Civil Procedure

Question 1

Subject Matter Jurisdiction (SMJ)

Answer 1

Defines the types of cases which can be brought in a given court.

Question 2

Personal Jurisdiction

Answer 2

Defines the limits of a court’s power over a person of property.

Question 3

Court of Common Pleas SMJ General division

Answer 3

General division: if claim exceeds $500 AND not w/i the exclusive jurisdiction of the Ohio Court of Claims
Ct. may transfer to appropriate Muni. Ct if (1) claim does not exceed $1000 AND (2) presiding Muni. judge concurs in the transfer

Question 4

SMJ Probate division

Answer 4

Exclusive if probate and testamentary matters, actions for stopping or continuing life-sustaining med. treatment, appt. of trustees for insolvency.
Concurrent with General Division over intervivos trusts and issue writs of habeas corpus

Question 5

Domestic Relations Division SMJ

Answer 5

Separate division in only some but not all counties.

Exclusive jurisdiction over divorce, alimony, marriage annulment, bastardy, child custody, and child support.

Question 6

Juvenile Court SMJ

Answer 6

Separate division in some but not all counties.
Exclusive Jurisdiction relating to children, including:
1. allegations of delinquency, abuse, or neglect
2. determination of paternity, child custody, or child support if raised separately from a divorce action
3. habeas petitions and hospitalizations of children for mental illness; AND
4. applications for consent to marry or an abortion without notification of parents.

Question 7

Municipal Courts and County Courts SMJ

Answer 7

Claims that do not exceed $15,000 in which either
(a) the claim arose within the court’s territory;
OR
(b) the defendant resides or was served in the territory.

NOTE: concurrent jurisdiction with the court of common pleas over claims over $500 but not exceeding $15,000.
If over 15 grand filed in Muni, ct must transfer to Com. Pls.
Territory varies: Muni: city limits or entire county
county. Cnty: entire county or county areas w/o muni. cts.

Question 8

Ohio Court of Claims SMJ

Answer 8

Exclusive Jurisdiction of claims against state
Residual Jurisdiction over counterclaims, cross-claims, third party claims, and equitable claims that accompany damages claims against the state.

Question 9

SMJ in Federal Courts

Answer 9

Courts of limited jurisdiction: Only if fits in statutory grant of jurisdiction.
Primary grants of Fed. SMJ
1.	diversity of citizenship
2.	federal question jurisdiction
3.	US as party
Secondary grants of jurisdiction
4.	Supplemental 
5.	Removal

Question 10

Diversity of Citizenship Jurisdiction

Answer 10

1. Complete Diversity: no Π is cit. of same state as any Δ
2. Amt in Controversy exceeds $75,000

No Federal SMJ to determine marital status, child custody or to probate a decedent’s estate.

Question 11

Determining Citizenship for Diversity

Answer 11

Individuals: Where domiciled, your permanent home.
1. physical presence in new place AND
2. intent to make it your new permanent home.
Individuals only have one domicile.
Determined at time of filing.
Corporation: Citizenship equals
1. The state of incorporation PLUS
2. the state where principal place of business is (fact issue: where headquarters are)
Partnerships, Unincorporated Associations, and other entities: Citizens of each state that the associates/partners are citizens of.

Question 12

Determining Amount in Controversy

Answer 12

Good faith allegation that the claim exceeds $75,000, exclusive of interest and cost
Met unless it is clear to a legal certainty that the amount recoverable does not exceed $75,000.

like K case for 60,000 comp. and 20,000 punitive and law doesn’t allow punitive in K cases.

Question 13

aggregating claims to get to jurisdictional amount

Answer 13

1. One Π against one Δ: aggregate, even if unrelated.
2. Can’t aggregate against multiple Δs, or aggregate multiple Π’s claims against one Δ.
3. Can aggregate for single undivided interest.
   like joint owners of building suing tortfeasor.

Question 14

Non-Monetary Claims

Answer 14

Value is determined by:

1. evaluating the VALUE of the requested relief to the Π; OR
2. the COST of the relief to the Δ

Question 15

Collusion

Answer 15

By statute, federal court is deprived of subject matter jurisdiction when a party has been improperly or collusively made or joined to invoke jurisdiction.

Question 16

Federal Question Jurisdiction

Answer 16

When the action arises under the constitution, laws or treaties of the United state.
Π’s right relief created by federal law.
Determined by the well-pleaded complaint rule

Question 17

Well-Pleaded Complaint

Answer 17

Plaintiff’s claim, properly pleaded, must be based on a federal right.
Not a federal defense.

Question 18

Federal express jurisdiction

Answer 18

1. Bankruptcy Proceedings
2. Patent and Copyright Cases
3. Cases that involve US as a party
4. Cases w/Consuls and Vice-Consuls as Δ
5. Antitrust Cases
6. Admiralty Cases, only in limitation of liability proceedings and maritime actions in rem
7. Foreign State: Caveat, if sued in state can be removed to federal.
8. Postal matters
9. Internal Revenue
10. Securities Exchange Acts

Question 19

Multiple claims and SMJ

Answer 19

A Federal court must have SMJ for every claim presented before it.
If one claim has SMJ then we try for supplemental jurisdiction.

Question 20

Supplemental Jurisdiction

Answer 20

If federal court has subject matter jurisdiction over one claim, then it may exercise supplemental jurisdiction over any other claims that are so related to the claim with SMJ that they form part of the “same case or controversy”
Same case and controversy if claims arise from a “common nucleus of operative fact” (same transaction or occurrence) T/O.
BUT NO supplemental
1. If claim with SMJ solely on diversity jurisdiction AND
2. the claim w/o SMJ is
o by the Π
o against parties OTHER than diverse Δ (parties joined under R.19, 20, or 24)
o Assertion of claim w/o SMJ would be inconsistent with diversity and amount in controversy reqs.

Question 21

Supplemental Jurisdiction Over Claims Asserted by Π against joined parties

Answer 21

Supplemental claim must be related to a claim w/ SMJ

AND the claim with SMJ must be federal question.

Question 22

Supplemental Jurisdiction Over Claims Asserted by Anyone Other than the Π

Answer 22

Supplemental jurisdiction over claims asserted by anyone other than the Π requires that the new claim is related to a claim within the federal court’s SMJ (common nucleus of operative fact)

Question 23

Court’s discretion over supplemental jurisdiction

Answer 23

Ct has discretion NOT to hear claims in supplemental if

1. the federal question is dismissed early in the proceedings
2. the state law claim is complex
3. the state law issues would predominate substantially the case

Question 24

Removal

Answer 24

Removable if case could have been maintained in federal court.
Exception: Forum Defendant rule: no removal jurisdiction if any defendant is a citizen of the forum state.

