PART 2 - CIVIL PRACTICE

2.01 COSTS

2.02    EXTENSION OF TIME TO MOVE OR PLEAD 

The time within which a party is required by the Civil Rules to serve and file shall be extended, as follows: 

(1)  Twenty-eight days for a responsive pleading to a complaint,   counterclaim, cross claim or third party complaint; 

(2)  Fourteen days for a motion directed to a pleading; provided the party makes advance written application to the Court prior to the expiration of the original rule period. 

Additional time thereafter may be granted by the Court pursuant to a stipulation of the parties approved by the Court and pursuant to Civil Rules 6(B) and 6(D) applicable to this rule. 

2.03     CALL OF CASES FOR DEFAULT 

In all cases where no answer, motion or pleading is filed, it shall be the duty of the plaintiff or his/her attorney to submit an appropriate application for default judgment and proposed default judgment entry. 

When the defendant is in default for answer or appearance, default judgment shall be rendered by the Court in all cases with liquidated claims upon a proper application for default judgment being filed without the necessity of the plaintiff or the plaintiff's attorney appearing. 

If an action is for recovery of money only arising out of damage to personal property, and the defendant is  in default, final judgment shall be entered for the plaintiff in the amount  of the prayer, provided that an affidavit with sufficient supporting documentation is caused to be filed by the plaintiff or the plaintiff's attorney verifying that the prayer of the plaintiff does reflect the reasonable costs of repairing or replacing said personal property or the diminution in the market value thereof, whichever is less. 

If the defendant in a forcible entry and detainer action is in default as to the second cause of action, and the plaintiff or the plaintiff's attorney causes to be filed an application for default judgment for rent only, final judgment shall be entered for the amount requested in the application for default judgment, provided that the date of vacation of the premises is specified in said motion and that the total amount of rent claimed can be reconciled from a reading of the complaint in conjunction with information provided in the application for default judgment. 

All other actions will be assigned by the Clerk for assessment of damages.

2.04    DISMISSAL FOR WANT OF PROSECUTION 

Pursuant to Municipal Court Superintendence Rule 40, any civil case which is on the regular docket for six months without a proceeding taken therein shall be dismissed for want of prosecution, after ten days written notice to counsel or plaintiff, if the plaintiff is not represented by counsel, unless good cause be shown to the contrary. 

Any small claims case which is on the small claims docket for four months without service upon the defendant(s), shall be subject to dismissal after ten days written notice to the plaintiff or plaintiff's counsel, unless good cause be shown to the contrary. 

2.05      MOTIONS PRACTICE 

            A.         Every written motion shall be in compliance with the Civil Rules and shall be accompanied by a memorandum of the applicable law. 

B.         Before any written motion (other than for default judgment where defendant has not entered an appearance) may be accepted by the Clerk for filing, a copy of the motion and accompanying memorandum must have been served personally on the opposing party or his attorney or deposited in the mail prior to filing and the method of service must be noted in writing on the motion. 

C.        When an oral hearing is requested, said request must be made at the time of filing of a motion. In the event the movant does not request an oral hearing on the motion and in the further event that the Court does not itself set an oral hearing on the motion, then the motion shall be deemed submitted as of the fifteenth day following filing. An oral hearing on the motion may be requested in writing by opposing counsel no later than three days before the aforesaid submission. 

2.06    DEMAND FOR TRIAL BY JURY 

A.        In all civil cases except forcible entry and detainer cases, the failure of a party to advance the security deposit for jury costs required under the administrative order of the Court, at least twenty-one days prior to the date set for trial shall constitute a waiver of trial by jury. 

B.         In forcible entry and detainer cases, the failure of a party to advance the security deposit for jury costs at the time of the filing of said demand shall constitute a waiver of trial by jury.

2.07   PRETRIAL CONFERENCE PROCEDURE 

A.        In any action the Court may, in its discretion, with or without the request or application of a party, assign such cause for a pretrial conference.  There shall be a pretrial conference in all cases in which one or more party is not represented by counsel, (other than for small claims actions and forcible entry and detainer actions) as well as in all cases in which a demand for trial by jury has been made. 

B.         At the pretrial conference, counsel and, unless excused by the Judge, all parties in interest shall be present.  Counsel shall be fully prepared to discuss, consider, review and/or agree on the following matters: 

  (1)      Status of pretrial negotiation and the possibility of settlement of the case. 

  (2)      The possibility of taking advantage of the Alternative Dispute Resolution Program. 

  (3)      Defenses and motions which, under the Civil Rules, must be determined before trial. 

                          (4)      Amendments to pleadings and additional pleadings and motions sought to be filed in the case. 

  (5)      Issues, stipulations and matters of law pertaining to the case. 

