                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                             STEVEN ADAIR, et al.,
                               Plaintiffs/Appellants,

                                         v.

                      JAGNDEEP S BAJWA, DMD, et al.,
                           Defendants/Appellees.

                              No. 1 CA-CV 17-0107
                                FILED 3-13-2018


            Appeal from the Superior Court in Maricopa County
                           No. CV2015-095338
               The Honorable David M. Talamante, Judge

                                   AFFIRMED


                                    COUNSEL

Porter Law Center Chartered, Gilbert
By Bernald C. Porter
Counsel for Plaintiffs/Appellants

Schneider & Onofry, PC, Phoenix
By Susan I. McLellan, Luane Rosen
Counsel for Defendant/Appellee Bajwa

Broening, Oberg, Woods & Wilson, PC, Phoenix
By Katherine M. Corcoran, Alicyn M. Freeman
Counsel for Defendants/Appellees Smith, et al.
                        ADAIR, et al. v. BAJWA, et al.
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Jennifer M. Perkins joined.


J O H N S E N, Judge:

¶1          Steven Adair appeals the superior court's dismissal of his
dental-malpractice complaint. We affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           On October 13, 2015, Adair filed a complaint against dentists
Jagandeep Bajwa, Adam Smith and Lynda Smith, along with the Smiths'
corporate entities. At the same time, he filed a certificate stating he would
need to offer expert witness testimony to prove the standard of care
pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2603 (2018).1

¶3            Adair successfully served the Smiths and at least one of their
corporate entities, but did not immediately serve Bajwa. Bajwa's attorney
wrote Adair's lawyer on October 30, 2015, offering to accept service on
behalf of her client. It was not until on or about March 11, 2016, however,
that Adair sent a waiver of service, which Bajwa promptly returned for
filing. Adair did not file the acceptance of waiver until May 24; Bajwa
answered the complaint on June 1.

¶4            On July 5, Bajwa's lawyer emailed Adair's lawyer, reminding
him that disclosures soon would be due and asking for signed medical
releases. Bajwa also served interrogatories and requests for production of
documents. Meanwhile, on July 13, superior court administration issued a
notice advising that the case had been placed on the inactive calendar for
dismissal on September 12, 2016. The notice stated that if Adair wanted to
have the case continued, he would need to file a motion showing good
cause within enough time that the court would be able to grant it before the
September 12 dismissal deadline. On July 28, Bajwa's lawyer sent a letter
to Adair's lawyer to complain that Adair had not responded to the pending
discovery requests, had failed to provide signed medical releases and had


1      Absent material revision after the relevant date, we cite the current
version of a statute or rule.


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                       ADAIR, et al. v. BAJWA, et al.
                          Decision of the Court

failed to provide the required disclosures and expert affidavit. Adair's
lawyer responded by email that he had been out of town for three family
weddings and that he would "be able to respond to [the] letter no later than
August 20, 2016."

¶5            On September 12 – the date the case was due to be dismissed
off the inactive calendar – Bajwa moved to dismiss the complaint, citing
Adair's failure to produce an expert witness affidavit, respond to discovery
requests and serve an initial disclosure statement. In response, Adair asked
for an extension of 60-90 days to provide the required discovery. His
response asserted disclosures would be premature because the Smith
defendants had not yet answered the complaint. Adair's lawyer also stated
that he had been unable to communicate with his client, a firefighter on
duty in Northern California, and asserted the case had been delayed
because "many attempts" to serve Bajwa "were met with failure because of
the defendant's avoidance or his unavailability."

¶6             The superior court heard argument on the motion to dismiss
on November 9, 2016, 13 months after Adair filed the complaint. Defense
counsel reported that Adair had emailed an expert affidavit to them the day
before the hearing, but asserted the affidavit did not comply with A.R.S. §
12-2604 because it was from a specialist, and Bajwa is not a specialist. For
his part, Adair's lawyer stated he had been beset by health problems
beginning 12 months before, and reiterated that he had had difficulty
making contact with Adair because of Adair's job duties. Defense counsel
replied that, until the day before the hearing, they had heard nothing about
counsel's health problems.

¶7            The court granted the motion to dismiss, stating that even
though it sympathized with counsel's health issues, "the failure to prosecute
for over a year, leads me to conclude that the matter needs to be – should
be dismissed with prejudice for failure to prosecute and for failure to
comply with [§] 12-2603."

¶8            Adair timely appealed; we have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1) (2018) and -2101(A)(1) (2018).

                               DISCUSSION

¶9            "If the plaintiff fails to prosecute . . . a defendant may move to
dismiss the action or any claim against it." Ariz. R. Civ. P. 41(b); see Cooper
v. Odom, 6 Ariz. App. 466, 469 (1967) (superior court has inherent power to
dismiss case not prosecuted diligently). The court also may dismiss an


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                       ADAIR, et al. v. BAJWA, et al.
                          Decision of the Court

action when a plaintiff fails to comply with disclosure requirements. Ariz.
R. Civ. P. 37(b)(2)(A)(v), (c)(3)(C). In Maricopa County, a "civil action shall
be dismissed for failure to prosecute upon written motion and notice to
opposing counsel, at the discretion of the court" for "appropriate reasons."
Maricopa County Super. Ct. Loc. Prac. R. 3.6(a)(3). Dismissal for failure to
prosecute "operates as an adjudication on the merits," Ariz. R. Civ. P. 41(b),
which we will review for an abuse of discretion, Slaughter v. Maricopa
County, 227 Ariz. 323, 326, ¶ 14 (App. 2011). "A court abuses its discretion
when its ruling is manifestly unreasonable, or exercised on untenable
grounds, or for untenable reasons." Henderson v. Henderson, 241 Ariz. 580,
590, ¶ 31 (App. 2017) (quotation omitted).

