Home Table of Contents

Rule 38.1. Setting Civil Actions for Trial; Postponements; Scheduling Conflicts; Dismissal Cale...

Arizona Revised Statutes AnnotatedRules of Civil Procedure for the Superior Courts of ArizonaEffective: September 1, 2019

Arizona Revised Statutes Annotated
Rules of Civil Procedure for the Superior Courts of Arizona (Refs & Annos)
VI. Trials
Effective: September 1, 2019
16 A.R.S. Rules of Civil Procedure, Rule 38.1
Formerly cited as AZ ST RCP Rule 40
Rule 38.1. Setting Civil Actions for Trial; Postponements; Scheduling Conflicts; Dismissal Calendar
<For applicability of amending Order No. R-17-0010, effective July 1, 2018, see the Application Provisions note at the beginning of the Arizona Rules of Civil Procedure.>
(a) Trial Setting. Civil actions are set for trial under Rule 16 or 77. Preference is given to short causes and actions that are entitled to priority by statute, rule, or court order. Subject to Rule 65(a)(2), the court must give the parties notice of the trial date no later than 30 days before the first day of trial.
(b) Postponements.
(1) Generally. If a court has set an action for trial on a specified date, it may not postpone the trial unless: (A) good cause exists to do so, supported by affidavit or other evidence; (B) the parties consent; or (C) postponement is required by operation of law. Trial also may be postponed as authorized or required by local rule.
(2) Motion and Certification. A party seeking postponement of a trial must file a motion setting forth the basis for the request and any supporting evidence. The party must attach a separate statement certifying that the requested postponement is not being sought solely for the purpose of delay and will serve the interests of justice.
(3) Witness Unavailability or Absence.
(A) Generally. If the ground for postponement is the witness's unavailability or absence, the moving party must submit an affidavit stating or showing:
(i) the witness's name and address--if known;
(ii) the witness's expected testimony;
(iii) the expected testimony's materiality;
(iv) the reason for the witness's unavailability or absence;
(v) the party's diligence in procuring such testimony and efforts to make the witness available; and
(vi) the testimony cannot be obtained from any other source.
(B) Denial of a Motion for Postponement. The court may deny a motion for postponement if, among other grounds, it finds that the expected testimony would be inadmissible if presented at trial or if all non-moving parties agree that the movant's description of the witness's expected testimony is accurate and would be admissible if presented at trial. If the non-moving parties so agree, the movant's description of the witness's expected testimony may be read to the jury at trial in place of the witness's live testimony. Such testimony may be controverted as if the witness were personally present.
(c) Scheduling Conflicts Between Courts.
(1) Notice to Courts and Counsel. Upon learning of a scheduling conflict between a trial in superior court and another trial or hearing in state or federal court, counsel must promptly notify the affected judges and counsel.
(2) Resolving a Conflict. Upon being notified of a scheduling conflict, the respective judges should confer with each other and counsel to resolve the conflict. Neither federal nor state court actions have priority in scheduling. A court may consider the following factors in resolving the conflict:
(A) whether the other action is a criminal matter, and, if so, whether postponement of that matter will deprive a defendant of a speedy trial;
(B) each action's relative length, urgency, or importance;
(C) whether either action involves out-of-town witnesses, parties, or counsel;
(D) the actions' respective filing dates;
(E) which action was first set for trial;
(F) any priority granted by rule or statute; and
(G) any other pertinent factor.
(3) Inter-division Conflicts. Conflicts in scheduling between divisions of the same court may be governed by local rule or general order.
(d) Dismissal Calendar.
(1) Placing an Action on the Dismissal Calendar. The clerk or court administrator must place a civil action on the Dismissal Calendar if 210 days have passed since the action was commenced, and:
(A) in an action other than an action assigned to arbitration, the parties have not filed a Joint Report and a Proposed Scheduling Order under Rule 16(c); or
(B) in an action assigned to arbitration, the arbitrator has not filed a notice of decision under Rule 76.
(2) Dismissal. If an action remains on the Dismissal Calendar for 60 days, the court must dismiss it without prejudice and enter an appropriate order regarding any bond or other posted security, unless, before the 60-day period expires:
(A) the parties file a Joint Report and a Proposed Scheduling Order under Rule 16(c);
(B) in an action assigned to arbitration, the arbitrator files a notice of decision under Rule 76; or
(C) the court, on motion showing good cause, orders the action to be continued on the Dismissal Calendar for a specified period of time without being dismissed.
(3) Notification. The clerk or court administrator, whoever is designated by the presiding superior court judge in the county, must promptly notify counsel in writing when an action is placed on the Dismissal Calendar, but they are not required to provide further notice before the court dismisses an action under Rule 38.1(d)(2).

Credits

Added Sept. 2, 2016, effective Jan. 1, 2017. Amended Aug. 31, 2017, effective July 1, 2018.
16 A. R. S. Rules Civ. Proc., Rule 38.1, AZ ST RCP Rule 38.1
Current with amendments received through 08/15/2020.
End of Document© 2020 Thomson Reuters. No claim to original U.S. Government Works.