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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
hmwright
Posts:

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26 Feb 2014 05:47 PM
H. Michael Wright
Udall Shumway PLC
1138 N. alma School Rd., Ste. 101
Mesa, AZ 85201-3000
480-461-5347
hmw@udallshumway.com

As Arizona is a frequent destination of Winter Visitors, vacationers, and business travelers, the requirement that a plaintiff own property within the State places an unfair burden on the ability of visitors to bring claims. Further, the Great Recession has led to the loss of homes of many persons. I urge passage of this amendment.
sgeofeldman
Posts:

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27 Feb 2014 04:54 PM
Stanley G. Feldman
Haralson, Miller, Pitt, Feldman & McAnally, P.L.C.
One South Church Avenue, Suite 900
Tucson, Arizona 85701-1620
Tel: 520 792 3836
Fax: 520 624 5080
E-mail: sfeldman@hmpmlaw.com
Bar No.: 000838

I write in support of the petition to eliminate the rule providing for cost bonds.

The existing rule obviously impedes access to justice of those who do not own property in Arizona, regardless of whether they are able to meet the cost bond requirements. The procedures for obtaining exemption from the rule simply add to the burden of litigation and require costly proceedings in terms of attorneys’ fees and judicial time. Applicable only to plaintiffs seeking access to our judicial system, the rule actually creates an image of hostility and provides defendants with one more tool to make litigation difficult.

It might be said that the cost bond requirement has some virtue in that it ensures a successful defendant’s recovery of costs expended. But I submit that courts should not be concerned with assuring any side to litigation that it will actually be able to recover its costs, its award, or its attorneys’ fees. There are provisions in the law for awarding costs and attorneys’ fees to successful parties, and those are valuable tools. But nothing in the law should guarantee the ability of one side or the other to recover whatever their award might be.

Finally, the rule, applying only to plaintiffs, damages public confidence in an impartial judicial system that should favor neither plaintiff nor defendant. We do not require defendants, by threat of default, to post a cost bond to assure a successful plaintiff’s recovery of costs. Why, then, require such from a plaintiff, unless we assume that there are more plaintiffs who file spurious lawsuits than there are defendants who maintain spurious defenses. There is no empirical evidence to support that idea, and in my opinion, such an assumption is unwarranted, let alone unsupported.
ecrowley
Posts:

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28 Feb 2014 10:25 AM
Bruce M. Hayman
Bruce M. Hayman, PLLC
2210 N 7th Street
Phoenix, AZ 85006
Haymo50@hotmail.com
Bar No. 027892

I have read rules 67(d) and (f) and support the petition. Posting a bond is an undue hardship on both out of state plaintiffs and poor plaintiffs.

todstewart
Posts:

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28 Feb 2014 11:11 AM
Tod L. Stewart
Stewart & Torgersen, P.A.
2999 N. 44th Street,Ste. 318
Phoenix, AZ 85016
tel(602)297-9300
fax (602)265-6414
tod@1800ourlawyer.com
#018163

Dear Justices,

I am writing to express my support of Petition submitted by the Arizona Association for Justice and Petition R-13-0044.

In my practice, I have seen Rules 67(d) and (f) used as a method of intimidation by insurance company defense lawyers to dissuade an injured victim of negligence from pursuing their constitutionally guaranteed right to recover for their harms and losses. It is insincere and clearly against the purpose of the rule when large, well funded insurance carriers are asserting their need of a guarantee of cost recovery. Those assurances of a recoverery of costs must be weighed against the denial of the constitutional right to access to the courts for "non-property owning parties." In my experience, the non-property owning parties are those who are less economically advantaged and they have already suffered loss of time at work, incurred medical expenses, and now are forced to provide assurances to the defendant's insurance company before they can recover for their losses. It results in fear and intimidation and can ulitimately result in a denial of a constitutional right. The true purpose of the Rule is not met and it used as a sword rather than the shield it was drafted to be.The Court should eliminate these one-sided, discriminatory rules.

