Civil Procedure Course Outline

I. CHOOSING THE PROPER COURT A. State Trial Court S/Matter Juris 1. Court of Common Pleas: 1 ea. county; GEN'L JURIS except <$500 or exclus. J Ct of Claims 2. County Courts: portion of county not subject to a municipal ct.; Exclusive juris <$500, concurrent juris w/ common pleas up to $3000 3. Municipal Ct: $0 to $10,000; only ct of LAW; case must arise in that territory, D served there, or D resides there 4. Ct of Claims: exclus. civil actions v. State for at least $ damages; concurrent w/ C.Pleas for non-monetary relief or if pre-1975 State consented (ct claims established 1975) B. Federal Trial Court S/Matter Juris 1. Federal Q Juris - civil claims arising under Constn, laws, treaties of U.S.; Fed Q must appear on face well-pled Complt (genuine fed Q not just anticipatd defense; defamtn) 2. Diversity Juris a. Amt in Controversy Requirement: -> Ea. P must EXCEED $50,000 for total ALL COA vs. ea./that D (w/o interest & costs) -> 6th caselaw 3 viewpts of case worth: (1) P's viewpt (2) either party (3) party invoking Juris (removal) -> EXCEPT: Ps or Ds common undivided int, lump as unit (co-Ds common deed $50 total not each; partnrshp) -> Pleader believed unless legally certain no way could make the claim (pleader's favor really unless facially defectv) (tort claim can "peek" at merits if convinced no way could make $50,000+) b. Diversity of Citizenship: ALL Ps from ALL Ds; measured time claim filed (1) Indiv. resident "citizen" of state DOMICILED (the 1 state where residence & intend to remain); U.S. citizen domiciled abroad OUT OF LUCK (2) Corp. each state inc. & 1 Prin. Place Bus. (where has bulk of "brain" activities) 3. Removal Juris: state ct but could bring originally fed ct a. if fed Q in state suit: can remove; fed ct can dismiss/remand (1) under supplemental J, non-removable claims closely related to fed Q or (2) under removal statute, separate & indep. state law dependent claims b. if diversity suit: removable only if ALL claims in case meet diversity requirements & no D is citizen of State where action brought C. Territorial Juris (in personam) 1. Presence in State a. Physical Presence of Indiv.: mere phy. presence corp. agent not enough over corp. b. Physical Presence of 1's Propty: provides Juris for in rem suit; non-in rem 1 contact in min. contact analysis 2. Citizenship: if "citizen" (domiciled) of state, s/to personal Juris of that state 3. Consent to Juris: (a) express (b) Implied by non-contested appearance; raising permissive claims; engaging in certain activities implies consent to state Juris by statute 4. Minimum Contacts Territorial Juris a. Constiutional Test MINIMUM CONTACTS (1) Can't exer. pers. J unless consistnt w/ Due Process, but states CAN LIMIT if want (docket ń) (2) TEST FACTORS: (a) Whether D purposefully availed himself of state such that he could reas. anticipate being haled into court there (b) Quality & Quantity D's contacts, ties & relations to State (Are contacts Sufficient? Imprtant? Continuous?; might be enough alone) (c) Extent to which COA arose out of or is related to D's activities in the state (d) Fair & orderly Administration of the laws (convenience of ct & state's interest in case; won't DEFEAT Juris if a-c already met) b. State Long-Arm Statute (1) Unclear if intended to be more restv than Due Process/Minimum Contacts based Juris (2) Can reach outside borders to s/to State Juris if: (a) transacting bus. in state (1 trans. not enough) (b) K'g to supply goods/serv. in state (c) act/omission in state caused tortious injury ANYWHERE (d) act/omission outside state caused tortious injury in Ohio if D (i) reg. does/solicits bus. here (ii) persistent course conduct here, or (iii) derives substan'l revenue in Ohio (e) if D sold goods outside Ohio, reas. expected would use in Ohio, W breached & injury & D (i)-(iii) above (f) interest in real property in state (g) K'g to insure person/propty/risk in Ohio (h) for "incidents" of marriage relationship had in Ohio, if other party still resides here (i) act outside state causing tortious injury in Ohio where reas. expect person might be injured (j) element of criminal act in Ohio that caused tortious injury (3) If met Constn'l test, but not long-arm, might/might not allow personal Juris D. Venue and Change of Venue 1. Venue in State Courts of Ohio a. Proper Venue in Ohio: 3-step Analysis: (1) 9 areas county has venue: D's residence, D's Prin. Place Bus., D acted to cause injury, Prin. office if D public off'r, Property is for In Rem, All/part Claim arose, If long-arm P's residence, Co. where Ex./Adm./Guardian/Trustee apptd, Divorce/Annulmt/ Legal Sep. co. where P resident for at least 90 days prior (2) If can't meet ANY of these, then where P's residence, prin. place bus. or place reg. bus. activity (3) If STILL can't meet, then co. where D has propty/debt owing s/to attach or garnishmt or has statutory agent -> "COUNTY" means all/part of co. the ct covers b. If multiple Ds and/or Multiple claims venue good for ANY 1 PARTY and ANY 1 CLAIM good for ENTIRE suit, even if later drops out/dismissed (fed requires good venue for each party & claim) c. If Multiple Venues Available some say