  (6)      Exhibits expected to be offered into evidence. Such exhibits shall be presented at pretrial for marking for identification. 

  (7)      Damages:  Itemization of all special damages claimed and any reports or records relating to or tending to substantiate the basis of any claim of damage, special or general, shall be presented at the pretrial conference. 

  (8)      Names and number of all lay and expert witnesses expected to be called. 

  (9)     The need for a view of the scene. 

(10)      An estimate of the time which will be required for a trial or hearing. 

(11)    The date and time of the trial or hearing. 

(12)     If prior to the pretrial conference, a jury trial was demanded by a party, 

(a)         a waiver of the jury, and

(b)         if jury is not waived, the number of jurors requested. 

(13)      The need to submit trial briefs, and if a jury trial was demanded, the need to submit the text of and citation of authority for jury instructions. 

(14)     Such other matters as will aid in the expeditious disposition of the case.

2.08      ASSIGNMENT OF CASES FOR TRIAL 

When the issues in any case have been made by the pleadings, the Court, at its own discretion, or upon request of either party, may assign the case for trial or for pretrial.  If a party requests trial or a pretrial conference, he shall certify to the Court in writing, that all discovery has been completed and that he is in compliance with all orders of the Court applicable to this cause and filed herein, and that he is not in default in the payment of any cost deposits as required by law or by Court rule. 

2.09    CONTINUANCE REQUEST 

            When a hearing or trial date has been assigned, a request for continuance shall be submitted to the Court at least five court days prior to the date of the trial or hearing and which must include the reasons for the request, the date and time of the current assignment and a space for a date certain to be assigned.  Counsel for the party requesting the continuance shall submit a separate proposed order. 

2.10     ENTRIES 

Counsel for a party in whose favor an order or judgment is rendered shall prepare the proposed journal entry or judgment entry, as the case may be, unless otherwise ordered, and submit it to opposing counsel within seven days of the decision.  Opposing counsel shall approve or reject the entry within seven days.  Within seventeen days of the decision, prevailing counsel shall either cause to be submitted to the Clerk the proposed judgment entry or inform the Court of the disagreement of the parties on the proposed entry.  In the event there is disagreement of counsel on the proposed entry, prevailing counsel shall inform the Court of such disagreement within fifteen days of the decision. 

2.11    FORCIBLE ENTRY AND DETAINER 

A.         Service of summons on the defendant shall be by any of the methods of service prescribed by Section 1923.06(D) ORC. When service of summons is by personal or residence service, the summons shall state the trial date on the cause of action for restitution of the premises to be ten to fourteen days from the date of filing unless there is a failure of service within seven days of the date of hearing, in which case the hearing shall be rescheduled. 

B.         At the time set for trial the plaintiff shall be present in Court. Failure to comply with this rule may result in a dismissal of the case. 

C.        Demand for trial by jury shall be filed in accordance with Section 1923.09 O.R.C. but not later than three days prior to the date of trial.

D.        In the event that the defendant fails to appear at the restitution hearing, no default judgment shall be ordered unless testimony is taken from the plaintiff regarding the proper form and service of the “Notice to Leave Premises" on the defendant and defendant's failure to pay rent when due or other reason why restitution of the premises is being sought. 

E.         If the plaintiff's claim for a writ of restitution is granted, then said writ shall be issued in ten days, to be executed within ten days thereafter, unless execution is sooner directed by the Court. 

2.12     SMALL CLAIMS DIVISION 

A.        Pursuant to Section 1925.01 O.R.C., a small claims division has been established for cases for the recovery of money only, for amounts not exceeding $3,000.00, exclusive of interest and costs..

            B.         Cases filed in the Small Claims Division shall be referred to Mediation prior to going forward on the Small Claims docket. If a case is settled during the Mediation session, the Plaintiff(s) shall be reimbursed by the Court for one-half of the initial filing fee. Cases which are not settled during the Mediation session shall be rescheduled on the Small Claims docket. 

C.         Cases filed in the small claims division shall be heard by the Judge, Acting Judge or Referee appointed and assigned under Municipal Court Superintendence Rule 4 and Rule 53 of the Rules of Civil Procedure.  The Judge, Acting Judge or Magistrate shall hear and determine all cases which come before the small claims division of this Court at each small claims session, including but not limited to making findings incident to cases in which one or both parties have failed to appear and to making findings and recommendations in all contested cases.  At sessions heard by an Acting Judge or Magistrate, the Acting Judge or Magistrate shall have and exercise the power to regulate all proceedings in every hearing before him as if by the Court and do all acts and take all measures as necessary or proper for the efficient performance of his duties under this rule. He or she may summon and compel the attendance of witnesses and may require the production before him or her of evidence upon all matters embraced in this reference, including the production of all books, papers, vouchers, documents and writings applicable thereto. The Acting Judge or Magistrate may rule upon the admissibility of evidence and has the authority to administer the oath and may examine then and may call the parties to the action and examine them upon oath. The Acting Judge or Magistrate shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations upon a court sitting without a jury. 

