                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


           HOJJATALLAH (DAVID) FARAJI, Plaintiff/Appellant,

                                         v.

         CITY OF PHOENIX, a corporate body, Defendant/Appellee.

                              No. 1 CA-CV 15-0308
                                FILED 5-19-2016


            Appeal from the Superior Court in Maricopa County
                           No. CV2014-053408
            The Honorable Thomas L. LeClaire, Judge (Retired)

                       REVERSED AND REMANDED


                                    COUNSEL

Hojjatallah (David) Faraji, Phoenix
Plaintiff/Appellant

Campbell, Yost, Claire & Norell, P.C., Phoenix
By Margaret F. Dean
Counsel for Defendant/Appellee
                           FARAJI v. PHOENIX
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Patricia K. Norris and Judge Kenton D. Jones joined.


W I N T H R O P, Presiding Judge:

¶1           Hojjatallah Faraji appeals the trial court’s judgment
dismissing with prejudice his action against City of Phoenix (the “City”) by
granting the City’s motion to dismiss pursuant to Arizona Rule of Civil
Procedure (“Rule”) 38.1(f) or 41(b). For the following reasons, we reverse
and remand.

                FACTS AND PROCEDURAL HISTORY

¶2            Faraji was a limousine driver and had been providing on-
demand limousine transportation services at the Phoenix Sky Harbor
International Airport (the “Airport”) under contracts between the City and
companies that provided such services and with which he was affiliated.
When those contracts expired in 2014, the City offered to renew only if the
companies would agree to transition from on-demand to a pre-arranged
basis, which meant the option of waiting at the Airport terminals for
passengers without prior arrangements would no longer be available to
limousine drivers. Faraji and another limousine driver Lazim Al Azidi1
filed a complaint against the City and City of Phoenix Aviation Department
(the “Department”), alleging the disallowance of on-demand services
violated constitutional and anti-trust law and seeking damages and
injunctive relief from the disallowance. The City immediately moved to
dismiss the City for insufficient service of process, and to dismiss the
Department because the Department was not a legal entity separate from
the City. Faraji responded with evidence of service and conceded the City’s
argument regarding the Department; accordingly, the court granted the
motion to dismiss the Department but denied the motion to dismiss the
City.




1     Azidi is not party to this appeal as he did not appeal.




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                           Decision of the Court

¶3            While the City’s motion to dismiss was pending, Faraji
amended his complaint to include additional plaintiffs.2 The City moved
to strike the amended complaint on the basis that none of the additional
plaintiffs had moved to intervene. The plaintiffs responded to the motion
and also formally moved to intervene. The trial court granted the City’s
motion, dismissing the amended complaint without prejudice.
Approximately three months later, the City again moved to dismiss the case
under Maricopa County Superior Court Local Rule 3.6 for violating
Arizona Rules of Civil Procedure 38.1(f)3 and, in alternative, Rule 41(b).
Faraji’s response was late by three days.4 Four days later, the court granted
the City’s second motion to dismiss, finding Faraji had failed to respond to
the City’s motion and dismissing the case in its entirety with prejudice.
Faraji timely appealed this order.5 We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).6




2        The exact number of additional plaintiffs was unclear because the
lists of plaintiffs’ names in different parts of the amended complaint did not
match.

3      Maricopa County Superior Court Local Rule 3.6 refers to Rule
38.1(d), which was altered immaterially and renumbered to the current
Rule 38.1(f) in 2014. Ariz. Local R. Prac. Super. Ct. (Maricopa) 3.6.

4     The City argues Faraji’s response to its motion was more than two
weeks overdue. Its calculation, however, fails to exclude weekends and
holidays pursuant to Rule 6(a) when the allowed period of time is less than
eleven days, and to include five additional calendar days under Rule 6(e).
See Rule 7.1(a) (requiring the party opposing a motion serve and file an
answering memorandum within ten days after the motion is filed and
served).

