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What happens after you file your lawsuit in federal court?

Complaint

Federal court lawsuit once filed involves various stages. The first thing that happens in a lawsuit is that a document, called the complaint, that contains formal allegation(s) by the plaintiff in the case is filed. The plaintiff is the person who brings the lawsuit and files the complaint. The complaint initiates the lawsuit and contains: (1) a statement of the Court’s jurisdiction over the parties, such as “diversity of citizenship” jurisdiction for federal courts (lawsuit between citizens of different states), and the subject matter (facts); (2) a statement of claims/causes of action against the Defendant(s); and (3)request(s) for relief, such as monetary damages. The typical cost of filing the complaint is between $200 and $400.

Service of Process

After the lawsuit is filed with the court, the plaintiff must have it served on the defendant, who is the party in the complaint (lawsuit) against whom the claim/cause of action is brought. Service of the complaint requires notification to the defendant by personal delivery, mail, or publication. Along with the complaint a summons must also be served on the defendant. A summons is a written notice accompanying a complaint (lawsuit), served on the Defendant, notifying that he or she is a party to a lawsuit or other Court action.

Motion to Dismiss

After receiving the service of the complaint, the Defendant must file either an answer to the complaint or a responsive motion. A responsive motion is simply document asking the court to do something. In this case, it would be a document asking the court to dismiss the complaint.

If the Defendant files a motion to dismiss the complaint, the plaintiff will have a short period of time in which to file a written memorandum of law. Such memoranda are usually captioned as “Plaintiff’s Memorandum in Opposition to Defendant’s Motion to Dismiss.” After the opposition memorandum is filed, the Defendant will file a Reply Memorandum. When the reply is filed, the briefing is finished, and additional briefs are generally not filed unless the parties first obtain permission from the Court (what is known as “leave of Court”).

The Court will then proceed to rule on the merits of the motion to dismiss. If the motion is denied, the case proceeds, and the Defendant must file its answer. If the motion is granted, the Court may dismiss some or all of the claims. If all of the claims are dismissed, the plaintiff has the option of considering whether to file an appeal challenging the dismissal.

In some cases, the Court will ask to hear oral argument regarding a motion to dismiss. Usually, however, the Court will rule on a motion to dismiss without hearing oral arguments.

Answer

If the case proceeds, then the defendant must file an answer to the remaining claims found in the complaint. In its answer, the Defendant tells what the Defendant believes has happened. Under the rules, an answer must be filed within a given time. Usually, the deadline for filing an answer is twenty (20) days after the Defendant was served with the complaint.

Case Management Conference

After the defendant has filed the answer to the complaint, a case management conference usually will be held where discovery issues will be discussed and resolved, formal discussion of possible settlement will occur, pretrial motions will be discussed, and a trial date will often be scheduled. The Judge will encourage the parties to seek settlement and is normally willing to meet again with them if it encourages settlement.
If a settlement cannot be worked out at the scheduling conference, a formal trial will be scheduled to take place unless a motion to dismiss or for summary judgment is granted. A motion to dismiss a complaint may be granted for failure to state a claim upon which relief can be granted, failure to effect proper service of process, lack of venue or personal jurisdiction, lack of federal subject matter jurisdiction, or for failure to comply with court rules or orders.

Discovery

The next step is pretrial activities. The most important pretrial activity is probably “discovery.” Discovery allows both the plaintiff and the Defendant to have as much information as allowed under the rules before the Court has decided the case. The most common types of discovery tools are: Depositions, Interrogatories, Requests for Production of Documents, and Admissions are used to gain information from parties. Subpoenas are used to get information from third parties.

Depositions are a method of discovery that allows a party to ask questions of a party opponent (such as the Defendant) or a witness under oath, and the questions and answers are recorded by a court reporter. Court reporters charge for this service and this is usually one of the up front costs of bringing a lawsuit along with the filing fees charged for filing a complaint.

Interrogatories are a discovery tool of written questions used to obtain information about the case. They are served on a party opponent (such as the Defendant) and must be answered under oath.

Requests for production of documents is a discovery tool that enables a party to a lawsuit to inspect documents another party or nonparty has in its possession or control.

Admissions are a discovery (information gathering) tool by which one party to the lawsuit asks another party to admit or deny the truth of certain important facts.

A subpoena is a court order compelling a witness, under the threat of contempt, to appear and testify in Court or at a deposition. A subpoena duces tecum is a type of subpoena issued by a Court to require a witness to produce at a deposition or a trial certain specified documents, papers or items that are about the case and in the witness’ possession or control.

Summary Judgment Motion

After Discovery is over, the court usually gives the parties a time period in which to file dispositive motions i form of a summary judgment motion. Summary judgment motions are almost always filed by defendants in the case. The summary judgment is filed by a party who claims that there is no dispute about the important facts and the moving party is entitled to judgment in his or her favor as a matter of law, thus making it unnecessary to send the case to a jury or bench trial. The judge will grant the summary judgment motion if the Judge considers it unnecessary to go through a trial because there is no dispute about the important facts of the case and the law provides that no relief is warranted. The result of the summary judgment motion is that the case is over. The winner is the person who filed the summary judgment motion and gets it granted.

