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168 Cards in this Set

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Why does a court need jurisdiction and what are the two types of jurisdiction?
Jurisdiction gives a court authority to hear a case and render a binding judgment. A court needs both:
1. Subject Matter Jurisdiction
2. Personal Jurisdiction
What is subject matter jurisdiction?
Concerns the types of cases a court has authority to hear. The SMJ of federal courts is established by the US Constitution and federal statutes and the SMJ of OH courts is granted by the constition and statutes of OH.
What is the SMJ of OH trial courts - Common Pleas?
The court of common pleas is the general trail court for the state. They have original jurisdiction over all claims in excess of $500 that are not within the exclusive jurisdiction of the court of claims.
What is the SMJ of OH trial courts - court of claims?
Exclusive original SMJ to hear 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 def., the party should petition for removal from the court of common pleas to the court of claims.
What are the various divisions within court of common pleas?
1. Probate - exclusive jurisdiction over probate, testamentary, and certain equitable matters. (also has concurrent jurisdiction with the general division of the court of common pleas regrading inter vivos trusts and writs of habeas corpus)
2. Domestic Relations - exclusive original SMJ over divorce, alimony, marriage, etc.
3. Juvenile
What type of jurisdiction do municipal courts have?
They have original, but not exclusive, jurisdiction over civil actions in which:
1. claim arose within the municipality's territory or D resides or was served in that territory; AND
2. amount in controversy does not exceed $15,000
What type jurisdiction do federal courts have?
Federal courts have limited jurisdiction bestowed by Art.III of the Constitution. Art. II courts have two primary bases of SMJ:
1. Federal Question
2. Diversity
And two secondary bases:
1. Supplemental
2. Removal
What are the types of cases and controversies under Art. III?
All Cases in Law and Equity:
1. arising under the Consitution, the laws of the US, and treaties made, or which shall be made, under their authority (federal question);
2. affecting ambassadors, other public ministers, and consuls; and
3. of admiralty and maritime jurisdiction.
All Controversies:
1. to which the US shall be a party;
2. between two or more states;
3. between citizens of different states (diversity jurisdiction);
4. between citizens of the same state claiming lands under grants of different states; and
5. between a state or the citizens thereof and foreign states, citizens, or subjects.
What are the requirements of federal jurisdiction?
1. Case or controversy
2. Standing
3. Ripeness
4. Justiciability
5. Abstention
Federal Question Jurisdiction
The US district courts have jurisdiction over the subject matter if suits where the action arises under the Constutution, laws, or treaties of the US. Jurisdiction is judged solely on the basis of the P's complaint, looking only to essential elements of the P's case. A P's case does not "arise under" federal law if the only federal question involved is properly a part of the D's case.
What is the meaning of "arising under" in federal court jurisdiction?
If the right which the P asserts in the complaint is created by an Act of Congress or the federal Constitution, the case arises under federal law. Jurisdiction may also exist if federal law provides an essential element of the P's claim, even though federal law does not create the entire cause of action.
How are federal corporations treated under federal question jurisdiction?
Federal question jurisdiction does not arise merely from the fact that a corporate party was incorporated by an act of Congress unless the US owns more than one-half of the corporation's capital stock, in which case it is treated as a federal agency that can sue or be sued on that basis in federal court.
In which cases do federal courts hold exclusive jurisdiction over state courts?
1. Bankruptcy proceedings
2. Patent and copyright cases
3. Many cases where US is involved
4. Cases with consuls and vice-consuls as D's
5. Antitrust cases
6. Admiralty cases (only in limitation of liability proceedings and in maritime actions in rem)
7. Foreign State (if sued in state court ti remove the action to federal court)
8. Postal matters
9. Internal Revenue
10. Securities Exchange Act
Diversity Jurisdiction
The district courts have SMJ of suits where the amount in controversy, exclusive of interest and costs, exceeds $75,000, AND there is complete diversity; no two citizens of the same state may be on opposing sides of a lawsuit before a federal district court.
Can a counterclaim be considered to satisfy the jurisdictional amount (JA)?
No. It is solely the original complaint that is to be considered in determining whether jurisdictional amount has been satisfied.
Ex. complaint is less than JA and counterclaim is for more, there is no SMJ b/c the requisite amount in controversy is lacking.
Explain citizenship in regards to diversity jurisdiction.
1. Individuals: citizenship = domicile; diversity only needs to exists at the time the suit was instituted. Aliens admitted for PR in US are deemed citizens of the state where they are domiciled. Domicile is established by two factors:
(a) physical presence AND
(b) intent to make that place your home

2. Corporations: Citizenship =
(a) state of incorporation, PLUS
(b) principal place of business (test = 1. headquarters; or 2. major production or service)

