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Jepson v. Cynthia Joanne New5/10/1990
nd that substantial prejudice will result unless relief is granted. Gorman, supra, 152 Ariz. at 183, 731 P.2d at 78. Where relief is sought under any of the provisions of Rule 60(c), the litigant must also establish that relief was sought promptly and that a meritorious claim or defense existed. Id.
It is evident that the diligence necessary to obtain relief under Rule 60(c) should also be part of the standard for relief under the savings statute. First, as discussed above, it furthers the purposes of the statute of limitations and ensures that the savings statute is not abused by dilatory litigants. Second, we believe that a finding of diligence is implicit in the statute itself.
The fact that discretionary as opposed to automatic relief is available where an action is terminated by abatement, voluntary dismissal or lack of prosecution is significant. To avoid each type of termination requires some measure of diligence. The legislature did not intend the savings statute to be used as a respite for the litigant whose neglect resulted in one of these specific kinds of terminations in the first place. Their distinctive feature is even more clearly illustrated by comparing them to other kinds of dismissals, such as those listed under Ariz.R.Civ.P. 12(b), 16 A.R.S., for which automatic relief is available. Dismissals as discovery sanctions under Ariz.R.Civ.P. 37, 16 A.R.S., are another example. Diligence is simply not a necessary component in a case where automatic relief is granted under A.R.S. ยง 12-504. For example, no amount of diligence would have prevented the plaintiff from losing her claim in Hosogai where an appellate court determined that the trial court lacked personal jurisdiction over the defendant because of insufficient service of process.
The savings statute recognizes that a litigant may sometimes be entitled to relief, despite facts that suggest a lack of diligence. For example, an action abates unless service is effected within one year of the filing of a complaint or that abatement period is enlarged. Ariz.R.Civ.P. 6(f), 16 A.R.S. To obtain relief under the savings statute where the action has abated and been terminated, the plaintiff must show that despite diligent efforts, he was unable to effect service. Perhaps plaintiff's request for an enlargement of the abatement period under Rule 6(f) was denied. Perhaps, too, the plaintiff diligently tried to serve the defendant but neglected to seek an enlargement of the abatement period, after which the case was terminated. Although the litigant's error may not be legally excusable under Rule 60(c), the circumstances may nevertheless justify relief under the savings statute.
With regard to a voluntary dismissal by order of the court, Ariz.R.Civ.P. 41(a)(2), 16 A.R.S., requires that the trial court consider the circumstances before dismissing a case. Whether to allow the dismissal is within the trial court's discretion. State ex rel. Corbin v. Portland Cement Ass'n, 142 Ariz. 421, 690 P.2d 140 (App.1984). In exercising that discretion, the trial court must determine whether the dismissal would result in a violation of the defendant's substantial legal rights. Schoolhouse Educational Aids, Inc. v. Haag, 145 Ariz. 87, 699 P.2d 1318 (App.1985). Where, for example, a plaintiff reasonably believes after diligent investigation that the complaint named the wrong individuals as defendants and obtains a dismissal by order of the court
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