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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
DBL
Posts:

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05 Mar 2014 01:02 PM
Douglas B. Levy
Douglas B. Levy, P.C.
283 South Scott Avenue
Tucson, AZ 85701
520-545-7200
520-545-7201
douglevy@douglevylaw.com
016623

I support the petition to amend Rule of Civil Procedure 67 (R-13-0044). I have carefully read the petition prepared by Mr. Trachtenberg and it is simply a perfect explanation of why ARCP 67 must be amended.

Since 1989, when Judge Schneider ruled the "cost bond" provisions of Rule 67 unconstitutional in the case of Haschak v. McKinley case, nearly every Maricopa County and Pima County judge who considered the issue has followed suit. The fundamental unfairness and discriminatory nature of the "cost bond" provisions are obvious. The presumed rationale behind the rule always has been suspect. There is no reason for defendants to be assured of collecting their taxable costs, while similarly situated plaintiffs are left to their own devices in collecting their taxable costs.

Moreover, under the most current interpretation of Rule 67, overburdened trial courts are compelled to litigate issues such as whether the plaintiff has property in Arizona; the value of that property; what amount of taxable costs would the defendant likely incur; and whether the value of plaintiff's Arizona property will cover those costs. This will result in a battle of affidavits and, more likely, evidentiary hearings. Trial courts have enough to do.

I have also read the majority of the comments in support of the petition and I agree with all of them. We are lawyers representing individual claimants, so that we can appreciate first hand how this Rule has been abused by certain insurance carriers and their defense counsel.

Judge Schneider got it right on both the constitutional and practical deficiencies of Rule 67. Respectfully, the rule should be amended as per the petition.

Very truly yours,

Douglas B. Levy


MichaelLarkin
Posts:

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05 Mar 2014 01:24 PM
Michael Edmund Larkin
405 W. Franklin
Tucson, AZ 85701-8209
mikelarkin@sinasdramis.com


I am writing in support of Petition R-13-0044. A core policy of the Arizona Judiciary is making the courts accessible to citizens of Arizona. The proposed changes in Petition R-13-0044 will promote this important policy. Sections d and f of Rule 67, as currently written, are an unnecessary and unfair bar to the courts of Arizona for many Arizonans. The existing rule sections discriminate on the basis of ownership of real property. This is an archaic remnant of era of dual citizenship that has been outlawed. Furthermore, it serves no useful purpose that is not already available to defendants.
Please accept the proposed changes.
MICHAEL E. LARKIN


danziskin
Posts:

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05 Mar 2014 07:58 PM
Daniel I. Ziskin
Daniel I. Ziskin P.C.
P.O. Box 7447
Phoenix Arizona 85011
602.234.2280
fax 602.274.9297
dan@adoptz.com
SBN 004278

Dear Justices,

I am writing in support of Petition R-13-0044.

Rules 67(d) and (f)imposes arbitrary financial requirements on certain plaintiffs, needlessly discriminating against "non-property owning² parties at the expense of public confidence in an impartial judicial system.

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.

alangerman
Posts:

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05 Mar 2014 10:20 PM
Amy Langerman
951 Coronado Avenue
Coronado, CA 92118
619-437-4579
619-437-4580 (Fax)
alangermanlaw@aol.com
Of Counsel to the Law Offices of Raymond J. Slomski


Dear Justices:

I have read the proposed change to Rules 67(d) and (f) submitted by the Arizona Association for Justice and am writing in support of the Petition. I am a past president of the Association for Justice (Formerly, Arizona Trial Lawyers Association) and have also served has a judge pro-tem on the Maricopa County Superior Court for more than 10 years. While I am not currently residing in Arizona, I continue to practice law in Arizona and have specific experience with the security for costs provision at issue in this proposed rule change. In addition, I served as chair of the amicus curiae committee of AzTLA for 20 years, filing more than 50 briefs, many of which raised constitutional impediments to various statutes/court rules and am familiar with the constitutional arguments raised by the petitioners.

