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125 Cards in this Set
- Front
- Back
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What is within the jurisdiction of the probate court?
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The probate court has exclusive jxd over probate and testamentary matters; actions concerning withdrawal or coninuation of life-sustaining meical treatment; appointment of trustees for insolvency; and other similar matters. The probate court has concurrent jxd w/ the General division to hear actions concerning inter vivos trusts and to issue writs of habeas corpus.
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What is w/in the jxd of the court of common pleas in Ohio?
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The court of common plea are the geenral trial courts for the state. They have original jxd over all claims in excess of $500 that are not w/in the exclusive jxd of the court of claims.
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What is w/in the subject matter jxd of the court of claims?
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The court of claims has exclusive original subject matter jxd to her and determine all claims against the state that are permitted by the state's waiver of sovereign immunity. When a party files a counterclaim against the state or makes the state a third party defendant in an action, the aprty should petition for removl to the court of claims.
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When does a Federal district court have Federal question jurisdiction?
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Under the rules of Federal Civil Procedure, the United states district courts have jurisdiction over the subject matter of suits where the action arises under the Constitution, laws, or treaties of the united states, determined by looking at the essential elements of the plaintiff's case by her complaint.
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When does a federal district court have diversity jurisdiction?
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The district courts have Subject Matter Jurisdiction of suits where the amount in controversy, exclusive of interests and costs exceeds 75,000 and the suit is between citizens of different states, citizens of a state and foreign states or citizens or sujects thereof, and citizens of different states where foreign states or citizens thereof are additional parties. Complete diversity is required (no two citizens of the same state may be on opposing sides of a lawsuit before a federal court.
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Where is an individual's citizenship for purposes of diversity jxd?
Where is a corporations....>? Partnerships? |
Citizenship, for purposes of diversity jxd means domicile.
A corporation's citizenship is each state in which the corporation is incorporated and in the state in which the corporation has its principal place of buiness. An unincorporated association or partnership is a citizen in each state in which its members reside. |
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What is the rule for determining amount in controversy for the purposes of diversity jxd?
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The complaint may be dismissed for lacking a sufficient amount in controversy only if it appears to a legal certainty that the claimant cannot recover the jurisdictional amount.
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What are the limitations on supplemental jxd?
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In claims based solely on diversity, supplemental jxd is not allowed over claims by the P against persons added through joinder, intervention or third-party practice or claims by P to be joined as indispensable parties or who seek to intervene. Supplemental jxd may be used by Ps added through permissive joinder so long as their presence would not destroy complete diversity. Class action P's may also invoke supplemental jxd to have their claims heard.
Judges may decline to exercise supplemental jxd over a claim when the claim raises novel or complex issues of state law, the state law claim substantially predominates,,, the claim over which the court has original jxd is dismissed or other good reasons exist for declining supplemental jxd. |
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What is the rule for Removal?
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A defendant can remove an action brought in a state court to the local federal district court if the action originally could have been brought in federal district court. Existence of a federal defense is not sufficient for removal. If the jurisdiction of the federal court is based on diversity and one of the defendants is a citizen of the state in which the action was brought, the action is not removeable.
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What is the procedure for removal?
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A D seeking removal must file a notice of removal setting forth the facts supporting removal in thefederal district court in the district and division w/in which the state action is pending. A copy of the notice must be filed in the state court. The state court must then remand.
A notice of removal must be filed w/in 30 days from service of the complaint, if the case is then removeable. If a case later becomes removable, the 30 days runs from the time in which the case became removable. No case may be removed on the basis of diversity more than one year after it was commenced in state court. |
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What laws apply in a diversity jxd federal case?
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A federal court, in the exercise of its diversity jxd, is required to apply the substantitive law of the state in which it is sitting, including that state's conflict of law ruels.However, the federal courts apply federal procedural law in diversity cases.
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When is a law substantitive and when is a law procedural?
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If an issue substantially affects the outcome of the case, then it is substantive (outcome determination test). In the "balance of interests" test, the court weighs whether the state or federal judicial system has the gretater interest in having its rule applied, and the deterrence of forum shopping directs that the federal judge should follow state law on the issue if failing to do so would cause litigants to flock to federal court. SOL and tolling statutes, choice of law rules, and elements of a clim or defense are substantive for Erie purposes.
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What are the constitutional limitiations on the exercise of personal jurisdiction?
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The Due Process Clause of the Constitution places 2 restriction on the exercise of personal jurisdiction. First, parties directly affected by the court action must receive fair and adequate notice of the action. Additionally, there must be minimum contacts between the D or property and the forum state so that the assumption of jurisdiction is fair and reasonable.
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The three types of PJ?
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In personam, in rem and quasi in rem.
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What are the traditional types of in personam personal jxd?
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1. Physical presence at the time of personal service, except where the D is in the state by extradition to answer criminal charges, the defendant is in the state voluntarilty to answer criminal charges but the criminal charges were issued in bad fiath in order to obtain service of process or the defendant is complying with a subpoena.