P's choice; others specific place controls over more general d. Change of Venue in Ohio: (1) D can file TIMELY object to venue, then ct MUST TRANSFER to proper venue, w/ costs if PURPOSEFUL (fed can transfer OR dismiss) (2) D defaults ct sua sponte can still transfer to proper venue; D new 28 days to respond (3) Even if venue proper ct can transfer to improper adjoining co. if nec'y for fair/impartial trial e. No Proper Forum IN Ohio: (1) P given 60 days to file elsewhere w/ D waiving venue, pers. Juris, Stat of Lim (or dismissed) (2) If D won't agree & no proper venue elsewhere, Ohio WILL HEAR IT f. Forum Non Conveniens: s/matter, pers. & venue good here but circum. warrant dismiss & file another st/country g. Must file lis pendens notice for actions re: real propty in co. where propty located h. Attacking Venue: must do beginning of case; no interlocutory appeal; can't collateral attack later in difft suit (as can s/matter or pers. Juris) 2. Venue in Federal Courts a. Venue lies: FOR BOTH DIVERSITY & IF NOT SOLELY ON DIVERSITY: (1) ANY judicial districts Ds "reside" IF THE DISTS IN SAME STATE (D1 NDOhio & D2 SDOhio, either OK) -> "reside" is domicile for person; anyplace s/to fed. terr./pers. Juris for corp. (2) Judicial Dists substant'l part events/omissions forming claim occurred, or substant'l part propty s/of suit is located (3) (a) For not solely diversity, if these don't work, any judicial dist. where ANY 1 D can be found (b) For solely diversity, judicial dist. where Ds s/to pers. Juris at time action commenced b. Change of Venue in Fed Cts: (1) If venue proper, š 1404 transfer, when in interests of justice (FNC factors), to ct could have brought (2) If improper, š 1406 transfer where might have been brought or dismiss c. Forum Non Conveniens: When s/matter, terr. & venue proper, but another clearly better forum has at least s/matter & has/or will waive terr. & venue (usually foreign) II. COMMENCEMENT OF AN ACTION A. Initial Requirements 1. Filing + Serv. of Process (getting Pers. J) w/in 1 year a. Can get Pers. J by service, D voluntarily appears, D waived in K b. If get serv. post-1 yr some allow to proceed (if SofL hadn't run by serv.); others say must refile c. Rule must get in-state serv. w/in 6 mos.? If pursuing serv. diligently get 1 yr; otherwise dismissed w/o prejudice to start over 2. Must file COMPLAINT b/4 COA has run a. Running of SofL interrupted by: (1) Conduct of D (a) if case arose in Ohio, anytime D outside state for any reason or absconded/concealed himself, THAT TIME DOESN'T COUNT (b) BUT, if out for bus. reasons doesn't toll or if outside simply b/c foreign corp. (2) Disability of P (minority/mentally ill) -> Doesn't start til disability lifted, or interrupted if adjudicated or institutionalized b. Savings Statute (1) Applies suits in OH cts & fed ct suits s/to OH SofL (2) Says if suit commenced/attempted to commence(serv.), then dismissed/rev'd for technical reasons AFTER SofL run, can refile w/in 1 year B. Service of Process 1. Methods for Service: cert. mail, personal & residence serv. a. Certified Mail: most common; sent caption address unless otherwise told, anyone postal regs allow to sign can, mailing noted on docket & receipt/return envelope put in file, if doesn't work P atty notified b. Personal Serv.: written request to physically hand to D c. Residence Serv.: written request to take & leave at residence w/ person suitable age/discretn living there 2. Persons Making Service: a. Court official, person 18 or up not party & designated process server ct order b. Note in file & to P's atty if can't do in 28 days; valid even if done after 28; poor file notes don't destroy valid serv. 3. In-State Service Can be Made On: a. People: 16 or up not incompetent; under 16 or incompetent serv. parent/guardian or person if none b. Corptn: entity itself by cert. mail; offrs/directors; agent for process c. Govt entity: offr resp. for it or atty who defends it 4. Out-of-State Serv.: a. Certified Mail: to last kn address; if fails serv. COMPLETED when atty files affidavit re: lack address b. Personal Serv.: permitted if ct by order OKs 5. Service by Publication a. Due Process requires notice reas. calculated, under all the circum., to inform D of nature/pendency of COA b. Publication doesn't meet; last resort if nothing else c. Can use service by publication when: (1) Residence of D unkn after using reas. diligence (ck'd city dir., credit bur., co. recds, neighbors) and statute for action allows publication serv. (a) Atty files affdvt; clerk publishes notice in paper gen'l cir. (includes local ct news) in co. where suit filed, 1X week for 6 weeks, then serv. complete (2) Forma Pauperis Divorce, Annulmt, Legal Separatn and D residence unkn (a) Atty files affdvt; clerk must post notice at cthouse & 2 public places for 6 weeks & send summons/complant ord. mail w/ forward plea d. When D's residence known, must use other forms of serv. first, even though statute allows for publication serv. 6. Service of Process in Foreign Country Can be done by: (a) same method as out-of-state (b) publicatn if appropriate (c) by foreign law if reas. calculated to give notice (d) manner stated in