Diversity cases cannot be removed more than one year after the case was filed in state court.

Only Δs can remove

Question 25

Removal procedure

Answer 25

Δ files a notice of removal in federal court, state grounds of removal and attaching all documents served on Δ in state action.

Must remove within 30 days of case becoming removable.
No removal for diversity more than one year after commencement.

Question 26

Motion to remand

Answer 26

If Π thinks removal improper, Π may see remand on two possible grounds:
1. Lack of Subject Matter Jurisdiction: File motion anytime
2. For Other Reasons (defect in removal procedure, etc): Motion for remand must be filed within 30 days of removal.
Filing permissive counterclaim in state court probably waives right to remove.

Question 27

Venue for Removal

Answer 27

The federal district court that geographically encompasses the state court from which the case is removed.

Question 28

Mass accident

Answer 28

Multiparty, Multiforum Trial Jurisdiction Act of 2002
Federal courts have SMJ over cases that
1. are mass accident where at least 75 people died at a discrete location
2. with minimal diversity: at least one Π is citizen of a different state than one Δ.
3. Interstate circumstances: at least one of these conditions are met
o one Δ’s residence AND accident are in different states
o Any two Δ’s reside in different states OR
o substantial parts of the accident took place in different states
Nationwide service of process permitted in actions under this act.

Question 29

The Erie Doctrine

Answer 29

When federal courts exercise diversity or supplemental jurisdiction, they must apply the substantive law of the state in which they sit (including state common law).
Federal courts may nonetheless apply federal law on procedural matters

Question 30

Determining whether issues are substantive or procedural for Erie

Answer 30

1. If a Fed statute conflicts with state law is constitutional, then apply the fed law.
2. If a Fed. Rule of Civil Procedure and is comports with the Rules Enabling Act (procedural, no affect on substantive right) then follow fed law
3. Fed judge-made law conflicts with state law: Erie test
   o Is it outcome determinative? Y=substantive N=procedural, if substantive apply state.
    Avoid forum shopping
    Avoid inequitable administrative of the laws (situations were a Π could sue and affect the outcome by choosing fed or state ct and Δ would have no choice.
   o Balance of interest: does either the fed or state system have a strong interest in the rule

Question 31

Jurisdiction over the person or res

Answer 31

Same rules in state and federal court, some exceptions

1. First, State long-arm statute: does it authorize jurisdiction.
2. Second: Federal due process: does the state’s exercise of power over the Δ meet the constitutional requirements of due process.

Question 32

Ohio Basis of Personal Jurisdiction

Answer 32

Ohio service rules set the scope of Ohio courts’ jurisdictional power.
R. 4.1 prescribes methods of service w/I Ohio, R. 4.3 sets forth circumstances under which service is permitted on Δ outside Ohio.

Question 33

Ohio General Jurisdiction

Answer 33

Jurisdiction exists regardless of whether the claim relates to the Δ’s contacts to Ohio
1. presence, service while present in the state means jurisdiction
2. Domicile, juris over those domiciled here
3. incorporated in Ohio, Ohio ALWAYS has juris over Ohio Corp.
4. Consent
o Express: by contract, appointing an agent in Ohio to receive service
o Implied: appearing in an action, and doesn’t object in timely manner

Question 34

Specific Jurisdiction: Ohio’s Long-Arm Statute

Answer 34

Provides jurisdiction over Δ outside the state IF the claims asserted relate to one of the following contacts with Ohio
1. Transacting any business in Ohio
2. Contracting to supply services in Ohio
3. Causing tortuous injury anywhere by an act or omission in Ohio
4. Causing tortuous injury in Ohio by an act or omission outside of Ohio IF Δ
o regularly does or solicits business in Ohio
o engages in any persistent course of conduct in Ohio OR
o derives substantial revenue from goods used or consumed or services rendered in Ohio
5. Causing injury in Ohio by breach of warranty made in the sale of goods outside Ohio, if:
o the Δ might reasonably have expected the injured person to use, consume or be affected by the goods in Ohio AND
o the Δ regularly does or solicits business, engages in any persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in Ohio
6. Having an interest in, using, or possessing real property in Ohio
7. Contracting to insure any person, property, or risk located in Ohio at the time of contracting
8. Living in a marital relationship in Ohio, notwithstanding subsequent departure from Ohio, if:
o marital relation in Ohio at some time;
o claim relates to marital obligations; AND
o one spouse still lives in Ohio
9. Causing (intentional) tortuous injury to any person in Ohio by an act outside Ohio, if:
o the Δ committed the act with the purpose of injuring persons; and
o the person served might reasonably have expected that some person would be injured thereby in Ohio
10. Causing tortuous injury to any person by a criminal act if:
o an element of the criminal act took place in Ohio; and
o the person to be served committed the criminal act or is guilty of complicity in the act’s commission

Question 35

Federal Due Process Requirements

Answer 35

Does Δ have certain minimum contacts with the forum state that the exercise of jurisdiction does not offend the traditional notions of fair play and justice?
1. Contacts with the forum state
o purposeful availment (Δ done something, tried to get benefit)
o Relationship between the contacts and the cause of action: is the cause from the contact.
o Foreseeability that Δ would get sued in this forum.
2. Fairness
o burden on Δ, distance alone is not enough.
o Interest in the forum: the state’s interest in it
o Π interest in litigating in this forum
o interstate judicial system’s interest in efficient litigation.
In-state Service Burnham): if Δ is in state it is constitutional

Question 36

Due process req and gen. and Specific jurisdiction

Answer 36

Specific: when action arises from Δ’s contacts with the forum state, that state may have specific jurisdiction over the Δ even though the Δ has few contacts with that state.

General: when the defendant has substantial ongoing contacts with the forum state, that state may have general jurisdiction over the Δ EVEN for action unrelated to the Δ’s contacts with the state.

Question 37

In Rem & Quasi In Rem Jurisdiction

Answer 37

In rem: an action in rem affects the interest of all persons in specific property that is under the court’s control (either constructively or actually). The action can affect only that property.

quasi in rem: A quasi in rem action affects the interest of particular persons in specific property that is under the court’s control (either constructively or actually) The action can only affect that property.

If dispute involves the rights of the parties in the property and the property is in the jurisdiction then min. contacts are present.
BUT if dispute is unrelated to the ownership of the property, then there must be min contacts needed, if that is present then in personal probably better.
Constitutional test is the same as for personal jurisdiction.