2. Domicile -- Ohio courts have in personam jxd over persons whose domicile is in Ohio, even if the D is not physically in the state when served with process. 3. Consent -- A person's express consent to the jxd of a court serves as a sufficient basis for in personam jxd. 4. Implied consent, including asserting a claim in a court or asserting a noncompulsory claim in a pending action, voluntarily appearing w/out timely objection to PJ, or being a non-resident motorist. |
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When may Ohio's long arm provision be applied to exercise in personam jxd and out of state service of process?
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Ohio's long arm provisions provide that in personam jxd and out of state service of process may be exercised upon a person if the COA arises of out of that person's: transacting business in ohio, contracting to supply goods, services or insurance in Ohio, causing a tort injury ,or breach of warranty in Ohio, an interest in real property in ohio or a marital relationship in Ohio.
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what is in rem jxd?
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In rem actions adjudicate the rights of all persons wrt to property located in thestate. An in remjudgment does not bindthe parties personally, but is binding as to the disposition of the property in the state.
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What are quasi in rem actions?
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Quasi in rem jxdpermits court w/out in personam jxd to determinecertaindisputes between a P and D regarding proerty when the property is located in the forum state.
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What are the due process requirements of notice?
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Dueprocess requiresthat a reasonable methodbeusedto notify the D of a pending lawsuit so that she may have an opportunityto appear and be heard. Due process requires"notice reasonably calculate,under allthe circumstances to apprise interested parties of the pendency of the action.
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When may a federal court acquire personal jxd over parties served outside of the state?
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A federal court may acquire PJ over parties served outsideof the state in whichthefederal court sitsif theyare third-party defendants or are required to be joined for just adjudication, if served w/in 100 miles from the place where the action is pending; and where out-of-state service is permitted by federal statute.
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What is the time frame for serving a D?
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After filing a suit, the P has a period of 120 days (extendable for good cause) in which to serve the defendant.If the plaintiff failsto do so, the case against the unservedD will be dismissed w/out prejudice.
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When is a party immune from service of process?
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parties, witnesses and attorneys who enter a state to appear in another action are immune from the service of process. Service is invalid if a party was induced by the P's fraud or deceit to enter a state so that he could be served.
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When is service by publication in Ohio permitted?
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Service of process by publication in Ohio is permitted in limited instances in which it is necessary to permit resolution of certain matters affecting persons or property w/in Ohio that otherwise could not be served (when the matter involves thedisposition of real property in Ohio, the administration of a will or trust, actions against a orporation that has failed to elect officers or appoint an agent for service, actions against an Ohio resident who has left his county of residence, actions against an Ohio resident who remains concaled to avoid service, or actions in which the name and residence of the D are unknown to the P.
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What is the general rule for venue in Federal district courts?
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Venue in civil actions in the federal courts is proper in a judicial district where any D resides, if all D's reside in the same state; a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situation or If there is no district anywhere in the US which satisfies the above, then if the action is a diversity (only) action, a judicial district in which any defendant is subject to PJ at the time the action is commenced or for actions not based solely on diversity, a judicial district in which any defendant may be found.
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What is the venue rule (for federal court) for aliens?
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Aliens may be sued in any district.
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What is "residence" for venue purposes?
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Individual's residence for venue purposes is the person's domicile.
A corporation is deemed to reside in any judicial district in which it is subject to personal jxd at the time the action is commenced. An unincorporated association "resides" where it does business. |
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How /when may venue be waived?
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Improper venue may be waived by the parties; venue is considered to be waived unless timely objection is made to the improper venue.
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When may venue be transferred?
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Original venue proper -- Venue may be transferred to another district where the action "might have been brought" even though venue has been properly laid in the court before which the motion to transfer is made. THe court will balance the relative convenience to the parties /witnesses offered by the alternative forums. (uses lws of transferor state.)
The standard for transfer where venue is improper is "the interest of justice." The transferee forum must have SMJ and in personam jxd over the defendant and venue must be proper. (uses law of transferee state.) |
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When is venue proper in Ohio?
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Under Ohio law, venue is proper in the county in which:
the D resides, the d has his principal place of business, the defendant conductd activity that gave rise to the claim for relief, or all or part of the claim for relief arose. |
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When may venue be transferred in Ohio?
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Original venue proper -- on a party's or the court's motion, the court may transfer any action to an adjoining county if it appears that a fair and impartial trial cannot be had in the county where the suit is pending.
Venue Improper -- When an action is commenced in an improper venue, the court on timeley motion is to transfer the action to a proper venue. If not timely made, the right to transfer is waived. |
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What six pleadings are allowed?
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complaint answer, reply to a counterclaim, answer to a crossclaim, third party complaint and third party answer.
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When may an ex parte TRO be issued?
