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69 Cards in this Set
- Front
- Back
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When does the Court of Common Pleas have SMJ?
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claims exceeding $500 that are not against the state
Or probate, domestic, juvie |
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When do Municipal and county courts have SMJ?
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claims that don't exceed $15,000 in which either
(a) the claim arose w/in the court's territory or (b) the D resides or was served in the territory |
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When does a court of claims hae SMJ?
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exclusive jurisdiction over claims for damages against the state
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SMJ for Diversity of Citizenship Jurisdiction
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over actions btwn citizens of diff states in which the amount in controversy exceeds $75,000
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How is citizenship for federal diversity determined?
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by domicile for individuals
by state of incorproation and principal place of business for corps, and by citizenship of members for P/S's and associations |
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When is the amount in controversy for federal diversity citizenship jurisdiction satisfied?
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exceeds $75,000
a P may aggregate multiple claims to meet the amount requirement if the claims are against a single D. Claims by multple P's or against multiple D's may be aggregated only if they arise from a joint undivided interest |
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Federal Question Jurisdiction
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Over actions that arise under the Const. and laws of the US.
Well pleaded complaint rule says fed jurisdic only exists if hte P's claim is based on federal law. |
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What is Supplemental Jurisdiction?
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Fed cts have discretion to excercise supplemental jurisdiction over certain claims not orindarly w/in their subject matter jurisdic if the claims are joined w/ and sufficiently related to other claims that are w/in fed jurisdiction
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When is there supplemental jurisdiction over a P's claim?
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1) there is a federal question claim in the action, AND
2) the additional claim by the P arsises from the same nucleus of operative fact as the federal claim. |
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When is there supplemental jursidiction over a claim by someone other than the P?
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It arises from the same nucleus of operative fact as any claim w/in the federal court's SMJ (whether by diversity or federal question)
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What is removal jurisdiction?
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D's may upon timely petition remove to federal ct. from state court an action that could have been maintained in federal court, UNLESS one of the D's is a citizen of the state from which removal is sought.
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What is the procedure for removal jurisdiction?
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File notice of removal in fed ct for the district where the state court is located from which the case is removed.
Petition must be filed w/in 30 days of the case becoming removable and if removal is based on diversity w/in one year of action's commencement Motion to remand to state court must be filed w/in 30 days of removal unless motion is based on ct's lack of SMJ |
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What are the Stat. grounds for Jurisdiction over the person?
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Service must be accomplished w/in Ohio or service outside Ohio must be authorized by Ohio rule 4.3. Service outside the state is authorized if the action arises from certain K's w/in the state listed in rule.
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What does D need for jurisdiction over the person? (DP)
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"Such minimum contacts w/ the forum state so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice"
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What are contacts for personal jurisdiction?
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D must have purposeful contacts w/ the forums tate that 1) are either sufficiently pervasive to create genral jurisdic (domicile/residence), OR 2) sufficiently related to the COA to warrant specific jursidic
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Fairness for Personal Jurisdic:
the assertion of jurisdiction must be fair in light of the following factors: |
1) burden on the D
2) interest of the forum state 3) P's interest, and 4) interestate judicial system's interest in efficient litigation |
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Federal rule 4 - Waiver of Service
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Preferred method is for D to waive formal service in writing up P's written request sent w/ the complaint and summons by 1st class mail.
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Fed rule 4 - when is actual service required? who pays?
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required if the D does not waive service w/in 30 days of the P's request
D must pay cost of actual service |
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What is actual service for individuals?
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may be served by personal delivery, accomplished either by handling the documents to the D or leaving them at D's residence with a person of suitable age residing therein.
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What is actual service for Corporations?
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May be served by delivery to an officer or agent authorized to recieve service.
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Actual service by alternative use of state service rules
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individuals and corps may be served pursuant to the law of the state where:
1) the dist ct. is located, or 2) where service takes place |
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Territorial limits -- service must be accomplished w/in the state where the Dist ct is located, UNLESS...
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1) state's long arm stat permits service outside the state
2) a fed stat authorizes nationwide service; or 3) the D to be served is joined pursuant to rules 14 (impleader) or 19 (compulsory joinder) and the D is served w/in 100 miles of the fed ct. |
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Ohio Rule 4
Service by... |
certified mail addressed to the D, unless personal service or residence service is requested in writing. process usually is mailed to the D's residence but may be sent
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What is Jurisdiction?
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Refers to the authority of a court to hear a case and render a binding judgement. 2 types: SMJ and PJ. Ct needs both!
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Min Contacts: balancing test for fairness
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(i) Quantity and nature of D’s contacts w/ the forum,
(ii) their connection w/ the COA, and (iii) interest of the forum in protecting it’s citizens. |
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SMJ addresses
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the types of cases a ct may hear
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PJ involves
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the power of a ct over a particular person or item of property
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Who can REMOVE a case to local fed dist ct?
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only DEFENDANT
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What is VENUE?
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Venue relates to the proper district or proper county in which to bring the action.
Question of convenience not power or authority. |
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VENUE in OH cts is proper in most actions in the county in which
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(1) D resides or has a principal place of business OR (2) all or part of the claim for relief arose.
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OH change of venue
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if original improper - must transfer, otherwise may transfer to adjoining county b/c fair trial can't be had in original county.
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Default Venue - if no venue is proper...
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county where P resides, has PPB, or reg conducts bus o r where D has prop subjc to garnish or apt agent to receive.