3. Unincorporated Assc./Partnerships: each state where its members reside.
4. Representatives: state where the represented party is domiciled.
5. Class actions: the named members of the class who filed suit.
Jurisdictional Amount
In determining whether jurisdictional amount has been met, all that is required is a good faith allegation that the amount in controversy exceeds the jurisdictional amount. The complaint can be dismissed only if it appears to a legal certainty that the claimant cannot recover the jurisdictional amount.
*note: If P ultimately recovers less than $75K, jurisdiction is unaffected.
When can claims be aggregated to meet the jurisdictional amount?
1. A claimant can aggregate all claims the claimant has against a single defendant whether or not the claims are related;
2. A claimant can aggregate claims against several defendants only if the defendants are jointly liable to claimant;
3. Several claimants can aggregate their claims against one defendant only if the claimants are seeking to enforce a single title or right in which they have a common or undivided interest.
What does supplemental jurisdiction allow a federal court to do?
Allows federal court to entertain claims over which it would have no independent basis of SMJ (ex. they are state law claims and there's no basis for diversity of citizenship jurisdiction) b/c they are joined with related claims over which the federal court does have SMJ.
What is the test for supplemental jurisdiction over claims asserted by the P?
1. The supplemental claim must be related to a claim within the Federal court's SMJ; AND
2. The other claim must be a federal question claim.
How does nonmonetary relief meet the jurisdictional amount?
Modern approach: under the "plaintiff's viewpoint" rule only the value to the plaintiff will be considered.
What is the basic rule for supplemental jurisdiction?
If federal court has SMJ over one claim (Claim A), then it may exercise supplemental jurisdiction over any other claims (Claim B) that are so related to Claim A that they form part of the "same case or controversy." (test for "same case or controversy" - do the claims arise from a common nucleus of operative fact (same transaction or occurrence)
What is the test for supplemental jurisdiction over claims asserted by anyone else?
1. New claim is related to a claim within the federal court's SMJ (common nucleus of operative fact)
Supplemental Jurisdiction
Federal district courts have supp. jurisdiction over nondiverse state claims that are related to claims within the district court's primary jurisdiction when:
1. A P asserts a substantial federal question and seeks to join a state law claim against the same D that arises out of a common nucleus of operative facts;
2. A P asserts a substantial federal question and seeks to join a related state law claim against a different D;
3. A D, sued in diversity or on a federal question, seeks to assert a cross-claim, compulsory counterclaim, or third-party complaint that lacks an independant basis of jurisdiction.
Supplemental jurisdiction statute limits the ability of P's to use supplemental jurisdiction in diversity cases. In cases based solely on diversity, when is supplemental jurisdiction not allowed?
1. claims by P against persons added through joinder, intervention, or third party practice; or
2. claims by persons proposed to be joined as indispensible parties or who seek to intervene.
When may suuplemental jurisdiction be used in diversity cases?
SJ may be used by P's added through permissive joinder so long as their presence would not destroy complete diversity. The claims of class action P's may also invoke SJ to have their claims heard.
In what type of claims can the federal court decline to exercise supplemental jurisdiction?
1. when the claim raises a novel or complex issues of state law;
2. when the state law claim substantially predominates;
3. when the claim over which the court has original jurisdiction is dismissed; or
4. when other good reasons exist for declining supplemental jurisdiction.
A defendant can remove an action brought in state court to the local federal district court if the action could have been brought in federal district court (complete diversity or federal question). Existence of a federal defense is not sufficient for removal.
What is the limitation on 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 removable. Note: case may not be removed on the basis of diversity of citizenship more than one year after it was commenced in state court.
If a case brought into state court is nonremovable either because there is co-citizenship between the P and D or b/c a D is a citizen of the forum state, how can the case become removable?
The case will become removable if the P voluntarily dismisses as to such defendant.
What is the procedure for removal?
1. Notice for removal: D must file notice of removal setting forth the facts supporting removal in the federal district ct. and a copy of the notice must be filed in state ct. State court must then remand.
2. Time: notice of removal must be filed 30 days from the service of the complaint, if the case is then removable. If the case later becomes removable, the 30 days runs from that time. No case can be removed on the basis of diversity more than one year after it was commenced in state ct.
May a defendant remove a case if there are multiple claims or multiple parties?
Yes. When there are multiple claims or multiple parties, a defendant may remove the whole case if it contains "a separate and independant claim or cause of action" within federal question jurisdiction.
What is Multiparty, Multiform Trial Jurisdiction Act (MMTJA)?
The MMTJA applies to accidents where at least 75 people have died from a single car accident at a discrete location. Minimal diversity is required (one P must be of diverse citizenship of one D). One of the other requirements must be met:
1. one D must reside in a different state from the place where a "substantial part" of the accident took place;
2. any two D's must reside in different states; or
3. substantial parts of the accident must have taken place in different states.
Note: anyone with a claim arising from the accident is permitted to intervene as a plaintiff even if she could not have maintained ac action in the district in which the case is pending; nationwide service of process is allowed.
Erie Doctrine
A federal court, in exercise of its diversity jurisdiction, is required to apply substantive state law in which it is sitting, including that state's conflict of law rules. However, federal courts apply federal procedural law in diversity cases.
What is the approach to Erie questions?
1. Does the cause of action arise under federal Const., statutes, laws, or treaties?
2. Is there a conflict between state and federal law on a particular matter?
3. Is there an "argubly procedural" federal directive on point?
See Chart.
What test do the courts use when the law is unclear in regards to an Erie question?
1. Outcome determination: an issue is substantive if it substantially affects the outcome of the case.
2. Balance of Interests: court weighs whether the state or federal judicial system has the greater interest in having its rule applied.
3. Forum Shopping Detterence: federal judge should follow state law on the issue if failing to do so would cause litigants to flock to federal court.
What are the three kinds of personal jurisdiction?
1. in personam