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An ex parte TRO may be issued if there are specific facts showing immeiate and irreparable injury, a written statement of efforts made to give notice, and reasons why notice should not be required, and the moving party must provide some security, the amount of which is determined by the court, to pay for any costs and damages incurred by the adverse party if he was wrognfully enjoined/restrained. (10 day time limit for TRO Federal Court; 14 day TRO for OHio courts, more time for consent/ good cause shown.)
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What are the requirements for a complaint?
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Every complaint must contain a short and plain statement of the claim and Demand for judgment and relief (and in ohio, if the party seeks more than 25 000, the party must state in the pleading), and in federal court only, the complaint must include a short and plain statement of the court's subject matter jurisdiction.
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what things must be pled in more than a short and plain statement in the complaint?
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1. Capacity
2. Fraud / Mistake 3. Conditions precedent 4. Timing 5 Special damages |
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What are the pre-answer (rule 12b motions?)
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Prior to filing an answer, the D may, if he chooses, file a motion and raise any or all of the follwing defense:
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 on which relief can be granted or 7. failure to join a party needed for adjudication |
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When must the 12 b motions be raised?
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1. lack of SMJ -- any time
lack of PJ, improper venue, insufficiency of process insufficiency of service of process all must be raised at the time the D files a motion or answer, whichever is first. Otherwise, these are waived. Finally failure to state a claim on which relief can be granted or failure to join an indispensable party (rule 19) can be raised at any time prior to or at trial. |
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what are the rules for timing of an answer in federal court?
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If no rule 12 pre answer motion is made, the D formally served w/ process must answer w/in 20 days after service. A D to whom the complaint and summons was mailed and who timely waived formal service of process must answer w/in 60 days after the request for waiver was mailed to her. If a rule 12 motion is made and the court denies or postpones disposition of the motion, then the D must answer w/in 10 days after notice of the court's action. If a court grants a motion for more definite statement of a claim, the responsive pleading must be served w/in 10 days after service of the more definite statement.
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What are the rules for timing of an answer in Ohio courts?
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If no rule 12 pre-answer motion is made, a D must serve an answer w/in 28 day after service. If a Rule 12 motion is made and the court denies or postpones disposition of th e motion, then the defendant mut answer w/in 14 days after notice of the court's action, unless the court fixes a different time. If the court grants a mtion for more definite statement of the claim, the responsive pleading must be served w/in 14 days after service of the more definite statement.
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What are the 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. Affirmative defenses are : accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, SOF, SOL, and waiver.
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What is the federal rule 11 rule?
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When an attorney/unrepresented party presents a pleading, written motion, or other doc. to the court, she certifies to the best of her knowledge, information, and belief she formed after an inquiry reasonable under the circumstances that the paper is not presented for any improper purpose, the legal contentions therein are warranted by existing law or a nonfrivolous argument for the modification of existing law or the est. of a new law, the allegations and factual contentions ither have, or upon further investigation or discovery are likely to have evidentiary support and denials of factual contentions are warranted on the evidence or reasonably based on lack of information and belief.
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What is the penalty for violating rule 11?
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The court has discretion, either on the court's own initiative or on motion of the opposing party, to impose sanctions against a party who presents a paper to the court in violaton of the rule 11 requirements. Sanctions may be imposed against parties, attorneys or law firms, and may be nonmonetary directives or monetary penalties, including payment of expenses and attorneys' fees incurred b/c of the improper paper.
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What is the Ohio Rule 11 rules?
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In ohio courts, every pleading, motion or other paper must be signed by a party's attorney or by the prty herself if unrepresented. The signature constitutes a certificate that the attorney or party has read the document, that to the best of the atttny's or party's knowledge, information, and belief there is good ground to support the document, and the document is not interposed for delay. Similar sanctions are available if the party or attorney willfully violates Ohio Rule 11.
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When may a party admend pleadings in federal and ohio courts?
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A pleading may be amended once before a responsive pleding is served, or if no repsonsive pldg required, w/in 20 days (federal) or 28 days (ohio) of service of the pleading. Thereafter, a pleading may be amended only by the written consent of the adverse party or by leave of the court on motion. Leave is "freely given when justice so requires."
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What is relation back?
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Amendments of pleadings relate back to the date that the original pleading was filed if the conduct, transaction or occurrence set forth in the amendment was set forth or attempted to be set forth in the original pleading, or if relation back is permitted by the law that provides the SOL applicable to the action.
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Supplemental pleadings?
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Supplemental pleadings relate to matters occurring after the date of the original pleading. The permission of the court, upon motion, is required.
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What is the rule for permissive joinder of parties?
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Under the () rules of civil procedure, parties may join as plaintiffs or be joined as D's whenever some claims is made by each P and against each D relating to or arising out of the same series of occurrences or transactions, and there is a question of fact or law common to all the parties. The court is given wide discretion to order separate trials when joinder would be unfair to a party not sufficiently involved in all the claims.
** in federal district court, there must still be complete diversity; supplemental jxd may sometimes be used to have the case heard in federal court. |
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Joinder of persons needed for just adjudication?