D.         The Magistrate shall prepare a report upon each of the cases and file the report with the Clerk of this Court.  The Magistrate's report shall set forth his findings of fact and recommendation(s) of the judgment to be made. The Magistrate shall file with the report a transcript of the proceedings and of the evidence only if the Court so directs. 

E.         A party may, within fourteen days of the filing of the Magistrate's report, serve and file written objections to the Magistrate's report.  If objections are timely served and filed by any party, any other party may serve and file objections within ten days of the date on which the first objections were filed or within fourteen days of the Magistrate's report, whichever period last expires. Such objections shall be considered a motion.  Objections shall be specific and state with particularity the grounds therefor. Such objections shall be advisory only during the objection period as above provided.  Following the objection period, the Magistrate's report together with any objections submitted by any party, shall be submitted to the Court.  Pursuant to Civil Rule 53, the Court shall then either adopt, disapprove or modify said recommendations.  After the Court has ruled on the Magistrate's recommendations, judgment shall be entered accordingly unless the Court orders a new hearing. 

F.          Pursuant to Section 1925.10 O.R.C., motions to transfer the cases to the regular civil docket filed by any party, cross claims or counterclaims in the amount of $3,000.00 or more and motions for continuances shall be referred to the Court. 

G.         Motions for a continuance should be filed within forty-eight hours prior to the hearing; however, for good cause, the Court may entertain a motion for continuance on the hearing date. 

H.        In cases where motions have been granted to transfer a small claims case to the regular civil docket, the party seeking the transfer shall pay the appropriate filing fee to the Clerk within ten days of the granting of the motion. Failure to pay the fee within the prescribed time will result in the case being assigned a new hearing date on the small claims docket. 

I.          No depositions or interrogatories shall be taken in small claims cases. 

2.13     TRUSTEESHIP REGULATIONS 

A.        Filing Information:  The filing fee for establishing a trusteeship is $25.00. The application to establish a trusteeship must include a full, accurate and complete statement, under oath, of the names of the debtor's secured and unsecured creditors with liquidated claims, their addresses and the amount due to each. Debts of less than $25.00 are not to be included in the trusteeship. Any applicable identifying numbers of the creditors should be included in the statement, such as account numbers, patient numbers, etc. In the event that the creditor has turned over to an attorney or collection agency the collection of a debt, the name and address of the attorney or collection agency must be listed on the statement also. Upon the establishment of the trusteeship, all the creditors will be notified by mail. 

B.         Payment Information:  The amount of unexempt earnings paid to the Trustee shall be the nonexempt portion of the debtor's earnings determined according to Section 2329.66 of the Ohio Revised Code. Net earnings are earnings after deductions required by law, excluding deductions for child support, alimony, etc. A payment must be made upon the debtor's receipt of each pay check and is to be accompanied by a pay stub or written statement of the debtor's pay for that period.  Payments are to be made into the trusteeship within three working days of the date the debtor received his pay from his employer. 

C.         Receipts:  When making a payment or calling the office, a debtor should always have available his trusteeship case number since all records are filed by number.  If a debtor makes his payments by mail and wishes to receive a receipt, he must send a self addressed envelope with his payment.  Otherwise his receipts will be returned to him with his disbursement letter. 

D.        Notification of Changes:  If a debtor changes his address or employer, he must notify the Trustee immediately.  When a debtor is off work for any length of time or when returning to work, he must also notify the Trustee (preferably in writing).  A debtor is not expected to pay into his trusteeship when not drawing a pay check, but the Trustee must be aware of the situation so that his records will not indicate that he is delinquent.  A judgment creditor may garnishee a judgment debtor's wages when the judgment debtor is not paying the required amount into his trusteeship while employed. 

E.        Delinquency:  If a debtor fails to pay the Trustee within a thirty day period and there is no information or reason for the nonpayment on file, the debtor will be sent one warning letter.  If the debtor does not respond within one week, his trusteeship will be terminated automatically, and the debtor may not refile for a period of six months. 

F.         Disbursement to Creditors:  A disbursement to creditors is normally made after a debtor has paid at least $500.00 into his trusteeship or in the event that $500.00 has not been paid into the trusteeship within six months. Further disbursements to creditors are normally made when a trusteeship has accumulated an additional $500.00 balance or each six months, whichever comes first. Upon distribution to the creditors, a fee shall be assessed in the sum of 2% of the total amount disbursed to the creditors.  After the first disbursement, there is a $3.00 charge for the addition of each new creditor into the trusteeship.