/s/
ecrowley
Posts:

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28 Feb 2014 11:20 AM
Herman C. Zickerman
West, Elsberry, Longenbaugh & Zickerman, P.L.L.C.
310 S. Williams Blvd., Ste. 250
Tucson, AZ 85711
(520) 790-7337
(520) 748-0852
Gib@welzaz.com
AZ Bar No.: 003976

Attachments
jayciulla
Posts:

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28 Feb 2014 11:37 AM
Jay L. Ciulla
The Ciulla Law Firm, PLLC
3030 N. Central Avenue, Suite 608
Phoenix, AZ 85012
Telephone (602) 495-0053 Ext. 102
Facsimile (602) 258-7199
Email: jay@ciullalawfirm.com
AZ Bar No. 017971


Dear Honorable Justices:

I have read the proposed rule change and strongly support it. The current rule often closes the court house doors to out-of-state plaintiffs and Arizonans who simply don't own real estate. The current rule is a vestige of a bye-gone era that favored the landed class and is inconsistent with the principles of justice embodied in the Arizona Constitution.

Regards,

Jay L. Ciulla

sammoeller
Posts:

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28 Feb 2014 11:46 AM
Sam Moeller
Law Offices of Samuel P. Moeller, PLLC
1411 N 3rd St
Phoenix, AZ 85004
P: 602-374-8009
F: 602-535-1201
sam@spmoellerlaw.com
State Bar No.: 025270

Dear Justices,

I have read the proposed changes to Rules 67(d) and (f) and I am in support of Petition R-13-0044. Currently, Rules 67(d) and (f), impose and undue hardship on "non-property owning" plaintiffs.

I represent many low income individuals who have never owned any real property and likely never will. The people that need protection the most are the same people that are harmed the most by the current form of the rule.

The Court should eliminate these discriminatory rules.
RDBohm
Posts:

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28 Feb 2014 11:49 AM
Robert D. Bohm
2141 East Camelback Rd.
Suite 100
Phoenix, AZ 85016
602-957-7400
rbohm@azpremiseslaw.com
AZ Bar #: 005226


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.

Rules 67(d) and (f), are fundamentally flawed in that they limit access to the courts based simply on whether an individual owns property in the State of Arizona. As a result, younger citizens, lower income citizens, and others that have not been able to accumulate the wealth to acquire property can be denied access to the courts simply because of their financial status. Such limitation undermines public confidence in an impartial judicial system. Arizona has been fortunate to be at the forefront and a real leader in judicial reform. Petition R-13-0044 is a next logical step in creating open access to the courts.

Numerous Superior Court judges have ruled on the constitutionality of Rule 67 and have limited its application for the last 25 years. Unfortunately the use of this rule in restricting court access 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 unbalanced, flawed, discriminatory rules and approve Petition R-13-0044.
ajm
Posts:

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28 Feb 2014 12:09 PM
A.J. Mitchell, Esq.
Law Office of A.J. Mitchell, PLC
14555 N. Scottsdale Road
Suite 170
Scottsdale, AZ 85254
(480) 595-6800 – Tele
(480) 595-6966 – Fax
AJM@ajmlawoffice.com
Bar # 021244

I support the petition to Amend Rule 67, Ariz.R.Civ.Pro. Requiring Plaintiffs to post a cost bond for not owning property in Arizona does not serve the interests of justice. It discriminates against indigent Plaintiffs and those who do not have the means to purchase a home. In all of our cases in which Rule 67 is invoked, it is the defendant insurance companies using this rule as a sword against an unarmed, usually poor, Plaintiff as a method of intimidation.
rnedwards6
Posts:

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28 Feb 2014 12:09 PM
Robert Edwards
2150 3rd Avenue
Suite 300
Anoka, MN 55303
763.427.1400
re@rnelaw.com
Bar # 020813

