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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Business Law
Satisfied Customers: 118780
Experience:  All corporate law, including non-profits and charitable fraternal organizations.
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When can I file a motion to dismiss for failure to prosecute

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When can I file a motion to dismiss for failure to prosecute in a superior court case in arizona? I am the defendant and the plantiff's attorney has dragged this out for 16 months into arbitration. I believe that they had 270 days to complete all aspects of the case. How would I file this type of motion?
Rule 38.1(d), Arizona Rules of Civil Procedure, in relevant part: “The clerk of the court or court administrator 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” and, “All cases remaining on the Inactive Calendar for two months shall be dismissed without prejudice for lack of prosecution. . ." However, where arbitration is being sought and motions are being filed you would not be able to allege failure to prosecute. You should be filing objections to all of the motions for continuance, which are considered "activity" in the case.

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Customer: replied 8 years ago.

So there is no way to dismiss the case. How do I file objections to the continuances and what advantage does that serve? They have really drug this out and a period of 16 months is excessive when they have delayed to get this wrapped up in nine months.

Every time they file a motion for continuance, file a written objection to the motion with the reasons the continuance should be denied and the court will hold a hearing to determine if their grounds are valid. When you object, you get to give the judge the story as to the fact that the other side is needlessly delaying the process the judge may grant one continuance, but eventually the judge will get upset and stop granting them, but when you do not object the court thinks you agree with the continuance.
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