Question 38

Service of Process

Answer 38

Delivery of the summons and complaint. It is essential for the court to have jurisdiction over the party served.
1. Must comport with the statutory/ rule requirements
2. Due process: “notice must be reasonably calculated under all the circumstances, to apprize interested parties of the pendency of the action”
individual notice by mail probably min. allowed if Π knows or has reasonable access to the names and addresses of the Δs.

Question 39

Waiver of Service in Federal

Answer 39

Send to Δ usually by mail
1.	the summons and complaint
2.	a request for waiver of service
3.	a waiver of service form
4.	prepaid return envelop.
If Δ waives, he has 60 days from complaint’s mailing to answer

If Δ w/o reason does not waive service, Δ must pay costs Π incurs making actual service.

Question 40

Actual service in Federal

Answer 40

If Δ does not respond in 30 days, Π proceeds with actual service. Δ is served before he waives service, Δ must pay the cost of actual service.

Question 41

Service on individuals in US: Federal

Answer 41

service on individuals in the US:
1. Personal delivery or leave at usual residence with suitable person residing there.
summer is Δ dwelling, if Δ lives there at the time
must be left w/ person living there
BUT common law immunity if Δ served while instate to be witness in another case.
2. Pursuant to law of the state where district court is located
3. pursuant to law of the state where service takes place

Question 42

service on corporations and associations in US: Federal

Answer 42

1. pursuant to law of state where district court is
2. pursuant to law of state where service takes place
3. by delivery to an officer or agent authorized to receive service
   Only persons given explicit authority by the corporation to receive process

Question 43

Service on Δ in another country

Answer 43

pursuant to applicable international agreement; if none, then by other suitable means.

Question 44

Territorial limits of federal service

Answer 44

Service outside Ohio under these rules gives the federal court jurisdiction over the Δ ONLY if Ohio long arm statute provides such jurisdiction for Ohio courts, UNLESS

1. the Bulge Rule applies (Δ is joined pursuant to FRCP 14, or 19 and is served within 100 miles of the courthouse).
2. Federal statute authorizes nationwide service (statutory interpleader)

Question 45

Federal Process Servers

Answer 45

process may be served by any non-party over age 18.

Question 46

Service in Ohio, who to serve

Answer 46

Persons to be served
1. Individual: Upon an individual who is neither incompetent nor under 16, by serving the individual
2. Minor: Upon a person under 16, by serving the person’s guardian or the parent/caregiver residing with the child
3. Corporation or LLC: upon a corporation or llc by serving
o the agent authorized to receive service
o the corporation itself by certified mail; OR
o an officer or a managing or general agent
4. Partnership: Upon a partnership by serving either
o the entity via certified mail at any of its usual places of business; OR
o a partner or manager

Question 47

Method of service in Ohio: Certified Mail

Answer 47

1. Certified Mail: the standard method, unless the parties requests something else.
   To any place where service is reasonably calculated to apprize.
   As long as addressed properly, even if delivered and signed for by someone other than the addressee.
   If returned refused or unclaimed, ordinary mail is good. Service is effective upon mailing, except for unclaimed returned for failure of delivery

Question 48

Method of service: Ohio personal

Answer 48

Written request is required
process servers generally are
1. the sheriff of the county where the person to be served if found
2. the bailff of the Municipal Court in which the action is filed; OR
3. a non-party over the age of 18 designated by the court

Outside Ohio
permitted only upon order of the court.
Court will designate a process server.

Question 49

Method of service: residence service Ohio

Answer 49

Upon written request, service can be effected by leaving a copy of the process and other documents at the usual residence of the person to be served with some person of suitable age and discretion residing therein.

Just like the federal

Question 50

Methods of service, service by Publication Ohio

Answer 50

1. Δ’s residence is unknown AND
2. Action is either
   o action regarding disposition of real property
   o administration of wills and trusts
   o action against corporation that failed to elect officers; OR
   o actions against Ohio resident that left his county of residence or is avoiding service
   Affidavit showing these grounds and that residence is unknown and not ascertainable with due diligence. Must show efforts made to ascertain residence.
   Publish notice at least once a week for six weeks in a newspaper of general circulation in the county were complaint filed. List relevant names and addresses, summarize claim and demand for relief and state when answer is due

Question 51

Time Limits for Service

Answer 51

Federal: filing of complaint tolls statute of limitation; but if service not perfected in 120 days the court will dismiss (unless Π shows good cause).

Ohio: filing the complaint tolls the statute of limitations, PROVIDED that process is served within 1 year of filing.

Question 52

Service of motions, discovery, subsequent proceedings, and other documents

Answer 52

Serve on party’s attorney (unless court orders otherwise)

Serve by either

1. leaving document with the attorney
2. leaving it at the attorney’s officer with a person in charge
3. mailing it to the attorney (service complete upon mailing)

Question 53

Venue for federal district courts

Answer 53

Diversity Only cases
1. where any Δ resides, if all reside in same state
2. where substantial part of the claim arose
3. if none of above then where any Δ is subject to personal jurisdiction
All other cases
4. where an Δ resides, if all reside in same state
5. where substantial part of the claim arose;
6. if none of above, where any Δ is found
Removal: venue is the federal court that geographically encompasses state court.

Question 54

Δ residence for venue

Answer 54

Individuals: residence equals domicile
corporate Δ “resides” in all districts where the corporation is subject to personal jurisdiction when case filed. Does the corp. have enough contact with the district if the district was a state?
If state has juris over corp, but the corp has insufficient contacts with any single district, corporation resides in the district in the state that has the most substantial contacts

Question 55

Venue for Ohio

Answer 55

1. where the Δ resides
2. where Δ has his principal place of business
3. where the Δ conducted activity that gave rise to the claim
4. where all or part of the claim for relief arose
5. If the subject of the action is real property or tangible personal property, when where property is situated.
6. If the suit is against public officer in his official capacity, then where the public officer maintains his principal office
7. if the action is tort asbestos, silicosis, or mixed dust disease then ONLY (i) where all exposed Π reside; (ii) where all of the exposed Π were exposed; or (iii) where Δ has its principal place of business.
8. where Π resides IF: action requires out of state service pursuant to Rule 4.3; or the action is for divorce, annulment, or legal separation and the Π has been a resident of that cnty for at least 90 days
9. If no venue is proper under above, then where Π resides, has principal place of business, or regularly conducts business activity
10. if no venue proper under above, then; there Δ has property or debts subject to garnishment; or where Δ has appointed an agent to receive service.
    IF venue is proper as to one claim and party, it is proper as to all properly joined.

