CIVIL PROCEDURE
Supreme Court of Alaska (2023)
Olivia Wagner
In Highlight Canyon, LLC v. Cioffoletti, 533 P.3d 929 (Alaska 2023), the supreme court held that (1) actions taken after the filing of a motion to dismiss for failure to prosecute do not preclude dismissal, and (2) a substitution of counsel, without more, is not a proceeding. (Id. at 933–4). A principal of Highlight Canyon contracted with Clearwater Mountain Mining and Lucky Mine Group for the rights to develop gold mining claims belonging to those businesses (Id. at 931). Highlight’s contract to develop the claims was to continue through 2013, but Clearwater and Lucky Mine sold their claims to Valdez Creek Mining in April 2013. (Id.). Over the course of four years, Highlight delayed its responses to interrogatories and was forced to find new counsel after its previous attorney withdrew for good cause. (Id.). In 2021, Valdez Creek filed a motion to dismiss under Alaska Rule 41(e). (Id. at 932). Highlight argued that its attorney’s withdrawal constituted a proceeding that precluded dismissal. (Id.). The supreme court affirmed the lower court’s decision, reasoning that the goals of Rule 41(e) would be compromised if plaintiffs knew dismissal could be avoided by filing a pleading of record immediately after a party filed a motion to dismiss. (Id. at 933). Further, the court noted that to count as a proceeding, an action must reflect serious determination to move the dispute toward resolution. (Id. at 934). Substitution of counsel does not reach this threshold because it leaves litigation both substantively and procedurally in the same place as it was before. (Id.). Affirming the lower court’s decision, the supreme court held that (1) actions taken after the filing of a motion to dismiss for failure to prosecute do not preclude dismissal, and (2) a substitution of counsel alone is not a proceeding. (Id. at 933–4).
