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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Azimi v. Johns (5/27/2011) sp-6562

Azimi v. Johns (5/27/2011) sp-6562, 254 P3d 1054

        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) 264-0608, fax (907) 264-0878, email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

HABIB AZIMI,                                       ) 
                                                   )   Supreme Court No. S-13407 
                        Appellant,                 ) 
                                                   )   Superior Court No. 3AN-07-07345 CI 
        v.                                         ) 
                                                   )   O P I N I O N 
DAVID R. JOHNS,                                    ) 
                                                   )   No. 6562 - May 27, 2011 
                        Appellee.                  ) 
                                                   ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, Craig Stowers, Judge. 

                Appearances:     Habib Azimi, pro se, Anchorage, Appellant. 
                Susan D. Mack, Call, Hanson & Kell, P.C., Anchorage, for 
                Appellee. 

                Before:     Carpeneti,     Chief    Justice,  Fabe,    Winfree,    and 
                Christen, Justices.    [Stowers, Justice, not participating.] 

                CHRISTEN, Justice. 

I.      INTRODUCTION 

                Habib Azimi was involved in a car accident and subsequently brought a pro 

se personal injury suit against the other driver, David Johns.           At a pretrial conference, 

Azimi   requested   a   continuance   on   medical   grounds.     The   superior   court   denied   the 

request, finding no evidence that Azimi was unable to participate at trial. 

----------------------- Page 2-----------------------

                Johns subsequently filed a motion for partial summary judgment on Azimi's 

wage loss claim, arguing Azimi had not produced evidence of damages, and a motion to 

dismiss Azimi's complaint based on Azimi's lack of exhibits and expert witnesses. 

                At trial call, Azimi again requested a continuance of the trial, arguing that 

trial preparation could jeopardize his health.  The superior court denied the continuance 

because Azimi did not present evidence that trial preparation would endanger his health. 

The superior court also granted Johns's motion for partial summary judgment and motion 

to dismiss the complaint.      Final judgment was entered in favor of Johns. 

                The primary issues on appeal are:         (1) whether the superior court abused 

its discretion by denying Azimi's requests for continuance; (2) whether the superior 

court   abused   its   discretion   by   failing   to   provide   adequate   guidance   to   Azimi   under 

Alaska's lenient standards for pro se litigants; (3) whether the superior court correctly 

granted Johns's motion for partial summary judgment; and (4) whether the superior court 

abused its discretion by dismissing Azimi's complaint.            We affirm the superior court's 

decision to grant Johns's motion for partial summary judgment and we hold that it was 

not an abuse of discretion for the court to deny Azimi's requests for continuance.  We 

reverse    the   superior   court's   order   dismissing     the  case,  and   remand     for  further 

proceedings. 

II.     FACTS AND PROCEEDINGS 

                Habib Azimi, a cab driver, and David R. Johns were involved in a car 

accident at the intersection of Minnesota Drive and Benson Boulevard in Anchorage on 

May 28, 2005.   Azimi's four cab passengers and one additional bystander reported that 

Johns entered the intersection on a red light and collided with Azimi's van.                   Azimi 

received payments totaling $4,037.27 from Johns's insurance carrier, Geico, for property 

damage to his vehicle. On May 21, 2007, Azimi filed a complaint against Johns claiming 

                                                 -2-                                            6562
 

----------------------- Page 3-----------------------

that the collision caused him physical injury and psychological problems, including post- 

traumatic stress disorder (PTSD).   He requested a judgment in excess of $100,000.  On 

September 28, the same day Johns answered Azimi's complaint, Azimi filed a motion 

for expedited consideration requesting that the court stay the case so he could travel to 

the Persian Gulf to obtain dental care. He told the court he would be leaving on October 

2, 2007. 

               Johns's attorney opposed the motion for stay on the grounds that Azimi had 

refused to identify his treating physicians, sign a medical authorization, or produce tax 

returns upon Johns's request.      On the morning of October 2, 2007, the superior court 

held a hearing on the motion for expedited consideration.          The court granted Azimi's 

request to stay the proceedings for six months but ordered Azimi to provide the requested 

information to Johns's attorney and sign any necessary releases before leaving the state. 

The court also instructed Azimi to identify his health care providers so Johns's attorney 

could contact them.  Azimi was able to identify two doctors by name but could not at that 

time recall the names of the other physicians he had visited. 

               On March 27, 2008, the court received a letter sent by Azimi from Iran. 

Azimi reported that he had been consulting with doctors in Tehran.             But according to 

Johns, Azimi still had not provided him with the names of his other medical providers, 

and Johns's attorney sent Azimi a letter on June 6, 2008 warning Azimi of his client's 

intent to request a status hearing and move for dismissal of the case based on Azimi's 

failure to identify his past medical care providers and his inability to actively participate 

in the litigation. 

               The superior court held a status hearing on July 14, 2008, which Azimi 

attended in person.  Johns's attorney informed the court that he continued to encounter 

difficulty   obtaining   Azimi's    medical   records   but  would    be  prepared   for  trial  in 

                                               -3-                                          6562
 

----------------------- Page 4-----------------------

January 2009.  The court advised Azimi about the litigation process, explaining that he 

had a right to receive copies of any records Johns's attorney obtained and outlining the 

steps in the trial process, including the role of witnesses and medical records.   The court 

also encouraged Azimi to hire a lawyer and emphasized the importance of meeting court 

deadlines, particularly the deadline for expert witnesses.             Azimi expressed doubts that 

he would be prepared for trial in January because he was still looking for a psychiatrist 

and an attorney, and also because he was homeless and temporarily living with friends. 

Citing the fact that the case had been stayed for six months already and cautioning Azimi 

"If you're not ready, we're going to go forward anyway," the court scheduled trial for 

January 26, 2009 with a trial call on January 21.             The superior court also scheduled a 

settlement conference for the parties with another superior court judge.1               A summary of 

pretrial   deadlines   was   issued   to   the   parties;   among   other   things,   the   list   included 

deadlines for preliminary and final witness lists, depositions of expert witnesses, and trial 

briefs. 

                Johns filed a motion for partial summary judgment regarding wage loss on 

December 7, 2008.         He argued that Azimi's failure to produce documentation of his 

earnings prior to the accident made it impossible for him to prove wage-related damages 

with reasonable certainty.2 

                The      superior      court    held     another     pretrial    status    hearing      on 

December 19, 2008.   Azimi reported that he was "in very, very bad shape in every way" 

and requested that the trial be postponed.          The superior court told Azimi that a motion 

        1       The conference was apparently unsuccessful. 

        2       Although   Azimi   had   signed   releases   allowing   Johns   to   obtain   his   tax 

information from the IRS, records showed that Azimi had not declared income or filed 
tax returns since 1994. 