2. in rem
3. quasi in rem
From what two sources do the limitations for a courts personal jurisdiction arise?
1. state statutes: the first place to look to determine whether the court has properly exercised PJ is state law. If no statute grants the court the power to hear cases involving the parties before the court, then the court lacks PJ. Note: must also be within the limitations set by the Constitution.
2. constitution: first, parties directly affected by the by the court action must receive fair and adequate notice of the action. Second, there must be minimum contacts between the D or property and forum state (nexus) so that the assumptio of jurisdiction is fair and reasonable.
What is the two-part analysis for personal jurisdiction?
1. State long arm statute: does the state law give the court power over the defendant? Has the state adopted a basis of jurisdiction which the defendant satisfies? AND
2. Federal DP: Does the state's exercise of power over the D meet the constitutional requirements of DP?
In personam jurisdiction
Exists when the forum has power over the person of a particular defendant. The court may render a money judgment against the defendant or may order the defendant to perform acts or refrain from acting.
Ex. D is ordered to pay a sum of money to P; P may enforce the judgment against the D's property in any other state where that property can be found.
In rem jurisdiction
Exists when the court has power to adjudicate teh rights if all persons in the world with respect to a particular item of property. Jurisdiction is limited to situations where the property is located within the physical borders of the state where it iss necessary for the state to be able to bind all persons regarding the property's ownership and use.
Ex. eminent domain cases, forefeiture of property to the state, and settlement of decedents' estates.
What are the two types of quasi in rem jurisdictions?
1. exists when the court has power to determine whether particular individuals own specific property within the court's control - it does not permit the court to determine the rights of all persons in the world with respect to the property.
2. permits the court to adjudicate disputes other than ownership based upon the presence of the defendant's property in the forum.
Note: the judgment does not bind the defendant personally and cannot be enforced against any other property belonging to the defendant.
What three ways can a court assert in personam jurisdiction?
1. when the D is persent in the forum state and is personally served with process there;
2. when the D is domiciled in the forum state; and
3. when the D consents to jurisdiction
Physical presence at time of personal service
Ohio grants its courts in personam jurisduction over any D served with process within the borders of the state, no matter how long he was present.
Exceptions: Nonresidents may not be served with process when:
a. the D is in the state by extradition to answer criminal charges;
b. the D is in the state voluntarily to answer criminal charges but the criminal charges were issued in bad faith in order to obtain service of process; or
c. the D is in the state in compliance with a subpeona.
Ohio courts have in personam jurisdiction over persons whose domicile is in Ohio, even if the defendant is not physically in the state when served with process. An individual's domicile is the place where she maintains her premenant home. Where a person has legal capacity, her domicile is persence coupled with intent. A corporation's domicile is in the state(s) where it is incorporated.
Express: express consent to the jurisdiction of a court, whether given before or after suit is commenced, serves as a sufficient basis for in personam jurisdiction. A person can give advance consent by contract and, by contract, appoint an agent in a state to receive service in that state in an action against him.
1.asserting a claim - party consents to PJ os he institutes an action in court or asserts a noncompulsory claim in a pending action.
2. Voluntary appearance - if D appears and defends an action on the merits w/o making a timely objection to PJ, he waives that objection and gives implied consent to courts PJ over him.
3. Nonresident motorists - nonresident operator or owner of a motor vehicle who accepts the privilege a mv within OH is deemed to have appointed the SOS his agent for service of process in any civil action arising from accident or collision.
What is the rule for the modern constitutional doctrine for Personal Jurisdiction (Minimum Contacts).
Under the Constitution, a court has power to hear a case only if sufficient minimum contacts exist between the D and the forum so that the maintenance of the suit against the D does not offend "traditional notions of fait play and substantial jusitice." This standard requires two hurdles to be cleared: minimum contacts and reasonableness.
What is the balancing test used to determine whether minimum contacts exist making the exercise of jurisdiction fair?
1. the quantity and nature of the D's contacts with the forum;
2. their connection with the cause of action; and
3. the interest of the forum in protecting its citizens
Explain: Systematic and Continuous Activity in the State.
If the D engages in systematice and continuous activity in the forum state, the court will find this activity a sufficient basis for exercising in personam jurisdiction for any cause of action against the D, whether the cause of action arose from the in-state activity or from activity outside the state. The court will have general jurisdiction. However, occasional, casual or indirect activities in the state are not sufficient bases for this general in personam jurisdiction.
Explain: Cause arising from activity in the state (minimum contacts doctrine)
If D's in-state activity is less than systematic or continuous, in personam jurisdiction over the D will be proper for causes of action arising from that instate activity; the court will have specific jurisdiction.
Explain: purposeful availment (minimum contacts doctrine)
Even if the D's activities are performed outside the state, the D will still be subject to in personam jurisdiction for consequences in the state if he knows or reasonably anticipates that his activities could give rise to the cause of action in the forum; that he could be haled into court in the forum.
Explain the reasonableness prong of the minimum contacts doctrine.
It is not enough that minimum contacts exist. The exercise of jurisdiction must also be reasonable, taking into account the litigants' interests and the state's interest.
Summary Card:
What are the statutory (ohio) requirements for in personam jurisdiction?
Ohio requires that defendant:
1. is present in OH at the time of service;
2. is domiciled in OH;
3. has given express or implied consent to jurisdiction; or
4. meets the requirements of the OH long arm statute. Cause of action relates to:
i. transaction of business in OH
ii. contract to supply goods, services, or insurance in OH;
iii. causing a tort, injury, or breach of warranty in OH;
iv. an interest in real property; or
v. a artital relationship in OH
Summary Card:
What are the constitutional requirements for in personam jurisdiction?
1. Minimum contacts
a. systematic and continuous activity in the forum state;
b. if no s & c activity, in-state activity forms basis for lawsuit; or
c. purposeful availment to the forum state's laws.

