Civil Procedure

Question 1

Jurisdiction

Answer 1

the authority of a court to hear a case and enter a binding judgment
2 types:
personal jurisdiction
subject matter jurisdiction

Question 2

Personal Jurisdiction

Answer 2

the power of the court over persons or property derives from the defendant’s contacts with the court
two part analysis:
1. state long-arm statute: does the state law give power over the D?
2. federal due process: does the state’s exercise of power over the D meet the constitutional requirements?`

Question 3

Ohio state statutory requirement: general jurisdiction

Answer 3

jurisdiction exists regardless of the D’s contacts to Ohio

1. presence: as long as the D is physically present in state when served process
2. domicile
3. incorporation in ohio
4. consent: express (through contract, appoint an agent to receive service of process in OH) implied (file a claim, appear at a proceeding and do not timely object)

Question 4

Ohio: specific jurisdiction

Answer 4

long arm statute provides for jurisdiction over the D outside of the state if the claims asserted relate to one of the following contacts with ohio

1. transacting any business in ohio
2. contracting supply services in ohio
3. causing tortious injury anywhere by an act or omission in ohio
4. causing tortious injury in ohio by an act or omission outside of ohio
5. causing injury in ohio by breach of warranty made in the sale of goods outside of ohio
6. having an interest in, using, or possessing real property in ohio
7. contracting to insure any person, property or risk located in ohio at the time of contracting
8. living in a martial relationship in ohio
9. causing (intentional) tortious injury to any person in ohio by an act outside ohio
10. causing tortious injury to any person is a criminal act if:

Question 5

causing tortious injury in ohio by an act or omission outside of ohio

Answer 5

if the defendant:

1. regularly does or solicits business in ohio
2. engages in any persistent course of conduct in ohio or
3. derived substantial revenue from goods used or consumes or services rendered in ohio

Question 6

causing injury in ohio by breach of warranty made in the sale of goods outside of ohio

Answer 6

if:

1. the defendant might reasonably have expected the injured person to use, consume, or be affected by the goods in ohio and
2. the defendant regularly does or solicits business, engages in any persistent course of conduct or derives substantial revenue from goods used or consumed or services rendered in ohio

Question 7

Living in a marital relationship in ohio

Answer 7

non-withstanding any subsequent departure from ohio if

1. martial relation in ohio at some time
2. claim relates to marital obligations and
3. one spouse still ives in ohio

Question 8

causing (intentional) tortious injury to any person in ohio by an act outside ohio

Answer 8

if:

1. the D committed the act with the purpose of injuring persons AND
2. the person served might reasonably have expected that some person would be injured thereby in ohio

Question 9

causing tortious injury to any person is a criminal act

Answer 9

if: 1)element of the crime took place in ohio and 2)the person to be served committed the criminal act or is guilty of complicity in the acts commission

Question 10

federal due process requirements

Answer 10

does the defendant have certain minimum contacts with the forum states that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice?

Question 11

contacts

Answer 11

evaluate the defendants contacts with the forum state on the basis of:

1. purposeful availment
2. relationship between the contacts and the cause of action
3. forseeability that the D would get sued in this forum

Question 12

fairness and federal dues process

Answer 12

1. burden of the D of litigating in this forum
2. interest of the forum
3. plaintiff’s interest in litigating in this firum

Question 13

general jurisdiction federal dues process

Answer 13

when the defendant as substantial ongoing contacts with the forum state that state may have general jurisdiction over that defendant even for actions unrelated to the D’s contacts with that state
essentially have to be “at home” for this to apply

Question 14

specific jurisdiction federal due process

Answer 14

when the action arises from the D’s contacts with the forum state, that state may have specific jurisdiction over the defendant even though the defendant has few contacts with that state

Question 15

in rem jurisdiction

Answer 15

an action in rem affects only property in the state that has been seized by the court prior to the action
constitutional test: is the same as in personam jurisdiction

Question 16

Ohio: court of common pleas

Answer 16

Always has

1. General division
2. probate division

may have

1. domestic relations
2. juvenille court

the ct of common pleas can transfer a care to the appropriate municipal court if the claim does not exceed 1000 and the presiding judge of the municipal court concurs with the transfer

Question 17

general division of the court of common pleas

Answer 17

original jurisdiction over all claims that exceed $500 and are not within the exclusive jurisdiction of the ohio ct of claims (claims against the state)

Question 18

probate division of the court of common pleas

Answer 18

1. exclusive jurisdiction over probate and testamentary matters, actions concerning withdrawl or continuation of life sustaining medical treatment, appointment of trustees for insolvency and other such matters
2. concurrent jurisdiction with the general division to hear actions concerning inter vivos trust and to issue writs of habeas corpus

Question 19

domestic relations division

Answer 19

exclusive jurisdiction over divorce, alimony, marriage annulment, bastardy, child custody and child support

Question 20

juvenile court

Answer 20

exclusive jurisdiction over certain matters relating to children including:

1. allegations of delinquency, abuse or neglect
2. determination of paternity, child custody, or child support if raised seperately from a divorce action
3. habeas petitions and hospitalizations of children for mental illnesses and
4. applications for consent to marry or an abortion without notification of the parents

Question 21

municipal and county courts

Answer 21

original subject matter jurisdiction (not exclusive) over actions which :

1. Territory: either the claim arose within the courts territorial jurisdiction OR the defendant resides or was served process within that territory AND
2. amount in controversy does not exceed $15,000

municipal courts have limited territorial jurisdiction, it may be the city limits or a whole county

Question 22

municipal court relation to the court of common pleas

Answer 22

exclusive jurisdiction:
the court of common please has jurisdiction over claims that exceed 15K and are not within the court of claims jurisdiction
municipal courts have exclusive jurisdiction with claims over $500

Concurrent jurisdiction: over claims that exceed 500 but are less than 15000

if a counterclaim exceeding 15K is filed in municipal court the action shall be transferred to the court of common please

Question 23

small claims division of municipal and county courts

Answer 23

claims that do not exceed 3K exclusive of interest and costs

Question 24

ohio court of claims

Answer 24

1. exclusive jurisdiction over claims doe damages against the state
2. residual jurisdiction to hear counterclaims, cross claims, third party claims, and equitable claims that accompany damage claims against the state
3. removal from the court of common pleas when a party asserts a damages claim against the state

Question 25

subject matter jurisdiction of federal district courts

Answer 25

court of limited jurisdiction 1. the primary grants of federal subject matter jurisdiction are: diversity of citizenship, federal question, and US as a party 2. important secondary grants of jurisdiction are supplemental and removal jurisdiction There is NO federal subject matter jurisdiction to determine marital status, child custody, or to probate a decedents estate

Question 26

diversity of citizenship jurisdiction

Answer 26

1. basic rule: federal jurisdiction exists if two requirements are satisfied: a) the complete diversity rule: no plaintiff is a citizen of the same state as ANY defendant b) amount in controversy exceeds 75K

Question 27

determining citizenship

Answer 27

1. individuals: citizenship = domicile 2. corporation: citizenship = state of incorporation PLUS state of principal place of business 3. partnerships, unincorporated associations, and other entities citizens of each state of which one of their members/partners is a citizen 4. decedent, minors and incompetents: citizenship of the decedent, minor or incompetent not the citizenship of their representative that counts

Question 28

domicile

Answer 28

is established by the concurrence of: 1. physical presence 2. intent (to make home) People only have one domicile (can only be a citizen of 1 state at a time) changes of domicile: determine diversity at the time of filing

Question 29

test for principal place of business

Answer 29

headquarters or nerve center where officers direct, control, and coordinate the corporation's activities

Question 30

amount in controversy federal subject matter

Answer 30

1. over 75K, has to be a good faith allegation that the claim exceeds 75K exclusive of interests and costs. the amount requirement is satisfied unless it is clear to a legal certainty that the amount recoverable does not exceed 75K 2. monetary value of on monetary claim is determined by evaluating the value of requested relief to the plaintiff or the cost of relief to the defendant

Question 31

aggregating claims to reach 75K

Answer 31

can aggregate claims against individual defendants, but cannot aggregate claims of different defendants

Question 32

Federal question jurisdiction

Answer 32

1. the action arises under the constitution, laws, or treatises of the US 2. well pleaded complaint rule: plaintiff's claim properly pleaded, must be based on federal law. always ask: if the P enforcing a federal right?

