General Division-Montgomery County Common Pleas Court

 

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Rule Changes

PROPOSED AMENDMENTS TO LOCAL RULES OF PRACTICE AND PROCEDURE

FOR THE GENERAL DIVISION OF THE MONTGOMERY COUNTY

COURT OF COMMON PLEAS

 

NOTICE

 

On August 29, 2014, amendments to Local Rules 2.01 – 3.15 were published for comment.  After reviewing the comments, the General Division of the Montgomery County Court of Common Pleas approved proposed revision(s) to Mont. Co. C.P.R. 2.01, Civil Case Management Plan; 2.07, Pretrial Procedures in Civil Cases, 2.31, Magistrate; and 2.39, Civil Mediation. 

 

Pursuant to Mont. Co. C.P.R. 1.03 of the Local Rules of Practice and Procedure for the Montgomery County Court of Common Pleas and Rule 5 of the Rules of Superintendence for the Courts of Ohio, the proposed revisions are being published for a thirty-day comment period beginning Monday, December 15, 2014, through Tuesday, January 13, 2015.

Comments regarding the adopted modifications to Local Rules 2.01, 2.07, 2.31 and 2.39 can be submitted via email to rulecom@montcourt.org or in writing to:

James E. Dare, Court Administrator

Montgomery County Common Pleas Court

41 N. Perry Street

P.O. Box 972

Dayton, OH  45422

Comments must be received by 4:30 p.m. on Tuesday, January 13, 2015.


Rule 2.01 – Civil Case Management Plan

 

A.      PURPOSE:

To establish, pursuant to Sup. R. 5(B)(1), an automated system for civil case management that will achieve the prompt and fair disposition of civil cases, provide the Court with an efficient means of controlling the flow of civil cases, and save time by providing members of the bar with information and case management facilities.

 

B.      PROCEDURE UPON FILING CIVIL ACTION:

1.      Service:

a.      Every civil action filed shall be monitored for return of service of summons.  If service fails on any defendant or party named in a crossclaim, counterclaim, or third party complaint, the filing party shall be notified to reissue service within 14 days of the filing date of the notification to reissue service.  If any party fails to reissue service or notify the Court why service cannot be reissued within the 14 day period, the action may be dismissed pursuant to Civ. R. 41(B) and Mont. Co. C.P.R. 2.15(B).

b.      Service by Publication:

i.        If a party requests service by publication pursuant to Civ. R. 4.4 and such request is granted by the Court, it is the responsibility of the party seeking service by publication to forward a time-stamped copy of the Court order granting such service to the official law journal and to follow the journal’s procedures for publication.

ii.      The law journal is required to forward notarized proof of publication to the Court.

iii.    The Court shall not forward notices to effect service by publication to the official law journal nor collect fees for the publication.

2.      Answer:

a.      Upon completion of service, every civil action shall be monitored for the answer(s) to be filed within the 28 day period required by Civ. R. 12 or any extension permitted by the Court.

i.        If any defendant fails to answer, the case shall be monitored for the filing of motion(s) for default judgment.  If a motion for default judgment is not filed within a reasonable time, as determined by the Court, the filing party shall be notified to file a motion for default judgment within 14 days. 

ii.      If the party fails to file the motion for default judgment or notify the Court why the motion is premature or otherwise inappropriate within the 14 day period, the action may be dismissed pursuant to Civ. R. 41(B) and Mont. Co. C.P.R. 2.15(B).

b.      In any case where an answer is filed within the 28 day period as required by Civ. R. 12:

i.        if no jury demand was made, the assigned Judge may refer the case to the Magistrate pursuant to Civ. R. 53 and Mont. Co. C.P.R. 2.31; and

ii.      a pre-trial conference call shall be held to establish all filing and discovery deadlines pursuant to Civ. R. 16 and Mont. Co. C.P.R. 2.07.  A final pre-trial order journalizing the filing and discovery deadlines shall be filed.

3.      Termination Entry: When the case is completed, whether by default judgment, summary judgment, dismissal, settlement or trial, an entry terminating the case shall be indicated on the docket as a final judgment or dismissal entry. 

Rule 2.07 – Pretrial Procedures in Civil Cases

 

A.      STATEMENT OF INTENT:

This Rule implements Civ. R. 16.  It designs the basic patterns and instructions for pretrial development of civil actions.  Initiative, ingenuity, and industry on the part of attorneys in these actions will implement this Rule and will determine the quality of pretrial proceedings.  In the effective administration of this Rule, appropriate sanctions will be employed as may be necessary.