5     We stayed the appeal until a final judgment with Rule 54(c) language
was entered.

6      Absent material changes since the relevant events, a statute’s current
version is cited.




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                           Decision of the Court

                                ANALYSIS7

¶4             The trial court’s stated rationale for dismissing the case with
prejudice was: “[i]n consideration of Defendant City of Phoenix's Motion
to Dismiss, and the failure of any opposing party to serve and file an
answering memorandum in opposition to the motion, and with good cause
appearing, . . .” The court appeared to have applied Rule 7.1(b) to dismiss
the case. Under Rule 7.1(b), if the non-moving party fails to respond to a
motion, “such non-compliance may be deemed a consent to the denial or
granting of the motion, and the court may dispose of the motion
summarily.” The application of this Rule, however, “is not mandatory.”
Zimmerman v. Shakman, 204 Ariz. 231, 237, ¶ 21, 62 P.3d 976, 982 (App. 2003).
“Arizona courts recognize that an overriding purpose of the Rules of Civil
Procedure is to dispose of cases on the merits where errors in procedure can
be characterized as harmless and non-prejudicial.” Hill v. Phoenix, 193 Ariz.
570, 572, ¶ 10, 975 P.2d 700, 702 (1999); accord DeLong v. Merrill, 233 Ariz.
163, 168, ¶ 16, 310 P.3d 39, 44 (App. 2013). We do not endorse interpreting
and applying the Rules to create a “trap for the unwary,” particularly where
no prejudice has resulted. Simon v. Maricopa Medical Ctr., 225 Ariz. 55, 60,
¶ 16, 234 P.3d 623, 628 (App. 2010). Here, Faraji’s response to the City’s
second motion to dismiss was late by three days, and there is no contention,



7      At the outset, the City argues Faraji’s appeal should be dismissed
because he did not move to set aside the dismissal under Rule 60(c), citing
cases addressing default judgment and Rule 60(c). We disagree. The
dismissal here was not a default judgment and thus, a motion to set aside
the dismissal is not required for this court to have jurisdiction. Cf. Sears
Roebuck & Co. v. Walker, 127 Ariz. 432, 434–35, 621 P.2d 938, 940-41 (App.
1980) (stating this court lacks jurisdiction over an appeal from a default
judgment if the appellant has not first moved in the trial court to set the
judgment aside); Sullivan & Brugnatelli Adver. Co. v. Century Capital Corp.,
153 Ariz. 78, 80, 734 P.2d 1034, 1036 (App. 1986) (holding an order setting
aside, or refusing to set aside, a default judgment is appealable). None of
the cases cited by the City supports its proposition that, before this court
has jurisdiction over an appeal from a dismissal for lack of prosecution, the
appellant must have sought relief from the dismissal in the trial court under
Rule 60(c). We also deny the City’s request to strike Faraji’s opening brief
and to dismiss the appeal on the ground that he did not file the brief on
time. Faraji’s brief was filed one day after the extended period of time
ordered by this court; in our discretion, we accept the brief and decide the
appeal on its merits.


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                            FARAJI v. PHOENIX
                            Decision of the Court

let alone evidence, that the City was prejudiced by the three-day delay in
receipt of the response.

¶5             In its motion to dismiss, the City urged two grounds for
dismissal—Rules 38.1(f) and 41(b); on this record, however, neither ground
would have warranted dismissal, let alone dismissal with prejudice. First,
Rule 38.1(f) requires the trial court place a case on the dismissal calendar if
a Joint Report and a Proposed Scheduling Order have not been filed within
270 days after the commencement of the complaint. This Rule further
requires the court dismiss the case without prejudice if the plaintiff has not
moved to continue the case, or filed such a report or an order within sixty
days after the case is placed on the dismissal calendar. Rule 38.1(f).