I adopt and agree with all of the arguments raised in the petition. They are well reasoned, well argued, and supported by logic, law and reason. I write specifically to express my concern that the cost bond provisions if allowed to stand, blocks access to the courts for modest means plaintiffs – those that are not so poor as to qualify for whatever “hardship” must be established by “strict proof” (whatever that is) but not wealthy enough where posting security would not be an issue, assuming they had at least enough means to show up for whatever hearing is contemplated. During the course of my 30+ year career, I represented many, many tourists, those coming to Arizona, visiting, spending money, and then returning to their home states (often returning to the valley of the sun to escape cold weather in the east). Many of these tourists were retirees. Some of those visitors were unfortunate enough to be involved in collisions with Arizona drivers. The impact of the Thiele decision on these unsuspecting and injured tourists cannot be ignored. The Arizona Department of Tourism notes that in the year 2012, Arizona had 33.1 million visitors, staying an average of 3.8 nights. These tourists spend money and support Arizona businesses. Are we really expecting that after they come to our state, spend money to support our businesses, and then are injured on our streets, they now have to have to post security for costs to protect the tort feasor who injured them (who likely is insured because the motion is contained in the insurance industry motion bank to be churned in every case) simply because they are tourists?

None of my clients have ever had to post a bond, because up until now, the consensus among the trial court judges was that the rule was unconstitutional. After trial lawyers successfully won motion after motion, the defense bar stopped filing them (in my cases) until now – in a case with an unrepresented plaintiff. Now that this has occurred, the cottage industry of insurance defense attorneys will file one of these motions in every case of every tourist injured within our borders, even those who were injured by defendants who were cited for causing the crash, who were drunk, or are now in jail because their conduct also violated criminal statutes. They are protected from having to post security for the costs that would likely have to pay defending a meritorious case but their attorneys can intimidate, harass and annoy innocent and injured victims because a pro-per plaintiff did not know how to raise the necessary constitutional arguments.

For all the reasons set out in the petition, the relief requested should be granted. This rule is one sided, unreasonable and unconstitutional.

Amy Langermay



jnegretti
Posts:

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06 Mar 2014 07:08 AM
Jonathan Negretti
HOLMES NEGRETTI PLLC
450 N. McClintock Drive, Ste. 205 Chandler, AZ 85226
602-465-8733
602-532-7223
jonathan@holmesnegretti.com
030222

I have recently been made aware of the proposed change(s) to Rules 67(d) and (f) submitted by the Arizona Association for Justice and I am writing in support of Petition R-13-0044. Rules 67(d) and (f), unfairly and unilaterally imposes financial constraints solely on plaintiffs. It is both discriminatory and judiciously improper.

The cost bond rules are fundamentally unfair. Presently, the use of this mechanism has become more prominent and it is time for the Court to take action and put an end to this practice.

The Court should eliminate these out dated and archaic rules.

/s/ Jonathan Negretti
JFUCCETO1
Posts:

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06 Mar 2014 09:40 AM
James E. Fucetola
The Slavicek Law Firm
5500 North 24th Street
Phoenix, Arizona 85016
P - (602) 285-4424
F - (602) 287-9184
james@slaviceklaw.com
AZ Bar # 029332

Dear Justices:

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

Until recently, I spent the majority of my legal career as a House Counsel Attorney for a major insurance company. Before relocating my practice to Arizona, I was the Managing Attorney for one of the insurance company's house counsel offices in Washington State. Most recently, I was the Managing Attorney for the insurance company's house counsel office in Phoenix.

I was surprised to learn of Arizona's Rule 67(d) when I began practicing in Arizona. I was even more surprised to see the discriminatory manner in which the rule was used.

Unfortunately, this rule is used by insurance companies to deter litigants who do not own property from having their day in court. It is used to intimidate those lacking in financial means so as to cause them to be fearful of prosecuting their claims. While I am proud to say I never pursued a cost bond pursuant to Rule 67(d), I can tell you from first-hand knowledge that insurance companies view the current rule as a tool to strong-arm litigants into dropping their claim or settling it for less than fair value.

The citizens of our state deserve to have equal access to our courts, free of discrimination, irrespective of their financial means. Therefore, I ask you to eliminate these rules.