2. Reasonableness: exercise of jurisdiction must be reasonable, taking in to account the litigants' interests.

3. Notice: D must be notified of the lawsuit by a reasonable method and given an opportunity to appear and be heard.
Explain: Long arm jurisdiction
This gives a local state court jurisdiction over an out-of-state company or individual whose actions caused damage locally or to a local resident. The legal test is whether the out-of-state defendant has contacts within the state.
Explain in rem jurisdiction
In rem actions adjudicate the rights of all persons with respect to property located in the state. An in rem judgment does not bind the parties personally, but is binding as to the disposition of the property in the state.
Constitutional Limitation:
(1) no jurisdiction if property not located in state
(2) no jurisdiction if property brought in by fraud or force.
Explain: Quasi in rem jurisdiction.
Quasi in rem jurisdiction permits a court w/o in personam jurisdiction to determine certain disputes between a P and D regarding property when the property is located in the forum state. Basically the P is unable to obtain PJ over the D, but the D has property in the state thatt he P attaches. The court then adjudicates the dispute between the parties on the basis of its power over the property. Since the court's sole basis of jurisdiction is the property, any judgment against the D can be satisfied only out of that property.
What are the two types of quasi in rem jurisdiction?
1. Type 1 - involves disputes between parties over their rights in property within the state.
2. Type 2 - involves disputes unrelated to the in-state property and has been severely limited by the Supreme Court.
What are the two elements required for proper notice?
1. service of process must be effectuated pursuant to applicable statutes and court rules; and
2. it must meet constitutional requirements of notice.
What is the due process requirement for notice?
"notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action."
Who may serve process in federal cases?
Any person not a party to the action who is at least 18 years old.
What is venue?
Venue relates to the proper district or proper county in which to bring the action. Venue is a question of convenience.
Where is venue proper for civil actions in federal courts?
1. Judicial district where any D resides, if all D's reside in the same state;
2. 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 situated; or
3. If not 1 or 2, then:
a. For actions based solely on diversity, a judicial district in which any D is subject to PJ at the time the action is commenced; or
b. For actions not based on diversity, a judicial district in which any D may be found.
Where is a person's residence for purposes of venue?
Person's domicile.
Where is a corporation's residence for purposes of venue?
Corporate D resides in all districts where the corporation is subject to personal jurisdiction when case filed.
Can venue be waived? If so, how?
Yes. Unlike jurisdiction over the subject matter, venue may be waived by the parties. Venue is considered to be waived unless timely objection is made to the improper venue.
Can venue be transferred when original venue is proper?
Yes. 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. In determining whether to transfer, the court is to balance the relative convenience to the parties and/or witnesses offered by the alternative forums.
Can venue be transferred when original venue is improper?
Court may transfer in the interest of justice or dismiss.
When original venue is proper, a court may transfer to another federal district court based on what three governing rules?
1. SMJ
2. PJ
3. Proper venue
Under Ohio law, venue is proper in most actions in the country in which --- ?
a. where the D resides;
b. where the P has his ppb;
c. where D conducted activity that gave rise to the claim;
d. where all or part of the claim for relief arose;
e. where property is situated, if the subject of the action is real property or tangible personal property;
f. where a public officer maintains his principal office, if the suit is against him in his official capacity;
g. where the P 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 prior to filing the complaint.
h. if no venue is proper under the provisions above, then where the P resides, has his ppb, or regularly conducts business activity;
i. if no venue is proper under the provisions above, then:
1. where D has property or debts subject to garnishment; or
2. where D has appointed an agent to receive service.
Can a federal court enjoin pending state court proceedings?
No. A federal court is prohibited from enjoining pending state court proceedings unless expressly authorized by statute, or where necessary to protect its jurisdiction or its judgment.
When can state criminal prosecutions be enjoined?
Only when necessary to prevent irreparable harm that is clear and imminent and where appellate remedies in the criminal case are clearly inadequate to provide relief.
The Doctrine of Abstention
Under certain circumstances the federal courts will retain jurisdiction over a suit involving a challenge to the constitutionality of a state law but abstain from deciding the question until a decision has been made by the state courts on the meaning of the state law.
How is an action commenced?
By filing of a complaint with the court. After the complaint is filed, the clerk issues a summons for service on the D. The summons is signed by the clerk, contains the names and addresses of the court, parties, and P's attorney, states the time within which the D must appear and defend; and notifies the D that failure to appear and defend will result in a default judgment. The summons and complaint must be served on the D.
What is the two part test for service of process?
1. Statutory/Rule requirements
2. DP requirements: Notice must be reasonably calculated, under all the circumstances, to apprize interested parties of the pendency of the action."
Explain: Waiver of service in federal district court.
Send to D usually by mail:
1. the summons and complaint
2. a "request for waiver of service"
3. a "waiver of service" form
4. prepaid return envelope.
If D waives service, he has 60 days from complaint's mailing to answer. If D, w/o reason does not waive service, D must pay costs P incurs making actual service.
Explain: Actual service by
P if D fails to respond (federal district court)
If D does not respond within 30 days, P proceeds with actual service, If D is then served b/f he waives service, D must pay t he cost of actual service.
What are the three manners of service on individuals in the US (federal district court)?
1. personal delivery (or leave at usual residence with suitable person residing there);
2. pursuant to law of the state where district court is located;
3. pursuant to law of the state where service takes place.
Explain: service on corporations and associations (federal district court)
1. by delivery to an officer or agent authorized to receive service;
2. pursuant to law of the state where district court is located;
3. pursuant to law of the state where service takes place.
What is a process server?
Process may be served by any non-party over age 18.
Service of process upon three types of D's may be effectuated by delivering process to what three designated persons? (Ohio Courts)
1. Upon an individual who is neither incompetent nor under 16, by serving the individual;
2. Upon a person under 16, by serving the person's guardian or the parent/caregiver residing with the child;
3. Upon a corp. by serving (a) the agent authorized to receive service; (b) the corp. itself by certified mail; or (c) an officer or a managing or general agent.
4. Upon a partnership by serving either (a) the entity via certified mail at any of its usual places of business or (b) a partner or manager.
Certified Mail is the standard method of service. Where should it be sent and to whom should it be delivered?
Sent: to any place where service will comport with DP reasonably calculated to apprize.
Delivered: as long as the certified mail is addressed properly, service is effectuated upon certified delivery, even if certified mail is delivered to and signed for by someone other than the addressee.
Personal Service in Ohio
1. written request required
2. process servers: process is generally served by (a) the sheriff of the county where the person to be served is found; (b) the bailiff of the Municipal court in which the action is filed, or (c) a non-party over the age of 18 designated by the court.
Personal Service outside Ohio
Permitted only upon order of the court. Upon such order, the court will designate a process server
When is service by publication allowed? (Ohio Court)
1. when D's residence is unknown; AND
2. Action is one of the following:
a. action regarding disposition of property;
b. administration of wills and trusts;
c. action against corporation that failed to elect officers; or
d. actions against OH resident who has left his county of residence or is avoiding service.
What is the procedure for service by publication?
1. Affidavit setting forth ground for service by publication.
2. Publish notice for at least once a week for six weeks in a newspaper of general circulation in the county where the complaint is filed.
What is the time limit for service?
Federal: Filing on complaint tolls SOL; but if service is not perfected in 120 days the court will dismiss (unless P shows good cause);

