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This website allows you to electronically file and monitor court rule petitions and comments and to view existing rules of court, recent amendments of those rules, and pending rule petitions and comments. Any visitor to this site may view posts on this website, but to post a petition or comment you must register and log in. To view instructions on how to register and how to file a petition or comment, please visit our Frequently Asked Questions (FAQ) page. 
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Last Post 21 Jul 2014 12:00 PM by  James Kloss
R-13-0044 Petition to Amend Rule 67, Arizona Rules of Civil Procedure
 120 Replies
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Author Messages
gtrachtenberg
Posts:

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16 Sep 2013 04:22 PM
    R-13-0044

    Petition to Amend Rule 67, Arizona Rules of Civil Procedure

    Would eliminate requirement that plaintiffs who do not own property in Arizona post cost bonds in the trial court

    Co-Petitioners on behalf of the Arizona Association for Justice :

    Geoffrey M. Trachtenberg, Esq. (019338)
    Justin Henry, Esq. (027711)
    LEVENBAUM TRACHTENBERG, PLC
    362 North Third Avenue
    Phoenix, Arizona 85003
    (602) 271-0183, Fax (602) 271-4018
    gt@ltinjurylaw.com
    justinhenry@ltinjurylaw.com

    Richard S. Plattner (005019)
    PLATTNER VERDERAME, PC
    316 East Flower Street, P.O. Box 36570
    Phoenix, Arizona 85067
    (602) 266-2002, Fax (602) 266-6908
    rplattner@plattner-verderame.com

    Filed September 16, 2013

    Comments due May 20, 2014.

    ADOPTED effective January 1, 2015.


    Attachments
    lynn.goar@azbar.org
    Posts:

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    24 Oct 2013 06:02 PM
    Lynn Eric Goar
    Law Office of Lynn Eric Goar PC
    1955 W. Grant Rd. Ste. 125
    Tucson, Az 85745
    520-740-1447
    Lynn.Goar@azbar.org

    I have reviewed this petition to delete the requirement that certain plaintiffs post a cost bond in civil cases and I support it wholeheartedly. Insurance companies and big corporations have routinely used this requirement to prevent plaintiffs with valid claims from pursuing them in court. While I have defeated most requests for the posting of a bond, there have been other cases that have been dismissed. This is simply unfair to those plaintiffs with valid claims. The procedure for requesting and opposing the request for a bond unnecessarily adds time and costs to cases. This petition should be approved.
    jdsmith
    Posts:

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    05 Feb 2014 03:56 PM
    James Smith
    No. 016760
    2 N. Central Ave.
    Suite 2200
    Phoenix AZ 85004
    602-364-7000

    Arizona's existing rule is not unique by any stretch. For example, California, Nevada, and Florida have similar requirements, and I suspect a great number of other jurisdictions do as well. Indeed, LRCiv 54.1(c) imposes the same requirement in the U.S. District Court for the District of Arizona. Absent a compelling reason to deviate from what seems to be the norm in jurisdictions throughout the country, I would not approve this proposed change.

    josephatlaw
    Posts:

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    24 Feb 2014 12:49 PM
    Joseph D'Aguanno
    Harris Powers & Cunningham
    361 E. Coronado Road
    Phoenix, AZ 85004
    602.271.9344 (p)
    602.252.2099 (f)
    jdaguanno@hpc-lawyers.com
    AZ 020421

    Dear Justices,

    I support the proposed change to Rules 67(d) and (f), submitted by the Arizona Association for Justice in Petition R-13-0044.

    The current Rules impose financial requirements on plaintiffs alone and needlessly discriminates against "non-property owning" plaintiffs. There is no similar requirement imposed on defendants. The reality is that this one-sided sword-and-shield is routinely wielded by insurance companies, on behalf of defendant insureds, to inhibit "non-property owning" plaintiffs from pursuing valid claims. Rule 67(d) makes no distinction about whether the plaintiff’s
    case has merit, meaning that a defendant who has already harmed the plaintiff can now make it almost impracticable for the plaintiff to get justice. This is fundamentally unfair, and the process of requesting and opposing a cost bond needlessly wastes time, costs, and judicial resources.

    The Court should eliminate these one-sided, discriminatory rules.

