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Civil Procedure--"Prompt" Notice That Case Is Going On Inactive Calendar Requires

American Asphalt & Grading Co v. CMX, LLC, __Ariz. Adv. Rep. __ , No. CV-10-0324-PR (July 1, 2011) (J. Brutinel)

RULE 38.1(e) REQUIRES CONTEMPORANEOUS IF NOT NEARLY CONTEMPORANEOUS NOTICE TO PARTIES THAT A CASE IS TO BE ASSIGNED TO THE INACTIVE CALENDAR AND AN ORDER STATING THIS WILL OCCUR IN 150 DAYS DOES NOT COMPLY WITH THE RULE

Plaintiff American Asphalt sued the defendant for professional negligence and breach of implied warranty. On October 1, 2008 the trial court administrator issued a “Maricopa County 150-Day Order” that if the plaintiff didn't file a Motion to Set and Certificate of Readiness under Rule 38.1(e) of the Arizona Rules of Civil Procedure, the case would be put on the inactive calendar on January 20, 2009 and dismissed without further notice on March 23, 2009. No Motion to Set was filed and the case was dismissed on April 29, 2009. American then moved under rule 60 (c)(1)&(6) to set aside the dismissal contending its failure was excusable because it had substituted new counsel around the time of the deadline. The trial court denied the Motion. The Arizona Supreme Court vacated and remanded the case.

First the court noted that rule 38 provides that if a Motion to Set and Certificate of Readiness is not filed within nine months after commencement of the action it shall be placed on the inactive calendar and if it remains there for two months shall be dismissed without prejudice for lack of prosecution. Particularly, rule 38 (e) provides that the court shall “promptly” notify counsel that the case is being placed on the inactive calendar and that no further notice of the impending dismissal is required. The court held that “promptly” means “contemporaneous or nearly contemporaneous” with the case being actually placed on the inactive calendar. Consequently, the 150-Day Order does not comply with rule 38 (e) as it does not notify the parties “when” the case is placed on the inactive calendar but rather the court's “intention to do so in the future.” The court expressly noted that the Maricopa County rule was appropriate as long as notice “contemporaneous” with the actual placing of the case on the inactive calendar is also provided.

However, having so held the court also ruled that the plaintiff here was not automatically entitled to a reversal. Instead, the court ruled that the trial court should reconsider the motion to set aside the order of dismissal and that in so doing the absence of contemporaneous notice should be only one of the several factors under Rule 60 (c) for the court to examine. In this regard, at least under rule 60 (c) the court noted the fact that American did receive some notice was worthy of consideration as well.

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