Arizona

Civil Procedure

Rule 42.1 – Change of Judge as a Matter of Right

(a) When Available. In any action in superior court, except an action in the Tax Court, each side is entitled as a matter of right to a change of one judge. Each action, whether single or consolidated, must be treated as having only two sides. If two or more parties on a side have adverse or hostile interests, the presiding judge may allow additional changes of judge as a matter of right, but each side must have the right to the same number of such changes. The term “judge” as used in this rule refers to any judge, judge pro tem, or court commissioner. The term “presiding judge” as used in this rule refers to the presiding superior court judge in the county where the action is pending, or that judge’s designee.

(b) Notice Requirements. A party seeking a change of judge as a matter of right must either file a written notice, or make an oral request on the record, in the manner provided below:

(1)Written Notice. A written notice of change of judge must be served on all other parties, the presiding judge, the noticed judge, and the court administrator, if any, by any method provided in Rule 5(c). The notice must not specify grounds for the change of judge, but must contain:

(A) the name of the judge to be changed;

(B) a statement that:

(i) the notice is timely under Rule 42.1(c);

(ii) no waiver has occurred under Rule 42.1(d); and

(iii) the party’s side has not been granted a change of a judge as a matter of right previously in the action.

(2)Oral Notice. An oral request for change of judge must include the information required by Rule 42.1(b)(1)(A) and (B). When made, it is deemed to be an “oral notice of change of judge” for purposes of this rule. The judge must enter on the record the date of the oral notice, the requesting party’s name, and the judge’s disposition of the request. A party obtaining a change of judge based on an oral notice is deemed to have exercised its right to a change of judge under Rule 42.1(a). For purposes of this rule, an oral notice is deemed “filed” on the date that it is made on the record.

(c) Time Limits. A party is precluded from obtaining a change of judge as a matter of right unless it files a timely notice. The following deadlines apply:

(1) Notice must be filed within 90 days after the party giving notice first appears in the case.

(2) If an assignment identifies a judge for the first time after the time period set forth in Rule 42.1(c)(1) has expired, or fewer than 10 days before that time period will expire, a notice is timely if filed within 10 days after the party receives notice of the new assignment, or within 10 days after the new judge is assigned, whichever is later.

(3) If the right to a change of judge is renewed under Rule 42(e), a notice is timely if filed within 15 days after issuance of the appellate court’s mandate under Arizona Rule of Civil Appellate Procedure 24.

(4) A notice of change of judge is ineffective if filed within 3 days of a scheduled proceeding, unless the parties have received fewer than 5-days’ notice of that proceeding or the judge’s assignment. The filing of an ineffective notice neither requires a change of judge nor bars the party who filed it from later filing a notice of change of judge that satisfies this rule’s requirements.

(d) Waiver. A party waives the right to change of a judge assigned to preside over any proceeding in the action, if:

(1) the party agrees to the assignment;

(2) the judge rules on any contested issue, or grants or denies a motion to dispose of any claim or defense, if the party had an opportunity to file a notice of change of judge before the ruling is made;

(3) a scheduling, pretrial, trial-setting, or similar conference begins;

(4) a scheduled contested hearing begins; or

(5) trial begins.

(e) Actions Remanded from an Appellate Court. In actions remanded from an appellate court, the right to a change of judge is renewed and no event connected with the first trial constitutes a waiver:

(1) if the appellate decision requires a new trial; and

(2) the party seeking a change of judge-or the side on which the party belongs-has not previously exercised its right to a change of judge in the action.

(f) Procedures on Notice.

(1)On Proper Notice. If a notice is timely filed and no waiver has occurred, the judge named in the notice should proceed no further in the action except to make such temporary orders as are absolutely necessary to prevent immediate and irreparable injury, loss, or damage from occurring before the action can be transferred to another judge. If the named judge is the only judge in the county, that judge may also reassign the case.

(2)On Improper Notice. If the court determines that the party who filed the notice is not entitled to a change of judge, the named judge may proceed with the action.

(3)Reassignment.

(A)On Stipulation. If a notice of change of judge is filed, the parties should inform the court in writing if they have agreed on an available judge who is willing to hear the action. An agreement of all parties may be honored and, if so, bars further changes of judge as a matter of right unless the agreed-on judge becomes unavailable. If a judge to whom an action is assigned by agreement later becomes unavailable because of a change of calendar assignment, death, illness, or other incapacity, the parties may assert any rights under this rule that existed immediately before the assignment to that judge.

(B)Absent Stipulation. If no judge is agreed on, the presiding judge must promptly reassign the action.

Ariz. R. Civ. P. 42.1

Amended effective January 1, 2017.

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