Question 56

Federal Court: transfer of venue

Answer 56

From one federal district court to another where the case could have been brought originally (one that is proper venue and has SMJ and personal juris)
When Original Venue is Proper: Court may transfer to another federal district court, based on: (1) the convenience of the parties, (2) the convenience of the witnesses and (3) the interest of justice.

Ct that it is transferred to must apply the choice of law rules that the original court would have used.

When Original Venue is Improper: Court may transfer in the interest of justice OR dismiss.
dismissal unlikely if Δ objects.

Question 57

Ohio Courts transfer of Venue

Answer 57

When original venue is proper: When a fair and impartial trial cannot be had in a county, the court may transfer to an adjoining county.

When original venue is improper: Court SHALL transfer to a proper venue upon timely motion. Costs may be assessed.
If Δ doesn’t object then ok.

Question 58

Forum Non Conveniens

Answer 58

Common law: ct may in its discretion decline jurisdiction in deference to another forum. Factors: access to proof, compulsory process, cost for getting wit., administrative issues, local interest, and having case decided by ct that is used to applying the applicable law.

Ohio Rule 3(D): Grounds (1) that the county is improper venue, (2) no proper venue in Ohio; and (3) there is proper venue in another state or country
Procedure: Ct shall stay the action upon condition that Δ consent to jurisdiction, waive venue, and waive statute of limitation defenses.

Upon rec’ing notice that Π has recommenced action in out-of-state forum within 60 days, the ct shall dismiss the action

Question 59

Forum Selection Clauses

Answer 59

Generally enforceable, unless some contract defense.

Question 60

Complaint requirements

Answer 60

1. State of SMJ (federal court only)
2. A short and plain statement of the claim, showing pleader is entitlted to relief (notice pleading)
   All you need is enough info to allow Δ to formulate a meaningful response.
   FED: recent cases: complaint must contain allegations of fact that render the asserted claim plausible on its face.
   has a factual plausibility if it allows the ct to draw the reasonable inference that the Δ is liable for the misconduct alleged
3. Demand for relief.
   Ohio: if more than $25,000, then doesn’t need to specify the amt.
   Fraud: need facts to say what the fraud was
   Special Damages: any out of pocket, economic losses.

Question 61

Proper parties

Answer 61

Capacity:
1. Individuals 18 or older
2. infants and incompetents:
o may sue or defend by a guardian or similar fiduciary
o if no duly appointed fiduciary, then sue by next friend and defend by a guardian ad litem.
Every action must be prosecuted in the name of the real party in interest, except executors and administrators of estates, guardians, and trustees.
Basically, whomever is benefited by the suit needs to be named.

Substitution for death, incompetence, transfer of interest, or change of public officer.

Question 62

Fictitious parties

Answer 62

Ohio courts only.
When Π does not know the name of the Δ, Π may file the action using a fictitious name for the Δ.
1. Pleaders must designate unknown Δs with a fictitious name and a description.
2. Amendment: Upon discovering the Δ’s real identity, the pleade must amend the pleading to substitute the real name and serve process on the Δ.

Question 63

Pre-Answer Motion or Answer

Answer 63

Timing
Fed. w/i 21 days after service of process (if Δ waived service then 60 days after Π mailed waiver form)
Ohio: w/i 28 after service of process

Question 64

Rule 12 Pre-Answer Motions

Answer 64

12(e) motion for a more definite statement: pleading so vague Δ can’t frame a response, rarely granted
12(f) motion to strike: pares out immaterial allegations, cheap shots.
12(b) Defenses: dismissal on procedural technicalities
1. Lack of SMJ
2. Lack of personal jurisdiction
3. Improper venue
4. Insufficiency of process
5. Insufficient service of process
6. Failure to state a claim upon which relief can be granted
7. Failure to join indispensable party
All 12(b) defenses must be consolidated in a single pre-answer motion.

Question 65

Pre-answer motions on the merits

Answer 65

• 12(b)(6) failure to state a claim on which relief can be granted: even if the allegations are true Π lose
• 12(c) judgment on the pleadings: something on the face of the complaint means you lose: statute of limitations
• summary judgment

Question 66

Waiver of Threshold Defenses

Answer 66

If these 12(b) defenses are not raised in the Δ’s first response they are waived.
•	personal jurisdiction
•	improper venue
•	insufficiency of process
•	insufficiency of service

Question 67

Answer timing

Answer 67

Federal
• 21 days after service of process if Δ makes no motions.
• 60 days after Π mails the wiaver form IF Δ waived service.
• 14 days after reuling on a pre-answer motion
State
• 28 days after service of process
• 14 days after ruling on a pre-answer motion.

Question 68

Contents of the Answer

Answer 68

• Rule 12(b) defenses if not already asserted or waived.
• Responses to the allegations in the complaint
o admit (failure to deny is an admission)
o deny
o State that you lack sufficient information to admit or deny
• Affirmative defenses: Even if all true and even if Δ would be liable something else makes Δ not liable.
Common affirmative defenses Rule 8(c): accord and satisfaction, arbitration, assumption of risk, contributory negligence, duress, estoppels, failure of consideration, fraud, laches, res judicata, statute of frauds, statute of limitations, waiver, and “any other constituting an avoidance or affirmative defense”
o Must be pleaded by the Δ or he can’t use it.

Question 69

Amending pleadings

Answer 69

• amendment of right (i) before responsive pleading OR (ii) within 20 days (federal) or 28 days (Ohio) of serving the pleadings, if no response is required.
• with leave of court: freely granted: ct will grant unless so late as to prejudice the other party.

Question 70

Relation back of amendments

Answer 70

Amendments adding new claims relate back if the arise from the same transaction, or occurrence set forth in the original pleading.

Amendments changing parties: amendment relates back only if:
• it arises in the same transaction or occurrence as the original claim AND
• within the time allotted for service (120 days federal, 1yr Ohio) the new party brought in
o rec’d notice of the action in such a way that he would not be prejudiced in maintain his defense on the merits; AND
o knew or should have that but for a mistake the action would have been brought against him.

Question 71

Relation back in renaming Fictitious Parties

Answer 71

Must amend pleadings when discover the Δ real name.
The amendment relates back to the time of the fictitious party complaint was filed PROVIDED the amendment is made and the Δ is served w/i one year after the original filing.

Fictitious parties cannot be people you know but are just not sure about suing.

Question 72

Federal Rule 11

Answer 72

Attorney must sign all pleadings. By signing the lawyer is certifying
• a reasonable inquiry into the basis of the document
• no improper purpose
• the legal contentions are warranted by existing law or a reasonable extension.
• the facts have evidentiary support.
Attorney has a continuing duty: every time the document is presented before the court it is a recertification.