Thank you for your time.

ecrowley
Posts:

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06 Mar 2014 11:43 AM
J. Ridge Hicks
The Law Office of J. Ridge Hicks, PLC
3635 E. Inverness Ave., Suite 103
Mesa, AZ 85206
480-659-2198 phone
480-626-6839 fax
email: ridge@mesaaccidentlaw.com
Bar#: 017272

Dear Justices:

I write in support of R-13-0044 proposing changes to Rule 67(d) and (f). I represent personal injury plaintiffs in my practice. I agree with earlier comments about the unfairness of applying a requirement to plaintiffs and not to defendants and in placing a burden only on non-property owners (primarily lower-income folks). I also recognize the judicial inefficiency of the rule in its current form.

Opponents to R-13-0044 must believe there is something fair in placing this financial burden only on plaintiffs, since they are the ones causing the defendants to incur the costs. This begs the question, though. Is it really the plaintiff causing the defendant to incur costs? Is it not probable in many cases that the defendant (often a large corporate defendant) is causing the plaintiff (usually an individual) to file suit by taking an extreme position before suit? In my 17 years of practice this has been the case in a large majority of suits that I have filed. Rule 67(d) ignores the reality that it takes two (or more) to tango. For every plaintiff filing a suit, there is a defendant who refuses to meet the plaintiff's demand.

Who is right? Every case is different, but a vast majority of plaintiffs have at least some colorable claim, and those who do not are subject to dismissal or summary judgment. The only time a cost bond would be paid out to a defendant would be if they prevail on all claims. The current Rule 67(d) makes no provision for weighing the merits of the claims before requiring the cost bond, since this would be totally impractical. Yet that would be the only way it could be fairly applied. In stead it just places all of the burden on one side - but always the same side and only when that side has no property.

If a rule cannot be implemented in any way so as to make it fair, efficient and practical, it is better to eliminate the rule (or the offending portion) than to keep a version that is both highly unfair and highly inefficient.

/s/ J. Ridge Hicks
Dclausen
Posts:

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06 Mar 2014 12:51 PM
Darren M. Clausen, Esq.
Clausen & Moore Law Firm
4578 E. Fort Lowell Drive
Tucson, AZ 85712
(520) 327-7113
(520) 327-3414
dclausen@clausenandmoorelaw.com
Arizona State Bar No.: 019427

See attached correspondence.
Attachments
ericpost
Posts:

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06 Mar 2014 01:19 PM
Eric Post
3256 East Speedway Boulevard
Tucson, AZ 85716
520-207-9601 (ofc)
520-207-8244 (FAX)
eric@ericpostlaw.com
Bar No. 020267

Arizona has always taken pride in opening access to its courts to all, regardless of whether they can afford and attorney or not. Many pro per claimants and defendants appear in this Great State with the limited financial hardships that are common. When a person is injured, they have medical bills, lost wages, unable to work, expenses to hire others to help. Many don't own property and if they do, they are upside down on the mortgage.

Requiring a cost bond is just beyond the capability of many people. It is like poker, if you have a losing hand (which often is the case when an insurance carrier is defending a claim), then one way to "win" is to raise the stakes so high that others fold.

I join the attorneys above. Justice cannot be solely for the wealthy.
bmsquire
Posts:

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06 Mar 2014 01:37 PM
Bruce M. Squire (SBN 006978)
Bruce Squire Law LLC
4500 S. Lakeshore Dr., Suite 345
Tempe, AZ 85282
P: 480-247-3890
F: 888-412-6896
bruce@brucesquirelaw.com

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

Many others have already commented about the one-sided and discriminatory nature of the current rule. I concur with those comments. I’d like to offer my experience of the practical impact of Rule 67 (d) and (e). For most of my 32 years as a practicing lawyer in Arizona I have represented individuals who could not afford to pay a retainer or an hourly fee to hire a lawyer. The reality is that many middle class individuals cannot afford to pay attorney’s fees and costs necessary to have their civil disputes resolved in the courts. The vast majority of my clients have hired me on a contingent-fee basis. Most of my clients were harmed by careless, and sometimes criminal, acts of others. When faced with a defense motion to post a cost bond, clients feel like they are a victim again. When asked if we can require the defense to also post a cost bond, the answer of course is ‘No’. The timing of such motions sometimes appears to be nothing more than an attempt to delay the ultimate resolution of the case and require the plaintiff to jump through another procedural hoop. I can’t think of a single case in 32 years where my client actually had to post a cost bond in response to a defense motion under Rule 67(d). Plaintiffs typically either have some property within the state or are able to prove their inability to post a bond. The proposed rule change will not result in an increase in frivolous lawsuits by impecunious plaintiffs. Existing rules and statutes already effectively deal with that issue.