                                                   -4-                                                6562 

----------------------- Page 5-----------------------

for continuance would need to be made in writing.             The court expressed concern that 

Azimi did not appear to be keeping up-to-date with pretrial deadlines and warned him 

"[y]ou've got to do that." 

                Ten days later, the superior court held another pretrial conference.  At the 

conference, Azimi submitted a letter from Dr. Sean Cardinal, who had examined or 

consulted     with   Azimi    at  the  Providence     Family   Medicine     Center    in  Anchorage. 

Dr. Cardinal reported that Azimi had been diagnosed with sixth cranial nerve palsy based 

on an MRI performed in Iran, and that this condition caused him to experience double 

vision.    Dr.   Cardinal   noted   that   "[t]his   condition   has   mostly   resolved   however   he 

continues to have double vision when he visually concentrates for long periods of time 

(such as reading)."      Dr. Cardinal planned to do   an MRI scan of Azimi's brain if his 

symptoms worsened, but wrote that "for the time being he should gradually recover his 

ability to read within a year or two."         At the pre-trial conference, Azimi again orally 

requested a continuance based on the health problems described in the letter.                He also 

confirmed   that   he was claiming the cranial nerve palsy was caused by the accident. 

Azimi stated that the only witness he had to testify to a connection between the cranial 

nerve palsy and the accident was a radio call-in psychologist in California with whom 

he had had one telephone conversation. Johns's attorney informed the superior court that 

Azimi had just that day "long after   the   close   of discovery" provided him with "trip 

sheets," i.e., logs of the passengers Azimi had picked up as a cab driver over the course 

of the past several years.  Azimi intended that these records would substantiate his wage 

loss claim. 

                The superior court denied Azimi's request for continuance. In reaching this 

decision, the superior court reasoned that Dr. Cardinal's letter did not indicate Azimi was 

incapable     of  attending    trial  and  that  a  jury  trial  was   unlikely   to  require   visual 

                                                 -5-                                            6562
 

----------------------- Page 6-----------------------

concentration that could bring on Azimi's double vision symptoms.  The superior court 

stated that Azimi did not appear to be "in any way disabled from being able to accurately 

and articulately express his thoughts and   his feelings" and was therefore capable of 

moving forward with the trial.   The court put Azimi on notice that he would need to be 

prepared for trial or risk dismissal of the case:          "I'm going to make you be prepared to 

go or, if you're not prepared to go we'll have the jury picked and if you don't put on any 

evidence, I will end up having to dismiss your case." 

                The superior court determined that Azimi had failed to meet deadlines for 

filing his preliminary witness list, serving written discovery to Johns's attorney, and 

preparing jury instructions.  But the court told Azimi that he would be allowed to call as 

witnesses the doctors whose reports had already been disclosed to Johns and that Azimi 

could testify himself.      The court ordered Azimi to identify trial witnesses by January 2 

and    ordered     a  final  witness    list  by  January     12.   Trial    call  was   scheduled     for 

January 21, 2009. 

                At the close of the December 29 pretrial conference, Azimi attempted to 

object orally to Johns's December 8 motion, which sought partial summary judgment on 

the grounds that Azimi could not prove his wage loss claims with sufficient certainty. 

The court informed Azimi that he would need to file a written opposition by the next day 

if he wished to object. Azimi did file a one-paragraph opposition the next day; he argued 

that his trip sheets provided legal and adequate proof of wage loss caused by the car 

accident.3 

        3       This   opposition   is   included   in   the   record   and   marked   as   received   by   a 

deputy clerk of court.  Johns's brief on appeal states that Azimi filed no opposition to the 
motion   for   partial   summary   judgment,   but   the   record   includes   Johns's   reply   to   the 
opposition. 

                                                   -6-                                                6562 

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                 Johns   filed   a   motion   to   dismiss   Azimi's   complaint   with   prejudice   on 

January 6, 2009.      The motion stated that Azimi had informed Johns's attorney's office 

that he was not going to provide proposed exhibits or proposed jury instructions.                     The 

motion argued that Azimi's complaint should be dismissed because Azimi had no experts 

or exhibits to support his PTSD claim. 

                 On January 21, 2009, the parties appeared for trial call. The superior court 

began by admonishing Azimi about his continued lack of preparation:                     "I have tried to 

be very lenient . . . .   But, as I look at the status of this case, I don't believe that you have 

done what you needed to do to work with the defense. . . .  You don't have exhibits, you 

don't have jury instructions, you don't have an expert witness."                  Azimi had provided 

Johns's attorney with a final witness list, but it consisted largely of Geico representatives, 

Johns's attorney and his staff, and Azimi's previous attorneys.  The list included two, or 

possibly three, doctors.   Johns's attorney represented that he was unable to locate one of 

those doctors and that the other had no records related to the accident; a third doctor 

whom Azimi had identified at an earlier hearing had no medical opinion on the accident 

and had only recently begun treating Azimi.4             Johns's attorney also argued that the list 

included no one who could qualify as an expert witness to establish a causal connection 

between the accident and Azimi's PTSD.   Azimi again stated that he needed more time 

because his mental and physical condition had prevented him from preparing for trial and 

he had not succeeded in his efforts to retain an attorney.              He told the court, "I did my 

        4        Johns's attorney acknowledged that a fourth doctor, Dr. Cardinal, had been 

brought to his attention a week before trial call, though he apparently was not included 
on the witness list. Our review of the record indicates that Dr. Cardinal's letter regarding 
Azimi's health was presented to the court at pretrial conference almost a month before 
trial call. 

                                                    -7-                                              6562
 

----------------------- Page 8-----------------------

best . . . .  But when it comes to my head, the things that I have to do, it's making it 

worse. . . .  I don't know what to tell you except to say that my head comes first." 

                The   superior   court   found   that   Azimi   had   not   responded   with   evidence 

necessary to raise a genuine issue of material fact on the question of lost wages and 

granted Johns's motion for partial summary judgment. The court then dismissed Azimi's 

complaint. 

                On February 26, the superior court entered final judgment in favor of Johns 

and awarded attorney's fees and costs against Azimi in the amount of $18,897.94. Azimi 

appeals. 

