Rule statements Flashcards
Motion for Default Judgment when defend hasn’t reponded
In Ohio, after proper service of a complaint a Defendant has 28 days whether to answer, request a leave to plead or move for a motion to dismiss under Rule 12.
If the party does not take one of these actions then a Plaintiff can file a motion for default judgment. If the Defendant has made an appearance then the motion must also be served on the Defendant.
If the Defendant has not made an appearance then there is no need to serve the Defendant with the motion.
The Court after determining good service can enter judgment as to liability but must make a separate determination on damages. This can be done by hearing or affidavit.
a judge is not required to hold a separate hearing for damages, unless an uncertain amount is at issue.
60(B) Motion
In Ohio, a judgment can be opened and vacated if it is reasonable, timely, and there is a meritorious defense. Under the reasonable prong, inadvertence and excusable neglect are adequate reasons to reopen and vacate.
A motion must be filed within a reasonable time but no more than a year for a reason like excusable neglect or inadvertence.
As with nearly all motions, the other side should be served and given 28 days to respond unless altered by the court.
Motion to dismiss at the close of plaintiff’s case
A motion to dismiss by defendant at the close of plaintiff’s case may be granted if there is no basis for a reasonable trier of fact to conclude that the plaintiff has made out a proper claim (if plaintiff does not present a prima facie case).
Normally the issue of credibility of the evidence is left to the jury, but here this was a bench trial.
Ohio Civ. R. 41(B)
Ohio Civ. R. 41(B) specifically allows for a motion for involuntary dismissal upon completion of a plaintiff’s case in a bench trial.
The movant must show that the plaintiff has shown no right to relief, and a court’s granting of the motion, unless otherwise stated, will serve as an adjudication on the merits
Rule 14 joiner of third party defendant
Rule 14 only permits joinder of a third party where the original defendant alleges that, if it is liable to the plaintiff, the third-party defendant is liable to the original defendant for some or all of the judgment.
Rule 19- necessary parties
The necessary party rule rests on the same factors as intervention – inadequate protection of rights, risk of in consent judgments, and incomplete relief.
Intervention
A party will be permitted to intervene if (i) its rights will not be adequately protected absent intervention, (ii) there is a risk that party will be exposed to inconsistent judgments absent intervention, or (iii) there will be incomplete relief as to the existing parties without intervention.
5 Proper Venues
Venue: A party filing suit must file the action in the proper venue.
A venue is proper
(I) where the defendant or any of the defendants reside; (2) the county were a substantial portion of the activity giving rise to the cause of action occurred;
(3) the principal place of business of the defendant, if it is a corporation;
(4) the county where the breach occurred, and
(5) if none of the foregoing are proper, in the county in which the plaintiff resides.
Personal Jurisdiction
Personal Jurisdiction: A state court has personal jurisdiction over its residents and has personal jurisdiction over non-residents subject to the state’s long-arm statute.
A state will have personal jurisdiction over a non-resident if that person has minimum contacts with the state and if jurisdiction would comport with the notions of fair play and substantial justice of process clause.
A person has minimum contacts if they have availed themselves of the privileges of conducting business in the forum state and/or they could reasonably anticipate being hailed into court there.
Minimum Contacts
Minimum contacts can be satisfied by specific or general jurisdiction.
Specific jurisdiction exists where the action arises out of activities in the forum and general exists where the defendant has substantial and continuous business ties to the forum state.
Service of Process
The state can obtain personal jurisdiction of its residents by proper service. In Ohio the summons must be served by certified/express mail, personal service, or residential service.
An individual must be served at their residence and a corporation must be served at its primary place of business.
Subject Matter Municipal Courts
Subject matter jurisdiction: Subject matter jurisdiction is appropriate in jurisdiction over cases up to $15,000, not including interest and costs, and this suit is for $15,000.
Motion for a new trial
A motion for a new trial will be granted based on
(1) an error at trial,
(2) new evidence (that could have been discovered in time for trial for due diligence),
(3) improper conduct by the jury, or
(4) a verdict against the weight of the evidence.
A motion for new trial under Rule 59 must be brought within 28 days after judgment is entered
Relief from judgment
Following entry of judgment, David should make a motion for relief from judgment under Rule 60(b).
Such a motion must be made within a reasonable time after the entry of judgment and under most circumstances within a maximum of one year.
A motion for relief from judgment may granted for other reasons including mistake, surprise, excusable neglect, and other reasons.
“Excusable neglect” is generally defined as neglect resulting from unusual or special circumstances.
Default Judgment against a minor or incompetent
A default judgment may not be entered against either a minor or someone who is mentally incompetent unless a guardian has made an appearance in court for such person in the case.