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A party is "needed for just adjudication if complete relief cannot be given to existing parties in her absence, disposition in her absence may impair her abllity to protect her interest in the controversy or her absence would expose existing parties to a substantial risk of double or inconsistent obligations. Such a party, if amenable to process and her joinder will not destroy diversity or venue, must be joined. If joinder is not feasible, the court must consider whether the judgment in the party's absence would prejudice her or ther existing parties, whether the prejudice can be reduced in shaping the judgment, whether a judgment in the party's absence would be adequate, and whether the P will be depreived ofan adequate remedy if the action is dismissed to determine whether the actioin can porceed in the party's absence.
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What are ohio's additional rules for compulsory joinder?
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Absent showing of good cause, a person who is subject to service of process must be joined as a party if the person has an interest in or a claim arising out of the following situations:
1. Personal injury or property damage of the decedent (+ wrongful death if caused by same act) that survives decedents death, personal injury or property damage of ahusband or wife, and a claims of the spouse for loss of consortium, expenses, or property damage if caused by the same act, personal injury or property damage of a minor and a claim of the parent or guardian of the minor for loss of consortium, expenses, property damage if caused by the same act, personal injury or property damge of an employee or agents, and a claim of the employer or principal for property damage if caused by the same wrongful act. |
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When can a plaintiff join claims against a D?
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A P can join any number and type of claims against a D. When multiple P's or multiple D'sare involved, it is essential only that at least one of the claims arise out of a transaction in which all were involved. (exception, supplemental jurisdiction in the case of federal jxd in federal court)
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When is a D's claim a compulsory counterclaim?
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If the D has a claim that arises out of the smae transaction or occurence as the P's claim, the defendant's claim is a compulsory counterclaim unless the claim was already the subject of another pending action when the action was commenced, the claim requires for adjudication the presence of third parties over who the court cannot acquire jxd, or the P brought suit by attachment or other process by which the court did not actuire PJ over the D and the D is not asserting another counterclaim. If a D fails to assert a compulsory counterclaim or asserts it belatedly, she will be precluded from asserting it in another action.
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What is a permissive counterclaim?
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A permissive counterclaim is any claim asserted by the D against the P that does not arise from the same transaction or occurrence as the 's claim, or falls w/in one of the exceptions to the compulsory counterclaim rule. If the D fails to assert such a claim as a counterclaim, she may bring them in a separate action.
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What is the rule relating to compulsory counterclaims and relation back in Ohio and in federal court?
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In Ohio a counterclaim relates back to the time when the P commenced the action, and is not barred by the SOL if it was not barred when the action was filed, but once SOL has run when filed, the comp. counterclaim can be used for recoupment or set-off. In federal court, if the counterclaim was time-barred when the P commenced the action, the comp. counterclaim may not be asserted.
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Permissive counterclaims and relation back?
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Permissive counterclaims in federal court -- relation back does not apply. Permissive counterclaims in Ohio court: under ohio law, a permissive counterclaim relates back to the date when the action was commenced. Not barred if not barred by SOL at commencement, barred if barred at the commencement of the action.
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What is a cross claim?
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A cross-claim is a claim asserted by one co-plaintiff against another or by one co-defendant against another. Cross claims must arise out of the same transaction or occurrence as the original action or counterclaim therein, unrelated cross claims may not be asserted. A court has ncillary jxd and venue over cross claims.
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What is impleader?
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Impleader, or third party practice, is a device wereby a D may bring in a person not a party to the action who is or may be liable to him for all or part of the P's claim against him. Impleader does not apply when the D asserts that he is not liable to the P but the third party is the liable party, the D asserts an entirely unrelated claim against the third party or the D asserts an individual claim of relief from the third party D not consingent on the P's recovery against the D.
No motion is necessary if the D files a 3rd party complaint w/in 10 days of filing his answer. After that , a motion is necessary and the decision is w/in the discretion of the court. |
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When does a party have a right to intervene in an action?
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1. Intervention of right -- One may intervene as a matter of right upon timely application when a controlling statute confers such a conditional right, or when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may impair or impede his ability to protect that interest, unless his interest is adequately represented by existing parties.
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When may a party intervene in an action (permissive intervention)?
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Upon timely application, one may intervene when a controlling statute confers such a right or when an applicant's claim or defense and the main action have a question of law or fact in common. Permissive intervention is w/in the discretion of the trial court.
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What are the prerquisites of a class action?
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The class is so numerous that joinder of all members is impracticable, there are questions of law or fact common to the class, the named parties' interests re typical of the class, and the named representatives will ensure the fair and adequate representation of the interests of absent members of the class. Additionally, the action must meet the following: Separate actions by class members would create a risk of inconsistent results, injunctive relief is appropriate to the class as a whole due to a D's (in)/action, or there are questions of fact or law common to members of the class that predominate over individual issues and a class action is superiour to the alternative methods of adjudication.
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What considerations will a court use in determining whether to certify a class?