Ohio: Filing of complaint tolls SOL, provided that process is served within 1 year of filing.
What are the six types of pleadings allowed?
1. complaint
2. answer
3. reply to counterclaim
4. answer to cross-claim
5. third-party complaint
6. third-party answer
What is an interlocutory injunction?
An interlocutory injunction is an equitable remedy by which a person is ordered to act or to refrain from acting in a specified manner. Interlocutory injunctions are granted to maintain the status quo until a trial on the merits may be held.
Generally, notice must be given before a TRO is issued. However, a court may grant a TRO without notice to the adverse party if what three requirements are met?
1. Specific facts showing immediate and irreparable harm;
2. Moving party certifies in writing all efforts she made to give notice to the adverse party and the reasons why notice should not be required;
3. Moving party provides some security, amount determined by court, to pay for any costs and damages incurred by the adverse party is he was wrongfully enjoined or restrained.
If all TRO requirements are met, can the court still refuse the TRO?
Yes. The court still has discretion whether to issue the TRO. The court may look at the likelihood that the P will prevail on the merits of the complaint. The court may also weigh the injury anticipated by the moving party against the harm caused by issuing the TRO.
What is the time limit for TRO's?
The TRO will expire within
-10 days (federal)
-14 days (ohio)
unless the restrained party consents to an extension or good cause is shown for an extension.
What is a complaint?
The complaint is the principal pleading of the plaintiff. It sets forth the plaintiff's claims and allegations.
What are the basic requirements of a complaint?
1. Short and plain statement of the claim - notice pleading: pleadings are only required to give the defendant fair notice of what the plaintiff's claim is and the grounds on which it rests.
2. Demand for judgment for relief - party must claim the relief he is seeking. In Ohio, if the pleading party seeks more than $25K, the party must so state in the pleading.
3. Statement of SMJ - In federal courts only, the complaint must contain a short and plain statement of the grounds on which the court's jurisdiction depends.
What matters must be pled in more detail (pleading special matters)?
1. Capacity - raise issues by specific negative averment;
2. Fraud or Mistake - stated with particularity;
3. Conditions Precedent - made specifically and particularly;
4. Timing - time and place averments are material for the purpose of testing the sufficiency of a pleading;
5. Special Damages - stated specifically
What are the proper parties in a complaint?
1. Real party in interest
2. Capacity - 18 or older and has capacity to sue and be sued.
3. Fictitious Parties (OH only)
Explain: Timing of Rule 12 Defenses (Pre-answer motions)
1. May be raised anytime, even on appeal:
*Lack of jurisdiction over the subject matter

2. Waived if not raised by motion or answer, whichever is first:
*Lack of jurisdiction over the person
*Improper venue
*Insufficiency of process
*Insufficiency of service of process