The proposed rule changes make sense and I urge their adoption.

ddiamond40@aol.com
Posts:

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06 Mar 2014 04:32 PM
Davide J. Diamond
Goldberg & Osborne
33 N. Stone Avenue, Suite 900
Tucson, Arizona
520-909-0909
520-620-3991
ddiamond40@aol.com
010842


Dear Justices,

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

I have represented many low income clients with valid claim but with no property in the State of Arizona. The requirements in Rule 67 (d) and (f) that these plaintiffs post a cost bond in civil cases is unfair to these plaintiffs with valid claims, and serves to negatively impact these low income clients far more than clients with the financial means to post bonds. As a result, Rule 67 denies lower income clients access to the court system. As such, I support the approval of this petition.

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

David J. Diamond
michaelcordova
Posts:

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06 Mar 2014 04:40 PM
Michael Fairbairn Córdova (Bar #14164)
MICHAEL CORDOVA, P.C.
1700 North 7th Street
Phoenix, Arizona 85006
(602) 265-6700
michael@mcordova.com
Attachments
EddieHoran
Posts:

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06 Mar 2014 05:45 PM
Adel “Eddie” Horan, Esq. (Bar# 023687)
Horan Law Offices, P.C.
One East Camelback Road, Suite 650
Phoenix, Arizona 85012
Tel: 602-266-4444
Fax: 602-266-4450
eddiehoran@horanlawoffices.com

Dear Justices,

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

Rules 67(d) and (f) imposes arbitrary financial requirements on plaintiffs who are less fortunate and needlessly creates discrimination against poor and non-property owning parties. Having represented many clients who live paycheck to paycheck, these rules have the effect of requiring these clients to disclose otherwise private and confidential financial information unrelated to the pending legal matter and prove they are poor (usually an embarrassing topic for the clients) in order for them to have access to the courts and proceed with legitimate and valid claims.

The cost bond rules are unconstitutional and fundamentally unfair and should be eliminated.

/s/ Adel Horan
mattmillea
Posts:

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06 Mar 2014 05:59 PM
Matthew P. Millea
Matthew P. Millea, PLC
7272 East Indian School Road, Suite 203
Scottsdale, AZ 85251
(480) 481-0616
Fax (480) 481-9021
matt@millealawfirm.com
State Bar No. 011620

Dear Justices:

I am strongly in favor of the proposed chances to the Rules 67 (d) and (f) submitted by the Arizona Association for Justice. I am in support of Petition R-13-0044.

These rules are fundamentally unfair to the vast numbers of people who do not own real property, but through no fault of their own have no other means of redress but the courts. Our State has a proud tradition of maintaining a court system which is open to all, not just those who are property owners. This rule has generally been ignored by experienced lawyers because it is patently unfair, and not useful as a practical matter. But the recent decision in Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.2d 206 (App. 2013) has revived interest in, and concern about, this rule.

I represent many clients who have little or no financial resources. When they are tragically injured by the negligence of others, and confronted with a claim system that is efficiently designed to require a lawsuit to be filed before fair compensation will even be considered, they often fear they are unlikely to be treated fairly in the courts. Many of my clients, rightly or wrongly, believe the "system" is rigged against them. They know that the rich and large corporations enjoy an advantage over them because they see evidence of that every day. It is particularly difficult to persuade them that the courts are indifferent to which party has the most money when defendants are allowed to ask about what property the plaintiff owns, and to demand that the plaintiff post a bond in the (highly unlikely) event the plaintiff might lose at trial. This rule is a barrier to entry to the courts, which are ultimately the bulwark of our freedom. It must be changed.

Sincerely,


Matthew P. Millea
mogborne
Posts:

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06 Mar 2014 08:13 PM
Michelle N. Ogborne
Ogborne Law, PLC
5110 North 44th Street, Suite L200
Phoenix, AZ 85018, USA
602-343-1435
602-354-9597
michelle@ogbornelaw.com
AZ 026641

Dear Justices,

I have reviewed the proposed changes to Rules 67(d) and (f) which would eliminate the requirement that certain plaintiffs post a cost bond in civil cases and I support it.