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Considerations whether to certify a class include: i) the interest of individual control, the extent and nature of litigation elsewhere on the same subject, the desirability of a joint trial and the difficulties of managing a class action. When the court certifies the class, the court must define the class, and the class claims, issues, or defenses, and appoint class counsel who must farily and adequately represent the interests of the class.
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What is the effect of a class action judgment?
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All members of a class will be bound by the jdgment rendered in a class action except those in a "common question" class action who notify the court that they do not wish to be bound.
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When is notice required to be given to all members of a class?
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Notice to all members of the class is required only in "common question suits" so that class members may opt out.
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What is the jurisdictional basis for class actions?
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For class actions based on diversity, only the citizenship of the named representative of the class is taken into account to establish diversity. Supplemental jxd is commonly used to enable the court to exercise jxd when the class representative's claim alone exceeds the amount in controversy, where the claism of the parties are not joint or common.
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What happens in the dismissal or settlement of a class action?
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the court must approve the dismissal or settlement of a class action. The class must satisfy the requirements of certification before the court can approve a settlement. Notice of settlement must be given. A fairness hearing may be held.
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What are the rules for establishing SMJ for Class actions under the Class Action Fairness Act?
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Under the Class Action Fairness act, MJ is estblished if any claass member is of diverse citizenship from any D, the amount in controversy in the aggregate exceeds 5 million and there are at least 100 members in the proposed class or classes. Any defendant may remove from state to federal court, and the case may be reoved under CAFA even if a D is a citizen of the forum.
However, a district court must decline jxd provided by CAFA if more than 2/3's of the members of the proposed P cclass are citizens of the state in which the ction was filed, a D from whom "signifacnt relief" is sought is a citizen of that state, and the principal injuries were incurred in the state in which the action was filed. |
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What are the three types of disclosures required under the Federal rules?
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Initial disclosures: n/a/phone # of individuals likely to have discoverable evidence the disclosing party may use to support claims and defenses; copies or descriptions of documents or tangible things in the disclosing party's possession/control that the d.party may use to support its claims or defenses, a computation of damage (including the information used to compute the damages) and copies of insurance agreements under which an insurer might be liable for all or part of any judgment.
Expert testimony disclosure -- A party must also disclose to other parties the ID of expert witnesses expected to be used at trial, and the disclosure must be accompanied by a report prepared and signed by each expert witness stating her qualifications, the opinions to be expressed, and the basis for those opinions. Pretrial disclosures -- 30 days before tirla, a party must disclose the wintesses he expect to call at trial and the witnesses he will cll if the need arises, the witnesses whose testiony will be presented by means of a deposition and a transcript of pertinent portions of the deposition, and a list of docs or exhibits he expects to offer or might offer if needed. |
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What is the general rule for scope of discovery?
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Parties may obtain discovery regarding any matter, whether it relates to the claim or defense of the party seeking discovery or to th claim or defensee of any other party that is not privileged and relevatn to the claim or defense of any party involved in the pending action. Information that will be inadmissible at trial is nonetheless discoverable if it appears reasonably calculated to led to the discovery of admissible evidence. The existence and content of an insurance agreement under which an insurer may be liable for all or part of the judgment is discoverable (Fed. and Ohio).
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What are the rules -- federal and Ohio-- for discovering work product?
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Documents and tangible things, otherwise discoverable, that were prepared in anticipation of litigation or for trial by or for another party or her representative may be discovered only if the discovering party shows:
Federal Court : The discovering party must show that she has substantial need of the materials in te preparation of her case and she is unable, without undue hardship, to obtain the substantial equivalent of the materials by other means. In ohio, the discovering party must show good cause for discovery of materials. Opinion work product is generally not discoverable. |
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What are the rules for discovery of information about and from expert witnesses?
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Where an expert will be used at trial, parties may depose such expert, provided that the discovering party pays the expert a reasonable fee. Where an expert specially employed or retained in anticipation of litigation , but not expected to be used at trial, are discoverable only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
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What are the general rules for depositions?
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Any party may depose any person by giving notice of deposition specifying the time and place of the deposition and the nae and address of the person to be deposed. under revisions made to the Federal Rules, a party may not take more than 10 depositions nor depose the same person more than once w/out leave of court or stipulation of the parties. Unless otherwise provided by court order or stipulation, a deposition is limited to one 7 hour day.
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What are the rule(s) for interrogatories to parties?
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One party may serve another party, whether or not adverse, with ritten questions which are to be answered in writing, under oath, in 30 days (federal) or 28 days (Ohio courts). In federal court, a party may not serve more than 25 interrogatories w/out leave of court. In ohio, a party need only answer or objecgt to the first 40 interrogatories if the other party did not obtain leave of corut. Where a party objects to questions, objections must be accompanied with a reason for objection. The proponent of the question may move the court for an order compelling an answer.
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Other types of discovery?
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Requests for admissions, Request for production of documents, physical and mental examinations.
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When may a person petition an Ohio court for discovery pror to the filing of an action?