III.    STANDARD OF REVIEW 

                We "will not disturb a trial court's refusal to grant a continuance unless an 

abuse of discretion is demonstrated. An abuse of discretion exists when a party has been 

deprived of a substantial right or seriously prejudiced by the lower court's ruling."5  The 

superior court's decision to dismiss a case with prejudice for failure to follow court 

orders is likewise reviewed for abuse of discretion.6 

                "We review the grant of a summary judgment motion de novo, affirming 

if the record presents no genuine issue of material fact and if the movant is entitled to 

judgment as a matter of law."7       But we have applied the abuse of discretion standard in 

        5       House v. House, 779 P.2d 1204, 1206 (Alaska 1989) (internal quotation 

marks and citations omitted); see also Gregoire v. Nat'l Bank of Alaska, 413 P.2d 27, 33 
(Alaska 1966). 

        6       See Arbelovsky v. Ebasco Servs., Inc., 922 P.2d 225, 227 (Alaska 1996). 

        7       Beegan v. State, Dep't of Transp. & Pub. Facilities, 195 P.3d 134, 138 

(Alaska 2008) (citing Matanuska Elec. Ass'n v. Chugach Elec. Ass'n, 152 P.3d 460, 465 
(Alaska 2007)). 

                                                  -8-                                           6562
 

----------------------- Page 9-----------------------

reviewing   the   adequacy   of   the   superior   court's   notice   to   pro   se   litigants   regarding 

summary judgment.8 

IV.	    DISCUSSION 

        A.	     The Superior Court Did Not Abuse Its Discretion By Denying Azimi's 
                Request For A Continuance. 

                Azimi identifies several factors that he claims impeded his ability to prepare 

for trial and meet court deadlines, including health conditions (in particular his difficulty 

concentrating and reading), homelessness, difficulties with winter transportation, and 

financial problems. Azimi also notes that he asked for an attorney from the court but was 

unable to get one appointed because his was a civil case.  Johns argues that Azimi failed 

to demonstrate that his mental and physical condition prevented him from going to trial 

and therefore he was not entitled to a continuance on the grounds of illness.                 He also 

contends that Azimi did not act with due diligence in attempting to retain an attorney. 

We   agree   with   Johns   and   therefore   hold   that   the   superior   court's   denial   of   Azimi's 

request for continuance was not an abuse of discretion. 

                1.	     Azimi was not entitled to a continuance based on his medical 
                        conditions. 

                We held in Siggelkow v. Siggelkow that the decision whether to grant a 

continuance must balance competing goals: prompt resolution of litigation on one hand, 

        8       Genaro v. Municipality of Anchorage, 76 P.3d 844, 847 (Alaska 2003) 

("[I]t was an abuse of discretion not to inform [a pro se litigant] of the proper procedure 
for the action . . . she was obviously trying to accomplish, namely, using a Rule 36(b) 
motion     to  preclude    summary      judgment."     (internal  quotation    marks    and   citations 
omitted)); see also Shooshanian v. Dire, 237 P.3d 618, 622 (Alaska 2010) ("We review 
for abuse of discretion . . . decisions about guidance to a pro se litigant . . . ."). 

                                                  -9-	                                           6562
 

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and a fair opportunity for all parties to present their cases on the other.9              A continuance 

may be appropriate where a party is ill, but only to the extent that the illness prejudices 

the party's case by preventing him from adequately preparing for or participating in trial; 

"illness of a party does not ipso facto" require that a continuance be granted.10                We have 

noted that "the presence of the party at trial is oftentimes indicative of whether the denial 

resulted in prejudice"; that is, if a party is able to be present at trial, the court is less likely 

to find prejudice.11      In Pollard v. Walsh, for example, a litigant followed a doctor's 

orders to stay in bed for a period that included the trial date.12             The Colorado Supreme 

Court found that the trial court's denial of a continuance under the circumstances was an 

abuse   of   discretion.13   By   contrast,   in  Fejer   v.   Paonessa,   a   litigant   claimed   to   have 

appeared at trial in violation of        doctor's orders and was not granted a continuance; the 

reviewing court held that "the fact that he appeared, as he asserts, in violation of his 

physician's orders does not furnish a ground for reversal."14 

                 The type of medical evidence provided by the party claiming illness may 

also influence whether the trial court is within its discretion to deny a continuance.                    A 

California   appellate   court   held   that   the   trial   court's   observations   of   a   litigant   was 

        9        643 P.2d 985, 987 (Alaska 1982). 

        10       Id.  (citing   Kalmus      v.  Kalmus,      230   P.2d    57,   63   (Cal.   App.    1951) 

("Generally, the denial of a continuance requested on the ground of ill health will be held 
reversible error only when the applicant suffered prejudice as a result of the denial.")). 

        11       Id. at 987 n.3 (comparing Pollard v. Walsh, 575 P.2d 411, 412 (Colo. 1978) 

(prejudice) with Fejer v. Paonessa, 231 P.2d 507, 509 (Cal. App. 1951) (no prejudice)). 

        12       Pollard, 575 P.2d at 412. 

        13       Id. 

        14       Fejer, 231 P.2d at 509. 

                                                    -10-                                              6562
 

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sufficient to deny a continuance where the litigant's claim of illness was unsupported by 

medical or other proof; the court was not required to have a doctor examine the litigant.15 

Similarly, where a doctor states that a litigant, even if sick, is capable of participating in 

trial without serious risk to his life or well-being, denial of a continuance has been held 

not to be an abuse of discretion.16 

                 Here, Azimi appeared consistently at pretrial proceedings and the superior 

court   observed   him   to   be   "articulate   .   .   .   rational   and   reasonable." Based   on   the 

framework       described     in  Siggelkow,     Azimi's   presence      and   ability  to  participate   in 

hearings indicated that he was not prejudiced by his illness.17             Azimi seems to argue that 

his case was damaged by his inability to "think or . . . concentrate[] properly about the 

case or the court [p]rocedures" as a result of his medical conditions (specifically his 

double vision).      But the letter Azimi presented   from   Dr. Cardinal did not constitute 

medical   proof   that   his   condition   required   a   delay     in   trial   proceedings.   The   letter 

indicated that Azimi had been diagnosed with sixth cranial nerve palsy and suffered from 

double   vision,   a   complaint   that   was   "mostly   resolved"   and   reappeared   only   during 

periods of intense visual concentration.   Dr. Cardinal did not explicitly address Azimi's 

ability to participate   in a trial, yet it was Azimi's burden to show that he would be 

prejudiced if the trial went forward.   The superior court's finding that this jury trial was 

unlikely to require visual concentration for long periods of time is supported by the 

        15       People v. Stump, 92 Cal. Rptr. 270, 270-71 (Cal. App. 1971). 

        16       Burton v. State, 64 So. 2d 477, 480 (Ala. App. 1954); People v. Morris, 37 

Cal. Rptr. 741, 744-45 (Cal. App. 1964). 