 

B.      PRETRIAL CONFERENCE:

Attorneys shall consult with their clients in advance of the conference and be prepared to confer practically and earnestly on settlement and all other matters as may aid in the disposition of the action.

1.      The Court, with counsel, may inquire into the status and possibility of settlement; discovery completed to date and anticipated prior to the time of trial, and establish the date for the delivery of a medical and special damages package.

2.      The Court shall issue a pretrial order establishing the following dates, if applicable:

a.      a date for the parties to reveal to each other the identities of expert witnesses;

b.      a date for the filing of any memoranda on disputed issues of law or fact and a discovery cut-off date;

c.       a date for the filing of all other motions deemed necessary, including motions for summary judgment;

d.      a date for motions to add necessary parties;

e.      a date for trial material exchange and objections to trial materials;

f.        a date for completing Civ.R. 35 exams which shall be set 120 days following the scheduling conference, and the examiner’s report shall be submitted to counsel within 21 days from the date of the examination;

g.      a date for completing perpetuation depositions;

h.      a date for filing a joint or individually prepared pretrial statements;

i.        a date for a final pretrial conference; and

j.        a trial date.

 

C.      WRITTEN MATERIALS TO BE READ INTO EVIDENCE:

If written materials are to be read into evidence, copies of such materials shall be provided by the proponent to the Court and other counsel at least seven days prior to trial.

Rule 2.31 – Magistrate

 

 

A.      APPOINTMENT AND REFERRAL:

Magistrates shall be appointed in accordance with Civ. R. 53(A).  Cases shall be referred to the appointed Magistrate in accordance with Civ. R. 53(D).

 

B.      PRETRIALS:

The Magistrate may require a case to follow the pretrial provisions set forth in Mont. Co. C.P.R. 2.07 prior to the hearing or trial date.

 

C.      TRIALS:

1.      Trials before the Magistrate shall be conducted in accordance with the standard set forth in the Ohio Rules of Superintendence, these Rules and any other applicable rules or laws.

2.      A record shall be made of all proceedings before a Magistrate.

 

D.     MAGISTRATE’S DECISION:

1.      In accordance with Civ. R. 53, after a hearing or trial, the Magistrate shall issue the Magistrate’s decision, including findings of fact, unless otherwise ordered by the assigned Judge.

2.      After the trial or hearing and prior to issuing a decision, the Magistrate may require that briefs, proposed findings or other memoranda be submitted by the parties or parties’ counsel.

 

E.      PROCEDURES FOR OBJECTING TO MAGISTRATE’S DECISION:

1.      Objections, Cross Objections, Memoranda:

a.      Objections, if any, shall be filed within 14 days following from the filing date of the Magistrate’s decision.

b.      If objections are filed by a party within the 14 day period, any other party may file cross objections within 10 days of when the objections were filed.

c.       Any memoranda in opposition or reply briefs shall be filed in accordance with Mont. Co. C.P.R. 2.05(B).

2.      All objections, cross objections or memoranda shall cite to a specific time designation on the recording of proceedings before the Magistrate.  Failure to cite objections in this manner may result, at the discretion of the assigned Judge, in adoption of the Magistrate’s factual findings, and any review may be limited to the Magistrate’s legal conclusions.

3.      A party may file a brief in opposition to the objections or cross objections within 14 days of the filing of objections or cross objections.  An extension of time for filing a brief in opposition may be obtained, for good cause shown, upon written motion.

4.      The objecting party may file a reply brief to a brief in opposition to the objections within 7 days from when the brief in opposition was filed.  Should a party file cross objections, as allowed for in this Rule, and should a brief in opposition to the cross objections be filed, the party filing the cross objections may file a reply brief to a brief in opposition to the cross objections within 7 days from when the brief in opposition was filed.

5.      Objections, cross objections, and memoranda shall not exceed 20 pages in length, and shall otherwise comply with Mont. Co. C.P.R. 1.15(F).

 

F.       STIPULATIONS TO FINDINGS OF FACT:

1.      The parties may enter stipulations of fact either before or after the Magistrate’s decision.  Said stipulations shall not preclude any objections to errors of law.

