based on mistake, inadvertence, surprise or excusable neglect; newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial; fraud, misrepresentation or other
misconduct of an adverse party; a void judgment; and, the fact that the judgment has been satisfied, released or discharged, or a prior judgment on which it is based has been reversed or otherwise vacated, or when it is no longer equitable to apply the judgment prospectively. Rule 60(c)(6) is a catchall, providing relief for "any other reason justifying relief from the operation of the judgment." As we have stated, in order to obtain relief under Rule 60(c)(6), a party must show extraordinary circumstances of hardship or injustice. Davis v. Davis, supra. Where Rule 60(c)(6) relief is sought from a Rule V dismissal for lack of prosecution, the litigant must show that the cause was prosecuted vigorously and diligently, that reasonable steps were taken to inform the court of the status of the case, a
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