        17       Siggelkow v. Siggelkow, 643 P.2d 985, 987 (Alaska 1982). 

                                                    -11-                                              6562
 

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record.18  Given the limited information provided in Dr. Cardinal's letter and the superior 

court's own observations of Azimi in court, we cannot say it was an abuse of discretion 

for the superior court to deny Azimi's request to continue the trial. 

                2.	     Azimi was not entitled to a continuance based on his lack of 
                        counsel. 

                Although Azimi did not discuss his lack of an attorney at the December 29 

pretrial conference when he orally requested a continuance, his earlier requests to stay 

the case relied in part on the fact that he had been unable to hire an attorney.                  As he 

explained at the July 14 status hearing, "I've been looking [for an attorney] from the 

beginning   and   especially   last   year   and   I'm   still   looking   .   .   .   because   it's   a   mental 

case . . . they don't want to take that."        To the extent Azimi argues he was entitled to a 

continuance because he was unable to find an attorney, his argument is unavailing. 

                There is no general right to counsel in civil cases under the United States 

or Alaska Constitutions.19       Further, many litigants successfully represent themselves in 

civil litigation.  We are mindful that it is difficult for lay persons to represent themselves 

        18      Azimi   had   produced   very       little   pre-trial   discovery   and   designated   no 

exhibits for trial.     It appears that the evidence at trial would have mainly consisted of 
Azimi's own testimony, rather than documentary evidence that might have required 
sustained visual concentration. 

        19      McCracken v. State, 518 P.2d 85, 90 (Alaska 1974).                  The provision of 

publicly-funded counsel in some child custody, parental termination, and involuntary 
commitment   cases   is   a   notable   exception   to   this   rule.  See,   e.g.,   AS   47.30.725(d) 
(providing right to counsel before involuntary commitment for mental health treatment); 
Wetherhorn   v.   Alaska   Psychiatric   Inst.,   156   P.3d   371,   383   (Alaska   2007)   (Alaska 
Constitution's due process clause guarantees counsel in involuntary commitment and 
administration of psychotropic medication proceedings); Flores v. Flores, 598 P.2d 893 
(Alaska 1979) (holding that an indigent party has the right to court-appointed counsel 
in a private child custody proceeding in which the other parent is represented by counsel 
provided by a public agency). 

                                                  -12-	                                            6562
 

----------------------- Page 13-----------------------

in court, but the superior court was correct to consider that Johns was also entitled to his 

day in court and that the case had already been stayed for six months at Azimi's request. 

Further, there was no reason to expect that another continuance would allow Azimi to 

be any more successful in his efforts to obtain counsel. 

              We have emphasized that "[a] party who seeks to continue a case for trial 

must show that he acted with due diligence upon the grounds for which continuance is 

sought."20  As Johns notes in his brief, Azimi had over three years to retain a lawyer 

between the time of the accident and the superior court's denial of his request for a 

continuance in December 2008. Based on the letters from attorneys that Azimi provided 

in his excerpt, it appears that Azimi contacted two private firms in 2007, both of which 

declined to represent him.21   He also contacted the Alaska Legal Services Corporation 

and the Disability Law Center of Alaska but neither agency was able to represent him. 

Azimi did not seek counsel in 2008 - the case was stayed for much of that year while 

Azimi was in Iran - and in 2009, he contacted just one additional private firm prior to 

the January trial date.  Without underestimating the obstacles Azimi faced in finding an 

attorney to take his case or the difficulties facing indigent litigants generally, we agree 

with the superior court's conclusion that Azimi was not entitled to   a   continuance to 

attempt to retain counsel, primarily because he could not show that a continuance would 

       20     Sparks v. Gustafson, 750 P.2d 338, 341 (Alaska 1988) (citing  Cheek v. 

Hird, 675 P.2d 935, 937 (Kan. App. 1984)). 

       21     One    attorney  with   whom    Azimi   had  met  provided   him  with  a  draft 

complaint. 

                                            -13-                                         6562 

----------------------- Page 14-----------------------

allow him to retain one.22       The superior court did not abuse its discretion in denying the 

request to continue trial. 

         B.	     Although The Superior Court Did Not Give Adequate Guidance To 
                 Azimi As A Pro Se Litigant, Its Error Was Harmless. 

                 We held in Breck v. Ulmer that "the pleadings of pro se litigants should be 

held to less stringent standards than those of lawyers. . . . [W]e believe the trial judge 

should   inform   a   pro   se   litigant   of   the   proper   procedure   for   the   action   he   or   she   is 

obviously attempting to accomplish."23           We later clarified the scope of this obligation by 

"declin[ing] to extend Breck to require judges to warn pro se litigants on aspects of 

procedure where the pro se litigant has failed to at least file a defective pleading."24 

Azimi argues that the superior court abused its discretion by failing to advise him about 

how to file affidavits to defeat a motion for summary   judgment.                    We agree that the 

superior court could   have provided Azimi with a more complete explanation of the 

        22       Our caselaw has not addressed what it takes to demonstrate "due diligence" 

in the context of seeking counsel.   We do not find it necessary here to specify precisely 
how   much   time   a   court   must   allow   for   a   litigant   to   find   an   attorney,   or   how   many 
attorneys   a   litigant   must   contact   to   meet   his   obligation.  Regardless   of   the   specific 
minimum requirements, Azimi's efforts in this case (i.e., contacting only five attorneys 
or legal service organizations over a three-year span) fall well below the standard of due 
diligence that might be reasonably expected of a litigant seeking a continuance. 

        23       745    P.2d   66,   75  (Alaska     1987);  see    also  Genaro      v.  Municipality     of 

Anchorage, 76 P.3d 844, 847 (Alaska 2003) (finding abuse of discretion where trial court 
failed to inform a pro se litigant of procedure for opposing summary judgment); Collins 
v. Arctic Builders, 957 P.2d 980, 982 (Alaska 1998) ("In light of Breck, we hold that the 
superior   court   must   inform   a   pro   se   litigant   of   the   specific   defects   in   his   notice   of 
appeal. . . . [T]he failure to do so is manifestly unreasonable and thus constitutes an abuse 
of discretion."). 

        24       Bauman v. State, Div. of Family & Youth Servs., 768 P.2d 1097, 1099 

(Alaska 1989). 

                                                    -14-	                                             6562
 

----------------------- Page 15-----------------------

proper procedure for opposing Johns's motion for summary judgment, but because the 

court considered the evidence that Azimi should have submitted in the form of affidavits, 

we hold that any deficiency in the court's explanation was harmless. 

                1.	     The superior court is obligated to inform litigants of the proper 
                        procedure for opposing a motion for summary judgment. 

