#Motion to dismiss sample ohio trial

This opinion is of considerable importance to the practice of law in Ohio because it eliminates the uncertainty for defendants who learn of a lawsuit against them, but who have never been properly served. The Supreme Court stated that such a strategy is expressly provided for in the Civil Rules and constitutes excellent lawyering, not gamesmanship. The Ohio Supreme Court rejected the plaintiffs’ contention that filing an answer raising the affirmative defense of failure of service, proceeding to defend the case, and then raising the lack of service by way of motion practice prior to trial, constitutes undesirable legal “gamesmanship”. If he raises the affirmative defense of failure of service, he will continue to have that affirmative defense available to him up to and throughout trial. The Ohio Supreme Court, in a 6 to 1 decision, agreed with Judge Cooney’s dissent, stating that under the existing Civil Rules, a defendant who is not properly served may nevertheless file an answer, and Judge Colleen Conway Cooney dissented, - authoring an excellent dissenting opinion outlining Ohio case law on this issue, stating that a properly raised affirmative defense of failure of service was not waived by subsequent defense of a lawsuit.

#Motion to dismiss sample ohio trial

The trial court recognized this fact, and granted a Motion to Dismiss shortly before trial.Ī divided three judge panel in the Court of Appeals attempted to make new law by stating that the affirmative defense of failure of service was “waived” by the “vigorous” defense of the case, including participating in pretrials and discovery. Thus, under existing Ohio case law, the lawsuit was a “nullity”, and it was as if it was never filed. After one year had passed from the time of the filing of the action, plaintiffs were no longer able to obtain service on the defendants under Ohio Civil Rule 3(A). Also, defendants moved for summary judgment on the merits of the claims against them. The trial court proceedings included the usual discovery, such as depositions of the parties and exchange of paper discovery.

Defense counsel filed an answer on behalf of both defendants, and appropriately raised the affirmative defense of failure of service of process in the answer. As is often the case, defendants learned of the pendency of the lawsuit, despite not being served, through notification by their insurance company. Plaintiff made one attempt at service on both defendants, which each failed, and then Plaintiff failed to re-visit this issue. Cline (1984), 12 Ohio St.3d 317, 12 OBR 388, 466 N.E.2d 567.)”Īt the trial court level of this case, Plaintiff failed to perfect service on both the doctor and the medical practice group which he sued. “When the affirmative defense of insufficiency of service of process is properly preserved, a party’s active participation in the litigation of a case does not constitute waiver of that defense. In Gliozzo, the Ohio Supreme Court held as follows: Reminger & Reminger is pleased to have represented the defendants in this matter throughout the trial court and all appellate court levels. This opinion will likely impact how cases are handled, on both the plaintiff and defense side, all across the state. Service of a lawsuit is the process whereby a defendant is officially provided a copy of a Complaint filed against him, and where the fact of such service is noted on the Court’s docket.

, 114 Ohio St.3d 141, 2007- Ohio-3762, the Ohio Supreme Court recently issued an important decision on the requirements for service of parties in lawsuits.