Question 33

multiple claims and subject matter jurisdiction

Answer 33

federal court must have jurisdiction over every claim asserted, if one claim is and one is not, try supplemental jurisdiction

Question 34

supplemental jurisdiction

Answer 34

if a federal court has subject matter jurisdiction over one claim then it may exercise supplemental jurisdiction over any other claim that are so related that they form part of the same case or controversy Test: do the claims arise from a common nucleus of operative fact (the same transaction of occurrence)

Question 35

exception to supplemental jurisdiction

Answer 35

supplemental jurisdiction will not exist even if the requirements are met if 1. claim A is in federal court solely on diversity jurisdiction and 2. claim B is a claim a) by the plaintiff b) against parties other than the diverse defendant (joined parties) AND c) assertion of claim b would be inconsistent with the complete diversity and amount in controversy requirements of the diversity statute

Question 36

supplemental jurisdiction over claims asserted by the plaintiff against joined parties

Answer 36

requires: 1. the supplemental claim must be related to a claim within the federal courts subject matter jurisdiction (common nucleus of operative fact and 2. that other claim must be a federal question claim

Question 37

supplemental jurisdiction over all other claims (claims asserted by anyone other than the plaintiff)

Answer 37

requires only that: 1. the new claim is related to the claim within the federal court;s SMJ often applies when the D and other non-plaintiff's assert cross claims and third-party claims

Question 38

courts discretion in SMJ

Answer 38

the court has discretion to not hear claims within its supplemental jurisdiction if 1) the federal question is dismissed early in the proceedings 2. the state law claim is complex or 3. the state law issues would predominate substantially in the case

Question 39

removal

Answer 39

allows the defendant to have case filed in the state court "removed" to the federal court encompassing the state court in which originally filed Generally test: removable if case could have been maintained in federal court exceptions in diversity cases: no removal if any D is a citizen of the forum state only defendantS can remove

Question 40

removal time limit

Answer 40

Time limit: Diversity cases cannot be removed more than 1 year after the case was filed in state court

Question 41

procedure for removal

Answer 41

D files notice of removal in federal court, stating grounds of removal and attaching the documents served on the D in the state action Timing: must remove within 30 days of case becoming removable no removal for diversity more than one year after commencement

Question 42

removal: motion to remand

Answer 42

a plaintiff can file a motion to remand to the state court if the P believes that removal was improper. can be based on: 1. lack of SMJ: can file the motion anytime 2. for other reasons: ex. defect in removal proceedings, must be filed within 30 days

Question 43

venur for removal

Answer 43

district that geographically encompasses the state court

Question 44

the erie doctrine

Answer 44

when the federal court exercises diversity or SMJ, they must apply the substantive law of the state in which they sit, federal courts may nonetheless apply federal law on procedural matters.

Question 45

analysis for erie doctrine

Answer 45

what issues are substantive and thus governed by state law and which issues are procedural? 1. Fed statute conflicts with state law: apply the fed statute if it is within congress's enumerated powers 2. federal rule of civil procedure conflicts with state law: apple the FRCP if if meets the requirements for the enabling act which requires that the rule 1)regulate procedure and 2) do not abridge substantive rights 3. federal judge made law conflict with state law: determine whether the law is substantive or procedural by applying one of 3 test

Question 46

tests for determining whether a law is substantive or procedural

Answer 46

1. outcome determinative: would the application of the federal law instead of the state law affect the outcome? if yes, probably substantive 2. avoid forum shopping: would application of the fed law rather than the state law cause parties to choose the fed court? if yes, probably substantive 3. balance of interest: does either the federal or state law have a strong interest in having its law applied?

Question 47

venue

Answer 47

which federal district or which ohio court of common pleas? Rules: Diversity 1. where any defendant resides, if all reside in the same state 2. where substantial part of the claim arose 3. if none of the above, then where any D is subject to personal jursidiction All other cases 1. where any D resides if all reside in the same state 2. where a substantial part of the claim arose 3. if none of the above, where any D is found

Question 48

determining the D's residence

Answer 48

1. individuals: domicile 2. corporation: resides in all districts which it is subject to personal jurisdiction when the case is filed if the state has jurisdiction over corporation but corporation has insufficient contacts with any single district within the state, corporation resides in the district in the state that has the most substantial contacts

Question 49

venur for ohio courts

Answer 49

in counties where: 1. the D resides 2. where the D has its principal place of business 3. the D conducted activity that gave rise to the claims 4. all or part of the claim for relief arose 5. if the subject of the action is real property or tangible personal property then where the property is situated 6. if the suit if against a public officer in his official capacity, then where the public officer maintains his principal office 7. if the action is one asserting tort claims involving asbestos, silicosis, or mixed dust diseases, then only where 1) all of the exposed plaintiffs reside 2)where all of the exposed plaintiffs were exposed or 3)where the defendant has its principal place of business 8. where the plaintiff resides if either 1)the action requires out of state service pursuant to rule 4.3 or 2) the action is for divorce, annulment or legal separation and the P has been a resident of that county for at least 90 days 9. if no venue is proper under the provisions above then where the P resides, has his principal place of business or regularly conducts business activity 10. if no venue is proper under the provisions above then 1)where the D has property or debts subject to garnishment or 2) where the D has appointed an agent to receive service

Question 50

venue for multiple parties and claims

Answer 50

if venue is proper to one claim and party, then it is proper to all properly joined parties

Question 51

federal court-transfer of venue

Answer 51

from one federal district court to one where the case could have been brought originally 1. when original venue is proper: court may transfer to another federal court based on 1) convenience to the parties 2) convenience of the witnesses and 3) interest of justice 2. when the original venue is not proper: can transfer in the interest of justice or may dismiss

Question 52

ohio courts transfer of venue

Answer 52

1. when original venue is proper: when an fair and impartial trial cannot be had in a county, the court may transfer to an adjoining county 2. when venue is improper: court shall transfer to a proper venue upon timely motion, costs may be assessed

Question 53

forum non conveniens

Answer 53

common law: court may in its discretion decline jurisdition in deference to another forum based on such factors as relative ease of access to proof, availability of compulsory process, cost of obtaining attendance of witnesses, administrative difficulties etc

Question 54

ohio rule 3(D)

Answer 54

grounds: the court finds 1. county is improper forum 2. there is no proper forum in ohio 3. there is a proper venue somewhere else procedure: court shall stay the action upon the condition that defendant consent to jurisdiction, waive venue, and waive statute of limitation defenses upon receiving notice that the P has recommenced the action in the out of state forum within 60 days the court shall dismiss the action

Question 55

service of process

Answer 55

delivery of a summons and complaint. the court must have jurisdiction over the party served two part test: 1. statutory rule and requirements 2. due process requirements (notice must be reasonably calculated under the circumstances to apprize interested parties of the pendency of the action

Question 56

individual notice by mail

Answer 56

is probably the minimum allowed if the plaintiff knows or has reasonable access to the names and addresses of the Defendants

Question 57

what to send with service

Answer 57

1. the summons and complaint 2. a request for waiver of service 3. a waiver of service form 4. pre-paid return envelope