    /s/ Joseph D'Aguanno
    cole@cds-law.com
    Posts:

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    24 Feb 2014 12:55 PM
    Cole D. Sorenson
    Law Firm: The law Office of Cole D. Sorenson PLLC
    Address: 1411 N. 3rd Street. Phoenix, AZ, 85004
    Phone Number: 602-374-8009
    FAX Number: 602-535-1201
    E-mail Address: cole@cds-law.com
    Bar Number: 013097

    Dear Justices,

    I have read the proposed change Rules 67(d) and (f) submitted by the Arizona Association for Justice and am writing in support of Petition R-13-0044.

    Cost bonds for plaintiffs are fundamentally unfair. While owning real property is still a goal that many try and obtain, for the masses, that goal may never be obtainable. So do we bar these individuals from the court house because they are not affluent? I hope not. These are the type people that need the most protection and access to the courts.

    Rules 67(d) and (f), which imposes arbitrary financial requirements on certain species of plaintiffs alone, needlessly creates an atmosphere of invidious discrimination against "non-property owning" parties at the expense of public confidence in an impartial judicial system.

    The only entity that profits from this rule is insurance companies. Elimination of this rule will once again provide a level playing field. Plaintiffs in this position are not asking for a windfall, just a chance to be treated fairly.
    spalumbo
    Posts:

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    24 Feb 2014 01:45 PM
    Scott I. Palumbo
    Palumbo Wolfe & Palumbo, PC
    2800 N. Central Ave., Suite 1400, Phoenix, Arizona 85004
    602-2655777
    FAX 602-265-7222
    spalumbo@palumbowolfe.com
    021271

    Dear Justices,

    I write in support of the proposed change to Rules 67(d) and (f) submitted by the Arizona Association for Justice, Petition R-13-0044.


    Rules 67(d) and (f) impose arbitrary financial requirements on certain plaintiffs (non-property owners, i,e. poor??????). As a result, those plaintiffs face hurdles to access the justice system that others (i.e. rich?????) do not. This is discriminatory and needs to end.


    ecrowley
    Posts:

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    24 Feb 2014 05:33 PM
    Gabriel D. Fernandez (016483)
    437 W. Thurber Rd. #16
    Tucson, AZ 85705
    520-293-6255
    Fax: 520-293-3937
    gfernandez@gdflaw.com


    I represent, and have represented many lower income clients with valid claims. The requirement that certain plaintiffs post a cost bond in civil cases is unfair to plaintiffs with valid claims, and serves to negatively impact lower income clients far more than clients with the financial means to post bonds; thus,effectively denying lower income clients access to the court system. As such, I support the approval of this petition.
    ahernandez
    Posts:

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    25 Feb 2014 10:43 AM
    Amy Hernandez
    PIccarreta Davis PC
    145 S. 6th Avenue
    Tucson, Arizona 85701
    520-622-6900
    520-622-0521
    ahernandez@pd-law.com
    022892

    I am writing in support of Petition R-13-0044. Rules 67(d) and (f) require a plaintiff to give security for the costs of the action if they do not own property in Arizona. The court shall fix the amount of security.

    Presumably a hearing would be necessary to hear evidence related to potential costs of the case and suggestions on the amount of security to be set by the court. This seems like a waste of time for courts that are already overloaded.

    Second, these rules target plaintiffs. Defendants are not required to show proof that they can pay any judgment obtained by plaintiffs. Defendants are not required to prove they own property in Arizona in case they must pay the costs of plaintiffs. The rules are completely one-sided and discriminatory against plaintiffs.

    Rules 67(d) and (f) just add another obstacle for plaintiffs. Interrogatories geared to Rules 67(d) and (f) and sent by defendants are generally used to intimidate plaintiffs. That should never be the intended or implied purpose of any tool under the civil rules.

    Please eliminate Rules 67(d) and (f).

    Very truly yours,

    Amy Hernandez
    Piccarreta Davis PC
    skivs11
    Posts:

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    25 Feb 2014 10:50 AM
    Ryan Skiver
    Warnock MacKinlay & Carman, PLLC
    7135 E. Camelback Rd., Ste F240
    Scottsdale, AZ 85251
    602.381.6669 - P
    602.381.6560 - F
    rskiver@lawwmc.com
    AZ Bar #024552

    Dear Justices,

    I have read the proposed changes to Rules 67(d) and (f) submitted by the Arizona Association for Justice and am writing in support of Petition R-13-0044.