letter rogatory to country when asked for help (e) indiv. personally (f) corp/partnershp/ass'n by delivery to offr, managing/gen'l agent (g) any mailg required signed receipt (h) ct ordered method 7. Amending Process: minor errors in process/proof of process can be amended w/in ct discretion if no material prejudice 8. Service Refused/Unclaimed a. If refuses serv. in any form, DON'T have to retry; can send ord. mail & serv. complete when fact of mailing entered on docket (even if returned undelivered) b. If cert. mail unclaimed thru no fault of D, P told & DON'T have to try other; can send ord. mail w/ rebuttable presumption good UNLESS returned undelivered III. PLEADINGS & MOTIONS A. Types of Pleadings: complaint, answer, reply to ctrclaim, ans. to cross-claim, 3P complaint, 3P answer (ALL OTHERS MOTIONS) -> Usually claim, then response unless special motions B. Mechanics of Pleading 1. Forming of Pleading: caption, #'d paragraphs, claims by count, 8 1/2 x 11, attached instrument if claim basis 2. Signature of Pleadings/Motions: a. No verificatn required, but atty signature means read it; to best of knowledge, info, belief goods grounds to support it; not interposed for delay b. Ohio on face less than federal Rule 11: (1) Fed requires reas. inquiry b/4 well-grounded in fact & law; Ohio doesn't (2) Fed says not filed for ANY improper purpose; Ohio only that not for delay (3) Fed uses objtv reas. atty standard; Ohio looks to subjtv state of mind & whether willful -> But OH cases interpreting like Fed (reas. inquiry) c. Ohio rule says atty s/to appropriate action for violation; interpreted as rept to disciplinary body, but other cts say other remedies too (costs, fees) 3. Time a. Computation: (1) Date of act NOT included & last day INCLUDED unless Sat., Sun., legal holiday; (2) normally count Sat/Sun/holiday in days running UNLESS MUST DO IN < 7 DAYS; (3) office closed early you get next day b. Extensions of Time: (1) if wait til time ran must file motion & show excusable neglect; (2) motion must be served 7 days b/4 heard (SJ & Mot. New Trial 14 days) & opposing affdt 1 day b/4 heard; (3) NO time extensions for Motion JNOV, New Trial, Seekg Relief from Judgmt c. Addt'l Time w/ Mail Serv.: except complaint, served as of day mailed; 3 days added to time to respond C. Basic Framework of Pleadings -> Pleadings should be simple, concise, direct; can plead hypos, in the alternative or inconsistencies 1. Claims for Relief: a. short plain statement of claim showing entitled to relief (to give notice to D) [if don't, s/to 12b(6)] b. If long-arm relied upon, state what part c. State what relief you want (dec. Judgmt, spec. perf., $ amt unless tort claimg over $25,000 then just that it exceeds $25) -> DON'T NEED TO PLEAD S/MATTER JURIS (Fed you do) 2. Answer: a. Includes affirm or deny, affmtv defenses, claims against others b. DENIALS: must make diligent effort to respond; if can't, non- positive denial form w/o info OK; admitted unless denied or inefftv denial, EXCEPT DAMAGES c. AFFIRMATIVE DEFENSES: even if admit complaint, I get to avoid the consequences; must raise or waived. THEY ARE: accord & satis., arbitration & award, assumptn of risk, contrib. neglig., disch. in bankruptcy, duress, estoppel, failure of consideratn, want of consideratn for nego. instrumt, fraud, illegality, injury by fellow servant, laches, license, paymt, release, res judicata, Stat of frauds, stat of limtns, waiver d. P doesn't respond to Answer; assumed denied 3. Presenting Defenses & Objections: a. Must respond to claim for relief w/in 28 days after serv. unless Rule 12 Motion, then 14 days after ruling b. Can plead in Answer or Motion (1) s/matter Juris (2) personal juris (3) improper venue (4) insufficiency of process (paper w/ complaint insufft) (5) insufficiency of serv. of process (6) failure state claim upon which relief may be granted (7) failure to join party under Compulsory or Permissive Joinder -> If decide to use Motion, must assert any & all in 1 motion; These must be heard b/4 trial if you ask c. Motion for More Definite Statemt: claim insufft to answer; 14 days to correct d. Motions to Strike: for n/a claims, defenses, redundant, immaterial, scandalous e. Waiver of Defenses & Objections (1) Lack of pers. Juris, improper venue, insuff. process or insuff. serv. of process WAIVED unless in preAnswer Motion or in Ans./or permitted Amendmt (2) Failure to state claim, Join an Indispensable Party, failure to state legal defense to claim can be made pre-Answer, Answer, other Response pleadg, Motion for J on pleadings or even at trial (3) S/matter Jur NEVER waived; can raise 1st on appeal 4. Pleading Special Matters a. Capacity to sue someone or be sued don't need to allege b. Fraud or Mistake allegatins must state specific circum. c. Intent'l tort claims require addt'l specificity d. Condtns Precedent complied w/ can be pled generally e. Time and place allegations considered material f. Special damages (not nat. consequence of what you've pled) must be specifically stated 5. Amendments a. Amendments allowed: (1) 1 as matter of course b/4 responsive pleadg filed (P gets 28 days to amend after D files answer) (2) By written