                 Johns filed for partial summary judgment on the issue of wage loss on 

December 8, 2008.  The motion was accompanied by a "Notice of Motion" to Azimi, as 

required under Alaska Rule of Civil Procedure 5(g)(2).25                 The notice stated that the 

recipient had the right to file a written opposition and provided information on how to 

serve an opposition.       At the December 29 pretrial conference, Azimi had not filed an 

opposition to Johns's motion, though he had provided Johns's attorney with the trip logs 

he intended to use to substantiate his claim for lost wages.            The court gave Azimi until 

the following day to file a written opposition, explaining, "You need to read what he's 

written and respond to the arguments that he's making and if you have any additional 

arguments, you can make those."   Azimi submitted an opposition in which he reiterated 

that the only available data on his income was in the trip sheets. 

                Because Azimi did file a pleading, he falls under the stricter requirements 

articulated in Breck rather than those in Bauman, and the court was obligated to inform 

him of "the proper procedure for the action he . . . [was] attempting to accomplish."26 

        25      Rule 5(g)(2) provides: "[I]f a party appeared in his or her own behalf in the 

prior   action   or   proceeding,   the   paper   served   shall   include   notice   to   the   party   of   the 
party's right to file written opposition or response, the time within which such opposition 
or response must be filed, and the place where it must be filed." 

        26      Breck, 745 P.2d at 75.  In his reply brief, Azimi cites to the higher standard 

articulated in Hudson v. Hardy and Roseboro v. Garrison, requiring that "a district court, 
as   a  bare   minimum,   should      provide    the  [pro   se]  prisoner   with   fair  notice   of  the 
                                                                                         (continued...) 

                                                  -15-	                                            6562
 

----------------------- Page 16-----------------------

Azimi's failure to include affidavits with his opposition to Johns's summary judgment 

motion is the type of defect that the court is obligated to point out to a pro se litigant. 

This was the situation in Breck, where the plaintiff opposed the defendants' motion for 

summary   judgment but did not attach previously submitted evidence in the form of 

affidavits.27   There, we held that "Breck should have been advised of the necessity of 

submitting     affidavits   to  preclude    summary     judgment."28     Here,   the    superior   court 

acknowledged its obligations under Breck when it noted, in the context of a question 

about the appropriateness of denying a continuance, "[i]f this were to come to me on 

summary judgment where the plaintiff is not represented by counsel, before I could grant 

summary judgment I would have to warn him and advise him how to accomplish what 

it is that he needs to do."     The superior court did explain briefly what Azimi needed to 

do to file a written opposition, but did not mention the necessity of submitting affidavits 

or serving the opposition on opposing counsel.             The court's duty to correct Azimi was 

mitigated by the notice of motion Azimi received from Johns, which referred to Civil 

Rule    77;   we  have    held  that   information    provided    by  the   opposing    party   may   be 

considered   in   evaluating   whether   a   pro   se   litigant   has   received   adequate   notice   of 

        26(...continued) 

requirements of the summary judgment rule."              Hudson v. Hardy, 412 F.2d 1091, 1094 
(D.C. Cir. 1968); see also Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975).  But 
we have declined to extend to all pro se litigants the special protections afforded pro se 
prisoners, including the right to receive notice of the consequences of failing to respond 
to a summary judgment motion.  Bauman, 768 P.2d at 1098-99. 

        27      Breck, 745 P.2d at 69. 

        28      Id. at 75. 

                                                  -16-                                            6562
 

----------------------- Page 17-----------------------

 procedural requirements.29       Here the references in the notice of motion were not explicit 

 enough to meet the standard set out in Breck regarding the court's responsibility. 

                2.	     Any deficiency in the explanation of how to oppose the motion 
                        for summary judgment was harmless. 

                The superior court did not advise Azimi that he needed to file admissible 

evidence in opposition to Johns's summary judgment motion.                    As Azimi notes in his 

brief, we held in Jennings v. State that when evaluating a motion for summary judgment, 

"the superior court should [go] outside the pleadings to consider the entire setting of the 

case to the extent the material was brought to the court's attention by the parties on the 

motion."30    In Breck we noted, "Even where affidavits have not been submitted, the trial 

court still has a duty to consider the evidence referred to by the party opposing summary 

judgment."31 

                Just as we found in Breck, in this case "[t]here is no indication that the 

superior court . . . failed to fulfill that duty."32       The court told Azimi, "[y]ou haven't 

responded with the kinds of evidence necessary to raise a genuine issue of material fact 

         29      See Willoya v. State, Dep't of Corrs., 53 P.3d 1115, 1123 (Alaska 2002) 

 (superior court not required to give pro se litigant formal notice of requirements for 
 opposing summary judgment motion where motion itself observed expert testimony was 
 needed to support medical negligence claims). 

         30      566    P.2d   1304,   1310    (Alaska   1977).    The    court   is  to  consider  "the 

 affidavits, depositions, admissions, answers to interrogatories, and similar material" in 
 making its decision and "[t]he parties need not formally offer their outside matter as 
 evidence or have it marked as an exhibit at the hearing on the motion."                Id. (citing 10 
 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE  
 2723, at 475-76 (1st ed. 1973)). 

         31      745 P.2d at 75. 

         32	     Id. 

                                                  -17-	                                           6562
 

----------------------- Page 18-----------------------

in opposition to the defendant's motion for partial summary judgment on wage loss."  The 

superior court never mentioned the absence of affidavits or other admissible evidence. 

It is possible that the superior court did not consider Azimi's trip sheets - which had 

been lodged at the court's December 29 pretrial conference and served as the basis for 

Azimi's opposition to the motion for summary judgment - but we find such speculation 

unwarranted.  As discussed more fully below, the trip sheets did not raise a genuine issue 

of material fact sufficient to defeat Johns's motion for partial summary judgment.  Even 

if Azimi had submitted the trip sheets in affidavit form, the evidence would not have 

changed the merits of his opposition.     Any deficiency in the court's explanation of the 

proper form for Azimi's opposition was harmless. 

       C.	    The Superior Court Did Not Err By Granting Johns's Motion For 
              Partial Summary Judgment On Lost Wages. 

              Johns's memorandum in support of his motion for partial summary judgment 

argued that Azimi had not provided documentary proof of wage loss and was therefore 

barred from seeking "speculative lost wage damages."  The superior court explained to 

Azimi its reasons for granting Johns's motion for partial summary judgment on wage loss 

by   saying, "[y]ou haven't responded with the kinds of evidence necessary to raise a 

genuine issue of material fact."   Orders granting summary judgment are to be reviewed 

de novo; the issue on appeal, then, is whether Azimi raised a genuine issue of material 

fact with regard to his wage loss claims.33   We hold that he did not. 

