The flashcards below were created by user
on FreezingBlue Flashcards.
When does a court have Jurisdiction?
- Personal Jurisdiction
- Subject Matter Jurisdiction
What are proper Methods of Service?
- Certified Mail or Express Mail
- 1) By Clerk of Court
- 2) If Refused, Clerk must notify plaintiff, who may file a request for service by ordinary mail. Service deemed complete on mailing
- 3) If unclaimed, clerk must notify plaintiff, who may file request to send by ordinary mail, which is complete upon mailing unless it comes back showing a failure of delivery
- Personal Service
- 1) By sheriff or Bailee or special Person Appointed
- 2) Served by locating person tendering copy of process and filing return with Court
- Residence Service
- 1) BY Sheriff or Bailiff or by person specially appointed, who must leave process with person of suitable age and discretion residing therein, and filing return of process with court
Who may make service?
- Clerk of Court (by mail or by publication)
- Sheriff (common pleas) or bailiff (municipal) by personal service or residence
- Any Person specifically appointed by the court not less than 18 and not a party.
When can Service be made outside of State
- Defendant Must have purposefully availed himself of the privilege of conducting activities within the forum state (or conduct in connection with state must be such that he could anticipate being hauled in
- AND this conduct or contacts must be examined in light of other fasctors to show personal jurisdiction would comport to fair play and substantial justice.
Minimum Contacts Prong
- contacts are sufficient if a cause of action arises from defendants conduct in state or if defendant has systematic and contnuous business activity in the state.
- Specific Examples under ohio rules include:
- (specific) transacting business in the state
- (specific) contracting to supply goods or servies in the state
- (specific) causing tortious injury by act or ommission anywhere in the state
- (general) causing tortious injury in the state by act or omission outside state if person regularly does or solicits business in state, engages in a persistent course of conduct in the state, or derives substantial revenue from goods consumed or services rendered in state
- (general) causing injury in state by breach of warranty made in sale of goods outside the state if the defendant reasonably expected the injured person to use, consume, or be affected by the goods, and regularly does or solicits business in state, engages in a persistent course of conduct in the state, or derives substantial revenue from goods consumed or services rendered in state
- has a real interest in property in state
- contracts to provide insurance in state
- if a marital case where one partner lives in state and the subject matter is spousal support, child custody, child support, or property settlement
- Causing intentional tortious injury in state by act outside of state if act was committed with purpose of inuring and defendant reasonably expected person would be injured
- Causing tortious injury by criminal act if any part took place in the state and the person committed the act or is guilty of complicity
Fair Play and Substantial Justice Prong
- "What is fair here for purposes of exercising jurisdiction over and individual"
- Substantial justice and fair play in the context of the following public and private interest factors:
- Burden on Defendant
- Forum State's interest in adjudicating dispute
- plaintiffs interest in obtaining convenient and effective relief
- Interstate judicial system's interest in obtaining most efficient resolution
- Shared interests of the several states in furthering fudamental substantive social policies
How can one accomplish Service Outside of the State?
- Certified or express Mail: By clerk of Courts. If refused or unclaimed, may ask clerk to send by ordinary mail. If unclaimed, may then file affidavit showing reasonable due diligence
- Personal Service with written request to clerk by a specially designated person
- Service in Foreign Country: In a manner consistent with foreign law, personal service, upon officer or managing or general agent of entity, any form of mailing by the clerk requiring a signed receipt, as directed by the court, as proscribed by the foreign country in response to a letter rogatory, or under the Hague convention, by service to the central authority, where it will then serve. Hague trumps all others if the country is a signatory
- Service by publication: last resort ony when residence is unknown or where known but certified mail is left unclaimed. Must have affidavit stating residence cannot be obtained with due diligence, clerk publishes in a newspaper of general circulation in county where action is filed once a week for 6 weeks, service complete on last publication
Definition: Transient Presence Jurisdiction
- Service is made to a person while they are temporarily in the state of Ohio (even if for matters unrelated to the action)
- Exception: A person in the state specifically for a legal proceeding cannot be served.
Contract Forum selection Clause
- Contractual agreement to personal jurisdiction in a specific court.
