§ Rule 38.1 Setting of Civil Cases for Trial; Postponements

Rule 38.1. Setting of Civil Cases for Trial; Postponements

(a) Motion to Set and Certificate of Readiness: Identification of Nonparty at Fault. In every civil case, counsel for plaintiff shall, or counsel for any other party may, file a Motion to Set and Certificate of Readiness. Service shall be in the manner prescribed by Rule 5 of these Rules. The form and contents of the Certificate of Readiness shall be as follows:

The undersigned attorney hereby certifies:

(1) That the issues in the above-captioned case have actually been joined;

(2) The largest award sought by any party, including punitive damages, but excluding interest, attorneys' fees, and costs, is $_____. This case [is] [is not] subject to the mandatory arbitration provisions of Rules 72 through 76 of these Rules.

(3) That the status of discovery is as follows:

(i) In a court which requires such certification by local rule, the parties have completed, or will have had a reasonable opportunity to complete, the procedures under Rules 26 to 37 of these Rules within 60 days after the filing of the Certificate of Readiness; or

(ii) In a court which requires such certification by local rule, the parties have completed, or have had a reasonable opportunity to complete, the procedures under Rules 26 to 37 of these Rules at the time of filing of the Certificate of Readiness; or

(iii) In all other cases, the parties have completed, or will have had a reasonable opportunity to complete, the procedures under Rules 26 to 37 of these Rules prior to ten days before trial.

(4) That this case will be ready for trial on or after [DATE].

(5) That a trial by jury is [not] demanded (strike out the word “not” if a jury trial is demanded);

(6) That this cause may [not] be heard as a short cause within one hour [strike out the word “not” if the time required for trial will not exceed one hour];

(7) That the names, addresses and telephone numbers of the parties or their individual attorneys who are responsible for the conduct of the litigation are:--[insert the appropriate information]; and

(8) That this cause is entitled to a preference for trial by reason of the following statute or rule:--[insert statutory section or rule number if a preference is applicable].

________________________________________________________________________________

Signature of Attorney

If the Motion to Set and Certificate of Readiness is filed by a defending party in a court which does not require the certification set forth in (a)(3)(i) or (ii) of this Rule, then the Certificate of Readiness shall also identify any nonparty who is alleged, pursuant to A.R.S. § 12-2506(B) (as amended), to be wholly or partially at fault in causing any personal injury, property damage or wrongful death for which damages are sought in the action.

(b) Controverting Certificate: Identification of Nonparty at Fault. Within ten days after a Motion to Set and Certificate of Readiness has been served:

(1) Counsel for any other party may file a Controverting Certificate which specifies the particular statements contained in the Certificate of Readiness to which objection is made, and the reasons therefor.

(2) In those courts which do not require the certification set forth in either subpart (a)(3)(i) or (ii) of this Rule, counsel for a defending party must, in a Controverting Certificate or separately, identify any nonparty who is alleged, pursuant to A.R.S. § 12-2506(B) (as amended), to be wholly or partially at fault in causing any personal injury, property damage or wrongful death for which damages are sought in the action.

The court shall thereupon enter an order, without oral argument, placing the case on the Active Calendar either immediately or, where good cause is shown, at a specified later date. No case shall be heard as a short cause if objection is made thereto in the Controverting Certificate.

(c) Active Calendar. Ten days after a Motion to Set and Certificate of Readiness has been served, if a Controverting Certificate has not been served, or otherwise by order of the court, the clerk of the court or court administrator shall place the case on the Active Calendar and shall stamp thereon a chronological list number which shall generally govern the priority of the case for trial, except as to those cases which are entitled to preference by statute or local rule, and except that short causes may be preferred for trial in accordance with local rules.

(d) Inactive Calendar. The clerk of the court or court administration shall place on the Inactive Calendar every case in which a Motion to Set and Certificate of Readiness has not been served within nine months after the commencement thereof, All cases remaining on the Inactive Calendar for two months shall be dismissed without prejudice for lack of prosecution, and the court shall make an appropriate order as to any bond or other security filed therein, unless prior to the expiration of such two month period;

(1) a proper Motion to Set and Certificate of Readiness is served;

(2) the court, on motion for good cause shown, orders the case to be continued on the Inactive Calendar for a specified period of time without dismissal; or

(3) a notice of decision has been filed with the clerk of court in a case assigned to arbitration.

(e) Notification. The clerk of the court or court administrator, whoever is designated by the presiding judge, shall promptly notify counsel in writing of the placing of cases on the Inactive Calendar, and no further notice shall be required prior to dismissal.

(f) Additional Discovery. In those cases in which the certification set forth in subpart (a)(3)(i) is required by local rule, all pretrial procedures under Rules 26 to 37 of these Rules shall be completed within 60 days after service of the Motion to Set and Certificate of Readiness. In those cases in which the certification set forth in subpart (a)(3)(ii) is required by local rule, all pretrial procedures under Rules 26 to 37 of these Rules shall be completed at the time of service of the Motion to Set and Certificate of Readiness. In all other cases, all pretrial procedures under Rules 26 to 37 of these Rules shall be completed prior to ten days before trial. Notwithstanding the foregoing, for good cause shown, the court may permit or the parties may stipulate that additional discovery procedures may be undertaken anytime prior to trial.

(g) Setting for Trial. Cases on the Active Calendar shall be set for trial as soon as possible. Preference shall be given to short causes and cases which by reason of statute, rule or court order are entitled to priority. Counsel shall be given at least thirty days notice of the trial date.

(h) Postponements. Unless otherwise provided by local rule, when an action has been set for trial on a specified date by order of the court, no postponement of the trial shall be granted except for sufficient cause, supported by affidavit, or by consent of the parties, or by operation of law.

(i) Application for Postponement: Grounds; Effect of Admission of Truth of Affidavit by Adverse Party. On an application for a postponement of the trial, if the ground for the application is the want of testimony, the party applying therefor shall make affidavit that such testimony is material showing the materiality thereof, and that the party has used due diligence to procure such testimony, stating such diligence and the cause of failure to procure such testimony, if known, and that such testimony cannot be obtained from any other source. If the ground for the application is the absence of a witness, the party applying shall state the name and residence of the witness, and what the party expects to prove by the witness. The application in either case shall also state that the postponement is not sought for delay only, but that justice may be done. If the adverse party admits that such testimony would be given and that it will be considered as actually given on the trial, or offered and overruled as improper, the trial shall not be postponed. Such testimony may be controverted as if the witness were personally present.

(j) Deposition of Witness or Party; Consent. The party obtaining a postponement shall, if required by the adverse party, consent that the testimony of any witness or adverse party in attendance be taken by deposition, without notice. The testimony so taken may be read on the trial by either party as if the witnesses were present.

(k) Scheduling Conflicts Between Courts.

(1) Notice to the Court. Upon learning of a scheduling conflict between a case in Superior Court and a case in United States District Court, or between cases in the Superior Courts of different counties, or between cases in different courts within a county, counsel has a duty to promptly notify the judges and other counsel involved in order that the conflict may be resolved.

(2) Resolution of Conflicts. Upon being advised of a scheduling conflict, the judges involved shall, if necessary, confer personally or by telephone in an effort to resolve the conflict. While neither federal nor state court cases have priority in scheduling, the following factors may be considered in resolving the conflict;

(A) the nature of the cases as civil or criminal, and the presence of any speedy trial problems;

(B) the length, urgency, or relative importance of the matters;

(D) the age of the cases;

(E) the matter which was set first;

(F) any priority granted by rule or statute;

(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.