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In Ohio courts only, the court will grant disocery prior to the filing of an action if it finds that discovery is necessary to identify a potential adverse party, the petitioner is otherwise unable to bring the action, and the petitioner made reasonble effortsto obtain the information voluntarily
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When may a federal court limit discovery?
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A federal court may limit disocery if it is unresonably cumulative or duplicative or obtainable from a more convenient source, the party has had ample opportunity to obtain the information, or it is unduly burdensome onsidering the needs of the case, the amount in controversy, limitations on the parties' resources, and the improtance of the issues at stake.
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When/how may depositions be used?
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Generally, at trial depostions may be used:
1. by any party to impeach the testimony of the deponent witness. 2.By an adverse party for any purpose if the deposition is that of a party or an agent of sufficient authroity of a party-entity other than an individual; and by any party for any purpose, if the court finds that the deponent witness is dead (Ohio and Federal); is beyond the subpeona power of the court (both), or is 100 miles from the place of the trial or out of the country (federal), resides out of county (Ohio), unless it appears tht the absence was procured by the arty offering the deposition. iii: Is unable to attend or testify because of age, sickness, infirmity, or imprisonment, or iv. Is an attending physician or medica expert, even though she may reside in the county in which the trial is being held (Ohio). |
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What is the Ohio rule for a pre-trial conference?
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Ohio courts may scedule one or more conferences before trial to accomplish a variety of objectives, including the possiblity of settlement, simplification of the issues; the exchange of reports of expert witnesses, medical reports, and hospital records, and other matters that may aid in the disposition of the action.
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When does the Common Pleas Court have original jxd over a matter?
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When the claim exceeds $500 and is not within the exlccusive jxd of the court of claims (state of ohio a party).
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What kind of diversity is necessary for diversity of citizenship SMJ in federal district court?
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Complete diversity. No plaintiff is from the same state as any defendant.
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How do you change your domicile for diversity of citizenship purposes?
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You must be physically present in the new domicile, and have intent to make the new location your home.
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Where is a corporation a citizen of?
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A corporation is a citizen of the state(s) in which it was incorporated and the state in which the corporation's principal place of business is located.
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What is the standard for evaluating whether there is the requisite Amount in controversy for a diversity of citizenship claim? (> 75000 AIC)?
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For a claim to lack the requisite amount in controversy (> 75000), it must be clear to a legal certainty that the amount in controversy will not exceed 75000.
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What is the "well pleaded complaint rule" for federal question jxd?
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The p's claim, properly plead, must be based on a question of federal law.
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What is the test for supplemental jxd?
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If a federal ct has SMJ over oneclaim, then it may exercise supplemental jxd over any other claims that are so related to the first claim that they form part of the same case or controversy. The claims are part of the same case or controversy if they arise from a common nucleas of operative fact.b
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When does a court have discretion not to hear claims w/in its supplemental jxd?
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A court has discretion not to hear claims w/in its supplemental jxd if the federal questions is dismissed early in the proceedings, the state law claim is complex, or the state law issues would predominate substantially.
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What is removal?
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Removal allows D's to have cases filed in state court removed to the federal court encompassing the state court in which originally filed, if the case could have been maintained in federal court, as long as no defendant is a citizen of the forum state.
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What is the time limit for removal in diversity cases?
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Diversity cases cannot be removed more than 1 year after the case was filed in state court.
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what is the procedure for removal?
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D must file a notice of removal in federal court, stating grounds of removal and attaching all documents served on D in state action. D must remove w/in 30 days of case becoming removable. IF P believes grounds for removal are improper, she may seek to remand to state court (lack of SMJ or other reasons [ other reasons w/in 30 days]. The venue for removal is the Federal district court that encompasses the geographical location of the state court.
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What is the basic rule for the Erie doctrine?
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When federal courts exercise diversity or suplemental jxd, thhey must apply the substantive law of the state in which they sit, including state common law. Federal courts may nonetheless appluy federal law on procedural matters. Where judge-made law conflicts w/ state law, ask is the law outcome determinative (indicative of substantive law), and balance the interests -- which system has a strong interest in having its rule applied on the issue.
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What is the proper timing for an answer in federal and state court?
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Within 20 days after service of process in Federal District Court, or 60 days after P mailed waiver form to D, or 10 days after ruling on a pre-answer motion.
Ohio courts -- 28 days after service of process or 14 days after ruling on a pre answer motion |
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What are the rule 12 pre-answer motions?
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1. motion for more def. statement.
2. motion to strike 3. lack of SMJ 4. lack of PJ 3. Improper venue 4. insufficiency of process 5 insufficient service of process 6. failure to join indispensable party 7. failure to stte a claim on which relief can be granted 8. Motion for judgment on the pleadings 9. MSJ |
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Which of the pre-answer motions are waived if not asserted in first responsive pleading/motion?
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1. Lack of PJ
2. Improper venue 3. insufficient process 4. insufficient service. |
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When may lack of SMJ be raised?