Trial

If the case gets by summary judgment, it will go to trial. There are two types of formal trials. One is a jury trial and the other is a bench trial or a trial before the Judge alone. In a jury trial, a group of people known as the jury (no fewer than six and no more than 12 people) is selected and sworn to decide the merits of the lawsuit under the Judge’s supervision and direction. If a jury trial has not been requested or the case cannot be tried by jury, a bench trial will be ordered. The Judge conducts a bench trial without a jury. The purpose of a trial is to let the jury or the Judge decide whether the evidence favors the plaintiff’s position or favors the Defendant’s. If it favors the plaintiff, they win; if it favors the Defendant, the Defendant wins. After the jury or the Judge makes such a decision, a final judgment will be entered at the Court in the Clerk’s Office. If the parties agree, the trial can be heard before a Magistrate Judge. This could be beneficial in expediting the case to trial since Magistrate Judges cannot preside over criminal trials and, therefore, their trial schedules can provide more of a guaranteed date for the trial to begin.

Throughout the trial and even after the trial, the parties may file various motions to ask from the Judge certain orders favorable to them. For example, a party can make a motion for judgment as a matter of law, after they have presented all their evidence to the jury or the Judge, arguing that they believe that there is only one possible verdict; namely, a verdict in their favor. If after a jury returns a verdict against a party, and they believe the verdict is legally wrong, they can make a motion for judgment as a matter of law, asking the Judge to enter a judgment different from the jury’s verdict. Even if the Judge has entered a final judgment against a party, that party may still make a motion for a new trial within ten (10) days after the entry of an order if they feel there was error of law or fact, or new evidence is discovered.

If the case is lost at any point, the party losing the case can ask an appellate court to review the trial court’s decision. This process is called an appeal. A different set of rules controls the procedures for appeal.

Ohio signs Uber insurance legislation

Ohio signs Uber insurance legislation.

Ohio signs Uber insurance legislation making it safer to take rides from Transportation Network Companies. An issue that many of us Toledo Ohio personal injury attorneys have had with the ride sharing apps is that our clients have been at risk of being under-insured if they were injured while using one of these services. Up until now there has been a major problem of not having enough insurance to cover their injuries if they were unfortunately involved in an accident. Imagine if your driver just carried the bare minimum liability coverage in Ohio. That’s $25,000.00. If your driver caused an accident where you were left paralyzed, the maximum amount that you could recover from your driver was the $25,000.00. Of course, you could get a personal judgment against the driver. However, unless the driver was independently wealthy you would never be able to collect enough money from him to pay for your care and maintenance. In such a situation, you would most likely be taken care of by the government – i.e., tax payers.

A new law compelling Transportation Network Companies, such as Uber, to maintain $1 million liability insurance coverage and conduct background checks on their drivers was signed by the Governor of Ohio this week. The new law takes effect in ninety days or on about March 22, 2016. So, while the requirements to have $1 million liability insurance coverage is likely to add a cost to the fare, it’s better that you pay a little extra for the ride then the tax payers pay for your care for the rest of your life. It also brings the Transportation Network Companies into line with other transportation companies, such as buses and taxi cab drivers which are currently regulated by the Ohio Department of Insurance. Regulation is necessary to ensure that citizens are protected from catastrophic events.

Ohio Personal Injury and Medical Malpractice Case Law Update

Antoon v. Cleveland Clinic, 2015-Ohio-421

On 9-16-15 the Supreme Court took in this case with dissents by Pfeiffer and O'Neil. It was a Cleveland Court of Appeals decision which 3 to 0 have reversed a Trial Court dismissal in a med-mal case based on statute of limitations and had a discussion in regard to the statute of repose and it also involved a dismissal in Federal Court.

State of Ohio v. Ebraheim, No. L-14-1157

Case was an appeal from a finding of guilty by a judge in Toledo Municipal Court against Dr. Ebraheim over the accident at Dorr and Richards Road involving himself and a motorcycle. It was interesting since there was a lot of discussion in regard to proximate cause and also expert witnesses by both sides in regard to vehicle speeds, etc.

Link v. First Energy, 2014-Ohio-5432

With three dissents was taken in by the Court. It involved a case against the defendant over injuries sustained when hitting a utility pole and there was apparently a large jury verdict for the Plaintiff and questions about punitive damages. The Court of Appeals upheld the jury verdict but it was taken in by the Supreme Court over 3 dissents.

Argabrite, 2015-Ohio-125

With three dissents taken in by the Court. It involved a police pursuit and the Plaintiff was injured by the driver being pursued. The Trial Court granted MSJ for the officers and it was affirmed with one dissent in the Court of Appeals.