¶6             At the time the City filed its second motion to dismiss, 270
days had not yet passed since Faraji filed his complaint. By the time the
court ruled on the motion, however, this time limit had been exceeded and
Faraji had not filed a Joint Report or a Proposed Scheduling Order. Even
assuming a technical violation of Rule 38.1(f), the next procedural step for
the court under this Rule would have been to place the case on the dismissal
calendar. If Faraji still failed to comply, or move to continue, after the case
had been on the dismissal calendar for sixty days, the next step for the court
would have been to dismiss the case without prejudice, pursuant to Rule
38.1(f), not with prejudice as in the present case.

¶7            Second, the City would not have been entitled to dismissal
with prejudice under Rule 41(b). Rule 41(b) allows the court to dismiss a
case based on a plaintiff’s failure to comply with the Rules or a court order,
or to prosecute the case. That Rule provides:

       For failure of the plaintiff to prosecute or to comply with these
       rules or any order of court, a defendant may move for
       dismissal of an action or of any claim against the defendant.
       Unless the court in its order for dismissal otherwise specifies,
       a dismissal under this subdivision and any dismissal not
       provided for in this rule, other than a dismissal for lack of
       jurisdiction, for improper venue, or for failure to join a party
       under Rule 19, operates as an adjudication upon the merits.

Rule 41(b).

¶8           As an initial matter, the City has never contended Faraji
violated a court order. Instead, the City contends Faraji failed to comply
with procedural Rules 16 (case management) and 26 (discovery/disclosure)
as he had not yet submitted an initial disclosure statement, requested the


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                            Decision of the Court

setting of any Rule 16 conferences, or submitted any disclosure or discovery
requests. On this record, because the City has not proffered any evidence
or argument that those failures prejudiced the City, we decline to endorse
the procedural approach urged by the City as a basis for the dismissal of
the case with prejudice.

¶9            The City further contends Faraji’s failure to comply with
Rules 16 and 26 demonstrate his abandonment of the case. To justify a
dismissal for lack of prosecution, the record must reflect that the delay in
prosecution demonstrates “either that the cause of action has been
abandoned by plaintiff or else that it has resulted in injury to some[]one not
responsible for the delay.” Price v. Sunfield, 57 Ariz. 142, 148, 112 P.2d 210,
212 (1941); accord Cooper v. Odom, 6 Ariz. App. 466, 469, 433 P.2d 646, 649
(1967).

¶10           Faraji argues he had taken reasonable steps to timely
prosecute this action. For example, he had immediately tried to join
additional plaintiffs after filing the complaint. Any delay in case
management and discovery was understandable given the number of the
City’s procedural motions and the time it took to respond to those motions,
and the uncertainty about whom all of the plaintiffs would eventually be.
Moreover, at the time the City filed its second motion, only three months
had lapsed since the court’s latest order. On this record, and in comparison
with the reported cases analyzing a failure to prosecute, the passage of three
months does not support a finding that Faraji had abandoned his case. See
Slaughter v. Maricopa Cty., 227 Ariz. 323, 326–27, ¶¶ 15, 17, 258 P.3d 141, 144–
45 (App. 2011) (affirming a dismissal for lack of prosecution because the
plaintiff had not prosecuted the case for more than two years since she first
amended her complaint); see also Price, 57 Ariz. at 145, 112 P.2d at 211 (four
years); Old Republic Nat’l Title Ins. Co. v. New Falls Corp., 224 Ariz. 526, 530,
¶ 16, 233 P.3d 639, 643 (App. 2010) (two and a half years); Copeland v. Ariz.
Veterans Mem’l Coliseum & Exposition Ctr., 176 Ariz. 86, 88, 859 P.2d 196, 198
(App. 1993) (fourteen months). On the other hand, the City has not
proffered any evidence or arguments demonstrating that the City had
suffered any prejudice as a result of the scheduling or disclosure delay.
Accordingly, the trial court should not have dismissed the case with
prejudice for lack of prosecution.




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                          FARAJI v. PHOENIX
                          Decision of the Court

                            CONCLUSION

¶11         The trial court’s judgment is reversed. Faraji is awarded his
costs on appeal, subject to compliance with ARCAP 21. The case is
remanded for further proceedings consistent with this decision.




                               :ama




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