Rule 67(d) is an old friend to defendants. As always happens, though (remember the notice-of-claim cases), some defendants use their tools crudely rather than carefully and the courts have to slap them down.
Thiele’s suit claimed that a city inspector hit him. Because he owned no property in the state the city, pursuant to the rule, moved that he be required to post a cost bond. For $30,000.
Now lets pause a moment. $30,000? For taxable costs? In a little he-said-she-said personal-injury case?The city tried an excuse – Thiele had sued it before and used “dilatory tactics . . . likely to . . . increase the costs of litigation.” But come on, guys, $30,000? That’s just dumb. At least pretend to be actually concerned about costs, not just about trying to set up dismissal.
In the enough-blame-to-go-around department, the trial court ordered a bond in that amount. Thiele said he couldn’t pay it, there was a hearing about that, and the court reduced it to $15,000 — but never, at least on the appellate record, required the city to justify that, or any other, amount. Thiele couldn’t pay; the court dismissed the case. Thiele appealed.
The first question was whether the rule is constitutional. The court holds that under the rational-basis test it is. It has the legitimate purpose of protecting defendants from the inability to satisfy a cost judgment but does not exclude from the legal system those who can’t afford to pay since 67(e) exempts them.
The next question was the amount of the bond. “In fixing the amount of a security, the trial court must consider the estimated taxable costs of the litigation.” Nothing in the record supported even $15,000 and the facts “strongly” suggested that that’s too high.
The dismissal is reversed and the case is remanded with instructions to reconsider the amount of the bond.
In the old days a trial judge would have spotted this problem before getting reversed for it – and would probably have chewed you out for pulling such a stunt. Now that trial judges are bureaucrats who mostly sign whatever their JAs put in front of them you are less likely to get tough love from the bench but more likely to get reversed.