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At any time, even on appeal.
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What must be in the answer?
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1. Rule 12(b) motions if not already waived/asserted
2. responses to allegations of complaint (admit/deny/lack of sufficient information [cons. denial] 3. Affirmative defenses. |
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When must D raise her affirmative defenses?
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In the pleading, or they may not be raised at trial.
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When may a party amend her pleadings as a right?
When may a party amend his pleadings otherwise? |
A party may amend her pleadings as a right before a responsive pleadings is filed or w/in 20 days (fed) 28 days (ohio) of serving pleading if not response is required.
Otherwise, with leave of court (freely granted). |
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When do pleading amendments relate back?
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Amendments relate back if they arise from the same conduct, transaction, or occurrence set forth in the original pleading (unless it is an amendment changing parties -- special rule)
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When do pleading amendments that change parties relate back?
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Amendment relates back only if :
a. it arises from the same conduct, transaction, or occurrence set forth in the original pleading and b. within the time allotted for service of process (120 d Fed; 1 year ohio) the new party to be brought in : a. received such notice of the action that he will not be prejudiced in maintaining his defense on the merits; and he b. knew or should have known that, but for a mistake, the action would have been brought against him. |
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When does an amendment of pleadings renaming fictitious parties relate back (ohio cts only)?
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THe amendment relates back to the time the fictitious party complaint was filed, provided the amendment is made and the D is served w/in one year after the original filing.
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What does an attorney's signature under Federal Rule 11 certify?
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1. signor has made a reasonable inquiry as to merits of document
2. document is not used for improper purpose 3. legal contentions are warranted by law 4. facts in document have or will have evidentiary support. This certification is renewed every time the position taken in document is presented to the court (filing, advocating position, etc). Sanctions are discretionary and may be levied against attorney, firm, or party. |
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What does a signature under Ohio's rule 11 certify?
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1. That the attorney or party 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 ct may award fees and expenses caused by a willful violation of rule 11. |
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What are the requirements for a rule 20 permissive joinder?
[when may a P sue more than 1 D in an action?] |
A P may sue more than 1 D in an action when:
1. the claims arise from the same transaction or occurence, and 2. the claims share common question of law or fact. 3. [federal ct -- SMJ] |
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What are the rules for compulsory joinder rule 19?
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Necessary parties must be joined if feasible if
1. complete relief cannot be afforded w/out them 2. their interest may be harmed if they are not joined, or 3. a party may be subject to inconsistent obligations if they are not joined. If an absentee is deemed "necessary" but joider is not feasible, then the court must either proceed w/out him or dismiss the case. |
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In what instances is compulsory joinder not feasible?
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1. no PJ over absentee
2. absentee would destroy diversity. |
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Ohio rule 19.1's compulsory joinder?
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Absent a showing of good cause, the court on timely motion shall order that a person be made a party if she is subject to service and has an interest arising from the following situations:
Person injury/property damage w/ death +will be joined w/ + estate's surviving tort claim + Family's wrongful death claim. Personal injury or property damage to a husband or wife and a claim of the spouse for loss of consortium ... See page 48 of lecture handout. |
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When may a P join claims against a given defendant?
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Once a P asserts a claim against a D, the P may assert additional claims she has against the D (state court) [federal court will depend on SMJ].
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What is the rule for compulsory counterclaims?
What is the rule for permissive counterclaims? |
If a party (D) has a claim that arises from the same transaction or occurrence as a claim that is asserted against her, she must assert the claim as a counterclaim or it is lost; unless the claim is already pending in another court or requires parties beyond the court's jxd.
A party may assert other claims as counterclaims but may elect to assert them as independent actions. |
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When do counterclaims relate back?
Federal? Ohio? |
Federal rule: compulsory CC relates back to when the complaint was filed.
Ohio (all counterclaims (permissive/ comp.) relate back to when complaint was filed. Also, Complulsory CC can be used for set-off even if it was time-barred when complaint was filed. |
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When are cross claims permitted?
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Cross claims are permittted if they arise from the same transaction or occurrence as the original action or counterclaim.
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What is the rule for impleader?
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1. A party may implead a 3rd party D if a) a claim is asserted against her and b) she claims that the 3rd party defendant is liable to her for her liability to the plaintiff.
When? Impleader may be asserted of right w/in 14 days (ohio) or 10 days (fed) of serving one's answer. Service how? may be effected on 3rd party D outside of the state w/out compliance w/ long-arm statute if w/in 100 miles of courthouse (bulge rule). |
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When may a third party D and original P assert claims against one another?
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Third-party D and P may assert claims against each other if they arise from the same transaction or occurence as the underlying action.
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What is the rule for forum non conveniens?
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Common law doctrine... A court may it its discretion decline jxd in deference to another forum based on factors such as:
1. ease of access to proof 2. availabilit of compulsory process 3. costs of obtaining attendance of witnesses 4. administrative difficulties such as language barriers 5. interest in having local controversies decided at home 6. interest in litigating a case in a forum familiar w/ applicable law. If a court finds that there is another location where the case would better situated under these rules, the court will dismiss to permit P to refile in the more convenient forum. |
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B) What is the Ohio rule 3(D) rules for forum non conveniens?