Question 58

incentives for D to waive servie

Answer 58

1. if D waives service he has 60 days from filing complaints mailing to answer 2. if D without reason does not waive service, D must pay costs plaintiff incurs making actual service

Question 59

actual service

Answer 59

if D does not respond in 30 days the P proceeds with actual service, if the D is actually served before waiver is received, D will pay the cost

Question 60

service of individuals in the US

Answer 60

1. personal delivery: actually hand to the D or put on his body or left at usual residence with a person of suitable age and discretion who resides there. 2. cannot serve a D who is in the state to be a witness for another case 3. pursuant to law of the state where the district court is located 4. pursuant to the law of the state where service takes place

Question 61

service of corporations and associations in the US

Answer 61

1. pursuant to the law of the state where the district court is located 2. pursuant to the law of the state where service takes place 3. by delivery to an officer or agent authorized to receive service

Question 62

service of defendant in another country

Answer 62

pursuant to applicable international agreement, if none then by other suitable means

Question 63

territorial limits of federal service

Answer 63

service outside ohio under these rules gives the federal court jurisdiction over the defendant only if the ohio long arm statute provides such jurisdiction for ohio courts UNLESS 1. the bulge rule applies: defendant joint pursuant to third party or compulsory joinder rules is served within 100 miles of the courthouse 2. federal statute authorizes nationwide service (statutory interpleader)

Question 64

process servers

Answer 64

process may be served by any non-party over age 18

Question 65

service of individuals in ohio courts

Answer 65

1. person to be served: service of process upon the following types of D may be effected by delivering the process to the person designated a) the individual is competent and over 16 b) minor: upon service of a person under 16, serve the persons guardian or the parent/caregiver residing with the child

Question 66

service of corporations or LLCs in ohio

Answer 66

serve: 1. the agent authorized to receive service 2. the corporation itself by certified mail or 3. an officer or a managing or general agent an ee in the mail room can sign for service

Question 67

service of a partnership in ohio

Answer 67

serve: | the entity via certified mail at any of its usual places of business or a partner or manager

Question 68

method of service- certified mail or commercial carrier service with return receipt

Answer 68

1. where sent: any place where service will comport with due process reasonably calculates to apprize 2. to whom delivered: as long as addressed properly, service is effected upon certified delivery, even if the certified mail is delivered to and signed by someone other than the addressee 3. service refused or unclaimed: if the certified mail is returned refused or unclaimed, the plaintiff must request ordinary mail service. such service then shall be deemed effective upon mailing, except previously unclaimed service that is returned for failure to deliver

Question 69

personal service inside ohio

Answer 69

1. written request required 2. process server: process is generally served by the 1) sheriff of the county where the person to be served is found 2)the bailiff of the municipal court in which the action if filed 3) a non party over the age of 18 designated by the court

Question 70

personal service outside of ohio

Answer 70

permitted only upon order of the court, court will designate a process server

Question 71

residence service

Answer 71

upon written request service shall be effective by leaving a copy of the process and other documents at the usual residence of the person to be served with some person of suitable age and discretion residing therein

Question 72

service by publication

Answer 72

allowed when the defendants residence is unknown and the action is one of the following 1. regarding the disposition of real property 2. administration or wills and trusts 3. action against the corporation that failed to elect officers or 4. actions against ohio resident who has left his county of residence or is avoiding service Procedure: 1. affidavit setting forth the grounds for service by publication: residence is unknown and not ascertainable with due diligence, efforts made to ascertain residence 2. publication: publish notice at least once a week for 6 weeks in a newspaper of general circulation in the county where the complaint is filed. notice must list relevant names and addresses, summarize claim and demand for relief and state when the answer is due

Question 73

time limits for service

Answer 73

Federal: filing of complaints tolls the statute of limitations, but if service is not perfected in 120 days, the court will dismiss unless the P shows good cause Ohio: filing of complaint tolls the statute of limitations provided that process is served within 1 year of filing

Question 74

service of motions, discovery, subsequent proceedings, and other documents

Answer 74

on attorney: serve on party's attorney unless the court orders otherwise 1. serve by either: leaving the documents with the attorney or leaving it at the attorney's office with a person in charge or mail it to the attorney (service is complete upon mailing) 2. electronic transmission: ohio rules expressly authorize service by facsimile transmission. the federal rules authorize sending documents this way only if the person consented in writing