3. May be raised anytime before trial or at trial (indispensable parties):
*Failure to state a claim upon which relief can be granted
*Failure to join a party under Rule 19
Explain: Motion for a more definite statement (pre-answer motion)
A party may move for a more definite statement before responding to a pleading that is so vague or ambiguous that a responsive pleading cannot reasonably be framed. The opposing party has 10 days in federal court and 14 days in OH court after notice of an order to obey unless the court fixes a different time. If not obeyed, the court may strike the pleading.
Explain: Motion to strike (pre-answer motion)
Before responding to a pleading, or if no responsive pleading is permitted, within 20 days (federal court) or 28 days (OH court) after service of the pleading, a party may move to have stricken any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter. Such motion may also be made upon the court's initiative at any time.
Explain: timing for answer in Federal court.
If no Rule 12 pre-answer motion is made, a D who was formally served with process must serve an answer within 20 days after service. A D to whom the complaint and summons was mailed and who timely waived formal service of process must answer within 60 days after the request for waiver was mailed to her. If Rule 12 motion is made and the court denies or postpones disposition of the motion, then the D must answer within 10 days after notice of the court's action. If the court grants a motion for a more definite statement of a claim, the responsive pleading must be served within 10 days after service of the more definite statement.
Explain: timing for answer in Ohio courts.
28 days after service of process
14 days after ruling on a pre-answer motion
Ohio Rule 3(D) Forum Non Conveniens (venue)
Court finds:
1. county is an improper venue;
2. no proper OH venue; and
3. there is a proper venue in another country
Explain: Defendant's response to Plaintiff's complaint - Timing.
Timing: D must respond within 28 days of service in OH courts and within 20 days in federal court (unless D in federal court waives service; then D must respond within 60 days after P mailed waiver)
Explain: Defendant's response to Plaintiff's complaint - Rule 12(b) defenses.
D may raise 12(b) defenses by pre-answer motion or he may include them in his answer.
*Consolidation: 12(b) defenses should be consolidated in D's first response (whether that is pre-answer motion or the answer)
*Waiver: The following 12(b) defenses are waived if not asserted in D's first response: PJ, Improper Venue, Insufficient Service of Process, Insufficient Process
Explain: Defendant's response to Plaintiff's complaint - Answer
The Answer must admit, deny, or indicate lack of information to admit or deny the allegations in the complaint. Affirmative defenses must be pleaded in the answer or the D will be unable to assert them at trial (absent amend.) The answer must be served within the time set for th for the D's response if no pre-answer motion is filed (28 days - OH; 20 days - Fed.) If a pre-answer motion is denied, the answer must be served within 10 days of that ruling.
Explain: Amending a pleading
GR: Amendment is permitted of right before responsive pleading or within 28 days (ohio) or 20 days (federal) if no response is required. Thereafter, leave of court is required.
What is relation back in regards to amendments?
Amendments relate back to the time the original pleading was filed if it arises from the same conduct, transaction, or occurrence as the original.
Relation back of amendments changing parties. What are the requirements?
Amendment relates back only if:
1. it arises from same conduct, T/O set forth in original pleading; AND
2. within the time allotted for service of process (120 days after filing in federal court; 1 year after filing in OH court),
(a) the new party to be brought in received such notice of the action that he will not be prejudiced in maintaining his defense on the merits; and
(b) he knew or should have known that, but for a mistake, the action would have been brought against him.
Explain: Fictitious Parties (Ohio Courts)
An amendment to substitute a fictitious party's real name relates back to the time the original pleading was filed if the amendment is made and the D is served with one year after the original filing.
What is Federal Rule 11?
Federal Rule 11: Attorney or party must sign all documents, thereby certifying that to the best of her knowledge and belief after reasonable inquiry:
1. the paper is not for an improper purpose,
2. the legal contentions are warranted by law, and
3. that factual contentions have evidentiary support.
*Motion under Rule 11 is served but not filed with the court. Party allegedly violating Rule 11 then has 21 days to withdraw the document before motion will be filed.
What is Ohio Rule 11?
Attorney or party must sign all papers, thereby certifying that 1. she has read the document;
2. to the best of her knowledge there is good ground to support the document; and
3. the document is not interposed for delay.
What is permissive joinder and when is it allowed?
Parties may join as P's or be joined as D's if the claims:
1) arise from the same T/O; and
2) have a common question of law or fact
Compulsory Joinder - Rule 19
Even if P's chose not to join certain parties in an action, courts should require their joinder in certain instances b/c of the absentees' relationship with the action.
-Necessary Parties: must be joined if feasible if:
(a) complete relief cannot be afforded w/o them;
(b) their interest may be harmed if they are not joined; and
(c) a party may be subject to inconsistent obligations if they are not joined.
-Indispensable Parties: If necessary parties cannot be joined, court must decide if in equity and good conscience it can proceed w/o them or if the action must be dismissed.
Joinder of Claims
A party may join all the claims she has against a given opposing party.
Note: For federal court there must be SMJ for each claim.
Compulsory Counterclaim
If a party (defendant) has a claim that arises from the same T/O as a claim that is asserted against her; she must assert the claim as a counterclaim or it is lost; unless the claim already is pending in another court or requires parties beyond the court's jurisdiction.
Permissive Counterclaim
A party may assert other claims as counterclaims but may elect to assert them as independent actions.
Relation back of counterclaims:
Ohio and Federal.
Federal: compulsory counterclaim relates back to when complaint was filed.

Ohio: All counterclaims (compulsory or permissive) relate back to when complaint was filed. Further, compulsory counterclaim can be used for set-off even if it was time-barred when complaint was filed.
These are offensive claims against co-parties.
Permitted if they arise from the same T/O as the original action or counterclaim.
What is Impleader?
Third Party Defendant (TPD) brought in (usually by D) for indemnity or contribution. The D may implead the TPD if:
(a) a claim is asserted against her; and
(b) she claims that the TPD is liable to her for her liability to the P.
*Impleader may be asserted of right 14 days (OH) or 10 days (Fed.) of serving one's answer.
Can a TPD have a claim against the original Plaintiff under Impleader?
Yes. TPD and P may assert claims against each other if they arise from the same T/O as the underlying action.
What is Impleader?
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
What are the types of federal impleader?
Rule 22: Like ordinary federal actions, requires complete diversity and $75K amount in controversy, and service must be effectuated pursuant to Rule 4.

Statutory: Requires only minimal diversity and $500 amount in controversy and permits nationwide service of process.
What are the Class Actions Requirements?
1. Identifiable Class - class must be sufficiently unambiguous that members may be identified with reasonable effort.
2. Express Prereq. -
*Numerosity (class members too numerous to join)
*Commonality (common questions exist)
*Typicality (class reps. claims are typical of the class)
*Representation (class reps will adequately represent the class)
What are the permissible types of class actions?
Must fit into one of the following:

1. Prejudice 23(b)(1): Class treatment needed to avoid prejudice to parties or class members.
2. Injunction 23(b)(2): Action seeks primarily injunctive or declaratory relief relating to conduct generally applicable to the class as whole.
3. Damages 23(b)(3): Action seeks money damages and (a) common questions predominate and (b) class action is the superior method of handling the disputes.
What is the procedure for Class Actions?
1. Certification - court on motion must determine that the requirements are met.
2. Notice - In "damages" class actions, individual notice with a right to opt out of the class must be sent to all reasonably identifiable class members. Notice requirements for "prejudice" and "injunction" class actions left to court.
3. Settlement must be approved by court.
4. Outcome is binding on all parties and class members except those that opt out of "damages" class actions.
Interim Injunctive Relief - Preliminary Injunction
On motion, a court may issue a preliminary injunction prior to trial to prevent harm from occurring before trail is held and with notice.
What factors do courts look at in deciding whether to issue a preliminary injunction?
1. Substantial likelihood of prevailing on the merits;
2. Irreparable harm: The P must show (i) substantial threat of harm before trial; and (ii) the harm will not be fully remedied by a money judgment after trail.
3. Balance of Hardships: the threatened injury to the P outweighs 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.
What are the procedural requirements for a preliminary injunction?
1. Motion for a preliminary injunction along with complaint and service;
2. Notice and opportunity to be heard;
3. Security (bond): the party seeking the PI must post a bond sufficient to reimburse the enjoined party for damages caused by the injunction in the event is later found to have been negligently granted.
4. Duration: until trial
What are the procedural requirements for issuing a PI?
Upon motion, a court may issue a temporary restraining order, an emergency injunction issued without notice or at least without a full hearing.
What are the standards for issuing a TRO?
1. same 4 standards as in preliminary injunction; AND
2. P's reasons for seeking issuance of the TRO w/o full notice and opportunity to be heard afforded with preliminary injunction.
What are the procedural requirements for issuing a TRO?
1. Notice: TRO may be issued w/o notice but only if:
(a) 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
(b) the applicant certifies in writing what efforts were made to give notice and why notice should not be required.
2. Security (bond)
3. Duration: TRO expires within 14 days (Ohio) or 10 days (federal). For good cause the TRO may be extended for an additional 10 or 14 day period.
What is discovery under federal rules?
Rule 26 requires parties to disclose all information "then reasonably available" about their case to the other parties w/o being asked. The rule requires three types of disclosures: initial disclosures, disclosure of expert testimony, and pretrial disclosure. (not required in Ohio)
What are the initial disclosures?
Within 14 days of the Rule 26(f) discovery conference, and without waiting for a discovery request, a party must provide to the 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, ESI, or things in the disclosing party's possession that the disclosing party may use to support its claims or defenses;
3. a computation of damages claimed; and
4. insurance agreements
What disclosure is required in expert testimony?
At least 90 days before trial or as directed by court, parties must provide other parties:
1. the identity of expert witnesses "who may be used at trial"
2. written reports for each such expert containing the experts opinions, data considered, qualifications, compensation, and previous expert testimony.
What are the pretrial disclosures?
No later than 30 days before trial, parties must give detailed information about trial evidence, including:
a. document and exhibit lists; and
b. list of witnesses, designating (1) those who will testify live or by deposition, and (2) those who will be called and those who will be called only if needed.
Within 14 days after receiving this disclosure, a party may serve objections to use of the depositions at trial and to the admissibility of disclosed documents and exhibits. Such objections are waived if not made at this point, except for objections that the evidence is confusing, irrelevant, prejudicial.
How is discovery conducted in Ohio?
In Ohio all discovery is by request.
What is the substantive scope of discovery in Ohio?
1. Standard: "Relevant to the subject matter involved in the pending action." Discover anything that is "reasonably calculated to lead to admissible evidence."
2. Privileged matter is not discoverable.
3. The existence and content of any insurance agreement is discoverable.
What is the substantive scope of discovery in Federal ct.?
1. Standard: "Relevant to the claim or defense of any party." Discover anything that is "reasonably calculated to lead to admissible evidence."
2. Privileged matter is not discoverable.
3. Existence and amount of coverage are subject to initial disclosure.
What is work product and when is it discoverable?
Work product are documents and tangible things prepared in anticipation of litigation by or for a party or his representative. It 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.
Attorneys' opinions and theories receive special protection from discovery.
What is the scope of expert witnesses who will testify at trial in Ohio and Fed?
Ohio: the identity of expert witnesses and the subject of their testimony may be obtained by interrogatory. Subsequent discovery of facts known and opinions held by the expert may be conducted.

Federal: disclosure of identity and written report required. Deposition expressly allowed.
What is the scope of expert witnesses who will NOT testify at trial in Ohio and Fed?
No discovery absent "exceptional need," which means that the party seeking discovery cannot obtain those facts or opinions on the same subject by other means.
Must discovery responses and disclosures be corrected or supplemented if the disclosing party learns that the disclosed information was materially incomplete or incorrect?
YES. Discovery responses and disclosures must be corrected or supplemented if the disclosing party learns that the disclosed information was materially incomplete or incorrect and the new information has not otherwise been made known to the other party.
What is a protective order in discovery used for?
The court may limits discovery if it determines that the burden of the discovery outweighs its likely benefit. The motion for protective order must be accompanied by a certification that the movant has conferred with other parties and attempted to resolved the discovery dispute without court action.
What determinations must a federal court make if it decides to limit discovery?
1. the discovery sought is unreasonably duplicative or is obtainable 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; or
3. the burden/expense of the proposed discovery outweighs its likely benefit.
Is an expert who observed the event in litigation discoverable?
Yes. Treat them like any other witness. You can always obtain discovery from a fact witness
Must electronically stored information (ESI) be produced in discovery?
No. A party need not produce ESI IF it is not reasonably accessible due to burden or cost, UNLESS the discovering party shows good cause.
What are the various discovery tools?
1. Depositions upon oral examination;
2. Depositions upon written questions;
3. Interrogatories;
4. Production of Documents, ESI, and Things;
5. Physical and Mental Examinations;
6. Requests for Admission;
Explain: Discovery before action is filed.
Following a service of a petition and hearing, a 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 documents on petition if necessary to identify a party.
Explain: Discovery after action is filed.
Federal: except for initial disclosures, no discovery prior to discovery conference.
Ohio: Interrogatories and requests for documents may be served w/the complaint and anytime after the action is commenced.
Depositions Upon Oral Examination.
Defined: The taking of sworn testimony of parties or non-parties outside of court and reported by a court reporter.

Deposition of any witness may be compelled by service of notice of deposition (accompanied by a subpoena if deponent is a non-party). Deposition of an organization may be taken by designating the subject of the examination.