Slip and Fall at Winery Results in Defense Verdict

Dunn v. Heineman’s Winery, 2015-Ohio-4054

Slip and Fall

In this case, the plaintiff was visiting a gift shop and then proceeded to go outside to an outdoor wine garden. The lawn area had recently been seeded and was covered with straw. It had rained earlier that day and the ground was wet. Three pieces of plywood had been placed on the ground so that customers could walk from the gift shop to the wine garden without getting mud on their shoes. The plaintiff slipped on the wet plywood and was injured.

The Open and Obvious Defense

This case, which was a slip and fall at a winery at Put N Bay, was found in favor of the defendant based on the defense of open and obvious danger. This defense is the most common defense used by owners of property involved in slip and fall claims. The trial court found the piece of plywood an open and obvious danger as a matter of law, leaving the winery with no duty to protect the plaintiff.  “The open-and-obvious doctrine eliminates a premises occupier’s duty to warn a business invitee of static dangers on the premises if the dangers are known to the invitee or are so obvious and apparent to the invitee that he or she may reasonable be expected to discover them and protect himself or herself against them.” Simmons v. Am. Pacific Ent., L.L.C., 164 Ohio App.3d 763, 2005-Ohio-6957, 843 N.E.2d 1271, ¶ 21 (10th Dist.), citing Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968). The case was affirmed 3 to 0 in the Court of Appeals of Ohio, Sixth Appellate District, Ottawa County.

The Ohio Supreme Court Accepts Review of Case Interpreting Ohio's "Good Samaritan" Law

The Ohio Supreme Court Accepts Review of Case Interpreting Ohio's "Good Samaritan" Law

On July 8, 2015, the Ohio Supreme Court accepted the case of Carter v. Reese, 2014-Ohio-5395 for review, which means that the Ohio Supreme Court will decide this appeal from the decision of the Twelfth District Court of Appeals.

Facts of the Case

It is a case involving a man who lost his leg when he was pinned against a loading dock. The man was stuck between the truck and the loading dock, but was uninjured. He was trying to get unstuck when he heard someone nearby. He called out to the man and the man asked what he could do to help him. The pinned man asked him to move the truck forward about a foot, but to make sure that he did not reverse the truck. The man who was attempting to render assistance did not know how to drive the type of truck that the man was pinned behind, but he decided to render assistance anyway and let the truck roll backwards onto the pinned man breaking his leg in three separate places. By the time someone came to render assistance who knew how to drive the truck, the injured man had lost so much blood that he had to be airlifted to the hospital and ended up having to have his leg amputated.

Decisions of the Lower Courts

The Trial Court and the Court of Appeals both affirmed Motions for Summary Judgment based on the "Good Samaritan" law in regard to rendering emergency care, holding that the Good Samaritan law in Ohio protects anyone who renders emergency care from liability for their conduct unless their conduct is willful and wanton. The issue that the Ohio Supreme Court will decide is whether Ohio’s Good Samaritan civil immunity statute only applies when emergency medical care is rendered or when anyone attempts to render emergency care.

What the Good Samaritan Statute Says

The Good Samaritan statute in R.C. 23025.23 states “(no) person shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency outside of a hospital, doctor’s office, or other place having proper medical equipment, for acts performed at the scene of such emergency, unless such acts constitute willful and wanton misconduct.”

What is the Equitable Result

What do you think? Should the Ohio Good Samaritan law protect non-medically trained individuals from liability? Even if the Ohio Supreme Court determines that the law as written applies to any person, health care professional or otherwise, who administers ‘emergency care,’ medical or otherwise, at the scene of an emergency and who meets the remaining requirements of the statute, e.g. their acts do constitute willful or wanton conduct, this is an inequitable result for this injured trucker and the State of Ohio’s legislature should change the law to reflect this inequitable result. It was clearly negligent for the individual attempting to render assistance to try to drive the truck when he did not know how to operate it and he should be held accountable for his negligence.

West Toledo Motorcycle Accident Attorney

Motorcyclist Killed in West Toledo Crash

A motorcyclist was killed in a crash involving a motorcycle and another vehicle in West Toledo early today. According to the Toledo Blade, a car turned right in front of the motorcycle. Unfortunately, as is far too often the case, the driver of the automobile was not injured – but the rider of the motorcycle lost his life.

What to do if this happens to you

If this happens to you, do not hesitate to call attorney Charles S. Herman. I am a West Toledo motorcycle accident attorney and I represent individuals in all types of accidents in the Toledo, Ohio and surrounding areas. If you have been injured or your loved one or family members has lost their life in a motorcycle collision, do not hesitate to pursue the matter through a lawyer because there may be some difficult legal issues including comparative negligence and uninsured motorist coverage involved in the case. There have been studies done that show that the earlier you get an attorney involved in your case, the better settlement that is obtained on your behalf. West Toledo motorcycle accident attorney Charles S. Herman represents injured motorcyclists on a contingency fee basis. This means that there is no fee unless you win your case and attorney Herman will help you seek reimbursement for all related expenses, including wrongful death, loss of quality of life, pain and suffering, and loss of future earnings. Contact me now for a free consultation or go to my website at www.toledounionattorney.com.