    I have and do represent many lower income plaintiffs who have valid claims and deserve equal access to the Courts of Arizona. Rules 67(d) and (f), impose arbitrary financial requirements on certain species of plaintiffs, which promoties an atmosphere of discrimination against "non-property owning” parties at the expense of public confidence in an impartial judicial system. Nobody should be denied access to the courts because of their financial standing, and the requirement that they own property or post a cost bond puts an unnecessary burden on many injured parties.

    Although most experienced lawyers and judges have recognized that the cost bond rules are fundamentally unfair for the past 20 or 30 years, the use of this mechanism has become more prominent since the opinion in Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.3d 206 (App. 2013), Petition for Review denied on January 7, 2014, which overruled constitutional objections made by a pro per litigant.

    The Court should eliminate these one-sided, discriminatory rules, and give everyone equal access to the courts without the fear of financial repercussions that could destroy an entire family. Thus not only are these people injured by the negligent acts of the defendants in their cases they are injured by this requirement that they own property to pursue recovery for their damages.

    /s/ Ryan Skiver



    elliotglicksman
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    25 Feb 2014 11:12 AM
    i strongly support the elimination of costs bonds. The courts need to be open to everyone and the cost bond punishes the poor and effectively denies them access to the courts. Justice must not be limited to those that can afford it. Please eliminate these cost bonds.

    Elliot Glicksman
    The Law Office of Elliot Glicksman, PLLC
    145 S 6th Ave
    Tucson, Ariz. 85701
    elliot@glicksmanlaw.com
    520-628-8878
    fax 520-882-8618
    lance@entrekinlaw.com
    Posts:

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    25 Feb 2014 11:39 AM
    Dear Justices,

    I have read the proposed changes to Rules 67(d) and (f) and am writing in support of Petition R-13-0044.

    The current rules at issue originated in a time when access to the courts was thought to be legitimately linked to property ownership. That time, thankfully, has passed.

    I represent many indigent clients and can report that on some occasions, these provisions have been invoked against my clients. In each instance it was a strategic move by defense counsel to place additional financial burdens on indigent litigants and the attorneys who represent them, in order to gain an advantage in settlement negotiations. Never in my experience did it ultimately provide security to a defendant who later became entitled to security and would not otherwise have had it. In other words, it burdens indigent plaintiffs without accomplishing its stated objective, in my experience.

    I would strongly urge the Justices to adopt the proposed changes.

    /s/ Lance Entrekin
    The Entrekin Law Firm
    One East Camelback Road
    #710
    Phoenix, Arizona 85012
    602-954-1123
    Fax: 602-682-6455
    lance@entrekinlaw.com
    Bar #016172

    rhinsch
    Posts:

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    25 Feb 2014 12:06 PM
    Randall A. Hinsch
    P.O. Box 36570
    Phoenix, AZ 85067-6570
    ph:(602)266-2002
    fax:(602)266-6908
    rhinsch@plattner-verderame.com
    #010280

    I am writing in support of Petition R-13-0044. The rule is clearly meant to block the courthouse doors to those who are not affluent enough to be able to post the cost bond. Imagine if one had a son or daughter just starting out in life, recently graduated college, just got their first job but still rents an apartment and has not yet accumulated sufficient assets or funds and that child gets injured by a drunk driver and the billion dollar insurance company backing up the drunk demands the son or daughter post a cost bond. The young adult cannot. The billion dollar insurance company's drunk gets to walk away from the damage done to someone's child and the insurance company, of course, saves money. That is how the rule works. The rich are treated better, have access to the courts the poor do not so that they can walk away from the damage they have inflicted. This is not the life lesson I want to teach my kids.
    lcoben
    Posts:

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    25 Feb 2014 12:06 PM
    Larry E. Coben
    8700 E. Vista Bonita Dr., Ste. 268
    Scottsdale, AZ 85255-3203
    lcoben@cobenlaw.com

    Dear Justices,

    I have read the proposed change Rules 67(d) and (f) submitted and I am writing in support of Petition R-13-0044.

    Rules 67(d) and (f) impose financial requirements on plaintiffs which are in my opinion needless and create circumstances which discriminate against "non-property owning” parties who do not have the financial means to satisfy this obligation --- and which can force impecunious plaintiffs out of the judicial system.