I have reviewed the Petition and believe that the proposed amendment would be in the best interests of justice. Just because an injured person is poor or a non-resident is no reason to add to their burden by requiring a bond. It would seem that this Rule as it exists is a holdover from a different time, when discrimination against visitors to Arizona may have been appropriate. Given the significant economic benefit to Arizona from today's tourism leads me to think that if this same Rule were proposed today it would be defeated. Furthermore, the recent Arizona Court of Appeals decision will now invigorate attempts to exact these bonds, attempts which I rarely saw in the past. It will just add to the cost and burden of litigation, without any real benefit.
hofmannlaw
Posts:

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28 Feb 2014 12:35 PM
Paul G. Hofmann
HOFMANN LAW OFFICES, PLLC
7440 N. Oracle Rd., Bldg. 5
Tucson, AZ 85704-6379
(520) 797-1041
(520) 797-1491 fax
hofmannlaw@comcast.net
AZ State Bar No. 015457


Dear Justices:

I've been a civil attorney, representing both defendants and plaintiffs, for nearly 24 years. I've dealt with this rule multiple times, and for the life of me, I don't understand its purpose or necessity.

In my view, this antiquated rule harkens back to the days when voters were required to be property owners just to exercise their fundamental right. Shouldn’t we make access to justice simpler and fairer, similar to the expansion of the voting franchise?

I also frequently tell my family, friends, and clients that the judicial branch of government is by far the most responsive and accountable to individuals. Each of us has the right to hold the most powerful person or corporation responsible when they do something wrong. Rules 67 (d) and (f) only serve to inhibit that accountability, not to enhance it.

I urge you to adopt the changes.

Respectfully,

Paul G. Hofmann
jtt@ashrlaw.com
Posts:

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28 Feb 2014 12:45 PM
J. Tyrrell Taber
Aiken Schenk Hawkins & Ricciardi PC
2390 E. Camelback Rd. Ste. 400
Phoenix, AZ 85016-0001
602-248-8203


I am in favor of R-13-0044.

I have practiced law in Arizona since 1978. I have dealt with Rule 67, from the the defense and plaintiff's side. I have always feel that there is something fundamentally wrong with a Rule that denies access to the courts based on ownership of property. While i am fully aware of the affidavit exception, this Rule when invoked leads to protracted, unproductive game playing by defendants, and inserts the Courts into the process for no good reason. It had been relegated to its proper place, non-use, in light thoughtful analysis and minute entries from the Superior Court. Since Thiele, is back in play and back with a vengeance. It is a mean-spirited rule and should be abolished. Ty Taber
jjamies
Posts:

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28 Feb 2014 12:56 PM
Jonathan Jamieson
(Bar No. 024967)
Michael Cordova, P.C.
1700 N. 7th Street
Phoenix, AZ 85006
(602) 265-6700
(602) 265-5269
jonathan@mcordova.com

I have reviewed the Petition to Amend Rule 67 of the Arizona Rules of Civil Procedure and write in support of the proposed change.

The Rules of Civil Procedure stand as a guide to level the playing field and promote fairness in judicial resolution of disputes between adverse parties. The very purpose of the rules is to secure the "JUST, speedy, and inexpensive determination of every action." (Ariz. R. Civ. P. 1).

Rule 67 should be amended for several reasons:

1) It is a one sided tool that serves as a sword for Defendants. The rule only contemplates the filing of a cost bond by a plaintiff. There is no similar rule that would require a defendant to do the same.

2) Rule 67 does not take into account the merits of the underlying claim. In determining if a cost bond is necessary, a court can only take into account the financial position of the plaintiff. Whether the plaintiff is likely to succeed on his/her claim is irrelevant. The net effect is that complaints that are highly likely to succeed on their merits are subject to dismissal simply due to the economic status of the plaintiff.

