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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PLU REH, et al., Plaintiffs/Appellants,

v.

GILBERT HENRY HEIKKINEN, et al., Defendants/Appellees.

No. 1 CA-CV 17-0233

Appeal from the Superior Court in Maricopa County

No. CV2014-013543

The Honorable Jo Lynn Gentry, Judge

AFFIRMED

COUNSEL

Torgersen Law Firm, PLLC, Phoenix

By Bethany Torgersen

Co-Counsel for Plaintiffs/Appellants

Ahwatukee Legal Office, P.C., Phoenix

By David L. Abney

Co-Counsel for Plaintiffs/Appellants

Hill, Hall & DeCiancio, PLC, Phoenix

By Joel DeCiancio, Christopher Robbins 

Counsel for Defendant/Appellee Heikkinen

Gardner Law Firm, PLC, Mesa

By Trevor H. Gardner

Counsel for Defendant/Appellee Williamson

FILED 5-15-2018
REH, et al. v. HEIKKINEN, et al.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, 

in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.

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

¶1 Plu Reh and Kyae Meh (collectively, “Plaintiffs”) appeal from 

the superior court’s order dismissing their complaint for lack of 

prosecution. See Ariz. R. Civ. P. (“Rule”) 41(b).

1 For the following reasons, 

we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In October 2012, Plaintiffs’ 12-year-old daughter was struck 

by two vehicles while walking her bicycle in a marked crosswalk near the 

intersection of Indian School Road and 20th Avenue in Phoenix. She died

two days later.

¶3 Two years after their daughter’s death, Plaintiffs filed a

wrongful death action against Gilbert Heikkinen and Kenneth Williamson, 

the drivers involved in the accident (collectively, “Defendants”).2

Heikkinen answered in March 2015; Williamson answered in June 2015. 

The parties conferred regarding the joint report and proposed scheduling 

order, which Plaintiffs filed in September 2015. See Rule 16(b). The

following month, the superior court entered its scheduling order setting 

deadlines for the parties’ initial disclosures, expert and non-expert 

 

1 The Arizona Rules of Procedure were revised effective January 1, 

2017 to reflect comprehensive stylistic and substantive changes. To be 

consistent with the record below and briefing on appeal, we cite the former 

rules.

2 Plaintiffs also sued the Heikkinen Josephs Trust (the “Trust”), 

alleging claims based on respondeat superior and the family purpose 

doctrine. The Trust moved to dismiss for failure to state a claim. Plaintiffs

did not respond, and the superior court dismissed these claims with 

prejudice.
REH, et al. v. HEIKKINEN, et al.

Decision of the Court

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disclosures, supplemental disclosures, discovery, and dispositive motions,

and required the parties to complete discovery by September 30, 2016.

3

¶4 In February and August 2016, Williamson and Heikkinen, 

respectfully, served Plaintiffs with written discovery requests, which 

included: uniform and nonuniform interrogatories, requests for production 

of documents, and requests for admissions. Plaintiffs did not respond to 

either Defendant’s requests.

¶5 Defendants moved, in late October and early November 2016, 

to dismiss under Rule 41(b) for failure to prosecute based on Plaintiffs’ 

failure to timely (1) respond to written discovery or serve any discovery of 

their own and/or (2) provide a Rule 26.1 initial disclosure statement. 

Following oral argument, the superior court granted the motions.

¶6 Plaintiffs moved to reconsider, arguing they had diligently 

prosecuted their case, and Defendants would not be prejudiced by 

proceeding on the merits. The superior court denied the motion, but 

amended its prior ruling, specifically noting Plaintiffs’ failure to respond to 

Defendants’ written discovery requests and holding that “[d]espite the 

[Scheduling] Order, Plaintiffs never produced an initial or supplemental 

disclosure statement. Plaintiffs did not notice any depositions, disclose 

damages or retain experts and all deadlines to do so have passed. Due to 

Plaintiffs failure to prosecute this matter, the Court is dismissing this case 

with prejudice.”

¶7 Plaintiffs timely appealed following entry of a final judgment. 