consent adverse party (3) By leave of ct, freely given when justice requires b. Amending Pleadings to Conform to Evidence: new issue at trial OK if (1) no surprise, (2) parties agreed, (3) extension if surprise but addresses merits & not prejudicial. Can amend pleadings to conform to new issue IF WANT TO c. Relation Back of Amendments (Stat of Limtns ran) (1) Amend to change claim/defense relates back & so OK if arose from same conduct/trans./occurrence did or tried to assert in original pleading & SAME PARTIES (2) Amend to change party claim against must arise from same trans./occurrence AND w/in original SofL absent party knew of action & knew/should have but for mistake would be in the case (3) Amend to replace name of a "John Doe" unkn party OK where said in claim couldn't discover name, reas. desc. given, summons said name unkn, serv. w/in 1 yr Complt (some don't allow Doe for multiple mfrs) D. Complex Litigation - PARTIES 1. Real Party in Interest: 1 who benefits/injured by Judgment unless in proper reptv capacity 2. Permissive Joinder of Parties (Rule 20) (bunches of Ps/Ds) a. Ps can join in 1 action if assert any rt to relief from, or Ds can be joined in 1 action if asserted against them rt to relief arising out of: the same trans./occurrence or succession/series of trans./ occurrences AND they have Q of law or fact in common -> (2 AAs 6 mos. apart; both Ds named) 3. Necessary & Indispensable Parties (Rule 19) a. Must join as a party, if feasible, when: (1) complete relief can't be granted in their absence (2) their absence would impair or impede their ability to protect their interests (3) someone already a party would be s/to substant'l risk of multiple obligations if not joined or (4) Assignor/assignee or Subrogor/Subrogee relationshp -> Affirmtv defense that's waived if not raised; if join may push $ up to next ct b. If 1 of these exists BUT NOT FEASIBLE to join: Ct must decide if fairer to go forward (dispensable) or dismiss (indispensable). SOME CONSIDERATIONS: (1) Extent J in absence might prejudice person or current parties (2) Extent that protectv provisions in J can lessen, waive or avoid the prejudice (3) Whether J in person's absence will be adequate (4) Whether P will have adequate remedy if dismissed for non- joinder 4. Compulsory Joinder (Rule 19.1) (Ohio only) -> Person not w/in 19 but close connection to case; case CAN'T be dismissed if can't bring them in but will insist you do if can *Unless good cause shown (minor) -> Must raise as 12b defense or lose it Governs: (a) suits for decedent claims & wrongful death (b) spouse's damages from act to other spouse (c) damages to minor & claim by parent/guardian (d) damages to e/ee & e/er PD claim -> Court can raise joinder problems on its own; if misjoined claim simply severed & case continues (ANALYSIS: Is the Party any (a)-(d) of COMPULSORY JOINDER? If yes, STOP. If no: Are they NECESSARY OR INDISPENSABLE? If yes, are they NECESSARY ONLY or INDISPENSABLE? Necessary only, proceed. Indispensable, STOP. If not necessary or indispensable, ARE THEY A PROPER PARTY TO PERMISSIVELY JOIN? If yes, OK; If no, they're OUT) 5. Interpleader: a. OHIO (rule interpleader) holds property s/to competing claims; can sue on own or raise by Counterclaim after 1 of the 2 files b. FED (rule interpleader) & statutory interpleader which requires deposit of stakehold, easier to enjoin other pending actions, only $500 for diversity, diversity required for claimants to stake & only minimal (just can't ALL be from same place) 6. Class Actions a. Minimum Requirements ALL cases: (1) so numerous joinder all impracticable (25-40+) (2) common Qs law or fact to class (3) reps claims/defenses typical of class (4) rep will fairly & adequately protect class ints -> Atty can't also be member of class b. Then at least 1 of these: (1) indiv. suits could have inconsistent results establishing inconsistent conduct standards for D (2) indiv. suits would dispose of others' interests or impede ability to protect their interests ($ low) (3) D acted on grounds applicable to class, making final injtv/declar. relief appriate for whole class (4) Ct finds Qs law or fact common to members predominate & class action superior way to handle (consider member int. in indiv. control, claims already going, pros/cons of 1 forum, class mangemt difficulties) (MASS TORTS, SINGLE INCIDENTS) -> Here, must give best notice practicable under circum. w/ oppty to OPT OUT c. Ct should decide if class ASAP; can be just for issues or damages; or set up subclass w/in class; class certn final appealable order; claims aggregated for Juris $ d. Can't dismiss/compromise w/o ct approval after NOTICE TO ALL MEMBERS AS CT DIRECTS (for all types) e. Shareholder Derivative Actions (form of class action) -> (1) VERIFIED complaint; (2) made demand on corp. to act; (3) s/holdr at time of events; (4) rep. will fairly & adequately rep.; (5) Dismiss/Compromise only upon Notice & court approval 7. Substitution of Parties a. Death or Incompetency of Party: (If action survives) Atty SUGGESTS on record w/in 14 days of knowledge & then 90 days to substitute or dismissed w/o prejudice b. Death or Change of Public Officer: Automatic substn when suit against the "office" E. Complex Litigation - REMEDIES 1. Seizure of Persons or Property: to secure a judgment yet to be entered, might allow seizure first & hearing after (interests balanced to determine if appropriate) 2. Injunctions: temp. restraing order; preliminary & permanent a. TRO: ex parte where emergency w/ irreparable threat of injury & can't give notice to D -> File VERIFIED complaint detailing threat & notice attempts; If granted Ct makes findings & what's restrained; DISFAVORED; good 14 days w/ 1 same extension; top calendar priority; D can seek modiftn/dissolution b. Preliminary: to preserve status quo pending resolutn -> D gets notice; hearing where ct weighs P's likelihood of success on merits & comparativ harm to P, D and public -> If granted, ct makes specific findings & what's restrained -> BOTH OF THESE PARTY SEEKING ORDER MUST POST SECURITY F. Complex Litigation - CLAIMS OF OTHER PARTIES 1. Compulsory Counterclaims If claim currently mature at time pleadg responded to, arises out of trans/occurrence of other party's claim, and doesn't require joinder of someone who can't be joined MUST RAISE OR CLAIM IS WAIVED 2. Permissive Counterclaims CAN BRING: ANY claim against opposing party, later matured counterclaim, or same trans./occurrence but not compulsory (e.g. case already pending elsewhere) -> If inadvertently forget by excusable neglect to include, can move to amend to include 3. Cross-Claims (NOTE: C-C is co-parties & haven't yet filed claim against you; if had yours would be counterclaim) a. Can only be asserted by 1 whose had a claim asserted against them (2 Ps can't C-C unless D would counterclaim them); must be transactionally related to suit (indemnificatn OK) b. Always permissive; D didn't choose forum & not an initial claimant so can't clutter w/ unrelated matters c. Once have a valid Cross-Claim, under Joinder of Claims rule, that party can add in ANY OTHER EVEN TOTALLY UNRELATED CLAIMS as wants to -> Joinder Rules apply to Counterclaims & Cross-Claims -> If $ up can certify up or separate trials if too complex G. Complex Litigation - CLAIMS OF 3rd PARTIES 1. Impleader: ANYONE w/ claim against them who thinks non-party out there who is or may be liable for all or part of claim (indem./subrog./contrib.) files 3P Complaint a. 3P D is just like another other D b. Can raise any defenses original 3P P had against person bringing claim against them (b/c derivative liability) c. Can raise trans. related claims against other parties d. Under Joinder Rules, once have 3P claim, can raise ANY other claims you want to e. B/C of potential complexity, any party can move to strike 3P claim or sever or separate AND P has absolute rt to separate trial if 3P D is e/ee of 3P P 2. Intervention a. Regardless if statutory or non-statutory interventn of rt, or permissive interventn, request must be TIMELY (how long knew of case & impact on parties) b. Intervention of Right: have interest relating to property/trans. that's s/of action & so situated that if suit proceeds, your interest impaired or impeded -> No other parties adequately represent your interest b/c divergent & not just difference in litigation strategy -> Possibility inconsistent verdict or double exposure c. Permissive Intervention: when claims have Q of law or fact in common, or agency/offr seeks where law it administers is s/of the action -> DISCRETIONARY; will it unduly delay proceedings or prejudice rights of original parties? H. Complex Litigation - THE COURT -> Broad discretion of complex cases to order separate trials of claims/issues to further convenience or avoid prejudice IV. DISCOVERY (free/open exchange policy; self-executing) A. Limitations on Scope of Discovery 1. Privileged Information 2. Work Product Doctrine a. Protects documents & things prepared in anticipation of litigation UNLESS good cause shown or own W statement (not entitled to atty's mental impressions either) b. Doesn't protect core FACTS (facts learned from W statemts or eyewitnesses ID'd to accident) 3. Expert Witnesses a. Outside experts retained or specially employed in anticipation of litigation: (1) Can discover facts known or opinions held by such expert upon showing undue hardship or exceptional circum. (only expert in area or item destroyed) b. For experts who are not retained or specially employed in anticipation of litigation: (1) Experts actors or views in basic dispute; ord. Ws (2) Experts informally consulted (not hired); immune (3) E/ees assigned to do expert work; split on whether covered by rule or just work product doctrine c. For experts testifying at trial: (1) Can discover by interr. ID of expert, s/matter of testimony (2) Can then discover facts kn & opinions held relevant to s/matter & previously given to atty or to be given on direct exam (so can prepare cross) (3) might also have to pay expert fee to respond 4. Protective Orders: vexing, harassing conduct or privileged 5. No duty to supplement if complete when made unless incorrect, requested to do so or unless W names/addresses B. Depositions (only disc. device against non-parties) 1. Types: (a) petition to perpetuate testimony (depo pre-filing); (b) depo