Rules 67(d) and (f), imposes arbitrary financial requirements on certain plaintiffs and needlessly creates an atmosphere of discrimination toward "non-property owning” parties and undermines public confidence in an impartial judicial system. These rules are fundamentally unfair and allow defendants alone to demand cost bonds from plaintiffs who do not own property. These rules have a profound impact on the clients I serve. Most of the individuals I work with do not own property and defendants have used these rules to effectively bar these plaintiffs from accessing the courts to seek justice for the wrongs committed against them. The procedure for requesting and opposing the request for a bond unnecessarily adds time and costs to cases, and has become more prevalent since the opinion in Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.3d 206 (App. 2013).

The Court should eliminate these one-sided, discriminatory rules, and give everyone equal access to the courts.

/s/ Michelle N. Ogborne
tomaburnett
Posts:

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06 Mar 2014 08:29 PM
Thomas Burnett
1744 South Val Vista Drive, Suite 208
Mesa, AZ 85204
P. 480-347-9116
F. 480-347-9142
tom.burnett@burnettlawaz.com
026509

I support petition R-13-0044. Many of my clients are indigent, or of lesser means. Certainly they should have no less a right to seek redress through the courts because of their financial condition; yet, the current system has the effect of doing just that. Justice must not be contingent upon ones financial condition. I support elimination of these one-sided cost bonds.
TElkie
Posts:

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07 Mar 2014 10:39 AM
Tait D. Elkie
Bar Number: 021469
Elkie Law Office, PC
13034 North Verde River Drive, Suite 104
Fountain Hills, AZ 85268
Telephone: 480-626-7070
Fax: 480-626-2244
Email: Tait@Elkielaw.com

Dear Justices,

I am writing in support of R-13-0044 and the proposed changes to Rule 67(d) and (f), Ariz.R.Civ.P. I have read the excellent points and arguments posted by my fellow attorneys, and echo their rationale and sentiment. It is time to eliminate the bond requirement and this tool that is used unfairly against indigent and out of state Plaintiffs.

Regards,

/s/ Tait D. Elkie
mlanda
Posts:

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07 Mar 2014 12:22 PM
William J. Wolf
William J. Wolf, P.C.
1121 East Missouri
Bldg 4, Suite 117
Phoenix, AZ 85014-2723
wolflaw18@aol.com
(602) 279-1914

Filed 3/3/2014
Attachments
mlanda
Posts:

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07 Mar 2014 12:23 PM
Nicholas E. Vakula, Bar # 009876
R. Randall Johnson, Bar # 014814
Thomas Germuska, Jr., Bar # 016508
The Vakula Law Firm, P.C.
11240 N. Tatum Blvd, Suite 120
(480) 905-9113
vakulalawfirm@aol.com


Filed 3/5/2014
Attachments
datpc
Posts:

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07 Mar 2014 05:35 PM
David A. Thomson (AZ Bar #007098)
Law Offices of David A. Thomson, P.C.
255 E. Osborn Road, #102
Phoenix AZ 85012
602-230-1999
fax 602-230-2224
dave@davidthomsonlaw.com

I strongly support this petition. In the early 80's I occasionally had a poor client who was faced with a motion for a cost bond and we wasted considerable attorney and judicial time dealing with this terribly unfair and discriminatory antique rule; I do not think any positive purpose was served. It was clear to most attorneys and judges I have encountered over the years that it was unfair and unnecessary, since only a plaintiff, who already has the burden of proof and has been injured badly enough to want to seek recompense in court, has to post a bond under this rule and the defendant who is claimed to be responsible for causing the injury is free of this burden. It has only been used for intimidation of the poor and insecure. This provision seems to violate the language and spirit of multiple sections of the Arizona Constitution (very well spelled out by David Abney in his comment), and this has been the ruling by every judge I have been aware of since 1989, such that nobody bothered with the security for costs demand for years, until the recent case of the pro per plaintiff somehow brought it back to life. The security for costs rule is un-American. It has got to go.

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