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Fed Dist Ct. - VENUE for most civil actions is proper in:
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(1) a judicial dist where any D resides, if all D's reside in same state or (2) a judicial dist in which a substantial part of the events or omissions giving rise to the claim occured, or a substantial part of the prop that is subjc of the action is situated.
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Fed ct - if no district satisfies Venue req:
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Diversity - where any D subj to PJ when actoin commenced
Fed ? - where any D is found. |
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Fed Ct - what if venue is found improper?
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may be waived
or transfer |
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Fed Ct. Venue Transfer
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may transfer to another dist. where the action might have been brought/balance convenience of the parties/witnesses. apply original states laws. or in interest of justice if orig improper, change of law
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What is a complaint?
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it sets forth the P's claims and allegations.
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Comp requires:
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(1) short and plain statement of claims.
(2) demand for judgment relief. (*OH if > 25,000 state that. D can request statement of amount.) Fed ct req. statement of SMJ. |
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Special matters need pled w. particularity/more detail:
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capacity
fraud/mistake conditions precedent timing special damages - state elements |
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Every action must be prosecuted in the name of
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the real party in interest. ecept executor, admin, gaurdian, bailee, trustee etc may sue in rep capcity.
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complaint attachment
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when a claim is founded on an account or written material, a copy must be attached.
med related claim needs affidavit of merit. |
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Pre-Answer motions: before filing an answer a D may file ___
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a 12(b) motion raising one of 7 defenses, a motion for more def statement, or a motion to strike.
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12(b) motion defenses
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(1) lack of SMJ (2) lack of PJ (3) improper venue (4) insufficiency of service of process (5) insufficency of process (6) failure to state a claim upon which relief can be granted (7) failure to join a party under R. 19.
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What 12(b) motion defense can be raised at any time, even on appeal?
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lack of jurisdiction over subject matter
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What 12(b) defenses are waived if not raised by motion or answer (whichever is first)?
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lack of PJ, impop venue, insufficiency of service of process & process
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failure to state a claim upon which relief can be granted and failure to join a party under r. 19 can be raised
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at any time before trail or at trial
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motion for a more definite statement
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opposing party has 14 days to respond
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motion to strike
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party may move to strike, insufficient def, redundant material...
do before responding to pleading, if no response permitted w/in 21 or 28 (OH) days. |
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What is an answer?
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responses to allegations in complaint & affirmative defenses.
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When must an answer be filed?
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21 or 28 (OH) days if no pre answer motion, or 14 days from ruling or notice.
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Answer responses to allegations in complaint
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state in short ans plain terms, may admit deny, or if w/o knowledge or info sufficient to form a belief as to the truth - must so state.
need specific denail or admission of each averment. deemed admitted if not denied. |
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Affirmative defenses.
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an affirmative defense raises an issue that if proven will defeat the P even if the allegations in the complaint are true.
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Fed Rule 11 Sig. Req.
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attorney or party must sign all docs, thereby certifying that to the best of her knowledge and belief after reasonable inquiry
- paper is not for an impropr purpose - legal contentions are warranted by law; and -factual contents have evidenciary support. |
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Fed R. 11 - continuing duty.
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certification is renewed every time position is presented in court
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Rule 11 motion safe harbor.
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A motion under R. 11 is served but not filed w/ the ct. party allegedly violating then has 21 days to withdraw
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Ohio Rule 11
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Attn/party must sign all papers, thereby certifying that she has read the doc, to the best of her knowledge there is good ground to support the doc, and it is not interposed for delay.
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Amending a pleading - time limits
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may be amended once before a responsive pleading is served, or if no resp. pleading req. w/in 28 days (OH) of serving of the pleading. Fed. w/in 21 days of serving
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Amending a pleading after 21/28 days...
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only by written consent of the adverse party or by leave of the court upon motion.
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Supplement Pleading
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relate to matters occurring after the date of the orig pleading.
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Joinder of claims
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a party may join all the claims she has against a given opposing party.
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Permissive joinder of parties
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(1) permitted if claims arise from same t/o and (2) have a common ? of law or fact
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Necessary parties must be joined if feasible if:
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(1) Completed relief can't be afforded w/o them (2) their interest may be harmed if not joined (3) party may be subj to inconsistent obligation if not joined
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Indisposible Parties
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if necessary parties cannot be joined - ct must decide if it can proceed w/o them or if the action should be dismissed
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OH 91.1 requires OH cts to order joinder in several specific instances:
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personal injury or prop damages of .. decedent, damages of husband/wife, minor, employee/agent.
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OH - if person to be joined has not been joined
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ct must order he be made a party on timely assertion of the defense of failure to join a necessary party. D waives def. if not timely asserted.
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OH exception to compulsory joinder
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if party to the action or the person to be joined shows good cause hwy that person should not be joined ct may proceed w/o requiring joinder.
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Joinder of claims
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P can join any number and type of claims against D. W/ multiple P & D's it is essential only that one of the claims arise out of a transac in which all were involved.
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COUNTERCLAIM
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any claim asserted against a party who already asserted a claim against them. Usually D. D's counterclaim may diminish/defeat recovery sought by P, win aff relief or seek relief other than $ damages.
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compulsory counterclaim
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IF a D has a claim that arises out of same t/o unless: (1) already subj to another pending action (2) requires presence of 3rd parties ct can't get jurisdic of (3) P brought suit by attachment or other process that didn't require PJ over D, and D is not asserting another counterclaim
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