Bill Text: MI HB4379 | 2015-2016 | 98th Legislature | Introduced

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Bill Title: Civil procedure; costs and fees; recovery of costs and fees in an action involving this state; remove certain restrictions. Amends secs. 2421b, 2421c, 2421d & 2421e of 1961 PA 236 (MCL 600.2421b et seq.). TIE BAR WITH: HB 4378'15

Spectrum: Partisan Bill (Republican 7-0)

Status: (Introduced - Dead) 2015-03-25 - Printed Bill Filed 03/25/2015 [HB4379 Detail]

Download: Michigan-2015-HB4379-Introduced.html

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HOUSE BILL No. 4379

 

March 24, 2015, Introduced by Reps. Johnson, Cole, Lucido, Kelly, Glenn, Chatfield and Franz and referred to the Committee on Government Operations.

 

     A bill to amend 1961 PA 236, entitled

 

"Revised judicature act of 1961,"

 

by amending sections 2421b, 2421c, 2421d, and 2421e (MCL 600.2421b,

 

600.2421c, 600.2421d, and 600.2421e), as added by 1984 PA 197.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 2421b. (1) "Costs and fees" means the normal costs

 

incurred in being a party in a civil action after an the action has

 

been filed with the court , and those provided by law or court

 

rule, and include all of the following:

 

     (a) The reasonable and necessary expenses of expert witnesses

 

as determined by the court.

 

     (b) The reasonable cost of any study, analysis, engineering

 

report, test, or project which that is determined by the court to

 

have been necessary for the preparation of a the party's case.

 

     (c) Reasonable A reasonable and necessary attorney fees fee,

 

including those a fee for purposes of any appeal.

 

     (2) "Party" means a named plaintiff or defendant involved in

 

the particular civil action. , but does not include any of the

 

following:

 

     (a) An individual whose net worth was more than $500,000.00 at

 

the time the civil action was commenced.

 

     (b) The sole owner of an unincorporated business or any

 

partnership, corporation, association, or organization whose net

 

worth exceeded $3,000,000.00 at the time the civil action was

 

commenced and which is not either exempt from taxation pursuant to

 

section 501(c)(3) of the internal revenue code or a cooperative

 

association as defined in section 15(a) of the agricultural

 

marketing act, 12 U.S.C. 1141j(a).

 

     (c) The sole owner of an unincorporated business or any

 

partnership, corporation, association, or organization that had

 

more than 250 full-time equivalent employees as determined by the

 

total number of employees multiplied by their working hours divided

 

by 40, at the time the civil action was commenced.

 

     (d) As used in this subsection "net worth" means the amount

 

remaining after the deduction of liabilities from assets as

 

determined according to generally accepted accounting principles.

 

     (3) "Prevailing party" means as follows:either of the

 

following, as applicable:

 

     (a) In an a civil action involving several remedies, or

 

issues, or counts which that state different causes of actions

 

action or defenses, the party prevailing as to each remedy, issue,

 

or count.

 

     (b) In an action involving only 1 issue or count stating only

 

1 cause of action or defense, the party prevailing on the entire

 

record.

 

     (4) "State" means an agency or department of the this state, 1

 

or more members of an agency or department of the this state, or

 

any official of the this state or of an agency or department of the

 

this state acting in his or her official capacity. , but State does

 

not include an institution of higher education established pursuant

 

to under article 8 VIII of the state constitution of 1963; the

 

department of labor as administrator of licensing and regulatory

 

affairs or any of its agencies in administering the worker's

 

disability compensation act of 1969, Act No. 317 of the Public Acts

 

of 1969, being sections 418.101 to 418.941 of the Michigan Compiled

 

Laws, 1969 PA 317, MCL 418.101 to 418.941, the Michigan employment

 

security act, Act No. 1 of the Public Acts of Extra Session of

 

1936, being sections 421.1 to 421.72 of the Michigan Compiled Laws,

 

and Act No. 176 of the Public Acts of 1939, being sections 423.1 to

 

423.30 of the Michigan Compiled Laws; 1936 (Ex Sess) PA 1, MCL

 

421.1 to 421.75, or 1939 PA 176, MCL 423.1 to 423.30; or the

 

department of corrections.

 

     Sec. 2421c. (1) The A court that conducts a civil action

 

brought by or against the this state as a party, except for a civil

 

infraction action, shall award to a prevailing party other than the

 

this state the costs and fees incurred by that party in connection

 

with the civil action. , if the court finds that the position of

 

the state to the civil action was frivolous. To find that the

 

state's position was frivolous, the court shall determine that at

 

least 1 of the following conditions has been met:

 

     (a) The state's primary purpose in initiating the action was

 

to harass, embarrass, or injure the prevailing party.