2.      If the parties agree that the findings of fact of the Magistrate are to be final, as contemplated in Civ. R. 53(D)(3)(iii), the parties shall file a written entry with the Court.

 

G.     TRANSCRIPTS:

1.      Pursuant to Civ. R. 53(D)(3)(b)(iii), if objections to the findings of fact of the Magistrate are made, the objecting party shall file a transcript of the hearing within 30 days from the filing date of the objections.

2.      The transcript may be filed in CD or paper form.  All requests for transcripts shall be made in accordance with Mont. Co. C.P.R. 1.29.

 

H.     FINAL ENTRIES:

If no objections to the Magistrate’s decision are filed pursuant to this Rule, the Magistrate shall prepare a judgment entry and submit the judgment entry to the assigned Judge for approval.

Rule 2.39 – Civil Mediation

 

 

A.      REFERRAL FOR MEDIATION:

1.      Except as set forth in Subsection (A)(1)(b)(i)-(iii) of this Rule, any civil case may be referred for mediation pursuant to a party’s motion or by agreement of the parties.  The assigned Judge, in his or her discretion, may refer any civil case for mediation. 

a.      After the Court’s pre-trial scheduling conference, the Court shall issue its standard pre-trial order which shall establish a cutoff date of 90 days from the filing date of the pre-trial order, unless otherwise ordered by the Court, for the parties to request mediation through the Court’s mediation program.  After a case is referred for mediation, the mediation staff will conduct an initial telephone conference with the parties to select a Mediator pursuant to Subsection (C)(2)(a) of this Rule and to schedule a mediation date.

b.      Domestic Relations and Protective Orders

i.        The Court shall not refer cases for mediation in the following circumstances:

a)      As an alternative to the prosecution or adjudication of domestic violence;

b)      In determining whether to grant, modify, or terminate a protection order;

c)      In determining the terms and conditions of a protection order; and

d)      In determining the penalty for violation of a protection order.

ii.      Exception:  Nothing in Subsection (A)(1)(b)(i) of this Rule shall prohibit the use of mediation in a subsequent divorce or custody case in another division of the Common Pleas Court for Montgomery County, Ohio  or any other court, even if such case may result in the termination of the provisions of a protection order issued by the Court.

iii.    Allegations of Domestic Abuse

a)      In any case referred for mediation, all parties and counsel have a continuing duty to and shall disclose to the assigned Judge, the Mediator, and the mediation staff whether any of the opposing parties have resided in a common residence or are related by blood, adoption, or marriage, and, at any time prior to or following the referral for mediation and before conclusion of the mediation process, have committed or are alleged to have committed domestic abuse.

b)      The party who committed or is alleged to have committed the act of domestic abuse shall participate in any screening required by Sup. R. 16 prior to the mediation session(s).   The Mediator may order additional screenings, at the Mediator’s discretion, throughout the duration of mediation.

 

B.      PROCEDURE AFTER REFERRAL FOR MEDIATION:

1.      The Chief Magistrate shall serve as “Mediation Liaison” to settle disputes that arise during the mediation process.  The Mediation Liaison may refer a dispute to the assigned Judge.

2.      Selection of Mediator:

a.      Pursuant to Subsection (C)(2) of this Rule, the Court shall maintain a list of Court approved Mediators (“Mediator List”).  Parties, by agreement, may select a Mediator from the Mediator List.  If the parties fail to agree or elect not to choose a Mediator, the Court shall assign a Mediator from the Mediator List on a rotating basis.

b.      Conflicts of Interest:  

                                            i.            In accordance with R.C. 2710.08(A) and (B), the Mediator selected by the parties or assigned by the Court shall disclose to counsel, the parties, and any nonparty participants any known potential conflicts that may affect the Mediator’s impartiality as soon as such conflict(s) become known to the Mediator.

                                          ii.            Withdrawal and Removal:

a)      If a party or counsel requests that the Mediator withdraw because of the potential conflict(s), the Mediator may withdraw and request that the assigned Judge appoint a new Mediator. 

b)      If the Mediator determines that withdrawal is not warranted, the Mediator may elect to continue. 

a)      If the Mediator elects to continue, any party may request the Mediator’s removal by submitting a request to the assigned Judge to remove the Mediator.

1)      The assigned Judge may remove the Mediator and appoint another Mediator from the Mediator List. 

