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Jepson v. Cynthia Joanne New5/10/1990
, only to discover after the statute of limitations had run that the correct parties had been named, relief under § 12-504 may
be appropriate. The trial court's discretion was required in determining whether dismissal was appropriate in the first place; it is only logical that its discretion also be required in determining whether a new action should be allowed. However, the savings statute was not intended to provide relief for those who dismiss an action because of their own folly in failing to ascertain the facts necessary for deciding whether to do so, or for those who have failed to diligently pursue their cases and want to file a new action so that they may start the "Rule V clock" running again.
Where an action is terminated for lack of prosecution, relief under the savings statute should only be granted where the plaintiff demonstrates that despite diligent pursuit of the case, it was dismissed. To hold otherwise would undermine the policies the savings statute was intended to serve and emasculate Rule V by providing an out for litigants who, for no good reason, fail to comply with the rule. Where the dismissal date passes unnoticed as a result of an error which may or may not amount to a legal excuse under Rule 60(c), and the case is dismissed for lack of prosecution, there still may be sufficient grounds for relief under the savings statute particularly where the parties are engaged in active litigation. Perhaps a defendant was served but disappeared after answering the complaint, making discovery impossible. Or perhaps the plaintiff's medical status was unstable throughout the majority of the time the action was pending, seriously impeding vigorous prosecution of the case. Assuming the plaintiff demonstrates diligent efforts under the circumstances, relief under the savings statute may be warranted.
To a large extent the test articulated in Flynn is derived from the test in Gorman. Recognizing the similarities and the differences between Rule 60(c) and the savings statute, however, both in terms of the relief available and the factors justifying relief under each, we conclude that while a litigant may be entitled to relief under both provisions under certain circumstances, the two are significantly distinct. The savings statute coexists with and is not superfluous to the rule.
We now turn to the question of whether the trial court correctly denied Flynn leave to file a new complaint under A.R.S. § 12-504. The trial court must be granted broad discretion in determining whether to grant relief under the savings statute and, absent an abuse of that discretion, we will not disturb its decision on appeal. The court of appeals, in applying the correct test, found that because the record demonstrated Flynn's substantial lack of diligence in pursuing the claim, the trial court did not abuse its discretion in denying his claim. We agree. Flynn's conduct was not reasonable. Defendants' carriers with whom his trial counsel had been in contact were not notified that litigation had been commenced until six months after the complaint was filed. The complaint was not served until nine months after it was filed. Flynn granted some of the defendants an open extension of the time for filing their answers even though he knew the case had been placed on the inactive calendar and that the dismissal date of November 24, 1986, was fast approaching. He did not initiate any discovery, failed to respond to the discovery propounded by defendants, and waited until just four days before the dismissal date before seeking a continuance on the inactive calendar. Even then, he did not seek accelerated oral
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