Question 75

pleadings

Answer 75

documents that set forth the parties claims and defenses

Question 76

complaint

Answer 76

``` the principal pleading by the P requirements: 1. statement of SMJ (federal court only) 2. short and plain statement of the claim showing the pleader is entitled to relief 3. demand for relief ``` in Ohio if demand is for more than 25K the pleading shall state only that and not specify the amount of the claim

Question 77

short and plain statement of the claim showing the pleader is entitled to releif

Answer 77

notice pleading: 1. courts have interpreted this to mean that a pleader only convey enough information to allow a meaningful response 2. not required to plead the legal theory of recovery recent SCOTUS cases: 1. complaint must contain allegations of fact that render the asserted claim plausible on its face 2. a claim has factual plausability when the P pleads factual content that allows the court to draw reasonable inference that the D is liable for the misconduct alleged

Question 78

special matters to be pleaded with particularity

Answer 78

1. fraud: have to have the statement and who uttered it and when 2. special damages: out of pocket costs

Question 79

proper parties: capacity

Answer 79

have to have the legal capacity to sue or be sued 1. individuals who are 18 years or older 2. infants and incompetents: may sue or defend by a guardian or similar fiduciary 3. if there is no duly appointed guardian then they sue by next friend and defend by guardian ad litem

Question 80

real party in interest

Answer 80

every action must be prosecuted in the name of the real party in interest except executors and administrators of estates, guardians or trustees

Question 81

substitution of party

Answer 81

for death incompetence, transfer of interest, or change of public officer

Question 82

fictitious parties

Answer 82

in ohio courts only when the P does not know the name of the D, plaintiff may file the action using a fictitious name for the D 1. must have a fictitious name and a description 2. upon discovering the identity of the defendant, pleader must amend the pleading to substitute the real name and serve process on the defendant

Question 83

defendant's response: timing

Answer 83

pre answer motion or answer 1. federal district court: within 21 days after service of process but if D waives service D can respond 60 days after the P mailed the waiver form to D 2. ohio courts: within 28 days of service

Question 84

rule 12 pre-answer motions

Answer 84

1. matters of form: 12(e) motion for a more definite statement when pleading is so vague that a D cant frame a response or 12(f) pares out immaterial allegations and cheap shots at D 2. rule 12(b) defenses 3. pre answer motion on the merits: 12(b)(6)failure to state a claim on which relief can be granted and 12 (c) judgement of the pleadings and summary judgment

Question 85

12(b) defenses

Answer 85

1, lack of SMJ 2. Lack of PJ 3. improper venue 4. insufficiency of process 5. insufficiency of service of process 6. failure to state a claim upon which relief can be granted 7. failure to join an indispensible party

Question 86

consolidation of defenses

Answer 86

pre-answer motions asserting 12b defenses must be consolidated in a single pre answer motion

Question 87

waiver of threshold defenses

Answer 87

waived if not raised in the first response 1. PJ 2. improper venue 3. insufficiency of process 4. insufficiency of service of process

Question 88

the answer: timing

Answer 88

Federal: 1. 21 days after service of process id D makes no motion 2. 60 days after P mails waiver form, if D waives service 3. 14 dys after a pre-answer motion Ohio: 1. 28 days after service of process 2. 14 days after a pre-answer motion

Question 89

contents of the answer

Answer 89

1. 12(b)(6) defenses if not already asserted or waived 2. responses to allegations of complaint a) admit b) deny c) state that you lack sufficient information to admit or deny (has the effect of denial) failure to deny constitutes an admission 3. affirmative defenses: listed in rule 8c include: accord and satisfaction, arbitration, assumption of the risk, contributory negligence, duress, estoppel etc 4. affirmative defenses must be pleaded by the defendant, if they do not plead them, they cannot be raised later

Question 90

amending pleadings: general rules

Answer 90

1. amendments of right: Federal within 21 days after serving the pleading if no response if required or within 21 days after service of a response to the pleading Ohio: within 28 days after serving the pleading if no response is required or before a response is served if a response is required 2. with the leave of court: freely granted when justice requires

Question 91

amending pleadings: relation back

Answer 91

amendments relate back if they arise from the same conduct, transaction, or occurrence set forth in the original pleadings

Question 92

relation back of pleading: changing of the parties

Answer 92

relates back only if: 1. it arises from the same conduct, transaction or occurrence set forth in the original pleading and 2. within the time alloted for service of process (120 days or 1 year) the new party: a) received such notice of the action that he will not be prejudiced in maintaining his defenses on the merits and b) knew or should have known that but for a mistake, the action would have been brought against him

Question 93

relation back of fictitious parties

Answer 93

when the P amends the pleading upon discovery of the D's real name, the amendment relates back to the time the ficticious party complaint was filed provided the amendment is made and the defendant is served within one year after the original filing

Question 94

Rule 11

Answer 94

requires attorney to sign all pleadings, written motions, and papers, and the signature certifies 1. a reasonable inquiry conducted 2. no improper purpose 3. legal contingents are warranted by law 4. facts have or will have evidentiary support this is a continuing duty: certification is renewed every time the position is presented to the court

Question 95

rule 11 safe harbor provision

Answer 95

motion under rule 11 is served on bot filed with the court. party allegedly violating the rule 11 has 21 days to withdraw the document before the motion is filed sanctions are discretionary and may be levied against the attorney, firm or party

Question 96

ohio rule 11

Answer 96

the signature on all papers certifies: 1. the party or attorney has read the document 2. that to the best of the attorney's/party's knowledge information and belief there is good ground to support the document and 3. that the document is not interposed for delay an ohio court may award fees and expenses caused by a willful violation of rule 11

Question 97

joinder of claims and parties

Answer 97

1. it is more efficient to determine all related claims and join all interested parties in a single suit, so there are liberal joinder rules 2. separate trials may be ordered 3. in federal court: consider 1) do the applicable rules permit joinder? and 2) does the court have SMJ over the claims joined?

Question 98

permissive joinder of parties

Answer 98

rule 20 requirements: 1. the claims arise from the same transaction or occurrence and 2. claims share come common question of law or fact

Question 99

supplemental federal jurisdiction and joinder

Answer 99

court must have either independent SMJ over each claim or independent SMJ over one claim and supplemental over the others

Question 100

rule 19: joinder of persons needed for just adjudication (compulsory joinder)

Answer 100

even if plaintiffs choose not to join certain parties in an action, courts should require their joinder in certain instances becuase of the absentees relationship with the action

Question 101

rule 19: necessary parties

Answer 101

provided joinder is feasible, the court will order the joinder if: 1. complete relief cannot be afforded without absentee 2. the absentee's interest will be harmed if he isnt joined (practical harm) OR 3. the absentee claims an interest which subjects a party (usually the D) to multiple obligations

Question 102

Joinder is not feasible

Answer 102

1. no PJ over absentee or absentee would destroy diversity 2. bulge rule: absentee joined as necessary party may be served within 100 miles of the courthouse even if outside the forum state

Question 103

indispensable parties

Answer 103

if the absentee is deemed necessary but joinder is not feasible, then the court must determine whether in equity or good conscience 1)the action should proceed among the existing parties or 2) the action should be dismissed Factors: alternative forum available where everyone can be joined, actual likelihood of prejudice, can the court shape relief to avoid prejudice

Question 104

compulsory joinder ohio

Answer 104

absent a showing of good cause, the court on a timely motion shall order that a person be made a party is she is subject to service and has an interest arising from the following situations: 1. estate's surviving tort claim and family's wrongful death claim 2. one spouse's tory claim and the other spouse's claim for loss of consortium or for expenses or property damage arising from the same incident 3. minor plaintiff's tort claim and parent's claim for loss of consortium or for expenses or property damage caused by the same act 4. plaintiff ee tort claim and employer;s claim for property damage caused by the same act

Question 105

joinder of claims rule 18

Answer 105

no requirements, can join claims at any time and they do not have to be related in federal court need SMJ

Question 106

counterclaims

Answer 106

rule 13: offensive claims against an opposing party filed with a responsive pleading

Question 107

compulsory counterclaims

Answer 107

1. counterclaim that arises from the same transaction or occurrence as P's claim must be filed in the pending case 2. exceptions: 1)claims pending in other courts and 2) claim required parties beyond court's jurisdiction

Question 108

permissive counterclaims

Answer 108

do not arise form the same transaction or occurrence as the P's claim and do not have to be asserted in pending case

Question 109

supplemental jurisdiction for counterclaims

Answer 109

always present in compulsory counterclaims and never present in permissive counterclaims

Question 110

counterclaims and relation back

Answer 110

Federal: a compulsory counterclaim related back to the time the plaintiff filed the original complaint, permissive do not relate back

Question 111

ohio law: counter claims

Answer 111

1. compulsory or permissive is not time barred if the statute of limitations had not expired when the P commenced the action 2. compulsory counterclaims is not time barred even if the s/l had expired when the plaintiff commenced the action but in that instance the counterclaim may only be used for the recoupment or set of, not an affirmative recovery

Question 112

cross claims

Answer 112

1. offensive claims against co-parties 2. requirements: claims arise from the same transaction or occurrence as the original action or a counterclaim therein 3. cross claims are never compulsory 4. supplemental jurisdiction will always exist for a cross claim that meets the rule 13 requirements

Question 113

impleader: rule 14

Answer 113

1. third party defendant brought in usually by the D for indemnity or contribution 2. rule 14 requirements: derivative liability, a party may implead a third party if a claim has been asserted against her and she claims that the third party is liable to her for all or part of her liability to the plaintiff

Question 114

impleader timing

Answer 114

implead the right within 14 days of serving one's answer after that court permission is required (both fed and ohio)

Question 115

claims between the third party D and other parties

Answer 115

1. after a third party D is joined, he can assert a claim against the P if it arises from the same transaction or occurrence as the underlying case 2. a plaintiff can assert a claim against a TPD also

Question 116

federal supplemental jurisdiction and impleader

Answer 116

1. if the impleader claim is properly in federal court and a 3rd party claim is properly asserted under rule 14, the court will have supplemental jurisdiction over the 3rd party claim 2, if the TPD asserts a claim against the P, the court has supp jurid too 3. if the claim if by the P against the TPD, SMJ only if either the court has independent SMJ over the claim or there is supplemental jurisdiction

Question 117

intervention rule 24

Answer 117

absentee wants to join a pending suit intervention of right exists when a statute confers the right or the following are met: 1. applicant claims an interest in the property or transaction that is the subject of the action 2. the action may as a practical matter impair the applicants ability to protect that interest and 3. applicant's interest is not adequately represented by existing parties (as a P, no supplemental jurisdiction, as a D yes) Permissive intervention: applicant must show that her claim and the pending case have at least one common question. this is discretionary with the court and have to watch for delay and prejudice (almost never has supp juris)

Question 118

interpleader

Answer 118

one holding money or other property wants to force all potential claimants into a single lawsuit, the idea is to avoid multiple litigation and the risk of inconsistent results 1. the stakeholder: pays the money to the court to hold 2. the claimants may have a claim to the money

Question 119

federal court interpleader

Answer 119

rule 22 interpleader and statutory interpleader have different rules 1. Diversity of citizenship (rule interpleader requires complete diversity and statutory requires minimal diversity, or only one claimant to be diverse from stakeholder) 2. amount in controversy: (Rule:must exceed 75K, Statutory must exceed $500) 3. service of process and PJ: (Rule: normal territorial limits, statutory, nationwide service)

Question 120

class actions

Answer 120

1. a joinder device in which representative parties sue or are sued on behalf of others similarly situated who may not be before the court 2. before a class action may be maintained a court must make 7 affirmative findings. it must determine that 2 implicit requirements are satisfied, that 4 explicit requirements are satisfied and that the calss action fits one of the 3 permissible types of class action

Question 121

implicit initial requirements for a class action

Answer 121

1. Class definition: the class definition must be unambiguous so that members may be identified with reasonable effort - you do not have to know every class member, but if someone walks into the courthouse, need to be able to determine whether or not they are in the class without a full blown inquiry into it 2. named representatives must be members of the class

Question 122

explicit initial requirements for class action

Answer 122

1. numerosity: too numerous for practical joinder 2. commonality: some questions of law or fact are shared by all class members 3. typicality: names representatives claims/ defenses are typical to the class members AND 4. representation: representatives will fairly and adequately represent the class

Question 123

type of class action

Answer 123

1. 23(b)(1) prejudice class action 2. 23(b)(2) injunction or declaratory judgment class action 3. 23 (b)(3) damages class action

Question 124

23(b)(1) prejudice class action

Answer 124

class treatment necessary to prevent prejudice where individual action creates a risk of 1. inconsistent standard of conduct created by inconsistent adjudications. and 2. impairing ability of absentee to protect their interest ex. challenging the constitutionality of voting rights or validity of a lease

Question 125

23(b)(2) injunction or declaratory judgment class action

Answer 125