2)      If the assigned Judge decides that the request for removal is unwarranted, the Mediation process shall proceed from the point where the objection was first raised, with events rescheduled as necessitated by any delay.

3.      Telephone Conference:  The Mediator shall conduct a telephone conference prior to the date of the scheduled Mediation session.

a.      The Mediator shall set the time for the telephone conference.

b.      All counsel and pro se parties shall make themselves available for the scheduled telephone conference.

c.       During the telephone conference, the Mediator shall inquire of the parties or counsel of their readiness for the mediation, including any additional information needed to be obtained or exchanged.  The Mediator shall determine if the parties are required to submit a mediation statement.  If a mediation statement is required the following shall apply:   

i.        The Mediator shall instruct the parties how to submit the mediation statement.

ii.      Mediation statements shall not exceed three pages in length, unless otherwise ordered by the Mediator, and shall set forth the relevant positions of the parties concerning factual issues, issues of law, damages, and the settlement negotiation history of the case, including a recitation of any specific demands and offers that have been conveyed.

iii.    Mediation statements shall not be filed with the Clerk.  Mediation statements shall be submitted to the Mediator and all parties or counsel no later than 10 days prior to the mediation session, unless otherwise requested by the Mediator.

d.      Confidential Information: 

i.        If a party or counsel believes it is necessary or desirable to convey confidential information to the Mediator, the party or counsel may submit the information to the Mediator.  The confidential information shall not be filed with the Clerk.

ii.      The party submitting the information shall clearly mark the information as confidential and indicate that the information shall not be shared with the opposing party without consent of the party submitting the information.

4.      Mediation Conference:

a.      Timing:  Unless otherwise ordered by the assigned Judge, the mediation session shall be scheduled to take place no later than 90 days prior to the scheduled trial date.

b.      If the parties and Mediator believe additional mediation sessions would be beneficial, the parties and Mediator shall schedule additional sessions on a schedule that shall not negatively impact the scheduled trial date.

i.        For good cause shown, the parties may seek a continuance of the trial date from the assigned Judge to continue to explore mediation.

ii.      The Mediator may direct the parties to exchange additional information that the Mediator believes will assist the Mediation process.

c.       If the case is settled or dismissed prior to a scheduled Mediation, the parties shall promptly file a settlement and conditional dismissal entry with the Court and inform the Mediator. 

5.      Continuance:

a.      For good cause shown, the Mediator may grant a continuance of a mediation session.

b.      A mediation session shall not be continued more than once without the approval of the Mediation Liaison or assigned Judge.

6.      Attendance

a.      Unless otherwise directed by the Mediator, any party or person whose presence is required in order to supply authority to settle the case, as well as counsel for all parties and an adjuster for an insurer, are required to be present at the mediation session(s).

b.      If counsel or parties become aware of a person or entity whose consent is required to resolve the dispute but who is not yet a party to the case, counsel or parties shall promptly inform the Mediator and the assigned Judge of the identity of the person or entity.

c.       The Mediator shall report to the assigned Judge any failure of a necessary party or counsel to attend a mediation session or act in good faith, including but not limited to, performing obligations expeditiously and not using mediation for the purposes of delay or discovery.  The assigned Judge may impose sanctions, including but not limited to, an award of attorneys’ fees and other costs, contempt, or other appropriate sanctions.

7.      Location:  Unless otherwise agreed by the Mediator and the parties, the mediation session(s) shall take place at the Court.

8.      Procedure

a.      All mediation shall be governed by the Ohio Uniform Mediation Act, R.C. §§ 2710.01 – 2710.10, as amended from time to time.

b.      Confidentiality:

i.        “Mediation Communications”, as defined in R.C. § 2710.01(B), in addition to the privileges set forth in R.C. § 2710.07, shall not be disclosed by parties, counsel, the Mediator or the Court without consent of the other participants.

ii.      The parties shall execute a written confidentiality agreement prior to the beginning of the mediation session.  If new or additional persons attend a subsequent mediation session, the new or additional persons shall sign the confidentiality agreement prior to proceeding.

iii.    Exceptions to Confidentiality requirements:  Information that is:

a)      Statutorily mandated to be reported;

b)      Not privileged pursuant to R.C. § 2710.05; and

c)      Permitted to be reported pursuant to R.C. § 2710.05.

