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Prazak v. Alaska Local No. 1 International Union of Bricklayers (10/27/95), 904 P 2d 428

Notice: This opinion is subject to correction before publication in the Pacific Reporter. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0607, fax (907) 276-5808. THE SUPREME COURT OF THE STATE OF ALASKA WILLIAM PRAZAK, ) ) Supreme Court No. S-6354 Appellant, ) ) Superior Court No. v. ) 3AN-91-2044 CI ) ALASKA LOCAL NO. 1, INTERNATIONAL ) UNION OF BRICKLAYERS AND ALLIED ) O P I N I O N CRAFTSMEN, WILLIAM C. WOLTER, ) THE STEBBINS ENGINEERING AND ) MANUFACTURING COMPANY, a New ) York Corporation, LARRY R. ) [No. 4277 - October 27, 1995] STENSTROM d/b/a S & H MASONRY ) and/or HENSEN MASONRY & EQUIPMENT ) CO., INC., a Washington Corpora- ) tion, JOHN DOE, and JANE DOE, ) ) Appellees. ) ___________________________________) ) WILLIAM PRAZAK, ) ) Appellant, ) Superior Court No. ) 3AN-91-6546 CI v. ) (CONSOLIDATED) ) ALASKA LOCAL NO. 1, INTERNATIONAL ) UNION OF BRICKLAYERS AND ALLIED ) CRAFTSMEN, and WILLIAM C. WOLTER, ) ) Appellees. ) ___________________________________) Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Peter A. Michalski, Judge. Appearances: Ronald K. Melvin, Anchorage, for Appellant. James A. Gasper, Jermain, Dunnagan & Owens, P.C., Anchorage, for Appellees Alaska Local No. 1, William Wolter, and Larry Stenstrom. Douglas S. Parker, Ann M. Bruner, Bogle & Gates, Anchorage, for Appellee Stebbins Engineering. Before: Moore, Chief Justice, Rabinowitz, Matthews, Compton and Eastaugh, Justices. PER CURIAM William Prazak filed two civil suits against the appellees. The cases were assigned to the "fast track" under Alaska Rule of Civil Procedure 16.1, and were later consolidated. The superior court eventually used the procedures set out in Rule 41(e) to dismiss the case.1 When Prazak moved for reconsideration, raising for the first time the court's failure to follow Rule 16.1's procedures for dismissal,2 the superior court issued a one page order denying Prazak's motion for reconsideration which stated, in part: Until reconsideration no party treated this case as a fast track case regardless of characterization. The court did not treat this case as "fast-track". Nor should the case have been characterized as "fast-track". Prazak appeals this decision. Nothing in Rule 16.1 suggests that, upon consolidation, "fast-track" cases lose their "fast-track" status. To the contrary, the rule suggests the possibility of complex cases by stating that multiple issues must be joined before a trial date may be set. Alaska R. Civ. P. 16.1(c)(1). Because the appellees fail to cite any persuasive authority suggesting that the rule operates otherwise, we hold that consolidated Rule 16.1 cases retain their "fast-track" status. Because this case retained its "fast-track" status, it is governed by Ford v. Municipality of Anchorage, 813 P.2d 654 (Alaska 1991). Ford holds that Rule 16.1 cases can be dismissed only by following the Rule 16.1 dismissal procedures. Id. at 655- 56. Because the superior court did not follow Rule 16.1's procedures in this case, we REVERSE and REMAND for further proceedings.3 _______________________________ 1 Alaska Civil Rule 41(e) provides: Actions which have been pending in a court for more than one year without any proceedings having been taken may be dismissed as a matter of course, for want of prosecution, by the court on its own motion or on motion of a party to the action. The clerk shall review all pending cases semiannually and in all cases in which no proceedings have been taken for more than one year, the court shall hold a call of the calendar or the clerk shall send notice to the parties to show cause in writing why the action should not be dismissed. If good cause to the contrary is not shown at a call of the calendar or within 30 days of distribution of the notice, the court shall dismiss the action. The clerk may dismiss actions under this paragraph if a party has not opposed dismissal. A dismissal for want of prosecution is without prejudice unless the court states in the order that the case is dismissed with prejudice. 2 Alaska Civil Rule 16.1(g) provides: Where a motion to set trial and certifi cate have not been filed within 270 days after the service of the summons and complaint, the case shall be transferred to the inactive calendar by the clerk of the court. The clerk shall promptly notify counsel in writing of the transfer. All cases which remain on the inactive calendar for more than 60 days shall be dismissed, unless within that period: (1) A proper motion to set trial and certificate is filed; or (2) the court on motion for good cause orders a case continued on the inactive calendar for a specified additional period of time. Notwithstanding Civil Rule 41(b), the dismissal does not operate as an adjudication upon the merits unless a previous dismissal has been entered by the court under this rule, or by the plaintiff or parties under Civil Rule 41(a)(1). If a case dismissed under this rule is filed again, the court may make such order for the payment of costs of the case previously dismissed as it may deem proper, and may stay the proceedings in the case until the party has complied with the order. 3 The appellees' other arguments lack merit. First, because the procedures under Rule 16.1 are mandatory, Prazak is not estopped from raising the rule as a defense. Second, because the superior court addressed Prazak's motion for reconsideration on the merits, and because the superior court has the discretion to relax a civil procedure time limit, Alaskan Village, Inc. v. Smalley, 720 P.2d 945, 950-51 (Alaska 1986), we consider that, if Prazak's motion was one day late, the superior court relaxed the time limit. Finally, because Prazak and the superior court both generated documents after consolidation listing only one case number, we deem Prazak's use of only one case number on his motion for reconsideration as irrelevant. Foster v. Hannie, 841 P.2d 164, 170 n.6 (Alaska 1992) (failure to list all parties on opposition does not constitute waiver of opposition when it is obvious attorney intended opposition to include all parties).