``` party opposing the class acted in a way generally applicable to the class as a whole making it appropriate to render injunctive or declaratory relief as to the class as a whole ex. residence surrounding a waste site assert that the sire is a nuisance and seek injunction to eliminate the site ```

Question 126

23(b)(3) damages class action

Answer 126

1. seek monetary damages 2. common questions predominate 3. class action is the superior method of handling the dispute

Question 127

procedure for class action

Answer 127

1. certification 2. notice 3. class counsel 4. settlement and dismissal

Question 128

certification of class action

Answer 128

: court must decide as early as possible whether to certify as a class action, the rule requires that an order certifying a class to define the class and the class claims issues and defenses and to appoint class counsel

Question 129

notice to class members

Answer 129

``` under 23b1 and 23b2: the court may direct appropriate notice to the class, ohio rule is silent as to this issue BUt under rule 23b3,the court must direct to class members the best notice practicable including individual notice to members who can be IDed through reasonable effort (the notice must advice the class members that they may opt out of the class and class action) ```

Question 130

class counsel

Answer 130

``` once certified, an attorney must be appointed to fairly and adequately represent the class the court will consider: the work done by the atty, the atty's experience with class actions and knowledge of the applicable law, and the resources that the atty will devote to the case ```

Question 131

settlement and dismissal of a class action

Answer 131

1. approval is required approval of the court is required and notice of the proposed settlement must be given to the class as the court directs 2. discretion to opt out: the court may refuse to approve a settlement unless it affords class members a new opportunity to pot out of the class and the settlement

Question 132

federal SMJ and class action: diversity jurisdiction

Answer 132

1. diversity of the named parties control 2. amount in controversy: b3: if one of class members satisfies the amount then court has supplemental jurisdiction over all other claims b1 and b2: consider the total amount at stake