3) If a costs bond is ordered, a plaintiff is required to disclose details of his/her financial status that is not contemplated anywhere else in the Rules. Again, there is no similar requirement that a defendant disclose any similar information. Disclosure of this information is not only invasive, it provides irrelevant information to an adverse party and may have negative effects on attempts at settling a claim.

Rule 67 stands out as rule that gives an unfair advantage to one category of litigants: defendants. This advantage has the distinguishing characteristic as being based solely on financial status. The rule limits access to the civil justice system without any consideration as to the merits of a plaintiff's claim. The proposed amendment should be adopted, so as to keep the playing field even for all participants.
John Gravina
Posts:

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28 Feb 2014 12:59 PM
John A. Gravina
Sole Proprietor
3546 N Euclid Ave
Tucson AZ 85719
520.795.4330
e. John.Gravina@Azbar.org
SBN: 013012

Your Honor(s),

Please accept this as support for the proposed changes to Rules 67(d) and (f) submitted by the Arizona Association for Justice (AAJ) and support Petition R-13-0044.

Rules 67(d) and (f), imposes arbitrary financial requirements on non-property owning consumers, brutally preventing them from pursuing their cases at the expense of public confidence in an impartial judicial system. The court should do all it can to remove the image of patronage appointments that protect the powerful. What consumer can obtain a cost bond? Who writes these things?

Most fair minded lawyers and judges recognize that the cost bond rules are unfair. 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.

Please restore public confidence by removing this unfair bar to non-property owning consumers.

Thank you for your consideration.
Michael.Bell
Posts:

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28 Feb 2014 01:32 PM
Michael J. Bell
Busby, Bell & Biggs, P.C.
1241 E Prince Rd
Tucson AZ 85719
(520)293-0344
FAX: (520)293-8347
mike@busbylaw.com
Bar Number 009020


Dear Justices:

I am writing in support of the petition to amend Civil Rule 67 to eliminate the requirement for persons to post bonds if they do not own real property in Arizona. The courts need to be open to everyone and cost bonds punish the poor and effectively deny them access to the courts and to justice. Justice should not be limited to individuals that can afford it.

I am asking that you amend Rule 67 and eliminate the requirement of a cost bond for a plaintiff who does not own real property within Arizona.

Sincerely,

Michael J. Bell
111750dra
Posts:

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28 Feb 2014 02:33 PM
Donald R. Alvarez
Alvarez & Gilbert
14500 N. Northsight Blvd.
Ste. 216
Scottsdale, AZ 85260
602-263-0203
480-686-8708 fax
dalvarez@alvarez-gilbert.com
006160

Dear Justices:

I have been practicing for over 38 years (34 in AZ) and I have never understood the reasoning requiring a non-AZ-property-owning Plaintiff with a claim here in AZ to post a Costs Bond with the Court. Regardless of the Plaintiff's financial circumstances, unfortunately, this Rule imposes yet another impediment to not only lesser income Plaintiffs, but also to all Plaintiffs, in seeking redress through our Court system. First, a plaintiff is saddled with a big filing fee and then service fees. After that, each Court filing, now required to be electronically filed in Maricopa County at least, costs $6 a shot. Add to that all of the other taxable and non-taxable costs associated with litigation (not to mention attorneys fees), a Plaintiff will endure substantial hardship bringing and litigating suit. Do we really need to keep imposing further financial burdens on a Plaintiff? Should not the purpose of our Rules be to make the Courts more accessible to parties with legitimate claims? Rule 67(d) flies in the face of that purpose.

Also, how often are Costs Bonds even tapped for costs incurred by a successful Defendant? How often is this Rule even invoked in cases? Are any statistics available? Shouldn't statistics be kept so it can be determined whether this Rule is even necessary to accomplish the purpose for which it was adopted (whatever that was...the reasoning is not stated in the Rule books)? If there are no statistics being kept, that tells me the Costs Bonds are not being tapped and they are unnecessary.