Safe harbor: if party alleges a rule 11 violation he serves a rule 11 motion on the party, but doesn’t file with the court. The offending party has 21 days to withdraw before the motion is filed w/the court.
Sanctions: discretionary on party or lawyer to deter repetition.

Question 73

Ohio Rule 11

Answer 73

All papers must be signed. The signature certifies
• the attorney or party has read the document
• that to the best of the attorney’s/party’s knowledge, information, and belief there is good ground to support the document; and
• that the document is not interposed for delay.
Subjective standards.
NO ongoing duty
NO safe harbor.

Sanctions: An Ohio court may award fees and expenses caused by a willful violation of Rule 11.

Question 74

Joinder of claims and parties

Answer 74

The idea is that it is more efficient to deal with all of it at the same time.
Both federal and Ohio allow liberal joinder.
BUT
separate trial may be ordered.

• Do the applicable rules permit joinder?
• Does the court have subject matter jurisdiction over the claims to be joined?

Question 75

Permissive Joinder of Parties

Answer 75

Rule 20 requirements
• the claims arise from the same transaction or occurrence (T/O)
AND
• the claims share some common questions of law or fact

If in Federal court you must also check for subject matter jurisdiction.
• the joined claims need and independent SMJ over each claim
OR
• independent SMJ over one claim and supplemental jurisdiction over the others.

Question 76

Joinder of Persons Needed for Just Adjudication (Rule 19)

Answer 76

Even if Π did not choose to include a party the courts may bring in another party because of the absentee parties relationship to the action.
Necessary Parties (persons to be joined if feasible): joined if
• complete relief cannot be afforded without absentee;
• the absentee’s interest will be harmed if he isn’t joined (practical harm)
• The absentee claims an interest which subjects a party (usually the Δ) to multiple obligations

Joinder NOT feasible: No personal jurisdiction over Absentee; or Absentee would destroy diversity.

Federal Bulge Rule: Absentees joined as necessary parties may be served, regardless of state law w/i 100 miles from ct, even if outside the forum state.

Question 77

Indispensable Parties

Answer 77

If an absentee is deemed “necessary” but joinder is not feasible, then the court must determine whether, in equity and good conscious (1) the action should proceed among the existing parties or (2) it should be dismissed.

Factors to consider
• alternative forum available where everybody can be joined
• actual likelihood of prejudice
• can the court shape relief to avoid the prejudice.

Question 78

Compulsory Joinder

Answer 78

Ohio Rule 19.1: Absent a showing of good cause the court MUST order a party joined if it is subject to service and has an interest in the suit arising from:
• Personal injury or property damage to person or property of a decedent that survives the decedent’s death AND a claim for wrongful death to the same decedent if caused by the same wrongful act.
• Personal injury or property damage to a husband or wife for loss of consortium or expenses or property damage if caused by the same act
• Personal injury or property damage to a minor and a claim of the parent or guardian of the minor for loss or consortium or expenses or property damage if caused by the same act
• Personal injury or property damage to an employee or agent and a claim of the employer or principal for property damage if caused by the same wrongful act.

Question 79

Joinder of Claims (Rule 18)

Answer 79

You can join all the claims against the opposing party

BUT if in federal you need SMJ.

Question 80

Compulsory Counterclaims

Answer 80

if a party (Δ) has a claim that arises from the same transaction or occurrence as a claim that is asserted against her, she must assert the claim as a counter claim or it is lost; unless the claim already is pending in another court or requires parties beyond the court’s jurisdiction.

Question 81

Permissive Counterclaims

Answer 81

A party may assert other claims as counterclaims but may elect to assert them as independent actions.

Federal court: has supplemental juris for compulsory counterclaims
but does not have for permissive counterclaims.

Question 82

Relationship back of counterclaims

Answer 82

Federal: compulsory counterclaims relate back to when complaint was filed.
Ohio Rule: ALL counterclaims relate back to when complaint was filed.
In addition, compulsory counterclaim can be used for set-off even if it was time-barred when complaint was filed. (damages only to extent the party must pay the other party)

Question 83

Cross-Claims

Answer 83

permitted if they arise from the same transaction or occurrence as the original action or counterclaim.

Question 84

Impleader

Answer 84

• Derivative Liability: a party (usually Δ) may implead a third party Δ if (a) a claim is asserted against her; and (b) she claims that the third-party Δ is liable to her for her liability to the Π
• Timing: impleader may be asserted of right within 14 days (Ohio) or 10 days (federal) of serving one’s answer.
• Service may be affected on third-party Δ outside the state w/o compliance with the long arm statute if 100 mile bulge in federal
• Claims between third-party Δ and original plaintiff: third-party Δ and plaintiff may assert claims against each other IF they arise from the same transaction or occurrence as the underlying action.

Question 85

Intervention

Answer 85

Right to intervene by statute OR
• intervenor claims an interest in the property or the transaction that is the subject of the litigation
• the action may impair the persons ability to protect that interest
• the person’s interest is not adequately protected by existing parties.
Permissive intervention: ct has discretion to allow it in if there common issues of law or fact

Question 86

Interpleader

Answer 86

Stakeholder brings property to the court and notifies all the claimants that they must appear in order to assert any right they may have in the property.

Federal interpleader:
• Rule 22 Interpleader: like regular federal actions, requires complete diversity and $75,000 amt in controversy, and service must b effected pursuant to Rule 4
• Statutory Interpleader: Requires only minimal diversity and $500 amount in controversy and permits nationwide service of process

Question 87

Class action requirements

Answer 87

•	Identifiable class: must be sufficiently unambiguous that members may be identified with reasonable effort.
•	Express prerequisites: numerosity (class members too numerous to join), commonality (common questions exist), typicality (class representative’s claims are typical of the class), and representation (class representatives will adequately represent the class).  
•	Permissible types of Class actions:   MUST fit one of the following types
o	prejudice class action 23(b)(1): class treatment needed to avoid prejudice to parties or class members
o	Injunction class action 23(b)(2): Action seeks primarily injunctive 
o	Damages Class action 23(b)(3): Action seeks damages and (a) common questions predominate and (b) class action is the superior method of handling the disputes

Question 88

Class procedure

Answer 88

Certification: the court must certify that all the class req. are met.  
Notice: In damages class action individual notice with 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 the ct.
Settlement:  must be approved by the court.
Outcome is binding: on all parties and class members except those that opt out of damages class actions.

Question 89

Federal SMJ in Class actions

Answer 89

Diversity Jurisdiction
• citizenship of the named parties control
• amt in controversy
o (b)(3) class actions: if claim of one Π class satisfies the jurisdictional amount, the court has supplemental jurisdiction over all class members’ claims
o (b)(1), (b)(2) class actions: consider total amounts at stake.