Parties (Rule 34) and non-parties (subpoena duces tecum) may be requested to bring documents/things at deposition. Subpoena can be quashed by a written objection served within 14 days.

Objections that can be cured at the deposition are waived if not raised there. Other objections are preserved.

Depositions may be used at trial only (a) to impeach the deponent; (b) for any purpose if deponent is an adverse party, and (c) for any purpose if the deponent is unavailable for trial; (d) OH-witness is an attending physician or medical expert.

If the deponent refuses to answer any question, the proponent of the question has the choice of (i) compelling examination; or (ii) adjourning. The proponent may then move the court for an order directing the deponent to answer.
Depositions Upon Written Questions.
A party serves on all other parties a notice of deposition along with a list of written questions to be asked to the deponent. Other parties then serve cross questions. The deposition is taken by a court reporter who reads the questions and records the deponents responses.
One party may serve another party, whether or not adverse, with written questions, which are to be answered in writing, under oath, in 30 days (Fed) or 28 days (OH).

Limit: not more than 25 w/o leave of court (Fed); 40 w/o leave of court (OH).

Use at trial: party may not use his own answers; answers of others may be used per rules of evidence.

Party answering has a duty to search and furnish such information as is available. When an interrogatory may be answered from business records, and the burden of finding the answer is substantially the same for each party, the interrogated party may permit the other party reasonable access to examine records and make copies.
Production of Documents, ESI & Things; Entry Upon Land.
A party may serve on another party a request for production or entry.

Request to a party: serve request. Response (stating that material will be produced or stating objections) due in 28 days (OH) or 30 days (Fed).

Request to non-party: subpoena must be served with prior notice to all parties. Subpoena quashed if respondent serves timely written objection (within 14 days of service).

The materials must be produced either as they are kept in the ordinary course of business or organized to correspond with categories in the request.
Production of ESI (cont.)
If no form is specified or if the producing party objects to requested form, the responding party must state the form it intends to use and must produce the information in either:
(a) a form in which it is ordinarily maintained; or
(b) a form that is reasonably usable.

A party need not provide discovery of ESI that the person identifies as not reasonably accessible b/c of undue hardship or cost (must show that on motion to compel, or when quashing subpoena). Even if court finds that ESI is not reasonably accessible, the court may order production if the discovering party shows good cause.
Physical or Mental Examination.
Examination is available only of a party and only through court order upon a showing:
1) that the party's health is in issue; and
2) good cause exists for ordering the exam.

Person examined may obtain on request a copy of the examiner's report. Such a request waives person's doc-patient privilege relating to reports by his doctors regarding the same condition.
Request for Admission.
Request to a party to admit the truth of written statements (discoverable matters). Respondent must admit, deny, or indicate lack of sufficient information following a reasonable inquiry. Failure to deny is an admission.

Response due within 28 days (OH) of service or 30 days (Fed)
Can a party withhold discoverable information on the ground that it is privileged or subject to work product?
YES. The party must describe the nature of the things not produced in a manner that enables other to assess the applicability of the privilege or protection.
What should a receiving party do when they receive privileged or protected information?
If information is received 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 the information of that claim. Upon notification, a party must promptly return or destroy the specified information until tha claim is resolved.
What are the signature requirements for discovery.
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 - documents be signed certifying that they are not interposed for delay.
Order Compelling Discovery.
Order compelling discovery may be entered on motion if a party wrongly objects to discovery or fails to respond to discovery requests.
When may sanctions be imposed on a party?
Sanctions may be imposed if a party fails to respond to discovery requests, violates an order compelling discovery, or fails to make disclosures required in federal court.
What are the types of sanctions imposed?
-Establishment order (establish facts as true)
-Strike pleadings of the disobedient party
-Disallow evidence from the disobedient party
-Dismiss P's case
-Enter default judgment against D
May sanctions be imposed on a party for failure to produce ESI?
No. Court may not impose sanctions on a party for failure to produce ESI lost as a result of routine, good faith operation of an electronic info. system.
What are ways to termination a trial?
1. Voluntary dismissal
2. Involuntary dismissal
3. Default judgment
4. Summary judgment
Voluntary Dismissal
A P may voluntarily dismiss his action by filing a notice of dismissal as long as:

Fed: he does so any time before service by the adverse party of an answer or a motion for SJ, which ever occurs first.

Ohio: he does so any time before trial, UNLESS there is a counterclaim which cannot remain pending for independent adjudication has been served by the D.

P may dismiss once of right w/o prejudice. Subsequent dismissal requires court order of stipulation of all parties.
Involuntary Dismissal
The court may, either on motion of a D or on its own motion, dismiss the P's action for:
1. failure to prosecute; or
2. for failure to comply with Fed/OH Rules or court orders.

Involuntary dismissals for:
1. lack of jurisdiction;
2. improper venue (Fed only); or
3. failure to join a party
are w/o prejudice. All other involuntary dismissals are w/prejudice unless otherwise specified by court.
Default Judgment (DJ)
A DJ may be entered against a defending party who has failed to appear,plead, otherwise defend, or obey an order of the court.

Ohio: court must issue DJ. If D appeared, he must receive 7 days notice. If D did not appear, no additional notice is required.

Federal: Clerk of court notes entry of default. Clerk then may enter DJ if the D has not appeared and claim is for a sum certain. Otherwise, court must enter the DJ.
-If D has appeared, he must receive 3 days notice.
-If he has not appeared, no additional notice is required.

An entry of default may be set aside for good cause.

-recovery upon a DJ cannot exceed, or be different in kind from, the recovery prayed for in P's complaint.
-no DJ against minors/incompetents unless represented by fiduciary who has appeared on their behalf.
Summary Judgment
A party is entitled to SJ if he shows:
1. that there is no genuine issue of material fact and
2. that she is entitled to judgment as a matter of law.