Thus, the threshold question is whether this Rule is even necessary. I submit that it is neither necessary nor fair. All it does is impede Plaintiffs from bringing their claims in a Court system that is supposed to be set up to provide claimants with readily available access to justice. Rule 1, ARCP says that these Rules "shall be construed to secure the just, speedy, and inexpensive determination of every action." So how does Rule 67(d) fit this purpose? It does not.

Get rid of it.

thank you.

Don Alvarez.


ecrowley
Posts:

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28 Feb 2014 02:37 PM
William C. Bacon
33 N. Stone Ave. 900
Tucson, AZ 85701
520-879-7165
Fax- 520-620-3991
wbacon@goldbergandosborne.com
Bar No. 004895

Dear Justices:

I support the proposed changes to Rules 67(d) and (f) as set out in Petition R-13-0044.
The concept that a plaintiff must own property to participate in the justice system is archaic at best and discriminates against the poor at worst. It is also invites a significant waste of judicial resources.
I recently dealt with Rule when, after a year of litigation, weeks before trial, a defendant demanded a cost bond. My client is permanently disabled due to his accident related injuries and had to relocate to California to be cared for by his daughter. His only income is a modest Social Security payment. Per the rules the trial judge set a hearing after motions and oppositions were filed. The request for the bond was properly denied but not before a lot of the precious time leading up to trial was spent in addressing the issue. It was an extraordinary waste of time.
I agree that the court should eliminate this very unfair and one-sided rule.
Thank you.
William C. Bacon
adammartinez
Posts:

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28 Feb 2014 03:18 PM
Adam D. Martinez, No. 025614
Martinez Law, PLC
1640 S. Stapley Dr., Ste. 127
Mesa, AZ 85204
602-730-1005
602-419-2106 (fax)
adam@martinezlawaz.com

The Court should approve the Petition seeking to amend Rules 67(d) and (f). Requiring plaintiffs to post cost bonds in order to proceed with civil claims does not make sense, particularly as it relates to those with legitimate claims, who are entitled to a just result but lack financial resources. It places an unreasonable and arbitrary burden on plaintiffs without serving a legitimate interest.
natecooley
Posts:

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28 Feb 2014 03:27 PM
Nathan C. Cooley
Nathan C. Cooley, P.L.C.
1744 S. Val Vista Dr.
Suite 201
Mesa, AZ 85204
T: (480) 214-4741
F: (480) 240-1340
E-Mail: nate@ncooleylaw.com
Bar No. 024678

Dear Justices:

I am writing in support of the proposed changes to Rule 67(d) and (f) which changes are set forth in Petition R-13-0044.

The current version of the rule imposing a cost bond on non-property owners is unfair and burdensome. Worse, the rule has the effect of singling out the poor and makes it much more difficult for the indigent to seek redress through the courts. I agree with what has been eloquently written above by my colleagues in support of the petition.

Thank you.

Nate Cooley

mdrich1
Posts:

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28 Feb 2014 03:29 PM
Michael D. Rich
Burke Panzarella Rich
2198 E Camelback Rd., Ste 375
Phoenix, AZ 85016
602/222-4848 p
602/222-4858 f
mrich@bprlaw.com
Bar Number 015979

Dear Justices,

I have been a personal injury attorney for nearly 20 years. I have represented both plaintiffs and defendants. I have had an opportunity to review 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.

The current rule imposes financial requirements that are not fair for all Arizona citizens. A person who does not own property in the state is required to post a cost bond if they wish to file an appeal. Many people do not have the means to do so which limits their rights and availability to the justice system. Cost bonds are fundamentally unfair and should be eliminated. This is why the proposed changes make sense and should be adopted. It is an important issue. I appreciate your sincere consideration of the proposed changes. Arizona citizens should feel confident in their ability and right to seek justice if they deem it necessary, the amount of money they have should not be a barrier.

Mike Rich
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