 

     (b) The state had no reasonable basis to believe that the

 

facts underlying its legal position were in fact true.

 

     (c) The state's legal position was devoid of arguable legal

 

merit.

 

     (2) If the parties to an action do not agree on the awarding

 

of costs and fees under sections 2421a to 2421f, a motion may be

 

brought regarding the awarding of party may move the court to award

 

costs and fees. and the amount thereof. The moving party seeking an

 

award of costs and fees under sections 2421a to 2421f shall must

 

establish all of the following:

 

     (a) That the position of the state was frivolous.

 

     (a) (b) That the party was the prevailing party.

 

     (b) (c) The amount of costs and fees sought including an

 

itemized statement from any attorney , who represented the party

 

and any agent , or expert witness who represented the party showing

 

the rate at which the costs and fees were computed.

 

     (c) (d) That the party is eligible to receive an award of

 

costs and fees under sections 2421a to 2421f. For good cause shown,

 

a party may seek a protective order regarding the financial records

 

of that the party.

 

     (3) The court may reduce the amount of the costs and fees to

 

be awarded under this section, or deny an award, to the extent that

 

the party seeking the award engaged in conduct which that unduly

 

and unreasonably protracted the civil action.

 

     (4) Subject to subsection (5), the amount of costs and fees

 

awarded under this section shall must include those reasonable

 

costs actually incurred by the party and any costs allowed by law

 

or by court rule. Subject to subsection (5), the amount of fees

 

awarded under this section shall must be based upon the prevailing

 

market rate for the kind and quality of the services furnished. ,

 

except that an attorney fee shall not be awarded at a rate of more

 

than $75.00 per hour unless the court determines that special

 

circumstances existed justifying a higher rate or an applicable law

 

or court rule provides for the payment of a higher rate.

 

     (5) The court shall only award costs and fees awarded under

 

this section shall only be awarded to the extent and amount that

 

the this state caused the prevailing party to incur those costs and

 

fees.

 

     (6) This section does not apply to an agency or department in

 

establishing a rate; in approving, disapproving, or withdrawing

 

approval of a form; nor or in its role of hearing or adjudicating a

 

case. Unless an agency had discretion to proceed, this section does

 

not apply to an agency or department acting ex rel on the

 

information and at the instigation of a nonagency or

 

nondepartmental person who has a private interest in the matter nor

 

or to an agency or department required by law to commence a case an

 

action upon the action or request of another nonagency or

 

nondepartmental person.

 

     (7) This section does not apply to an agency or department

 

that has such a minor role as a party in the case action in

 

comparison to other nonprevailing parties so as to make its

 

liability for costs and fees under this section unreasonable,

 

unjust, or unfair.

 

     Sec. 2421d. If the court awards costs and fees to a prevailing

 

party upon judicial review of the final action of a presiding

 

officer in a contested case pursuant to under section 125 of Act

 

No. 306 of the Public Acts of 1969, being section 24.325 of the

 

Michigan Compiled Laws, the administrative procedures act of 1969,

 

1969 PA 306, MCL 24.325, the court shall award those costs and fees

 

provided for in section 123 of Act No. 306 of the Public Acts of

 

1969, being section 24.323 of the Michigan Compiled Laws, if the

 

court finds that the position of the state involved in the

 

contested case was frivolous.the administrative procedures act of

 

1969, 1969 PA 306, MCL 24.323.

 

     Sec. 2421e. (1) The director of the department of technology,

 

management, and budget shall report annually to the legislature

 

regarding the amount of costs and fees paid by the this state

 

during the preceding fiscal year pursuant to under sections 2421 to

 

2421d. The report shall describe the number, nature, and amount of

 

the awards; the claims involved; and any other relevant information

 

which that would aid the legislature in evaluating the scope and

 

impact of the awards. Each agency or department of this state shall

 

provide the director of the department of technology, management,

 

and budget with information as is necessary for the director to

 

comply with the requirements of this section.

 

     (2) If costs and fees are awarded under sections 2421 to 2421d

 

to a prevailing party, the agency or department over which the

 

party prevailed shall pay those costs and fees.

 

     (3) Sections 2421a to 2421d do not apply to a civil action

 

which that is settled , or a civil action in which a consent

 

agreement is entered into. , or to a civil action based in tort.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.

 

     Enacting section 2. This amendatory act does not take effect

 

unless Senate Bill No.____ or House Bill No. 4378 (request no.

 

00851'15) of the 98th Legislature is enacted into law.