on written Qs; (c) depo on oral exam 2. If corp./entity can describe what you need & ask them to designate the proper person 3. Depos and Objections: if could be cured in depo (compound Q) must raise or waived; if couldn't be cured in depo can object anytime (not just depo); answer unless so out of line need recess or protectv order C. Interrogatories (written Qs) 1. Only thing prohibited is pure Q of law (define neglig); can ask facts, conclusion, opinions, applicatn of law to facts 2. Ltd to 40 (including subparts) unless show good cause 3. Business records: if = ascertainable for both, can just allow them access D. Productn of Documts (from party; non use subpoena duces tecum) 1. Must ID documents w/ reas. particularity materials in other party's poss'n, custody, or control (& they must get it) E. Mental/Physical Exam (requires ct approval; not self-executing) 1. Court will order if condition in controversy (relevant) & good cause shown (exam appropriate & don't already have access to the info) 2. Applies to party or 1 in party's control 3. Ohio waives dr-pt privilege any civil action where physical condtn in controversy 4. 1 examined entitled to rept; if ask, waive dr-pt privilege of any other recds as to condition F. Admissions (if ignore it's admitted) 1. Admit truth of facts, opinions, applic. of law to facts, genuineness of documents; must admit or deny or state grounds of insufft info to admit/deny 2. Ct allows w/draw or amendmt of admission if no prejudice & other party hasn't already relied on it 3. If unjustifiably fails to admit & proved at trial can assess the costs in proving G. Sanctions 1. If completely unresponsive seek can IMMEDIATE sanctions 2. If incomplete file motion to compel w/ costs if appropriate; if that's ignored can then seek sanctions (contempt, fine, dismissal) H. Use of Discovery at Trial 1. Interr. can be used to impeach if now give difft answer 2. Admissions are BINDING; jury told as established facts 3. Depos of ADVERSE PARTY can be used any purpose (impeach or direct); of OTHERS can be used to impeach or direct if former testimony exception or dr. testifying -> FAIR USE CONCEPT: when 1 uses depo portion, other has ABSOLUTE rt to put the material in context V. PRE-TRIAL PROCEDURE (ct rules to manage pre-trial process) 1. To (a) encourage settlement, (b) simplify issues for trial by exchange of info, damages, expert/med reports, admissions, experts at trial, genuineness of exhibits, etc. and (c) coming up with pre-trial order to govern trial; modified only to prevent manifest injustice VI. ADJUDICATION W/O TRIAL A. Default Judgment (last summer) 1. Pure Default Judgment (no response) Notice REQUIRED if D has appeared (filed ans. late), otherwise OPTIONAL; Even though complt allegtns deemed admitted, ct discretion to hold 1 if wants & MUST hold if needed to set damages 2. Opponent Partially Participates (drops out) Must prove case via ex parte trial b/4 judge 3. Unrepresented minors/incompetents or state cannot default 4. D.J. can be set aside on Motion for Relief from Judgment B. Dismissal of Actions (summer 1989) 1. Voluntary Dismissals (dismissed not on merits; w/o prej. and not res judicata) a. P can file notice/dismissal b/4 trial commences (EXCEPT class actions or receivership) (usually w/o prejudice unless D has counterclaim or P did this b/4) b. Stipulation of all parties (must state w/ prejudice if want that; usually b/c settled) c. Order of the Court (when P can't dismiss voluntarily b/c maybe Counterclaim; w/o prejudice unless otherwise) 2. Involuntary Dismissals a. Penalty Dismissals: to comply w/ rules or prosecute; NOTICE REQUIRED; w/ prej. b. Others also w/prejudice unless otherwise noted (12b6) c. Some invol. not on merits so w/o prejudice: savings statute, lack of pers. or s/matter juris, failure to join party, lack of venue, failure to sub. decedent, failed to make 6 mo. in-state serv. C. Summary Judgment (winter 1991) 1. No genuine issue material fact for factfinder & entitled to SJ as matter of law; reas. minds can come to only 1 conclusion; motion viewed in light most favorable to non-moving party; can be for some or all issues of case 2. Procedure for SJ a. Timing: D can seek ANYTIME; P after responsive pleading time passed; ct appr'l required if trial/pre-trial set b. Proof Considered: Pleadings, depos, ans. to inter., admissions, affdvts, transcripts, stips of facts c. Using Affidavits: on pers. knowledge, facts/opinions admissible in evidence, affiant competent to testify d. Burden of Proof: Movant shows on his evidence no genuine issue; opponent pts to other info making genuine issue or that premature to decide VII. TRIAL A. Non-Jury Trial: D can move to dismiss close P's case & ct can grant or deny; no requirement ct do findings & conclusions unless party files timely request (appeal time tolled til done) B. Trial by Jury 1. Right to Trial by Jury a. (1) For legal actions recognized at common law; (2) purely equitable no rt to jury trial; (3) Combined legal & equitable case, if incidental to each other look at which claim predominates & if not incidental ct separates (4) Statutory COA jury trial if expressly stated & some say