Question 133

the federal class action fairness act of 2005

Answer 133

``` 1. federal SMJ exists over a class action if: any class member is a citizen of a state different from any defendant the aggregate amount in controversy exceeds 5 million and the proposed class has at least 100 members ``` 2. removal jurisdiction: 3. exclusions from CAFA federal SMJ 4. exclusion of local class actions

Question 134

removal jurisdiction and CAFA

Answer 134

D may remove to federal court except the following limitations on removal do not apply: 1. any D may remove without consent of al defendants 2. a D's citizenship in the state in which the action was filed does not prevent removal 3. the one year limitation of removal of diversity actions does not apply

Question 135

exclusions from CAFA fed SMJ

Answer 135

federal SMJ does not apply if: 1. the primary D's are states or state officials 2. the class action solely involves a claim that arises under the federal securities statutes or that relates to the internal affairs or governance of a corporation or other business entity and arises under state law

Question 136

exclusions of local class actions

Answer 136

1. mandatory decline of federal jurisdiction: a federal court must decline jurisdiction under the CAFA if: 1. more than 2/3 of the P are citizens of the state from which the class action was removed 2. a significant defendant is a citizen of that state and 3. principal inquires were incurred in that state 2. discretionary decline or federal jurisdiction: 1. more than 1/3 but less than 2/3 of the plaintiff class are citizens of the state from which the class action was removed and 2. the primary defendants are citizens of that state 3. the court considers a variety of factors such as whether the claims involve a national interest, whether claims are governed by the state law and whether the state has a different nexus with the class the harm or the D

Question 137

Interim Injunctive relief

Answer 137

on motion, court may issue a preliminary injunction prior to trial to prevent harm from occurring before trial is held

Question 138

standard of issuance for interim injunctive relief

Answer 138

four factors 1. substantial likelihood of prevailing of the Merits 2. irreparable harm (a substantial threat of harm before trial and the harm will not likely be remedied by money) 3. balance of hardships: the threatened injury to the P must outweigh the harm that the preliminary injunction may do to the D 4. public policy: the preliminary injunction must not be contrary to an important public interest

Question 139

procedural requirements for interim injunctive relief

Answer 139

1. motion 2. notice and opportunity to be heard 3. security (bond): party seeking the injunction must post a bond sufficient to reimburse the enjoined party for damages caused by the injunction if later found to have been improvidently granted 4. Duration: until judgment (can continue or dissolve)

Question 140

Temporary Restraining order (TRO)

Answer 140

upon motion a court may issue a TRO, an emergency preliminary injunction without notice or at least without a full hearing

Question 141

standard of issuance for a TRO

Answer 141

1. same four standards as a preliminary injunction and 2. plaintiffs reasons for seeking issuance of the TRO without the full notice and opportunity to be heard afforded with preliminary injunctions

Question 142

procedural requirements for TRO

Answer 142

TRO may be issued without notice or with reduced notice only if: 1. it clearly appears from specific facts shown by affidavit that immediate and irreparable injury will result to the applicant before the adverse party can be heard in opposition and 2. the applicant certifies in writing what efforts were made to give notice and why notice should not be required security Duration: 14 days: once a TRO is issues the court shall set the motion for a preliminary injunction hearing at the earliest possible time and the TRO will be dissolved if the preliminary injunction is not granted

Question 143

discovery meeting and plan

Answer 143

Federal only, requires the parties to meet as soon as practicable to develop a proposed discovery plan

Question 144

required disclosures: initial disclosures

Answer 144

Federal only Within 14 days of a discovery conference (or 30 days after being joined) parties must provide to other parties: 1. identity of individuals (names, addresses, and phone numbers) likely to have discoverable information that the disclosing party may use to support its claims or defenses 2. documents, electronically sotred information or things; in the disclosing party's posssession that the disclosing party may use to support its claims or defenses 3. a computation of damages claimed and 4. insurance agreements

Question 145

required disclosures: expert witnesses

Answer 145

at least 90 days before trial or as directed by court, parties must provide: 1. identity of experts who may be used at trial and 2. written reports for each such expert containing the expert's opinions, data considered, exhibits, qualifications, compensations, and previous expert testimony

Question 146

Required disclosures: pretrial disclosures

Answer 146

no later than 30 days before trial, parties must give detailed information about trial evidence including: 1. document and exhibit lists 2. list of witnesses designating those who will testify live or by deposition and those who will be called and those who will be called only if needed

Question 147

discovery requests

Answer 147

in ohio, all discovery is by request, federally, there are required disclosures

Question 148

substantive scope of discovery: ohio

Answer 148

relevant to the subject matter involved in the pending action and discover anything that is reasonably calculated to lead to admissible evidence

Question 149

substantive scope of discovery: federal

Answer 149

relevant to the claim or defense of any party (a little more narrow than ohio) and discover anything that is reasonably calculated to lead to admissible evidence

Question 150

discovery of privileged matter

Answer 150

not discoverable, but limited to the formal evidentiary priviledges

Question 151

insurance agreements and discovery

Answer 151

Federal: existence and amount of coverage are subject to initial disclosure ohio: the existence and content of any insurance agreement under which an insurer might be liable for all or part of the judgment is discoverable

Question 152

work product doctrine: discovery limitation

Answer 152

work product is: 1. documents, tangible things and electronically stored information 2. prepared in anticipation of litigation or for trial 3. by or for a party or a party's representative

Question 153

when is work product discoverable?

Answer 153

the discovering party shows: 1. a substantial need for the material and 2. he cannot obtain the substantial equivalent of the material by other means without undue hardship BUT attorney's opinions, conclusions, and legal theories are given special protection (redacted)

Question 154

expert and expert witnesses who will testify: discovery limitation

Answer 154

federally required disclosure, deposition is expressly allowed (draft reports and confidential communication with atty are protected as work product) Ohio: interrogatories about identity and subject matter of expected testimony and thereafter any party may discover from the expert facts known and opinions held by the expert relevant to the stated subject matter

Question 155

expert and expert witnesses who will not testify: discovery limitation

Answer 155

no discovery absent exceptional need (generally means it is not available elsewhere)

Question 156

protective orders

Answer 156

1. the court on motion may enter a protective order to limit regulate or deny discovery to protect parties and deponents from annoyance, embarrassment, oppression, or undue burden or expense 2. motion must be accompanied by a certification that the movant has conferred with other parties and attempted to resolve discovery dispute without court action

Question 157

General limitations on protective orders

Answer 157

federal only: a court may limit if: 1. a discovery sought is unreasonably duplicative or is attainable from another source that is less burdensome or expensive 2. the party seeking discovery already has had ample opportunity by discovery in the action to obtain the information sought 3. the burden or expense of the proposed discovery outweighs its likely benefit taking into account the needs of the case, the amount in controversy, the parties resources and the issues at state and discovery in relation to resolving those issues

Question 158

Electronically stored information (ESI)

Answer 158

1. initial response and production: a party need not provide discovery of electronically stored information that is not reasonably accessible because of undue burden or expense

Question 159

disputing ESI production

Answer 159

1. on motion to compel discovery or for a protective order, the party from whom discovery is sought has the burden of showing that the EsI is not reasonably accessible 2. even if the ESI is not reasonably accessible, the court may order the discovery if the requesting party shows good cuase

Question 160

what is good cause for production of discovery

Answer 160

Ohio rule: the court should consider: 1. whether the discovery is unreasonably cumulative or duplicative, 2. whether the information can be obtained from other sources with less burden or expense and 3. whether the party seeking discovery has had ample opportunity by other discovery in the action to obtain information 4. whether the burden and expense of discovery likely outweighs the benefit

Question 161

discovery before the action is filed

Answer 161

1. discovery to perpetuate evidence: the court can order a pre-action deposition, production of documents, and things or physical/mental examination based on the following procedure a) petition b) serve petition and notice of hearing on each person names in the petition 28 days prior to the hearing except as otherwise provided c) standard for ordering prefiling discovery: may prevent failure or delay of justice

Question 162

petition for discovery before action is filed

Answer 162

1. where: court of common pleas in the county where the expected adverse party resides (or the fed district) 2. content: 1) a showing that the petitioner expects to be a party to an action but cannot presently institute it 2)subject matter of the action 3)facts to be established by the proposed discovery 4) names of expected adverse parties 5)names of persons to be examined and 6) request for an order authorizing the desired discovery

Question 163

Rule 34 production prior to filing: ohio

Answer 163

upon a petition, a court may order prior to the filing of an action the production of documents and things or the inspection of premises if the court finds: 1. discovery is necessary to identify a party 2) petitioner is otherwise unable to bring the action and 3) petitioner made reasonable efforts to secure voluntary production

Question 164

discovery after action is filed

Answer 164

Federal: no discovery prior to the rile 26f discovery conference except by agreement or order Ohio: interrogatories and requests for documents: may be served along with the complaint and anytime thereafter depositions: anytime after the action is commenced but the deposition cannot be used against a party who shows that despite diligence was unable to obtain counsel to attend the deposition