Question 90

Class Action Fairness Act of 2005 (CAFA)

Answer 90

Fed. SMJ over class action if
• any class member is a citizen of a state different from any Δ
• the aggregate amt in controversy EXCEEDS $5 million, AND
• the proposed class has at least 100 members
Removal: Δs in class actions that satisfies CAFA req. may remove to federal BUT these limitations do not apply
• ANY Δs may remove w/o consent of all Δs
• No forum Δ rule
• 1yr limitations on removal of diversity actions doesn’t apply.

Question 91

Exclusions from CAFA Fed. SMJ

Answer 91

No SMJ under CAFA IF
• the primary Δs are states or state officials; or
• the class action solely involves a claim that (i) arises under federal securities statutes OR (ii) relates to the internal affairs or governance of a corporation or other business entity and arises under state law.

Question 92

Exclusion of “Local” Class actions

Answer 92

Mandatory: Federal court MUST decline jurisdiction under CAFA IF
• more than 2/3 of Π class are citizens of the state from which the class action was removed
• a significant Δ is a citizen of that state AND
• principal injuries were incurred in that state
Discretionary: Federal court MAY decline jurisdiction under CAFA IF
• more than 1/3 but less than 2/3 of the Π class are citizens of the state from which the class action was removed
AND
• primary Δs are citizens of that state.

Question 93

Preliminary injunctions

Answer 93

On motion ct may issue preliminary injunction before trial in order to prevent harm before the trial. Standard: four factors
• substantial Likelihood of prevailing on the Merits
• Irreparable harm: A (i) substantial threat of harm before trial and (ii) the harm will not be fully remedied by a money judgment after trial
• Balance of hardships: threatened injury to Π over harm to the Δ.
• Public policy: preliminary injunction must not be contrary to important public interest (like freedom of stpace)
Made by Motion
Δ must get notice and Opportunity to be heard
Security (bond) by the party seeking injunction, enough to reimburse enjoined party for the injunction if later found to be bad.
Duration: until j.

Question 94

Temporary Restraining Orders

Answer 94

Upon motion. An emergency preliminary injunction w/o a hearing.
Same factors as a preliminary injunction, PLUS the reasons for seeking injunction w/o full notice and opportunity to be heard.
TRO may be issued w/o notice ONLY IF
• it clearly appears from specific facts shown by affidavit that immediate and irreparable injury would result to the applicant before the adverse party can be heard in opposition; AND
• the applicant certifies in writing what efforts were made to give notice and why notice should not be required.
Security (Bond)
Duration: TRO expires w/i 14 days in Ohio cts or 10 days in fed.
IF TRO no notice, prelim inj. hearing set quick as possible, AND 2 days notice to party that got the injunction may appear and move TRO dissolved or modified

Question 95

Required Disclosures

Answer 95

Federal Court Only
Initial disclosures: w/i 14 days of discovery mtg, parties must provide
• identities of parties with discoverable information that disclosing party might use
• docs and things the disclosing party may use
• computation of damages claimed
• relevant insurance agreements
Expert Witnesses: at least 90 days before trail, parties MUST disclose identity of expert witnesses AND written reports for each
Pretrial Disclosures: At least 30 days before trial, parties must disclose
• lists of exhibits
• identity of witnesses who will and may be called

Question 96

Scope of Discovery

Answer 96

Ohio: any information relevant to the subject matter of the action (reasonably calculated to lead to admissible evidence) that is not privileged
Fed.: Any info relevant to the claim or defense of any party (reasonably calculated to lead to admissible evidence) that is not privileged.

Question 97

Insurance Agreements

Answer 97

insurance agreements by which liability may be insured are discoverable.

Question 98

Work product

Answer 98

Documents and things prepared in anticipation of litigation by or for a party or his representative.
NOT discoverable unless discovering party shows
• a substantial need for the material
AND
• inability to obtain the substantial equivalent by other means.

Question 99

Expert Witnesses

Answer 99

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.

Discovery of experts NOT to be used in trial is disallowed unless “exceptional need”: you can’t get by other means.
• the only expert on the subject
• the examined evidence was destroyed

Question 100

Protective orders

Answer 100

Ct on motion may enter protective order to limit, regulate, or deny discovery to protect parties and deponents from annoyance, embarrassment, oppression, or undue burden or expense w/I courts discretion.

Motion for protective must certify that movant has talked with the other party and tried to make it work it out.

Question 101

Limitations on discovery

Answer 101

Federal Only : ct may limit IF
• unreasonably duplicative or obtainable from another source that is less burdensome
• the party seeking the discovery has had ample time to obtain the info sought OR
• the burden or expense outweighs the benefit.

Question 102

Electronic Stored Information

Answer 102

Ohio can limit ESI like Federal can limit all discovery.
All the other requirements apply.
Party need not provide discovery of electronically store info that is not reasonably accessible because of undue burden or cost.
IN motion to compel or protective order the party from whom production is sought has the burden to show the ESI is not reasonably accessible.
EVEN ESI is not reasonably accessible court may order if requesting party shows good cause.
In determining good cause factors to consider are: whether unreasonably cumulative or duplicative; whether info can be obtained from other sources with less burden or expense; whether party seeking discovery had amble opportunity by other discovery to obtain the info, whether burden outweighs the benefit.

Question 103

Discovery to perpetuate Evidence

Answer 103

Ct will order pre-action deposition , production of documents and things , or physical/mental examination, based the following procedure.
File petition with the court of common pleas (or federal district ct) where expected adverse party resides.

Content: (a) showing that the petitioner expects to be a party to an action but cannot presently institute it, (b) subject matter of the action, (c) facts to be established by the proposed discovery, (d) names of expected adverse parties, and (e) names of persons to be examined, and (f) request for an order authorizing the desired discovery.
Serve: petition and notice of hearing on each name person in 28 days (21 in federal court) prior to the hearing, except as otherwise order.
Standard: discovery may prevent failure or delay of justice.

Question 104

Production prior to Filing

Answer 104

Ohio Courts Only: Rule 34:
Upon petition, a court may order, prior to filing, the production of docs and things or inspection of premises if the court finds
• discovery is necessary to identify a party
• petitioner is otherwise unable to bring the action
AND
• petitioner made reasonable efforts to secure voluntary production.

Question 105

Discovery after action is filed

Answer 105

Federal: no discovery prior to the Rule 26(f) discovery conference, except by agreement or order.
Ohio:
Interrogatories and Requests for documents may be served along with the compliant and anytime thereafter.
Depositions: anytime after action is commenced, but deposition cannot be used against a party who shows that despite diligence was unable to obtain counsel to attend the deposition.