    Although most experienced lawyers and judges have recognized that the cost bond rules are fundamentally unfair to plaintiffs who cannot afford to obtain a bond, some parties have pursued cost bonds since the opinion in Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.3d 206 (App. 2013), Petition for Review denied on January 7, 2014, which overruled constitutional objections made by a pro per litigant.

    The Court should eliminate these one-sided, discriminatory rules.
    chris@bcazlaw.com
    Posts:

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    25 Feb 2014 12:06 PM
    H Christian Bode
    Bode & Collins, P.L.C.
    7377 E. Doubletree Ranch Road #210
    Scottsdale, AZ 85258
    480.355.5020
    480.355.5021 (fax)
    Chris@bcazlaw.com
    Bar No. 0007346

    I am writing in support of the proposed amendment to Rule 67. For years, based on a string of Superior Court decisions finding Rule 67 to be unconstitutional, this Rule has not been invoked by defendants and the system has operated just fine. My practice consists entirely of civil tort litigation and in the last twenty five years I have never seen a plaintiff required to post a cost bond. In fact, notwithstanding the Court of Appeals opinion in Thiele v. City of Phoenix, I do not know of an entity that provides security bonds of the type contemplated under the rule.

    Moreover, the current rule is superfluous. The vast majority of civil cases settle with each side bearing its own costs. Requiring a motion for the posting of security for costs, a hearing to determine the amount of the security, the submission of presumably cash to the court as secutity for those costs, and then the relinquishment of the security when the case settles, will only add to the court's (and the parties') paperwork, workload and costs.

    Finally, the rule is unfair. Cost bonds are required only of Plaintiffs even in cases where the defendant has admitted liability and the only issue to be adjudicated is the amount of damages owed by the defendant.

    If the purpose of the rule is to deter frivolous litigation, Rule 11 and A.R.S 12-341 already provide that deterrent to lawyers and their clients and do so in a more efficient and even handed way.

    Chris Bode

    mcclellanlawaz
    Posts:

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    25 Feb 2014 12:10 PM
    Matthew L. McClellan
    The McClellan Law Firm, PLC
    361 E. Coronado Road, Suite 101
    Phoenix, AZ 85004
    602-386-4800 (phone)
    602-386-4801 (fax)
    matt@mcclellanlawaz.com
    022586

    Dear Justices,

    I have had an opportunity to review the proposed change Rules 67(d) and (f) submitted by the Arizona Association for Justice. I write in support of Petition R-13-0044.

    Rules 67(d) and (f), have the unfair effect of preventing less affluent plaintiffs from pursuing legitimate claims. These Rules are being used (and abused) by large and wealthy insurance companies to bar the court house doors to those with legitimate cases who do not have the financial resources to own property in Arizona.

    Moreover, this rule is unfairly directed at Plaintiffs, only. Defendants are not required to prove they own property in Arizona in case they must pay the costs of plaintiffs. The rules are unfairly discriminatory against plaintiffs.

    I urge the Court to eliminate these one-sided, discriminatory rules.

    /s/ Matthew McClellan
    voightmann
    Posts:

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    25 Feb 2014 12:18 PM
    Craigg M. Voightmann
    Voightmann Law Firm PC
    16700 N. Thompson Peak Pkwy., Suite 110
    Scottsdale, Arizona 85260
    (480) 348-5000
    craigg@voightmannlaw.com
    SBN 018678

    Dear Your Honors:

    I have read the proposed changes to Rule 67(d) and (f) submitted by the Arizona Association for Justice and am writing in support of Petition R-13-0044.

    The requirement for a cost bond seems wholly unnecessary, discriminatory all while limiting access to the Court. In my experience Maricopa County Superior Court Judges routinely deny requests for these bonds on the grounds they are unconstitutional.

    Why doesn't the current Rule allow for the plaintiff to seek a cost bond against the defendant?

    The current version of the Rule is simply used as an harassment tool or technique by those with power, resources and money. Has any defendant ever collected on a cost bond?

    Respectfully submitted,

    Craigg M. Voightmann
    nick.moceri
    Posts:

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    25 Feb 2014 12:36 PM
    Nicholas A. Moceri
    Moceri & Kille, PLLC
    Prescott Valley, AZ 86314
    928-778-2444
    nick@northernarizonainjurylaw.com
    006038

    Justices:
    I have been a trial lawyer in Arizona since 1979. I practiced in Illinois and Missouri for three years before moving here, and I never ran into anything like Rule 67. Fortunately, I did not face a motion for Rule 67 cost bond until 2012.