Question 165

depositions upon oral examination

Answer 165

Federal limits: no more that 10 depositions and only one deposition of a person without court approval or stipulation. a deposition is limited to 1 day of 7 hours without order of the court

Question 166

how is deposition upon oral examination commences

Answer 166

1. party: serve written notice of deposition 2. non-party: service of written notice AND subpoena 3. rule 30b6 deposition of organization 4. production of documents/things at depostion 5. use of deposition at trial 6. objections at deposition

Question 167

non-party deposition: federal subpoena

Answer 167

person may be required to attend any place within 100 miles of the place where the person resides, is employes, transacts business or is served

Question 168

non-party deposition: ohio subpoena

Answer 168

must be served by delivering it to the witness in ohio

Question 169

rule 30b6 deposition of organization

Answer 169

notice designates the subject of the deposition and the organization must designate a deponent

Question 170

production of documents and things at deposition

Answer 170

1. parties: rule 34 request for production 2. non-parties: subpoena duces tecum (bring the thing with you) subpoena will be quashed by written objection served within 14 days

Question 171

use of deposition at trial

Answer 171

permitted only under the following circumstances: 1. impeach the deponent 2. any purpose if the deponent is an adverse party 3. any purpose if the deponent is unavailable for trial 4. ohio: the witness is an attending physician or medical expert

Question 172

objections at depositions

Answer 172

1. any objection that can be cured at the deposition (form of question, qualification of court reporter) must be raised at deposition or is otherwise waived 2. any objection that could not be cured at deposition (evidentiary objections, competency of witnesses) are preserved and can be asserted at trial 3. counsel may instruct the witness not to answer only to assert a privilege, a court ordered limitation on discovery or a motion under rule 30d to terminate deposition

Question 173

depositions upon written questions

Answer 173

must read the questions as written and take the answers that are given

Question 174

interrogatories

Answer 174

only parties to the action 1. response: requires written answers or objections, a reasonable inquiry is required but can say IDK if that is true answer. can produce business records in lieu of an answer if record is IDd with sufficient detail and the burden of finding the information is substantially the same for P and D -timing: federal 30 days after service, Ohio: 28 days after service 2. limited number: federal 25, ohio-40, both include subparts 3. use at trial: party may not use his own answers, answers of others can be used per rules of evidence

Question 175

production of documents, ESI and things; entry upon land: request to party

Answer 175

1. request to a party: party may serve a request for production or entry 2. response: must be served in 30 days, either by production or objections the materials must be produced either as they are kept in the ordinary course of business or organized to correspond with the categories in the request

Question 176

production of documents, ESI and things; entry upon land: request to non-party

Answer 176

1. requires a subpoena which may be issued separately or with subpoena for testimony 2. subpoena is quashed if the nonparty to who it is directed serves written objection within 14 days after service of the subpoena

Question 177

ESI request: form produced

Answer 177

1. the requesting party may specify the form 2. if the producing party objects to the requested form, or if no form was specified, then the responding party must state the form it intends to use 3. the producing party must produce the information in either a form which is ordinarily maintained or a for that is reasonably usable a party need not produce ESI in more than one form 4. absent a court order, a person need not provide discovery of ESI that the person identifies as not reasonably accessible becuase of undue hardship or cost

Question 178

physical or mental examination

Answer 178

available only for a party or person in party's control through court order: 1. showing required: 1. the party's actual health is in controversy and 2) good cause for ordering the exam 2. examination reports: person examined may obtain on request a copy of the examiner's report but such a request waived the persons dr-patient privilege relating to reports by his doctors regarding the same condition

Question 179

requests for admissions

Answer 179

a request by one party to another to admit the truth of any discoverable matters 1. response must admit or deny statements, can indicate a lack of information only if you have made a reasonable inquiry 2. failure to deny is an admission 3. response in ohio is due within 28 days of service

Question 180

asserting privilege and work product production

Answer 180

1. information withheld: when a party withholds discoverable information on the grounds that it is privileged or subject to work product protection, the party must describe the nature of the things not produces in a manner that enables others to assess the applicability of the privilege or protection 2. claw back provision: if information is produced in discovery that is subject to a claim of privilege or work product protection, the party making the claim may notify any party that received information of that claim - upon notification, a party must promptly return, sequester, or destroy the specified information until the claim is resolved

Question 181

signature requirements for discovery

Answer 181

Federal: every discovery request and response must be signed by counsel certifying that it is warranted not interposed for improper purpose and not unduly burdensome Ohio: discovery documents may be governed by rule 11 which requires documents to be signed certifying that they are not interposed for delay

Question 182

duty to supplement

Answer 182

if a party learns that its response to required disclosure, interrogatory, request for production, or request for admission is incomplete or incorrect, it must supplement its response

Question 183

enforcement of discovery rules

Answer 183

generally parties figure it out themselves but if you have to go to the court, have to certify the effort to resolve the dispute in good faith without the court

Question 184

presenting discovery disputes to the court

Answer 184

1. motion for a protective order 2. motion to compel discovery: 1. receiving party answers some requests and objects to others causing the asking party to file the motion 2 the receiving party fails completely to attend deposition, respond to interrogatories or to resond to requests for production, leading asking party to file motion

Question 185

enforcement tools against a party:

Answer 185

1. court overrules a parties objection to discovery: order compelling responses, plus cost of bringing motion (including atty fees) 2. violation of order compelling discovery: sanctions plus costs and could be held in contempt (no contempt for refusal to submit to a medical exam) 3. complete failure to respond to discovery: sanctions plus costs 4. false denial of request to admit: recover cost of proving the issue denied (limited utility) 5. failure to make required disclosure or to supplement prior response: sanctions plus cost. party fiaing to make disclosure or supplement cannot use the information at trial inless the failure was justified or harmless

Question 186

available sanctions for discovery enforcement

Answer 186

establishment order (est facts as true) 2. strike pleadings of the disobedient party 3. disallow evidence from the disobedient party 4. dismiss the plaintiff's case 5. enter default judgement against the D

Question 187

enforcement tool against nonparty

Answer 187

contempt

Question 188

enforcement tool against attorney

Answer 188

liable for all expenses incurred by the other side if she counseled one of these bad acts

Question 189

ESI sanctions

Answer 189

absent exceptional circumstances a court may not impose sanctions on a party for failure to produce ESI lost as a result of routine, good faith operation

Question 190

voluntary dismissal of action

Answer 190

dismissal of right 1. federal: once without prejudice before the D answers 2. Ohio: once without prejudice anytime before trial (unless a counterclaim that cannot remain pending for independent adjudication) 3. second dismissal: with prejudice

Question 191

involuntary dimissal

Answer 191

usually with prejudice unless based on 12 b 1. grounds: failure to prosecute, failure to comply with rules and order, rule 12 grounds 2. effect: with prejudice unless otherwise ordered

Question 192

default judgment

Answer 192

judgment against a defendant for failure to comply with rules and orders of the court of for a failure to defend

Question 193

entry of default v. default judgement

Answer 193

entry of default a ministerial act by the clerk of court, noted on the case. after, can motion for a default judgment

Question 194

grounds and procedure for default judgment

Answer 194

1. failure to appear: no additional notice is required, clerk can enter sum certain, court enters if not certain 2. appearance but failure to answer: D must receive 7 days notice of hearing on motion for default judgment, the court must enter the judgement

Question 195

procedure for default judgement in ohio court

Answer 195

clerk cannot enter judgement, have to go through court, notice if appaearance

Question 196

limitations on default judgments

Answer 196

1. minors and incompetents: cannot be entered unless represented by a fiduciary who has appeared 2. amount of default judgment: limited to the amount pleaded

Question 197

relief form default or default judgment

Answer 197

setting aside entry og default: fed court: showing of good cause and viable defense 2. setting aside default judgement in ohio and fed court: set aside on same limited grounds as any other judgement

Question 198

failure to state a claim dimissal

Answer 198

tests the legal sufficiency of the P's allegations. in ruling on the motion the court looks only at the pleadings not the evidence and assumes all allegations are true

Question 199

summary judgement: timing

Answer 199

Federal: any time until 30 days after close of discovery, a fed court can also grant SJ on its own motion after giving the parties notice and a reasonable time to respond 2. Ohio: a claimant may file any time after the expiration of the time permitted go a responsive motion or pleading. a defending party may file at any time

Question 200

standard for summary judgment

Answer 200

moving party must show: 1. there is not genuine issue or material face and 2. movant is entitled to judgment as a matter of law

Question 201

movant established the nonexistence of factual issues by

Answer 201

1. presenting evidence that would result in a directed verdict in her favor at trial a. evidence may be in the form of sworn affidavits, attached certified or sworn copies and sworn discovery responses b. affidavits must be based on personal knowledge and must show that the affiant is competent to testify on the matter 2. demonstrating that the other party lacks evidence to support the essential elements