Question 106

Depositions Upon Oral Examination

Answer 106

Taking of sworn testimony outside of court.
Federal limits to 10 deposition, one depo of person w/o ct approval, limited to 1 day of 7 hours w/o ct approval.
on party: serve written notice of depo to the party and all others
non-party: serve written notice and subpoena.
• Federal Subpoena on person w/I 100 miles of place where
o person resides
o is employed
o transacts business in person
o is served
• Ohio Subpoena: must be served by delivering it to the witness in Ohio
Depo of organization Rule 30(b)(6): notice designates subject of depo, org must designate a deponent

Question 107

Production of Documents/ Things at deposition:

Answer 107

Parties: Rule 34 Request for Production
Non-parties: Subpoena duces tecum
May be quashed by written objection severed w/i 14 days.

Question 108

Use of deposition at trial

Answer 108

• impeach the deponent
• any purpose if the deponent is an adverse party;
• any purpose if the deponent (regardless of whether a party) is unavailable for trial (dead, sick, Ohio resides outside county where action is pending; Federal more than 100 miles from court)
• Ohio: the witness is an attending physician or medical expert

Question 109

Objections at depositions

Answer 109

Waived if not raised: Any objections that can be cured at the deposition: like rephrasing the questions, obj. to ct reporter
Preserved and can be asserted at trial if depo used: Any objection that cannot be cured at depo. Obj. to relevancy or inadmissible, obj. to competency of witness

Can instruct witness not to answer ONLY in 1 of three situations
• to preserve a privilege
• to enforce court order limit on discovery
• to adjorn the depo and get a protective order.

Question 110

Depositions upon Written Questions

Answer 110

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 deponent’s reponses.

Fed 30 days after service
Ohio 28 days after service

limited to 40 Ohio , 25 federal

Party may not use own answers.

Question 111

Production of Documents, Electronically Stored Information & Things; Entry Upon Land.

Answer 111

Request to a party: serve request and response is due in 28 days (Ohio) or 30 days (federal)

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

Materials must be produced either as they are kept in the ordinary course of business or organized to correspond with categories in the request.

ESI, requesting party may specify form, if producing party objects, it may state the form it intends to use, BUT must be (1) in form ordinary maintained (ohio: if reasonably usable) or (2) form reasonably usable.

Question 112

Physical or Mental Exam

Answer 112

Only available of a party AND ONLY through a court order UPON a showing that the party’s health is in issue and good cause exists for ordering the exam.

Person examined may obtain on request a copy of examiner’s report BUT will waive the person’s doctor patient privilege relating to reports by his dr. regarding the same condition.

Question 113

Requests for Admission.

Answer 113

Request to a party to admit the trut of written statements. Respondent must admit, deny, or indicate lack of sufficient information following a reasonable inquiry.

Question 114

Asserting privilege and work Product

Answer 114

When party withholds info on privilege or work product Part must describe the things not produced in manner that allows others to assess the applicability of the privilege.

Claw-Back: if info produced if priv. the party making the claim may notify any party that received info. ON notification the party must promptly return, sequester, or destroy the specified info until claim is resolved.
If party has already disclosed it to others , party must take reasonable steps to retrieve it.

rec’ing party may present info to the court under seal for determination of the claim.

Question 115

Signature req for Discovery

Answer 115

Fed: Rule 26(g) provides that 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: normal Rule 11

Question 116

Duty to Supplement

Answer 116

If party learns its responses to required disclosure, interrogatory, request for production or request for admission is incomplete or incorrect, it must supplement its response.

Question 117

Protective order

Answer 117

may be entered on motion ot limit or regulate discovery to prevent annoyance, oppression, or undue burden and expense.

Question 118

Order compelling discovery

Answer 118

may be entered on motion if a party wrongly objects to discovery or fails to respond to discovery requests.

Question 119

Court enforcement

Answer 119

If ct overrules a party’s objections to discovery (it means they responded) Order compelling responses, plus costs of bringing motion (including attorney’s fees).

Violation of order compelling discovery: Sanctions plus costs and could be held in contempt (except no contempt for refusal to submit to medical exam)

Complete failure to respond: Sanctions plus costs

False denial of requests to admit: recover cost of proving issue (hard to prove)

Failure to make required disclosures or supplement: sanctions plus costs.
Party failing cannot use info at trial unless failure justified or harmless

Question 120

Sanctions

Answer 120

may be imposed if a party fails to respond to discovery requrests, violates an order compelling discovery, or fails to make disclosures required in federal court

• Establishment order (establishes facts as true)
• Strike pleadings of disobedient party
• Disallow evidence from the disobedient party
• Dismiss Π’s case
• Enter default judgment against Δ

Enforcement against non party: contemp
enforcement against attorney: liable for all expenses incurred by other side.
ESI: unless exceptional no sanctions for ESI lost as routine good faith info sys

Question 121

Certification of Attempt to Resolve Disputes

Answer 121

Any judicial enforcement of discovery rules requires the moving party to certify that a good faith effort was made to resolve the discovery dispute without judicial involvement.

Question 122

Voluntary dismissal

Answer 122

Π may dismiss as of right one time
• Federal: before answer or motion for summary judgment
• Ohio: Anytime before trial, unless there is a counterclaim that cannot remain after the dismissal
Any later dismissal requires court order or stipulation of all parties

Question 123

Involuntary Dismissals

Answer 123

Rule 41(b)
Grounds: 
•	failure to prosecute
•	failure to comply with rules and orders
•	Rule 12 grounds

With prejudice unless court orders otherwise, except for Rule 12 grounds.

Question 124

Default judgment

Answer 124

Ohio: Court must order default judgment. If Δ has appear, he must receive 7 days notice. If he has not appear no additional notice is required.

Federal: clerk notes entry of default. Then if Δ did not appear and claim is for a sum certain, the clerk can enter a default judgment. Otherwise the court must enter default judgment.
If Δ has appeared, he must receive 7 days notice. If he not appeared no additional notice is required.

if minor or incompetent no default unless represented by fiduciary present
amt limited to amt in pleadings (ohio if over 25,000 doesn’t state)

Question 125

Setting Aside Default Judgment

Answer 125

Fed: motion to set aside default, showing good cause and viable defense
Ohio and Fed: Same limited grounds for setting aside any judgment.

