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Black v. BNSF Railway Co.

Court of Appeals of Arizona, First Division

October 13, 2015

DALE W. BLACK, Plaintiff/Appellant,
v.
BNSF RAILWAY COMPANY, Defendant/Appellee. DALE W. BLACK, Plaintiff/Appellee, v.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. CV2008-022738 The Honorable David O. Cunanan, Judge

Osborn Maledon P.A., Phoenix By Mark I. Harrison, Thomas L. Hudson Co-Counsel for Plaintiff

St. John & Romero PLLC, Mesa By Jason J. Romero Co-Counsel for Plaintiff

Thorpe Shwer, P.C, Phoenix By William L. Thorpe, Bradley D. Shwer, Adam T. Reich Co-Counsel for Defendant

Fennemore Craig, P.C, Phoenix By Patrick Irvine Co-Counsel for Defendant

Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Andrew W. Gould joined.

MEMORANDUM DECISION

NORRIS, JUDGE.

¶1 This appeal arises out of a superior court order vacating a judgment in favor of plaintiff/appellant Dale Black pursuant to Arizona Rule of Civil Procedure 60(c). The superior court vacated the judgment so defendant/appellee BNSF Railway Company ("BNSF") could file a delayed appeal after this court dismissed its original appeal because its attorneys missed the deadline for filing a new trial motion. On appeal, Black argues the superior court should not have vacated the judgment because BNSF's attorneys' failure to timely file the new trial motion was not excusable. We agree.

FACTS AND PROCEDURAL BACKGROUND

¶2 On April 3, 2013, after a three-week trial, a jury returned a verdict for Black on a Federal Employers Liability Act claim, for injuries he sustained while working for BNSF. Over four months later, on August 26, 2013, the superior court, pursuant to the jury's verdict, entered a $1.6 million judgment against BNSF ("Original Judgment"). Despite having more than four months to prepare a motion for a new trial, and after Black's attorneys declined to agree to extend the deadline for such a motion, on September 6, 2013, BNSF moved to extend the deadline for filing a motion for new trial pursuant to Arizona Rule of Civil Procedure 59 ("Motion to Extend") from September 10-the deadline for the motion under Arizona Rule of Civil Procedure 6(a)-to September 18. BNSF's Motion to Extend sought an extension of time "[d]ue to numerous preexisting professional and personal conflicts for undersigned counsel, including ones that require[d] all undersigned counsel to be out of town." The superior court granted BNSF's Motion to Extend, but subsequently denied BNSF's motion for new trial. Ninety-three days after the superior court entered the Original Judgment, on November 27, 2013, BNSF appealed.

¶3 This court dismissed BNSF's appeal. Because a motion for new trial must be filed no later than 15 days after entry of the judgment, Arizona Rule of Civil Procedure 59(d), and a superior court is prohibited from extending the time for filing such a motion by Arizona Rule of Civil Procedure 6(b), except in limited circumstances that were inapplicable to BNSF's appeal, we concluded its new trial motion was untimely and thus failed to extend its time to appeal. See generally Arizona Rule of Civil Appellate Procedure 9(b).[1] In full, Rule 6(b) reads as follows:

When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 50(b), 52(b), 59(d), (g) and (l), and 60(c), except to the extent and under the conditions stated in them, unless the court finds (a) that a party entitled to notice of the entry of judgment or order did not receive such notice from the clerk or any party within 21 days of its entry, and (b) that no party would be prejudiced, in which case the court may, upon motion filed within thirty days after the ...

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