Question 202

shifting the Burden of production summary judgment

Answer 202

once the moveant demonstrated the nonexistence of factual issues and that the movant is entitled to judgment under the apparently undisputed facts, the burden shifts to the non-movant to produce evidence to demonstrate that a factual issue exists

Question 203

Bench trial

Answer 203

Fed court: court shall find facts specially and state separately its conclusions and judgment shall be entered thereon. on a party's motion filed no later than 10 days after entry of judgement court may amend its findings and the judgment Ohio: the courts judgment may be general for the prevailing party unless one of the parties requests otherwise (in writing and must be made before the judgement or within 7 days of the decision)

Question 204

trial by jury

Answer 204

Fed court: right to jury trial in 7th amendment for action in law but not equity legal remedies=money equitable remedies=injunctions what is there is a mixed case? try with jury 1st, the legal claims

Question 205

trial by jury in ohio

Answer 205

7th amendment does not apply but ohio consitution has a similar guarantee

Question 206

demand for a jury trial

Answer 206

1. required: parties must file a written demand for a jury trial no later than 14 days after service of the last pleadinh addressing a jurt triable issue the demand may be endorsed upon a pleading 2. withdrawl of jury demand requires the consent of all parties 3. waiver: failure to make a timely, proper demand results in loss of right

Question 207

jury size

Answer 207

size: ohio: 8 unless demand specifies a lesser number federal: at least 6 absent a stipulation and no more than 12

Question 208

voir dire

Answer 208

asking questions of the individual jurors

Question 209

challenges to the jury

Answer 209

challenges for cause: unlimited, for bias, unqualified etc preemptory challenges: for any reason 3 per side challenges based on race or gender are impermissible

Question 210

jury instructions and objections

Answer 210

1. file written request for proposed jury instruction at the close of evidence or when the court directs 2. the court should give the requested instructions if they are correct statements of the law applicable to the facts in the case and reasonable minds might reach the conclusions sought by the instructions 3. a party must object to the giving or failure to give instructions to preserve the issue for appeal

Question 211

jury verdicts: margin of the decision

Answer 211

Ohio: the jury my render a verdit upon concurrence of 3/4 or more of the jury (6/8) Federal: verdict must be unanimous unless parties agree to the contrary

Question 212

form of the verdict: jury trial

Answer 212

1. general verdict 2. general verdict with interrogatories 3. directed verdict

Question 213

general verdict with interrogatories

Answer 213

1, court submits specifc written instructions to the jury regarding underlying factual issues in the trial, the jury must answer the questions and render a general verdict 2. ohio requires interrogs only if a party so requests prior to closing arguments. Federal rules permit without request and do not address timing 3/ inconsistent verdict and answers:the court may either: enter judgement in accordance with the answers or return the jury for further consideration or order a new trial

Question 214

directed verdict (federal, judgment as a matter of law)

Answer 214

exceptional order which has the effect of taking the case away from the jury 1. raised after an opposing party rests, close of P's evidence and the close of all evidence 2. standard for granting: when the evidence on an essential issue permits only one conclusion, there is not sufficient evidence to permit reasonable minds to reach different conclusions on an issue

Question 215

Judgment nonwithstanding the verdict (JNOV)

Answer 215

trial is complete and the verdict-loser requests the judgement in its favor Standard: same as DV, judgement as a matter of law Timing: motion must be filed within 14 days (Fed. 28 days) after entry of judgement

Question 216

motion for a new trial

Answer 216

like JNOV except the verdict loser requests a new trial Grounds: 1. error at trial makes judgment unfair (wrong jury instructions or evidentiary ruling) 2. new evidence 3. prejudicial misconduct of party or juror 4. judgment is against the weight of the evidence (serious error of judgment by the jury) Timing: 14 days (fed 28) after entry of a judgment

Question 217

remittitur/additur

Answer 217

motion for a new trial on the issue of damages only 1. gives the loser of the motion a choice to either accept the reduced or increased award set by the court or a new trial will be granted 2. additur is not available in federal court because it violates the 7th amendment

Question 218

motion to set aside a judgment- rule 60

Answer 218

court will set aside a judgment only if the movant demonstrates: 1. that he has a meritorious defense 2. that he is entitled to relief under the grounds listed below and 3. that the motion is timely 4. when relief sought from a default judgement it should be resolved in favor of the motion Grounds and timing 1. clerical error (anytime) 2. mistake, excusable neglect surprise (reasonable time not exceeding 1 yr) 3. new evidence (that due diligence could not have found in time to move for a new trial) reasonable time not exceeding 1 year 4. fraud of an adverse party (committed on the ct or trial proceeding) reasonable time not over 1 yr 5. jugement void- reasonable time

Question 219

Appeal when to file

Answer 219

file notice within 30 days after entry of judgement (post trial motions suspend that time until rules on)

Question 220

reviewable orders: the final judgment rule

Answer 220

generally the rule is that the appeals are allowed only from final judgments which means an ultimate decision by the trial court of the merits of the entire action.

Question 221

federal appellate court: final judgement rule

Answer 221

test for determining whether an order is final judgement: after making this order, does the trial court have anything left to do? if yes, then probably not final

Question 222

Ohio appellate court: final judgement rule

Answer 222

final orders can also be appealed which include: 1. order that affects a substantial right in an action that in effect determines the action and prevent judgment 2. an order that vacates or sets aside judgment or grants a new trial 3. order that grants or denies a provisional remedy and to which both of the following apply a) the order in effect determines the action with respect to the provisional remedy and prevent judgement and b) the appealing party would bot be afforded a meaningful or effective remedy by appeal following final judgement as to all proceedings 4. an order that determines that an action may or may not be maintained as a class action

Question 223

interlocutory review

Answer 223

non-final review includes: 1. multiple parties and claims 2. extraordinary writs 3. federal interlocutory order reviewable as a right 4. class action certifications 5. federal interlocutory appeals act

Question 224

interlocutory review and multiple parties and claims

Answer 224

generally no appeal until court adjudicates all claims against all parties unless the trial court expressly directs entry of a final judgement as to one or more of them and expressly finds that there is no just reason for delaying appeal

Question 225

interlocutory review and extraordinary writs

Answer 225

not technically an appeal but an original proceeding in the appellate court to require trial judge or other public officer to carry out its clear legal duty: 1. writs of mandamous compel the trial court to make or vacate a certain order 2. writs or procendendo that compel the trial court to exercise its jursidiction and 3. writs of prohibition that confine the trial court to its proper jurisdiction

Question 226

federal interlocutory order reviewable as a right

Answer 226

injunctions, orders appointing or refusing to appoint receivers, findings of patent infringement where only an accounting is left, orders affecting possession of property etc

Question 227

interlocutory review and class action certifications

Answer 227

a federal court of appeals may in its discretion permit an appeal from an order granting or denying class certification. must be within14 days of the order

Question 228

federal interlocutory appeals act

Answer 228

allows appeal of interlocutory order only if trial judge certifies that the order involves a controlling issues of law as to which there is substantial ground for difference of opinion and the court of appeals agrees to hear it

Question 229

claim preclusion

Answer 229

res judicata 1. a claim is barred if the same claim was previously adjudicated to a final judgement on the merits (almost everything except 12b dismissals)

Question 230

same claim in res judicata

Answer 230

1. a former and current claim arise out of the same transaction or occurrence 2. precludes identical claims and others arising from the same transaction or occurrence that could have been asserted

Question 231

same parties res judicata

Answer 231

1. applies to parties of the prior action and persons in privity with the parties

Question 232

usually deemed in privity for res judicata

Answer 232

subsequent purchaser of land, minor who litigated with guargian,someone controlled the prior litigation

Question 233

issue preclusion

Answer 233

collateral estoppel 1. one may not re-litigate an issue of law or fact if she previously litigates it to a final determination requirements: 1. same issue (identical to previously decided) 2. actually litigated and decided: 3. final judgement: valid and final resolution on the issue 4. determination was essential to the prior judgement 5. same parties: mutuality of preclusion

Question 234

mutuality of preclusion

Answer 234

ohio follows the traditional rule: issue preclusion only if both parties to the current action were parties to the previous action

Question 235

non mutual issue preclusion

Answer 235

federal courts only 1. persons bound: only parties to the prior action and those in privity 2. persons who may assert: one who was not a party to the previous litigation may nonetheless assert against one who was a party to litigation subject to some qualifications

Question 236

defensive non mutual issue preclusion

Answer 236

1. D who were not parties to a prior action may asset issue preclusion defensively against a plaintiff who did previously litigate an issue ex. patent infringement

Question 237

offensive non-mutual issue preclusion

Answer 237

plaintiffs who were not parties to the prior action may use issue preclusion offensively against a D who was a party to the prior action unless the court finds that doing so is unfair on such grounds as: 1. the P could easily have joined the previous action 2. the D lacked incentives to litigate the issue vigorously in the prior litigation 3. the second action provides the D procedural safeguards that were not applicable in the prior litigation or 4. there exists multiple prior actions and they reached inconsistent results regarding the issue at hand.