NOT FOR PUBLICATION

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).

MEMORANDUM DECISION

MILLER, Judge:

¶1 Edward Ray appeals the trial court's order dismissing his complaint against prison employees Jennifer Wentworth, David Strong, and Beverly Tripplett ("Defendants") for Ray's failure to prosecute his case. For the following reasons, we affirm.

Procedural Background

¶2 In October 2015, Ray, then a prison inmate in Arizona,1 filed a complaint against Defendants, alleging they intentionally destroyed an audio tape and a video tape that he had placed in the prison mail. Ray sued for "state law violations of property damage, and/or negligence." In November 2015, Defendants filed a motion to dismiss pursuant to Rule 12(b)(6), Ariz. R. Civ. P., for failure to state a claim upon which relief could be granted. Ray did not file a response, and in May 2016, pursuant to Rule 41(b), Ariz. R. Civ. P., Defendants filed a motion to dismiss the complaint with prejudice for failure to prosecute.

¶3 Ray filed a timely response to the Rule 41(b) motion. See State v. Goracke, 210 Ariz. 20, ¶ 5, 106 P.3d 1035, 1037 (App. 2005) (pro se prisoner deemed to have filed pleading at time delivered, properly addressed, to prison authorities); see also Ariz. R. Civ. P. 5(c)(2)(C), 6(a), (c), 7.1(a)(3).2 Ray argued he did not continue to prosecute his case because "he was simply waiting on the [trial court's] ruling on the Defendant's prior `Motion to Dismiss for Failure to State a Claim.'" He did not explain his failure to respond to that motion. The trial court granted the motion for involuntary dismissal and Ray appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).

Discussion

¶4 Ray argues the trial court should have denied the motion to dismiss, dismissed the case without prejudice, or issued an order to show cause before dismissing.3 We review a dismissal for failure to prosecute for an abuse of discretion. Slaughter v. Maricopa Cty., 227 Ariz. 323, ¶ 14, 258 P.3d 141, 144 (App. 2011).

¶5 Ray contends dismissal was improper because he did not "deliberately engage[] in deceptive practices" or act willfully or in bad faith. He cites Anheuser-Busch, Inc. v. Nat. Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995), a case in which a federal district court dismissed a counterclaim with prejudice because the counterclaimant had concealed documents and lied about their existence. That case is inapposite, as the court relied on Rule 37, Fed. R. Civ. P. and its inherent power to dismiss a claim as a sanction for discovery violations. Anheuser-Busch, Inc., 69 F.3d at 348. Willful engagement in deceptive practices is not required for dismissal pursuant to Rule 41(b), Ariz. R. Civ. P.

¶6 Ray also contends the court should not have dismissed his claims because he intentionally waited to respond to the Rule 12(b)(6) motion until the court "determine[d] whether or not the properly filed complaint DID state a claim." However, Ray's failure to respond to that motion independently supported summary dismissal of his claim. See Ariz. R. Civ. P. 7.1(b); Strategic Dev. & Constr., Inc. v. 7th & Roosevelt Partners, LLC, 224 Ariz. 60, ¶ 17, 226 P.3d 1046, 1051 (App. 2010) (court has discretion to summarily grant Rule 12(b)(6) motion for failure to timely respond).

¶7 Ray alternatively contends the proper remedy was dismissal without prejudice. Unlike a plaintiff's first voluntary dismissal pursuant to Rule 41(a), however, involuntary dismissal pursuant to Rule 41(b) is presumptively "an adjudication [on] the merits." Workman v. Verde Wellness Ctr., Inc., 240 Ariz. 597, ¶ 8, 382 P.3d 812, 816 (App. 2016), quoting Ariz. R. Civ. P. 41(b). Ray does not cite authority holding otherwise. Likewise, the fact that the dismissal order did not explicitly state whether it was with or without prejudice is of no consequence—Defendants requested involuntary dismissal with prejudice pursuant to Rule 41(b), and unless a dismissal order states otherwise, such a dismissal is "an adjudication on the merits." See Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, n.1, 183 P.3d 1285, 1287 n.1 (App. 2008) (where Rule 41(b) motion granted without specifying, court presumes dismissal with prejudice). The trial court did not abuse its discretion by dismissing for failure to prosecute.

¶8 Ray also asserts the trial court erred by failing to issue an order to show cause and exceeded its jurisdiction because another judge signed the dismissal order rather than the original assigned judge. He does not cite any authority for these arguments and has waived them on appeal. Ariz. R. Civ. App. P. 13(a)(7) (appellate brief argument shall contain "citations of legal authorities"); see Sholes v. Fernando, 228 Ariz. 455, ¶ 16, 268 P.3d 1112, 1118 (App. 2011).

Disposition

¶9 For the foregoing reasons, we affirm the trial court's judgment.