    The rule makes no sense. Half the population rents their abode and lives from paycheck to paycheck. By what reasoning should those persons be precluded from exercising their legal rights in court?
    As a practical matter a paycheck to paycheck plaintiff cannot give "strict proof of inability to give the security" and the would have to make a decision whether to forego normal purchases of his or her daily life to put up the cash. No cost bond would be obtainable without security, in my experience, and if that security existed the motion for a cost bond would not have been granted in the first place.
    One should also consider that according to the language of subsection (d), a residence with equity of less than $150,000 should not be considered property meeting the requirements of the rule because it cannot be executed against to pay costs.
    My experience with the Rule is in personal injury litigation where the attorney hired by the insurance company uses the rule a tactic to oppress the plaintiff during litigation in which the insurance company already knows it will pay the plaintiff but is arguing over how much. The company knows it will never actually try to collect costs. The company also knows that it will never be required to post a bond for costs. The actual defendant runs no risk since he is not incurring costs, the insurance company is. This imbalance of power applied to access to the courts in indefensible in an environment where in excess of 99.5% of the litigated matters are settled.
    The Rule has several other deleterious effects. It wastes judicial time. Motions and Responses and Affidavits have to be read, evaluated and ruled upon. Furthermore, information regarding the Plaintiff which is irrelevant to the proceedings is given to Defendant. I am referring to Plaintiff's financial information that could be used by Defendant to Defendant's advantage in settlement negotiations.
    The Rule is discriminatory. It is the result of a bias that it is the plaintiff who is causing the matter to be litigated. It ignores the fact that plaintiffs file lawsuits when Defendants have committed a ciivil wrong causing inujry for which the Defendant has failed to hold itself accountable. The fees for filing a Complaint and for service of process are onerous enough. The provision for a cost bond is too much. While there may have been actual concerns about collecting costs when the Rule was first passed, the practical effect has been its use by the rich as a weapon against working class plaintiffs. The Amendment should be adopted.

    /s/ Nicholas A. Moceri
    bgrysen
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    25 Feb 2014 12:47 PM
    B. Elliot Grysen
    806 River
    Spring Lake, MI 49456-1953
    800-727-1470
    bgrysen@hotmail.com

    Justices:

    I have been practicing law in Arizona since 1987. I am writing in support of the above referenced Petition to Amend Rule 67.

    Rule 67 has been used as a sword to attack several of my clients after filing a medical malpractice claim. In the latest example, long time Arizona residents who sold their home and were living in a retirement apartment became the target of the Defendants in a one sided arbitrary financial requirement because they no longer owned a home.

    It was nearly impossible to explain to them why the court would require a cost bond in order to bring what they believed, and experts supported, was a meritorious claim for injuries suffered.

    The court should eliminate this discriminatory rule. I would be happy to present other client examples if requested.

    Respectfully submitted, B. Elliot Grysen
    mnapierpc
    Posts:

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    25 Feb 2014 12:49 PM
    Michael Napier
    NAPIER, COURY & BAILLIE, P.C.
    2525 East Arizona Biltmore Cir.
    Suite 135
    Phoenix, Arizona 85016
    (602) 248-9107
    mike@napierlawfirm.com
    State Bar No. 002603

    Dear Justices,

    I recently became aware of the proposed changes to Rules 67(d) and (f) and am writing in support of Petition R-13-0044.

    The requirement of a cost bond will, for an injured indigent person, mean the difference between having access to the courts -- or not. No one should be deprived of his day in court because of poverty. It is my hope the Court will eliminate the bond requirement.

    Thank you for your consideration.

    /s/ Mike Napier
    ssaks
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    25 Feb 2014 12:55 PM
    Sam Saks
    3003 N. Central Avenue, Suite 600
    Phoenix, AZ 85012
    602-200-1022 (phone)
    602-200-0106 (fax)
    ssaks15@gmail.com
    Bar no. 024260

    This change is a reasonable solution to a problem of access to justice. The fact that other states may have such a requirement does not matter. Arizona has, and should continue to, take a leading role in improving access to justice.
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