- Enforceable between commercial parties (the sophistication of the parties makes no difference if commercial). Enforceable between noncommercial parties where reasonable and some connection can be shown to the state.
Statute by which non-resident owner of motor vehicle appoints Ohio Sec. of State to accept service of process on non-resident's behalf for actions involving accidents in Ohio.
In Rem (Property) Jurisdiction
Basis for the court asserting personal jurisdiction over property is the presence of property in the state. Owner must have purposefully availed himself of the privilege of conducting activities within the state. Owner must still have sufficient minimum contacts
Subject Matter Jurisdiction.
- Municipal Courts handle exclusively suits for $500 or less.
- Municipal and common pleas have shared jurisdiction between $500 and $15,000
- Common Pleas have jurisdiction for greater than $15,000
- Pockets within state not covered by a municipal court. All of those pockets are now designated as the "County Court." Up to $15,000.
- Federal Court Jurisdiction: Federal Question, Diversity Jurisdiction (Greater than $75,000, diversity of jurisdiction). Amount in Controversy must be satisfied. If the am,ount of $75,000 could be awarded, than it is established, but if it could not possibly, then it is alright. Aggregation of Individual Claims is alright, but defendants cannot join together, nor can multiple plaintiffs join together.
- If non-monetary relief is asked for, then the courts estimate the value of the interest.
- Diversity jurisdiction only needs to exist at the time of filing. The court will retain if it is later destroyed. Diversity Must be complete.
- Supplemental Jurisdiction: Court may address state law claims once it has Jurisdiction.
What is Venue?
For dividing up the work of the courts, you may only bring a case in certain venues. It is the proper location of where to bring a case. It is not appealable error.
Federal Court Venue - Ohio
- Ohio has two federal districts. Federal District Court for Northern and Federal District for Southern Ohio.
- Factors used to determine Venue: If all parties, or a substantial part of the events or ommissions giving rise to the claim occurred, then it is proper venue. If there is neither, then it is a district where the defendant is subject to personal jurisdiction, or in the district in which any defendant can be found
- Residency: Domicile for individuals, and a corp is resident in any district in which it is subject to personal jurisdiction.
- More than one district: Where the corp has contacts giving rise to personal, and if multiple, where it has its most substantial contacts.
Change of Venue: Federal
- When improper, venue may be transferred to the proper venue
- When proper, but inconvenient, transfer may be made for convenience of the parties and witnesses to the district where an action may have been brought.
- At option of plaintiff, venue is proper in any venue or municipality where: defendant resides, where company has its principal place of business, where defendant conducted activity giving rise to claim for relief, or where all or part of the claim for relief arose.
- Special Rules: Where the property is if the action is for real or tangible personal property, where plaintiff resides with long arm jurisdiction, if it is for divorce or annulment, where plaintiff has been a resident for 90 days, if for civil protection where plaintiff currently or temporarily resides,
- If none of the above applies: where defendant has property or debts owing to him which are subject to garnishment or attachment, or where a defendant has appointed an agent to receive service of process.
- Where venue is proper for one defendant, it is proper for all defendants.
Change of Venue: State
- When original is improper: if another proper venue in Ohio, action is transferred to proper venue. If not proper in Ohio, action is dismissed upon consent of all defendants to proceeding in a proper venue outside Ohio; otherwise action proceeds in chosen venue.
- When proper: Action can only be transferred to an adjoining county when it appears that a fair and impartial trial cannot occur. No right to transfer for Convenience.
- Forum non-conveniens: A case can be dismissed and then brought in another jurisdiction where the action should not have been brought in ohio because of lack of convenience and/or lack of local interest in dispute. Presumption exists in favor of plaintiffs choice, however, courts will consider public and private interest factors, taking into consideration interest of witnesses, ease of access to proof, costs, and relative advantages and obstacles to a fair trial. Must be upon consent of all defendants to refiling.
- Some courts are more liberal, and will allow transfer with far less than compelling reasons.
What are the pleadings?