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B) Where a court finds :
1. county is an improper venue 2. no other proper Ohio venue 3. There is a proper venue in the other state or country. The court shall stay the action upon condition that D's consent to jxd, waive venue, and waive SOL defenses. The court will dismiss the action upon receiving notice that the P has recommenced action in the foreign forum w/in 60 days. |
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Constitutional requirements for PJ?
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First, the court must look at whether D purposefully availed itself to the laws of Ohio and therefore could reasonably anticipate being hauled into court in Ohio. Next, the court must analyze the minimum contact with
Ohio, the nature and extent of the contacts and whether the cause of action arose from those contacts. Finally, the court must determine if it would comply with the notions of fair play and substantial justice to hear the case in Ohio, by comparing the burden on the D with the forum's interest in adjudicating the matter. (next, look at the long arm statute) |
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What are the requirements for a class action?
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1. Identifiable class -- class must be sufficiently unambiguous that the members may be identified w/ reasonable effort
a. numerosity -- class members are too numerous to join in 1 action b. commonality -- common questions of law exist c. typicality (class representative's claims are typical of the class d. representation - class reps will adequately represent the class. |
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What are the 4 types of class action?
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Prejudice class action -- class treatment needed to avoid prejudice to parties/class members
Injunction class action -- action seeks injunctive or declaratory relief relating to conduct generally applicable to the class as a whole. Damages class action -- common questions predominate, and class action is a superior method for handling the dispute. |
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What is the class action certification process?
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Class treatment is permitted only if court on motion determines the requirements are met.
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What are the initial disclosures for federal court cases?
WHen are they required? |
Within 10 days of discovery mettign parties must provide:
1. ID of individuals w/ discoverable info that the disclosing party may use. 2. docs or things that the disclosing party may use 3. computation of damages claims 4. relevant insurance agreements. 5. 90 days before trial -- Expert witnesses' identity if testifying or likely to testify at trial, and a written report of opinions/basis of opinions 6. 30 days beore trial -- pretrial disclosures -- list of exhibits nd ID of witnesses who will and may be called. |
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What is the scope of discovery for Ohio and federal court?
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Ohio -- Any information "relevant to the subject matter of the action" (reasonably calculated to lead to admissible evidence) that is not privileged.
Federal -- Any info relevant to the claim or defense of any party" (reasonably calculated to lead to admissible evidence) that is not privileged. |
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When is Work product discoverable?
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Work product is not discoverable unless the discovering party shows :
1. substantial need for the material and 2. inability to obtain the substantial equivalent by other means. [Opinion/theory work product receive special protection from discovery] |
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When are the identity of expert witnesses dicoverable?
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Ohio: The identity of expert witnesses (who will testify) and the subject of their testimony may be obtained by interrogatory. Subsequent discovery of facts known and opinons held by the expert may be conducted.
B. Federal : disclosure of ID and written report required by pre-trial dislcosures. Deposition allowed. No disccovery of experts who will not testify absent exceptional need (no other source of experts?) |
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What is the (Federal) rule for electronically stored information?
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A party need not product electronically stored info if it is not reasonably accessible due to burden or cost, unles the discovering party shows good cause.
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What is the rule(s) for discovery before action is filed?
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Following service of a petition and a hearing, court may order pre-filing deposition to secure evidence if necessary to prevent failure or delay of justice. Ohio rules also permit pre-filing production of docs on petition if necessary to identify a party.
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what is the timing for discovery after action is filed?
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Federal court -- no discovery prior to discovery conference.
Ohio: Interrogatories / requests for documents may be served with the complain and anytime thereafter. Depositions may be noticed anytime after the action is commenced. |
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When may an insurance policy be discovered?
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The existence and the content of an insurance agreement under which an insurer may be liable for all or part of the judgement is discoverable under the ohio and federal rules.
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For what reasons may a court grant a new trial?
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The court may grant a new trial on the basis of an error during the trial, because the verdict is against the weight of the evidence, b/c the verdict is excessive, or for other reasons.
A motion ofr a new tiral must be riled no later than 10 days (fed) or 14 days (ohio) after judgment is entered. Within that period, the ct may order a new trial on its own motion. |
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When may a party obtain a relief from judgment?
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On motion, the ct may relieve a party from final judgment if 1. the party suffered from mistake, inadvertence, surprsie or excusable neglect at trail; 2. the party presents newly discovered evidence which by due diligience could not have been discovered in time to move for a new trial 3. the adverse party engaged in fraud, misrepresentation, or other misconduct 4. the judgment has been satisfied, released or discharged, or a prior judgmnet upon which it was based was reversed or vacated, or 5. justice requires relief from judgment. A motion based on reasons 1-3 must be made w/in one year after judgment.
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