              Azimi was initially reluctant to turn over income information requested by 

Johns's attorney on the grounds that his tax returns were a "compact" between "[him] and 

        33     See, e.g., Alyeska Pipeline Serv. Co., Inc. v. Beadles, 731 P.2d 572, 574 

 (Alaska 1987) ("In reviewing the superior court's grant of summary judgment on the 
 issue of punitive damages, we must ascertain whether any genuine issue of material fact 
 exists; if not, [the moving party] accordingly is entitled to judgment as a matter of law."). 

                                             -18-	                                        6562 

----------------------- Page 19-----------------------

his government."  The superior court ordered Azimi to sign a release of IRS records prior 

to his departure for Iran.      Azimi complied, but Johns was only able to obtain a Social 

Security statement indicating that Azimi had not declared any income from 1994 through 

2006 and had filed tax returns showing earnings of $1,176 in 2007.34              Johns argued in his 

motion for partial summary judgment that, because income data was unavailable and 

Azimi had failed to present any alternative evidence of wage loss, Azimi could not meet 

his burden of proving wage damages with reasonable certainty.35                 At the December 29 

pretrial conference, Azimi provided Johns with trip sheets listing all of the cab fares he 

had picked up in 2003 and 2004.  Azimi contended - both at the pretrial conference and 

in his opposition to Johns's motion - that the trip sheets were the only documentation 

of his income and were, under municipal law, "lawful and legal documents" sufficient to 

show wage loss.36 

         34      Upon questioning by the trial court at the December 29 pretrial conference, 

 Azimi confirmed that he had not filed tax returns for the years 1979-1987, 1989, 1991, 
 or 1993-2006. 

         35      See Sisters of Providence in Wash. v. A.A. Pain Clinic, Inc., 81 P.3d 989, 

 1006 (Alaska 2003) (citing Geolar, Inc. v. Gilbert/Commonwealth, Inc., 874 P.2d 937, 
 946 (Alaska 1994) ("[L]ost profits must be proven with reasonable certainty.")). 

         36      In his "Reply Excerpt of Record," submitted on appeal, Azimi provided a 

 letter allegedly from the supervisor of Liberty Tax Services in Anchorage, indicating that 
 "it has become common practice for operators of vehicles for hire and others earning 
 income   and   taking   expenses   related   to   that   income   that   a   journal   of   some   type   be 
 maintained.     Generally speaking the ONLY documentation required to file taxes for 
 vehicle income and expenses is a signed log book or trip sheets to verify the amount of 
 income for tax purposes."  Azimi did not mention this letter in his initial appellant brief 
 and its format as presented in the excerpt makes it difficult to verify.  In any case, Johns 
 argued that Azimi's trip logs did not include expenses, suggesting that the logs would 
 not provide adequate documentation for purposes of filing taxes (or showing net income 
                                                                                        (continued...) 

                                                  -19-                                            6562
 

----------------------- Page 20-----------------------

                Azimi's opposition to the motion for partial summary judgment, a single 

paragraph in which he fails to explain how the trip sheets raise a genuine issue of material 

fact regarding wage loss, is insufficient to avoid summary judgment.   Even putting aside 

the shortcomings of Azimi's opposition, the trip logs themselves appear to have little 

probative   value.    As   Johns   countered   in   his   reply,   "a   hand-written   alleged   running 

tabulation   of   receipts from a business is not the same as records . . . regarding   . . . 

[business] profits."     In other words, the trip logs did not constitute evidence of Azimi's 

net income before or after the accident.          Other than the trip logs, Azimi presented no 

support for his claim of lost wages, instead simply asserting that "wage loss is . . . part of 

[the] accident." 

                "The     party  opposing     summary     judgment     must    set  forth  specific   facts 

showing genuine issues and cannot rest on mere allegations."37                 In order to establish a 

claim   for   damages,   "[l]ost   profits   must   be   proven   with   reasonable   certainty"38    and 

"evidence must afford sufficient data from which the court or jury may properly estimate 

the amount of damages."39         In the absence of relevant data and specific facts supporting 

a claim of damages, we agree with the superior court that Azimi failed to meet his burden 

of raising a genuine issue of material fact as to whether Azimi suffered wage loss as a 

        36(...continued) 

 loss), even based on the contents of the Liberty Tax Services letter. 

         37      Okpik   v.   City   of   Barrow,   230   P.3d   672,   677   (Alaska   2010)   (internal 

 quotation marks and citations omitted). 

         38      Sisters of Providence in Wash., 81 P.3d at 1006 (citing Geolar, Inc., 874 

 P.2d at 946). 

         39      Id. at 1007 (citing  City of Whittier v. Whittier Fuel & Marine Corp., 577 

 P.2d 216, 233 (Alaska 1978)). 

                                                   -20-                                            6562
 

----------------------- Page 21-----------------------

proximate result of Johns's negligence. Therefore, partial summary judgment in favor of 

Johns was appropriate on Azimi's wage loss claim. 

        D.      It Was An Abuse Of Discretion To Dismiss Azimi's Complaint. 

                The Alaska Rules of Civil Procedure address both voluntary and involuntary 

dismissal of complaints.  Civil Rule 41(a) addresses voluntary dismissal at the plaintiff's 

request, by stipulation, or by order of court.40        Civil Rule 41(b) provides for involuntary 

dismissal in cases of "failure of the plaintiff to prosecute," "failure of the plaintiff to . . . 

comply with these rules or any order of court," and on "the ground that upon the facts and 

the law the plaintiff has shown no right to relief."41          Neither Civil Rule 41(a) nor Civil 

Rule 41(b) provide a basis for the dismissal of the complaint in this case. 

                After granting partial summary judgment on Azimi's wage loss claim, the 

superior court went on to dismiss the remainder of Azimi's complaint with prejudice. The 

grounds for dismissal are somewhat unclear.              Although the court stated both orally and 

in its written order that it was granting "the motion to dismiss" - an apparent reference 

to Johns's written motion to dismiss - Johns's attorney argued on appeal to our court 

that the superior court acted sua sponte, dismissing the case because Azimi voluntarily 

chose to have it dismissed after his requested continuance was denied.                  This argument 

implies that the court acted pursuant to Civil Rule 41(a).            But Johns's January 6 written 

motion to dismiss argued that Azimi had "ignore[d] the court's pre-trial order" and "ha[d] 

no experts and no exhibits" and could not meet his burden of proving his case because he 

did   not   have   an   expert   qualified   to   testify   about   his   PTSD   claim. These   allegations 

suggest a motion for involuntary dismissal under Civil Rule 41(b).   Because we find that 

         40      Alaska R. Civ. P. 41(a). 

         41      Alaska R. Civ. P. 41(b). 

                                                   -21-                                               6562 

----------------------- Page 22-----------------------

Azimi neither requested voluntary dismissal under 41(a) nor qualified for involuntary 

dismissal under 41(b), we conclude it was an abuse of discretion   to   dismiss Azimi's 

complaint. 