¶10            The record amply supports the superior court's exercise of
discretion in dismissing Adair's complaint for failure to prosecute under
Rule 41(b), including the failure to comply with discovery requirements
under Rule 37(c)(3)(C). Even though Bajwa's lawyer offered to accept
service within a month after the complaint was filed, it took Adair nearly
seven months more to complete service. After that, he did little to prosecute
the case until he served an unsigned expert affidavit the day before oral
argument on the motion to dismiss. Rule 26.1 required Adair to serve his
initial disclosures, including a formal disclosure statement setting forth the
factual basis of his claims and identifying all documents that might be
relevant to the action and all persons who may have knowledge relevant to
the claims, within 40 days after Bajwa answered the complaint on June 1.
The same deadline applied to his obligation under § 12-2603(B) to serve his
initial expert witness affidavit. But Adair served no disclosure statement
and did not provide an affidavit until the day before oral argument on the
motion to dismiss, five months after Bajwa's answer. Moreover, Adair does
not dispute that he had failed to respond to Bajwa's discovery requests and
had not provided the requested medical releases that would have allowed
the defense to gather evidence from third parties.

¶11           Nor did Adair timely seek relief from the superior court's
order placing the case on the inactive calendar, which directed him to file a
motion to continue, show good cause and obtain leave of the court by
September 12 or face dismissal. The purpose of the inactive calendar is to
"bring to the attention of the court and the attorneys involved the fact that
ample time ha[s] elapsed in which to prepare a case for trial." Black v. Greer,
17 Ariz. App. 383, 385 (1972). Beyond objecting to Bajwa's motion to
dismiss, the record does not reflect any steps Adair took to prosecute his
case between when it was placed it on the inactive calendar and the day
before oral argument on the motion to dismiss.



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                       ADAIR, et al. v. BAJWA, et al.
                          Decision of the Court

¶12          Further, the court did not err by disregarding Adair's protest
that he was not responsible for the delay at the outset of the case because it
had been difficult to serve Bajwa with the complaint. The record
demonstrated that, contrary to Adair's assertions, his lawyer knew by late
October 2015 that Bajwa would waive service, but it took Adair nearly
seven months to file the executed waiver of service, which triggered Bajwa's
duty to respond to the complaint and the corresponding disclosure
obligations and deadlines. Nor, contrary to Adair's protestations, did the
Smith defendants' delay in answering the complaint justify Adair's failure
to make disclosures. The complaint alleged that it was Bajwa who
negligently performed the dental procedure at issue; it named the Smith
defendants based only on respondeat superior, in their capacity as Bajwa's
employer. Finally, Adair does not argue he lacked notice or an opportunity
to be heard on the dismissal. See Old Republic Nat. Title Ins. Co. v. New Falls
Corp., 224 Ariz. 526, 531, ¶ 23 (App. 2010) (no abuse of discretion when
plaintiff "was properly given notice and an opportunity to be heard
regarding the dismissal of its action").

¶13            Adair contends the superior court erred in denying his
request for additional time to serve an expert witness affidavit pursuant to
§ 12-2603. In explaining its ruling on the motion to dismiss, however, the
superior court made clear that it was Adair's overall failure to prosecute,
not a failure to comply with § 12-2603, that caused the court to dismiss the
complaint:

       If we were talking only about compliance with the statute, I
       might be willing to give the Plaintiff additional time to
       procure an affidavit. . . .

       And although I am also empathetic with the Plaintiff's
       counsel, Mr. Porter's medical issues with the time involved
       here and the failure to prosecute for over a year, leads me to
       conclude that the matter needs to be – should be dismissed
       with prejudice for failure to prosecute and for failure to
       comply with the [§] 12-2603. So that's my ruling. The matter
       is dismissed with prejudice.

¶14           Nothing in the record suggests the court unreasonably
exercised its discretion when it dismissed Adair's complaint for failure to
prosecute. Having delayed for several months to effect service after Bajwa
offered at the outset to waive service, Adair failed to make any of the
disclosures that Rule 26.1 requires and failed to respond to any of Bajwa's
long-pending discovery requests. Nor did Adair provide signed medical


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                      ADAIR, et al. v. BAJWA, et al.
                         Decision of the Court

releases to enable the defendants to proceed with third-party discovery.
Finally, on notice that his case was scheduled for dismissal off the inactive
calendar, he did nothing to prevent dismissal for failure to prosecute.

                              CONCLUSION

¶15          For the foregoing reasons, we affirm the superior court's order
dismissing the complaint and award Bajwa and the Smiths their costs on
appeal upon compliance with Arizona Rule of Civil Appellate Procedure
21.




                             AMY M. WOOD • Clerk of the Court
                              FILED: AA




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