Question 126

Failure to state a claim

Answer 126

Motion to dismiss for failure to state a claim test legal sufficiency of the plaintiff’s allegations. In ruling on the motion the court looks only at the pleadings NOT on the evidence, and assumes all allegations to be true

Question 127

Summary Judgment

Answer 127

Party is entitled to summary judgment if he shows that
• no issue of material fact exists
AND
• he is entitled to judgment as a matter of law.
If party argues that other party lacks evidence on an essential issue that the other party has the burden to prove, then the burden shifts to the other party to come forward with the evidence.

Facts from affidavits: based on personal knowledge AND must show that the affiant is competent to testify on the matter

Question 128

Bench Trials

Answer 128

Federal judges must render findings of fact and conclusions of law.
Ohio judges must do so only if a party requests it writing 7 days of learning of the court’s decision (by general verdict).

Question 129

Trial by Jury

Answer 129

Right to jury: generally exists for matters historically heard at law (actions for damages) but not matters historically heard in equity (suits for injunctions)

Written Demand for jury trial must be filed within 14 days of the last pleading on a jury-triable issue. Withdrawal of demand requires consent of all parties.

Jury composition and selection: Ohio generally 8, 6-12 in federal.
Voir dire examination is conducted. Parties exercise challenges for cause and up to three peremptory challenges, BUT challenges may not be based on race or sex.

Question 130

Jury instructions

Answer 130

May be requested in writing, and the court should give them if they are correct statements of applicable law AND reasonable minds might reach the conclusions sought by the instructions.
A party must object to the giving or failure to give an instruction to preserve the issue for appeal.

Question 131

General verdicts

Answer 131

Required in Ohio. Both federal and Ohio may use a general verdict accompanied by interrogatories.

Ohio only if requested prior to closing arguments.

If inconsistent verdict and answers: Ct may
• enter j. in accordance with the answers
• return the jury for further considerations; OR
• order a new trial

Question 132

Margin of Decision in Jury trial

Answer 132

In Ohio juries may render a verdict on concurrence of 3/4s of the jurors. Federal verdicts must be unanimous unless parties agree otherwise.

Question 133

Directed Verdict/ judgment as a matter of Law

Answer 133

Shall be entered upon motion if evidence on an essential issue is so one sided that reasonable minds could not reach different conclusions on the issue.

Raised at the close of Π’s evidence (Δ) and at close of all evidence (either).

No rational juror.

Question 134

Judgment Notwithstanding the Verdict (JNOV)/ Renewed Motion for Judgment as a Matter of Law

Answer 134

Will be entered despite the jury’s verdict if the court finds the evidence on an essential issue so on-sided that reasonable minds properly applying the law could not reach the result reached by the jury.
Must be filed within 14 days (Ohio) or 28 days (fed) after entery of judgment.

In federal ct, a motion for judgment as a matter of law at the conclusion of all evidence is a prerequisite to making the renewed motion after the verdict is rendered.

Question 135

Motion for a New Trial

Answer 135

A party may move for a new trial w/i 14 days (ohio) or 28 (federal) after entry of judgment based on (a) error at trial (making j. unfair); (b) new evidence; (c) misconduct of a party of juror; or (d) judgment being against the weight of the evidence.
Remitterur/additur on motion of new trial.

Ct grants by giving loser a choice either accept reduced or new trial will be granted

ADDITURE NOT available in federal court because it violates 7th amendment.

Question 136

Motion to Set Aside a Judgment Rule 60

Answer 136

Ct will set aside only if movant demonstrates
• he has a meritorious defense
• that he is entitled to relief under the grounds listed below and
• the motion is timely.

Ohio: when default: doubt should be resolved in favor of the motion.
Grounds:Timing
Clerical errors:Anytime
Mistake, excusable neglect, surprise:Reasonable time (<1yr)
Judgment void:Reasonable time (no max)

Question 137

Appeal

Answer 137

File notice w/i 30 days after entry of judgment (post-trial motions suspend time until ruled on)
MUST BE FINAL JUDGMENT
Ohio deems some to be final judgments that aren’t
• an order that affects substantial right in an action that in effect determines action and prevents judgment
• an order that vacates or sets aside a judgment or grants a new trial
• An order grants or denies provisional remedy
o the order effects determines the action with respect to the provisional remedy and prevents a judgment; and
o the appealing party would not be afforded a meaningful or effective remedy by appeal following final j. as to all proceedings
• Class certification.

Question 138

Interlocutory (nonfinal) review

Answer 138

Multiple claims: generally no appeal until ct adjudicates all claims against all parties unless ct express directs it as final j.
Extraordinary writs: not really appeals
• writs of mandamus: compel tr cat to make or vacate an order
• writ of procedendo: trial ct to exercise its jurisdiction
• writs of prohibition that confine trl ct to its proper jurisdiction
Federal interlocutory orders reviewable as a right: injunctions, orders appointing or refusing to appoint terceivers; finding of patent infringement where only an accounting is left; orders affecting possession of property.
Class action certification: fed appeals may in its discretion permit an appeal from order on class certification . Must be filed w/i 14 days of certification
Federal Interlocutory appeals: appeals of interlocutory order ONLY if trial judge certifies it as controlling issue of law as to which there is substantial ground for difference of opinion AND ct of appeals agrees to hear case.

Question 139

Claim preclusion: Res Judicata

Answer 139

A claim is barred if the same claim was previously adjudicated to final judgment on the merits between the same parties or their persons in privity with the parties. 
J. on merits: sum j. dir v., 
J. not dismissal on 12(b)
Exception:privies to parties
Only if 
•	party was actually represented (minor)
•	party actually controlled prior party 
•	if successor in K I interest in something I purchased form a prior party

Question 140

Issue Preclusions

Answer 140

One is precluded from relitigating an issue if she previously she previously litigated the issue and the issue was decided in a valid and final judgment.
• same issue
• actually litigated and decided, no default judgment
• by final j
• defemination was essential to the prior judgment: the resolution of the issue must have been essential to the earlier judgment
• Ohio only same parties (mutuality of preclusion)

Question 141

Non-mutual issue preclusion

Answer 141

Federal only
• Only parties to the prior action and persons in privity with them.
Persons that can assert
defenseive non-mutual issue preclusion: Δs who were not parties to the prior action may assert issue preclusion defensively against a plaintiff who did previously litigate an issue.
Offensive Non-mutual issue preclusion: Π who were not parties to an action may use issue preclusion offensively against a Δ who was a party to the prior action, unless the court finds it is unfair, Factor to consider
• Π asserting issue preclusion could easily have joined the previous action
• Δ being precluded lacked incentive to litigate the issue vigorously
• the 2nd action has procedural safeguards not applicable in prior litigation
• multiple prior inconsistent results