                1.       Azimi did not request voluntary dismissal. 

                Notwithstanding Johns's arguments, we find no indication in the record that 

Azimi requested dismissal.   As Johns's attorney emphasized at oral argument before our 

court, Azimi did at times characterize the trial as presenting a choice between maintaining 

his health and following the superior court's          procedural requirements.       For example, at 

the December 29 pretrial conference, Azimi asked, "Your Honor . . . does my head come 

first or the law come first?"      The judge replied, "That's your decision to make."             At the 

January     21  trial   call,   Azimi   reiterated  to  the  court,   in  explanation  for  his  lack   of 

preparation, "I   don't know what to tell you except to say that my head comes first." 

Relying on these statements, Johns argues that Azimi communicated to the superior court 

that, if it refused to grant him a continuance, he would be unwilling or unable to go 

forward   with   the   trial.  Johns   concludes   from   this   that   Azimi   implicitly   requested 

voluntary dismissal.      We disagree.      After the superior court denied Azimi's request for 

continuance,   Azimi   was   not   squarely   given   the   choice   between   dismissal   and   going 

forward with the trial.     Nothing Azimi said during the pretrial conference or at trial call 

demonstrated a preference for voluntary dismissal over the opportunity to   go to trial. 

Azimi stated that his "head [came] first" in the specific context of explaining his request 

for continuance and explaining his lack of preparation, not as a decision to dismiss his 

case rather than going to trial.       Because Azimi did not request voluntary dismissal, it 

would have been an abuse of discretion to dismiss his complaint sua sponte under Civil 

Rule 41(a). 

                                                   -22-                                            6562
 

----------------------- Page 23-----------------------

                 2.      Azimi did not fail to prosecute his claim. 

                 Civil Rule 41(b) does not provide justification for the involuntary dismissal 

of Azimi's complaint. The first of 41(b)'s grounds for dismissal, failure to prosecute, has 

a very specific meaning.   It is applicable only if "the case has been pending for more than 

one year without any proceedings having been taken" or "the case has been pending for 

more than one year, and no trial or mandatory pretrial scheduling conference has been 

scheduled or held."42      A "proceeding" is defined as "a step, act or measure of record, by 

the plaintiff, which reflects the serious determination . . . to bring the suit to resolution; 

or a step, act or measure of record, by either party, which reflects that the suit is not 

stagnant."43    The various motions and oppositions filed by Azimi during the year prior to 

dismissal (e.g., his motion for transportation costs and his opposition to Johns's motion 

for   partial   summary   judgment),   regardless   of   their   merits,   are   adequate   to   meet   this 

definition of "proceedings."   At the very least, Johns's litigation steps during this period 

"reflect    that  the   suit  [was]    not  stagnant,"     thus   precluding     dismissal    for   want   of 

prosecution. 

                 3.      Azimi did not willfully fail to comply with court orders. 

                 The second ground for involuntary dismissal under Rule 41(b) is "failure of 

the plaintiff to . . . comply with these rules or any order of court."                Johns noted in his 

motion to dismiss that the superior court "has provided plaintiff with adequate notice of 

an intention to dismiss this matter if plaintiff continues to ignore the court's pre-trial 

order" to provide exhibits and jury instructions, and cited Azimi's statement that "he 

would   not   jeopardize   his   health   in   order   to   comply   with   the   court's   order   regarding 

         42       Alaska R. Civ. P. 41(e)(1)(A)-(B). 

         43       Shiffman v. K, Inc., 657 P.2d 401, 403 (Alaska 1983). 

                                                    -23                                                 6562 

----------------------- Page 24-----------------------

exhibits."  Johns's argument implies that Azimi's actions merited involuntary dismissal 

as a Civil Rule 41(b) sanction for "failure . . . to comply with . . . any order of court." 

               We note that the bar for dismissal on the grounds of failure to comply with 

court orders is high: 

               A trial court's discretion to order litigation-ending sanctions 
               is severely limited, whether the dismissal is requested as a 
               discovery sanction under Civil Rule 37, or for non-compliance 
               with court orders pursuant to Civil Rule 41(b) . . . . There must 
               be "willful noncompliance" with court orders, or "extreme 
               circumstances," or "gross violations" of the Rules. The record 
               must    also  "clearly   indicate  a  reasonable    exploration   of 
               possible and meaningful alternatives to dismissal."44 

In   discussing    dismissal    as  a  discovery    sanction,   we    have   described    "willful 

noncompliance" as a "conscious intent to impede" trial proceedings,45 distinguishable 

from "delay, inability, or good-faith resistance."46      Here, the superior court found that 

Azimi was "educated and articulate," that his medical problems did not interfere with his 

ability to prepare for trial, and that he had not presented any other excuse for his delays. 

These conclusions do suggest that Azimi's non-compliance was not due to excusable 

"delay" or "inability."  But neither did his actions rise to the level of a "willful" intent to 

impede the trial.   Azimi's testimony reflects a belief that complying with court orders 

        44      Arbelovsky    v.   Ebasco  Servs.,   Inc.,   922  P.2d  225,   227  (Alaska  1996) 

 (internal citations omitted). 

        45      Honda Motor Co., Ltd. v. Salzman, 751 P.2d 489, 492 (Alaska 1988). 

        46      Otis Elevator Co., Inc. v. Garber, 820 P.2d 1072, 1074 (Alaska 1991). 

                                               -24-                                         6562
 

----------------------- Page 25-----------------------

would pose risks to his health and, to a lesser extent, confusion regarding what materials 

the court was requesting.47 

                Moreover, as of the January 21 trial call, Azimi had effectively complied 

with the court's orders regarding witnesses and exhibits.   He had provided a witness list 

to Johns's attorney, albeit one that included some witnesses whom he would not have 

been permitted to call.   More importantly, Johns's own trial brief reveals that Johns was 

in receipt of the information that would typically be provided in at least basic discovery 

responses.  Azimi had produced his cab trip sheets, as well as some medical records and 

medical releases, and other medical records had been obtained by Johns's counsel. Azimi 

does not appear to have provided proposed jury instructions before the trial call date, but 

his failure to do so did not prejudice Johns.            Johns provided his own set of proposed 

instructions; if anything, he was advantaged by Azimi's failure to propose a set. We have 

never held that the failure to prepare jury instructions, alone, merits litigation-ending 

sanctions for a pro se litigant. 