9.      Settlement:  If a settlement agreement is reached:

a.      The Mediator may prepare a written memorandum memorializing all material terms of the agreement (“Settlement Agreement”). 

b.      Parties or counsel shall provide the Notice required pursuant to Mont. Co. C.P.R. 2.15(A) to the assigned Judge.

c.       Parties or counsel shall file an agreed Termination Entry for approval by the assigned Judge within 30 days from the date the parties or counsel provide Notice pursuant to Subsection (B)(9)(b) of this Rule.  If the parties or counsel fail to file an agreed Termination Entry within the specified time, the Court may administratively dismiss the case.

10.  Termination:  If the Mediator determines that further mediation efforts would be of no benefit to the parties, the Mediator shall inform all interested parties and the assigned Judge that the mediation is terminated.

11.  Throughout the mediation process, the assigned Judge shall continue to manage the case pursuant to Mont. Co. C.P.R. 2.07.

 

C.      COURT APPROVED MEDIATORS:

1.      Prospective mediators shall submit an application pursuant to a process established by the Court, as amended from time to time. 

a.      The Court shall review all applications in accordance with the procedures adopted by the Court.

b.      Prospective mediators shall be approved at the sole discretion of the Judges of the Court.

c.       Prospective mediators approved by the Court shall participate in an orientation session conducted by the Court.

2.      The Court shall maintain a list of Court approved Mediators (defined as “Mediator List” in Subsection (B)(2)(a) of this Rule).

a.      All persons whose names are placed on the Mediator List shall submit a regularly updated Curriculum Vitae (including a list of professional or association memberships) which, along with the Mediator’s application, shall be provided to those requesting information on the assigned Mediator’s qualifications to mediate a dispute, as required by R.C. § 2710.08(C).

b.       Mediators serve at the pleasure of the Judges of the Court and may be terminated from the Mediator List at any time for any or no cause.

 

D.     MEDIATOR FEE:

1.      Mediators shall be paid a fee in an amount set by the Court, as amended from time to time.

a.      Upon petition by the Mediator and for good cause shown, the assigned Judge may allow additional compensation.

b.      Except as provided in Subsections (D)(1)(c) and (D)(2)(b) of this Rule, Mediators shall be paid, upon proper warrant, from the funds of Montgomery County, Ohio, allocated for the operation of the Court.

c.       The Judges of the Court may determine that, in order to provide effective mediation services, it is necessary for mediating parties to pay a portion of the Mediator Fee or other costs of mediation. 

i)        If the Judges of the Court make the determination referred to in Subsection (D)(1)(c) of this Rule, a schedule of mediation costs shall be provided to all parties upon request or upon referral for mediation.

ii)      Upon motion of a party for good cause shown, the Mediation Liaison or the assigned Judge may waive mediation costs imposed pursuant to Subsection (D)(1)(c) of this Rule.

2.      Cancellation of Mediation Session

a.      Mediators shall not receive a fee for a mediation session canceled more than 48 hours prior to the scheduled session.

b.      If a mediation session is canceled with less than 48 hours notice, the Court may assess costs. 

i)        If a cancellation is the result of a settlement resulting in termination of the case, the cancellation fee shall be divided equally between the parties.  In addition to informing the Mediator, parties shall provide the Notice required pursuant to Mont. Co. C.P.R. 2.15(A) to the assigned Judge.

ii)      If a cancellation is the result of a requested continuance or other reason, the fee shall be assessed against the party requesting the continuance or causing the cancellation. 

iii)    Cancellation fees may be assessed in all cases, including mediation scheduled before a Magistrate or other Court employee.    Magistrates and other Court employees shall not receive additional compensation for mediation services. 

iv)    Cancellation fees shall be deposited with the Clerk, shall not be taxed as costs in the case, and shall be paid to the Special Project Fund for Dispute Resolution establish by Mont. Co. C.P.R. 2.03(D)(1).

v)      Upon motion and for good cause shown, the Mediation Liaison or the assigned Judge may waive any cancellation fees assessed pursuant to Subsection (D)(2)(b) of this Rule.

EFFECTIVE DECEMBER 15, 2014

 

The proposed amendments to Mont. Co. C.P.R. 2.01, 2.07, 2.31 and 2.39 will take effect on December 15, 2014, unless prior to such date the Court, in its discretion, amends, modifies, or withdraws the amendments.  In the event the Court amends, modifies, or withdraws the amendment, the revision(s) will be published for a thirty-day notice period.

 
     
 
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