if ONLY legal relief provided (5) Declar. J or Class Actns rt judged by underlying claim b. Punies: tradt'ly jury Q; tort reform says jury decides if given & judge sets $ c. Jury Demand: by any party in caption or separate motion NO LATER THAN 14 DAYS AFTER SERV. OF LAST PLEADING ON THAT ISSUE (later motion may be granted) d. Maximum jury is 8; can ask for less e. Jury Demand Granted, Unless: (1) by written or open ct oral stip. parties w/draw it (2) not rt kind of case for jury trial (3) Party demandg didn't answer/appear for trial f. Advisory Jury: if judge wants; not binding g. Trial by Consent: if parties agree & ct wants it, even though no right to jury trial in the case 2. Jury Selection a. Voir Dire: Q/A for info; by parties or if by ct must allow attys to supplement the Qs (not in fed ct) b. Challenges to Jurors: (1) "For Cause": unltd for (a) special relatnshp to parties/counsel (b) fairness (c) unqualified; (2) "Preemptory": 3 ea. side for any reason except racial discrim. -> Exercised by cause until required #; then use pre-empts by rotation (don't on your turn it's waived); done when all pre-empts used or P&D both waive c. Alternate Jurors: discretionary up to 4; substituted in order for regular juror; can sub up to deliberations 3. Instructions to Jury a. Party can file proposed at evid. close or when ct directs; ct must tell attys ruling b/4 closing; instns given after closings b. MUST object to instns after jury charged & b/4 retire EXCEPT if instn PLAIN ERROR (clear & had signif. impact on outcome) can raise on appeal though didn't object 4. Verdict: doesn't have to be unanimous (3/4) unless less than 4 jurors a. Post-Verdict: Read by judge, asks jurors as group if their verdict, polls indiv. if party requests b. Verdict Defects: If defective in substance or assent (# of jurors not enough) mistrial or sent back to correct; if defectv in form, ct can correct w/ juror assent c. Form of Verdict: every case get gen'l verdict (who won & what relief) AND special inter. MUST accompany gen'l verdict if (1) any party requests (2) b/4 closing (3) and deal w/ determinatv issues (ct discretn on Q form) -> If gen'l verdict & special interr. don't match, ct can (1) follow answers (2) return to deliberate (3) order new trial C. Entry of Judgment 1. Judgment is any order from which an appeal lies a. Usually end of case but ct can enter final J as to discrete claims w/in a multiple claims case 2. Grant of Motion for New Trial or Motion to Reopen Judgment are treated as appealable Js in Ohio (not fed) 3. Demand for Judgment a. If D.J. only get relief prayed for (D w/o notice) b. If not D.J. ct can give any relief appropriate though not requested EXCEPT if $ max. you demanded (not fed) so can amend as matter of rt up to 7 days b/4 trial & after is discretionary c. Costs usually pd to prevailing party 4. Entry of Judgment a. Judgments must be in writing, signed by Judge and entered upon the journal (THEN journal date efftv for appeal) b. Notice of entry served on parties usually by sending to atty (mail, fax, delivery); THEN COMPLETE even if atty doesn't get the actual notice VIII. POST-TRIAL MOTIONS A. Directed Verdicts & Judgments Notwithstanding the Verdict 1. Apply in jury trials & judge b/c extraord. circum. decides instead of jury; strict standard; DV made b/4 jury deliberates; JNOV after jury returns (hung jury or verdict) 2. Directed Verdicts a. Can be made (1) on opponent's opening statemt (2) close of opponent evid. (3) close all evid. b. Judge construes all evidence most favorable to non-movg party (all credibility stuff & inferences) c. If only 1 verdict reas. minds could reach, then only possible verdict as matter of law d. Similar to S.J. EXCEPT S.J. usually made b/4 trial based on documentary evid. & D.V. at trial baed on admitted evid. (both ask whether evid. so 1-sided party must prevail as matter of law) 3. Judgment Notwithstanding the Verdict (Fed only if asked D.V. at close of all evidence; not OH) a. Make w/in 14 days Entry of Judgmt or jury discharged b. Same standard as D.V. (b&c above) c. Ct can deny/grant Motion OR ORDER NEW TRIAL EVEN IF NOT REQUESTED (if not enough for D.V. but new trial approp) -> Ct required to justify in writing, w/ Entry of Judgment basis for granting D.V. or JNOV d. JNOV & MOTION FOR NEW TRIAL (1) Filed together a lot; find in my favor, but if not at least give me new trial; ct rules on both (2) So if granting JNOV, makes condtn'l ruling on Motion for New Trial (3) If grant of JNOV rev'd/vacated by app. ct: (a) any motion for New Trial condtnlly granted proceeds (b) any motion for New Trial condtnlly denied can be argued on appeal e. If JNOV denied by trial ct, if app. ct reverses party who lost his verdict can argue on appeal grounds why should get New Trial B. Motion for New Trial 1. Procedures & Timing: By motion or ct sua sponte; must serv. motion for new trial w/in 14 days after entry of judgment or court must order w/in 14 days (supptg affdvts filed w/ motion & opponent 14 days to serv. opposing affvts) 2. Grounds for Granting: a. Irregularity in proceeding causing unfair trial (ans. jury Q outside counsel) b. Misconduct of jury or prevailing party (quotient $) c. Accident/Surprise Ord. Prudence Couldn't Guard Against d. Excessive/Inadequte Damages from Passion/Prejudice e. Recovery Amt Error when K action or Property injury f. Judgment not sustained by manifest weight of evidence (1) Comparison with DV & JNOV: (a) For DV/JNOV & New Trial both determine whether verdict justified, BUT (b) DV/JNOV: could reas. minds differ as to outcome -> all presumptns by judge in favor non-movg party (c) MOTION NEW TRIAL B/C J AGAINST MANIFEST WT OF EVID: judge doesn't care if sufft evid. that reas. minds could differ; instead whether enough evid. that decision reached wasn't against the manifest wt of evid., by INDEPENDENTLY WEIGHG EVID., ISSUES OF CREDIBILITY, INFERENCES (clear, firm conviction jury decision wrong) g. Judgment is Contrary to Law h. Newly discovered material evidence that w/ reas. diligence couldn't be discovered & produced at trial -> only if in existence at time of trial i. Error of law occurring at trial brought to trial ct's attn by movant (judge changes mind) j. Any good cause shown in sound discretion of court 3. If motion timely ct doesn't have to use grounds you raised! But must notify other side; written grounds if grant a. Non-jury trial just reopen to resolve; jury start over C. Relief from Judgment or Order (summer '91 w/ default rule) 1. Clerical Mistakes: ct can correct 2. VOIDABLE Judgments: ct had authority to make J (s/matter & terr. juris) but J should be reopened b/c certain circum. a. Must move w/in reas. time, not exceeding 1 year if mistake/excus. neglect, new evid. or fraud b. Grounds to Reopen Judgment: (1) mistake, inadvertence, surprise, excusable neglect -> D didn't get serv. thru no fault of own (2) newly disc. evid. that by due diligence couldn't be discovered in time to move for new trial (3) fraud, misreptn, other misconduct of adverse party -> Put on perjured testimony (4) J's been satisfied, released or discharged; prior J on which J based rev'd/vacated (ct denied you oppty to argue something based on res judicata or collateral estoppel of another action & J in other action rev'd); or no longer equitable that J have prospective application (but change in circum. making no longer equitable must have been unforeseeable at time J granted; e.g. injunctions) (5) Any other reason justifying relief from the J -> 3P bribed judge c. Must also show if ct did reopen, you have meritorious claim/defense so case might be resolved difftly d. NOT AN APPEAL SUBSTITUTE (same evid. from trial record but missed time to appeal) IX. RES JUDICATA/COLLATERAL ESTOPPEL A. Res Judicata (claim preclusion) If valid final J on merits in 1st case, can't relitigate same claim bet. same parties or their privies 1. What's a Claim? a. Modern Test "Transactional": every theory arising out of that trans. must be sued for at 1 time b. Ohio (more narrow): Just b/c new claim arises out of same s/matter or incident insufft; are the facts nec'y to sustain your claim the same in 1st action as in 2nd? (if so, same claim; if not, not res judicata) B. Collateral Estoppel (issue preclusion) (summer 1988) 1. An issue of fact or law actually litigated in 1st case & determined by final valid J & the determination was essential to the J 2. Determination binding if 2nd case same parties or privies and had a full & fair oppty to litigate in 1st case 3. -> Is same issued involved? -> Was it actually litigated (fought & contested)? -> Was the issue specifically determined in 1st suit (vs. gen'l verdict)? -> Was it essential to the J? (2 views: NECESSARY for 1st result to be what it was/ just SUPPORTIVE OF is OK) 4. Same Parties or Privies in OHIO means Mutuality: person asserting collateral estoppel must show that had the verdict on the issue gone the other way, issue preclusion could have been used against him (J or ruling could have been enforced against him) -> EXCEPTION: Employer/employee cases; if P sues e/er & loses on e/ee's neglig. then sues e/ee, e/ee can use collateral estoppel (no mutuality b/c if P had won 1st case, wouldn't be able to enforce J against e/ee) 5. Did Party have full & fair OPPTY to litigate the issue in 1st case? (was there incentive, was future litigatn foreseeable, peculiar diff. in 1st case like ltd disc., was 1st result from runaway jury) X. FEDERAL CHOICE OF LAW IN DIVERSITY CASES A. Substantive Law: apply state's whether statute or Ohio S.Ct. caselaw (Erie); lower state opinions persuasive only B. Procedural Qs 1. If fed/state procedure standard directly conflicts, fed standard used if (a) fed rule of civil procedure (b) fed statute (c) command of U.S. Constn 2. If judge-made standard (commentg on evid) fed still applies unless some good reason to apply state standard like, a. state standard integral part of state substv law OR b. fed/state difference in standards made real difference to the parties (likely to change result) unless there are countervailing federal considerations (REAL impt to fed ct in how it carries on its business & would undermine essential characteristics of fed system) ----- Brought to you by - The 'Lectric Law Library The Net's Finest Legal Resource For Legal Pros & Laypeople Alike. http://www.lectlaw.com