- reply to counterclaim
- answer to cross-claim
- third party complaint
- third party answer
** counterclaims and cross claims are not pleadings, rather they are always part of a responsive pleading, such as an answer
Pleading Special Matters
- Capacity to sue is presumed, but pleader must disclose minority and incompetency
- Fraud and Mistake must be pled with particularity (details)
- Malice, intent, knowledge, and other conditions can be pled generally
- Conditions precedent: a general statement that conditions precedent have occurred is all that is necessary, however, a denial of the performance of a condition precedent must be pled specifically and with particularity.
Rules for complaints which make claims
- complaints, counterclaims, cross claims, and third party complaints.
- need a short plain statement showing entitlement to relief and demand for judgment
- no statement of grounds for subject matter jurisdiction is required
- if based on long arm jurisdiction: complaint must set out the rules or statute on which jurisdiction is based.
- Has to be brought by the real party in interest
- Can plead in the alternative, even if inconsistent
- Minors and incompetents do not have power to sue or defend, but a legal representative may sue on their behalf
- If a claim is based on a writing, must attach copy or explain why not attached
- If claim is for more than $25,000 so state without specifying amount unless claim is based on writing
- Special Damages must be pled with particularity: those that result because of the nature or character of the individual, i.e. lost wages, hospital expenses, etc...
- General damages are those which flow naturally from the wrong.
- Answer, Reply to counterclaim, answer to cross-claim, third party answer
- short plain statement of the partys defenses to each claim asserted
- Either admit, deny, or deny for want of knowledge
- if not answered, then averments in the complaint are admitted.
- Must plead affirmative defenses or they are waived.
- Accord & Satisfaction
- Arbitration and Reward
- Assumption of Risk
- Contributory Negligence
- Discharge in bankruptcy
- Want of consideration for a negotiable Instrument
- Injury by fellow servant
- res judicata (preclusion due to prior judgment(
- statute of frauds
- statute of limitations
Motion for a more definite statement
When a pleading is so vague and ambiguous that the responder cannot make a response, you can make a motion to have a definite statement to clarify the vagueness or ambiguity
- To preserve the right to jury, you must include this, or it is forfeited. Right to a jury trial with respect to all claims. Procedure is to make the demand in one of two ways, either a pleading (including an answer), or by a seperate document. (14 days from the last pleading within which to make a jury demand.
- Federal - jury for over $20
- State - Jury demand for every case
- Once made, a jury demand cannot be withdrawn without consent of all parties.
Responsive Pleadings Containing a Counterclaim
- A counterclaim is not a seperate pleading and must be contained in a responsive pleading (i.e. answer, reply to counterclaim, answer to cross-claim, or third party answer)
- If someone has sued you, they are an opposing party.
- Compulsory Counterclaim: arises out of the subject matter or question of the opposing party's claim. Must be pled or it is barredat the conclusion of the litigation.
- Permissive Counterclaim: does not arise out of the transaction or occurrence on which that party was sued. Can always make a permissive counterclaim, but you are not required to.
- If a party fails to make a counterclaim, the court will permit, while the case is pedning and justice requires it, the party to assert the claim.
- Where a party innadvertanly states a counterclaim as a defense, it is treated by the court as properly pled.
Statute of Limitations for counterclaims
The complaint against the defendant may be filed during the SOL, but the counterclaim may not be. Courts treat compulsory claims as having been filed on the same day as the initial claim (hence retroactive). If it is a permissive counter-claim, then it is time barred. However, one may offset the judgment using recoupment (i.e. it is a set off)
Responsive Pleadings Containing a cross-claim
- A cross claim is a claim against a co-party. One defendant against another defendant. Anyone who has not sued you is a co-party.
- Suibject matter of the cross-claim must arise out of the complaint or a counterclaim to the original complaint
- Cross Claims are never compulsory.
Third Party Complaints
- Claim for indemnity or contribution. Defendant brings in a third party through a complaint for indemnity or contribution.
- Third party complaint becomes Moot when the Plaintiff 's claim against the defendant third party is dismissed.
- Third party can bring in any defense which the defendant can bring against the plaintiff
- Third Party complaints are not compulsory. SOL on indemnification and contribution do not begin to run until the defendant has paid on the claim for which indemnity is sought.
- Third party must be served like all other parties under the same rules in order to have personal jurisdiction