Cited by

at 305 ( Birds Int’l ); (noting superior court “clearly abused its discretion in failing to set aside the judgment .

¶13 In arguing that a hearing is required, Jean relies on Birds International Corp. v. Arizona Maintenance Co., Inc., which held that the superior court abused its discretion by dismissing a complaint without a hearing based on an attorney’s failure to comply with a discovery order.

Birds Int’l Corp. v. Arizona Maintenance Co., Inc., We acknowledge that Byrd also filed some motions that extended the time and increased the complexity of this litigation, however, Byrd’s motions did not serve to frustrate the forfeiture process and statutes and were a legitimate exercise of his rights.

Co., Inc., (internal quotations omitted); ¶ 29

Co., see also Comment, Dismissal for Failure to Attend a Pretrial 13 Conference and the Use of Sanctions at Preparatory Stages of Litigation, 72 Yale L.J.

Co., Inc., -48 , -55 (App.1983).

Co., , (hearing preferred to determine if non-compliance due to willfulness or bad faith); Zakroff v. May, 8 Ariz.App.

Co., , Flaksa, 389 F.2d at 887 .

¶ 12 The sanction of dismissal is warranted only when the court makes an express finding that a party, as opposed to his counsel, has obstructed discovery, , and that the court has considered and rejected lesser sanctions as a penalty.

In addition, the record had to reflect that the trial court “thoroughly considered other, less severe, sanctions before resorting to the most extreme.” Nesmith, 164 Ariz. at 72 , 790 P.2d at 770 ; see also Birds Int’l Corp. v. Arizona Maintenance Co., Inc., , (expressing preference for sanctions less drastic than dismissal).

See, , Lenze v. Synthes, Ltd., , Birds Int’l

1087, 1094 , 2 L.Ed.2d 1255, 1264-65 (1958); AG Rancho Equipment v. Massey-Ferguson, Inc., , Birds Int’l

We reverse and remand for the purpose of having the trial court conduct an evidentiary hearing as required by Birds Int’l , , and Lenze v. Synthes, Ltd.