See Rule 54(c). We have jurisdiction pursuant to Arizona Revised Statutes 

section 12-2101(A)(1).

ANALYSIS

¶8 Plaintiffs argue that the superior court erred by dismissing 

their complaint because they did not abandon it. The law favors resolution 

of a case on its merits. Daou v. Harris, 139 Ariz. 353, 359 (1984). However, 

a plaintiff has a duty to pursue his case diligently and ensure it is brought 

to trial within a reasonable time. Price v. Sunfield, 57 Ariz. 142, 148-49 (1941).

If a plaintiff fails to prosecute, “a defendant may move to dismiss the action 

or any claim against it.” Rule 41(b); see also Cooper v. Odom, 6 Ariz. App. 

 

3 The superior court defined “complete discovery” as including the 

“conclusion of all depositions and submission of full and final responses to 

written discovery.”
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466, 469 (1967). In addition, Maricopa County Local Rule 3.6(a)(3) states 

that a “civil action shall be dismissed for failure to prosecute upon written 

motion and notice to opposing counsel, at the discretion of the court” based 

on “appropriate reasons.”

¶9 Dismissal for failure to prosecute “operates as an adjudication 

on the merits[,]” Rule 41(b), which this court reviews for an abuse of 

discretion, Slaughter v. Maricopa County, 227 Ariz. 323, 326, ¶ 14 (App. 2011). 

“An abuse of discretion occurs when there is no evidence to support a 

holding or the court commits an error of law when reaching a discretionary 

decision.” Dowling v. Stapley, 221 Ariz. 251, 266, ¶ 45 (App. 2009); see also 

Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 455-56 (1982). Finally, in assessing 

whether a plaintiff’s prosecution of an action is adequate, the superior court 

considers the activities of both parties, the information provided to the 

court regarding the status of the case, and other factors that might explain 

or excuse lack of diligence in prosecuting the case. Jepson v. New, 164 Ariz. 

265, 276 (1990).

¶10 Here, the record supports the superior court’s dismissal of

Plaintiffs’ complaint for failure to prosecute, as they “essentially left [the 

court] no choice.” Plaintiffs failed to timely submit a single disclosure 

statement under the court’s scheduling order. They also failed to timely 

respond to any written discovery requests. Plaintiffs’ counsel argued these

failures were justified by the linguistic and cultural difficulties 

communicating with her clients.4 This argument is not persuasive. 

Plaintiffs inexplicably submitted no less than eight sets of discovery 

answers and their initial Rule 26.1 disclosure statement on November 1, 

2016–one day after Heikkinen filed his motion to dismiss and the day of 

Williamson’s motion. This indicates that the communication barriers were 

not so severe that they were unable to meet the established deadlines.

¶11 Even so, at the hearing on the motions to dismiss, Plaintiffs’ 

counsel admitted she allowed the deadlines to pass without requesting any 

extensions. Further, there was “regular” and “extensive” communication 

among counsel during the fall of 2015 through the spring of 2016 about 

expert disclosure deadlines and attempting to schedule Plaintiffs’ 

depositions. But none of these communications mentioned any difficulty 

Plaintiffs’ counsel may have been experiencing in meeting the impending 

 

4 Plaintiffs are members of the Karenni, a small ethnic minority group 

from Burma, and do not speak English.
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discovery deadlines. On this record, the superior court did not 

unreasonably exercise its discretion when it dismissed Plaintiffs’ complaint 

for failure to prosecute.

5

CONCLUSION

¶12 For the foregoing reasons, we affirm the superior court’s 

dismissal under Rule 41(b). We award costs to Defendants upon 

compliance with Arizona Rule of Civil Appellate Procedure 21.

 

5 Because we may affirm if a dismissal was correct for any reason, see 

Picaso v. Tucson Unified School District, 217 Ariz. 178, 181, ¶ 9 (2007), we do 

not address Plaintiffs’ argument that Defendants failed to show they were 

prejudiced by delay, see Cooper, 6 Ariz. App. at 469 (dismissal for failure to 

prosecute is proper only if plaintiff has abandoned his case or caused delay 

which prejudiced defendant).