                In addition, we have long held that before a litigation-ending order is entered 

on the basis of a pro se litigant's failure to prosecute or to abide by court rules, the court 

must   give   the   litigant   notice   and   an   adequate   opportunity   to   cure   the   defects   in   his 

pleadings.48    Here, the superior court did inform Azimi that if he was not prepared for 

trial, "we'll have the jury picked and if you don't put on any evidence, I will end up 

         47      For example, Azimi attributed his failure to file timely jury instructions to 

 confusion about the trial process:         "I thought maybe the day comes and we're going to 
 talk and ask questions and then we pick the jury." 

         48       Collins v. Arctic Builders, 957 P.2d 980, 982 (Alaska 1998) (holding that 

 "the superior court must inform a pro se  litigant of the specific defects in his notice of 
 appeal and give him an opportunity to remedy those defects" before dismissal of the 
 litigant's claims for want of prosecution and untimeliness). 

                                                    -25-                                             6562
 

----------------------- Page 26-----------------------

having to dismiss your case."  But contrary to the superior court's December 19 warning, 

the court dismissed the case before trial, without determining that Azimi's evidence was 

insufficient to prove any of his claims, and Azimi was never squarely given the choice to 

proceed to trial or have his complaint dismissed.  If Azimi's complaint was dismissed on 

the basis of his alleged failure to comply with court orders, it was an abuse of discretion. 

                4.	      Because      Azimi     had   not   completed       the   presentation      of  his 
                         evidence, his complaint could not be dismissed on the ground 
                         that he failed to show he was entitled to relief. 

                Johns's motion to dismiss could also be construed as an attempt to request 

dismissal on the third ground provided under Civil Rule 41(b): 

                After the plaintiff, in an action tried by the court without a 
                jury,    has   completed      the   presentation     of   the   plaintiff's 
                evidence, the defendant . . . may move for a dismissal on the 
                ground that upon the facts and the law the plaintiff has shown 
                no   right   to   relief. The   court   as   trier   of   the   facts   may   then 
                weigh the evidence, evaluate the credibility of witnesses and 
                render judgment against the plaintiff even if the plaintiff has 
                made out a prima facie case.49 

Johns's motion to dismiss implies that Azimi has "shown no right to relief":  he notes that 

"[p]laintiff's   case    is   one  of   claiming  PTSD     after  a  relatively   minor    motor   vehicle 

accident"   and   "[p]laintiff   now   has   no   experts   and   no   exhibits"   to   support   his   claim. 

Similarly, Johns argues in his brief that Azimi had no exhibits a week before the trial was 

         49	     Civil Rule 41(b) was amended in January 1987 by Supreme Court Order 

 798. This change "overruled our former Civil Rule 41(b) requirement that the trial judge 
 deny a motion to dismiss when the plaintiff has made an unimpeached prima facie case." 
 Fletcher v. Trademark Const., Inc., 80 P.3d 725, 733 (Alaska 2003).  Regarding the pre- 
 amendment prohibition on dismissal of a prima facie case, see, for example, State v. 
 O'Neil    Investigations, Inc., 609 P.2d 520 (Alaska 1980) and Correa v. Stephens, 429 
 P.2d 254 (Alaska 1967). 

                                                    -26-	                                            6562
 

----------------------- Page 27-----------------------

to begin, and "did not produce any expert evidence that his post traumatic stress was 

caused by the accident." 

                 We hold that Johns failed to make the required showing under this provision 

of 41(b).  First, Civil Rule 41 (b) applies only to judge-tried cases; it seems clear from the 

record   that   the   parties   and   the   court   were   contemplating   a   jury   trial,   and   there   is   no 

indication that Azimi changed his mind and waived his right to a jury.                    Even if he had, 

Civil Rule 41(b) would not provide a mechanism for dismissing his case because a motion 

to dismiss for failure to show a right to relief may be made only  after plaintiff "has 

completed the presentation of the plaintiff's evidence."  This is consistent with the Rule's 

expectation that the   superior court will then "weigh the evidence" and "evaluate the 

credibility of witnesses" before deciding whether to grant the motion. Only if it has heard 

the plaintiff's case can the court fairly determine whether to render judgment against the 

plaintiff under Civil Rule 41(b). Here, Azimi's case was dismissed at the trial call, before 

he had presented any testimony or argument.   At that stage of the proceedings, a motion 

to dismiss under Civil Rule 41(b) on the grounds that Azimi failed to demonstrate a right 

to relief would have been premature. 

                 There   is   a   separate   reason   for   concluding   that   Civil   Rule   41(b)   did   not 

provide a valid basis for dismissal:  Azimi's lack of an expert witness probably precluded 

him from proving causation with respect to his PTSD claim, but PTSD was not Azimi's 

only claim. His complaint also alleged that he experienced general "bodily injury" and 

"pain," and it is   apparent that Johns's lawyer had evidence of this more generalized 

claim.50   We have said that neck and back injuries, unlike PTSD, are typical results of auto 

         50       According to Johns's trial brief:  (1) Azimi complained of minor head and 

 neck pain the day following the accident; (2) two weeks later, he returned to the hospital 
                                                                                            (continued...) 

                                                    -27-                                                 6562 

----------------------- Page 28-----------------------

accidents, such that "lay testimony" is sufficient to present these claims to a jury.51     Thus, 

even without an expert witness, Azimi's own testimony could have supported his claims 

of bodily injury.    The fact that Azimi's testimony may have established a prima facie 

claim is not enough in itself to avoid dismissal, as 41(b) makes clear, but the trial court 

may   render   such   a   judgment   only   after   weighing   the   evidence. Azimi's   complaint 

included claims of bodily injury for which his own testimony might have been sufficient 

evidence.   If his claim for   "bodily injury" was dismissed under Civil Rule 41(b) based 

on his failure to identify an expert witness, the dismissal was an abuse of discretion. 

V.      CONCLUSION 

               We AFFIRM the superior court's orders granting the motion for partial 

summary judgment on Azimi's wage loss claim and denying the requests to continue trial. 

We REVERSE the dismissal of the complaint and entry of final judgment for Johns and 

remand for further proceedings consistent with this opinion. 

        50(...continued) 

 and reported back pain; (3) two months after the accident, Azimi attended seven physical 
 therapy sessions at which he complained of both anxiety and low back pain; and (4) the 
 low back pain apparently disappeared over the course of his physical therapy.                This 
 appears to be information defendant gleaned from Azimi's medical records. 

         51     See, e.g., Choi v. Anvil, 32 P.3d 1, 3 (Alaska 2001). 

                                                -28-                                           6562 
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