crabbypatty

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About crabbypatty

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  1. I’m just worried because I am waiting for the ruling on the PRA’s MSJ. I sent an opposition for MSJ and my arbitration hearing is scheduled on 06/13/2019 and I will not be in town. I requested a continuance and the magistrates secretary told me that she hasn’t scheduled a continuance because she was waiting for the magistrates response to PRA’s MSJ. I was thinking of filing an amendment to my affirmative defenses adding improper service. I didn’t realize it until I checked my case online and it said complaint sent certified mail ? So after digging through Ohio Supreme Court Rules, I read that the complaint should have return service/a signature of receipt. I’m just not sure what to do next
  2. Sorry I think these are the rules that I need to post RULE 4.1 Process: Methods of Service All methods of service within this state, except service by publication as provided in Civ.R. 4.4(A), are described in this rule. Methods of out-of-state service and for service in a foreign country are described in Civ.R. 4.3 and 4.5. (A) Service by clerk. (1) Methods of service. (a) Service by United States certified or express mail. Evidenced by return receipt signed by any person, service of any process shall be by United States certified or express mail unless otherwise permitted by these rules. The clerk shall deliver a copy of the process and complaint or other document to be served to the United States Postal Service for mailing at the address set forth in the caption or at the address set forth in written instructions furnished to the clerk as certified or express mail return receipt requested, with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. (b) Service by commercial carrier service. Unless the serving party furnishes written instructions to the clerk that service be made pursuant to Civ.R. 4.1(A)(1)(a), the clerk may make service of any process by a commercial carrier service utilizing any form of delivery requiring a signed receipt. The clerk shall deliver a copy of the process and complaint or other document to be served to a commercial carrier service for delivery at the address set forth in the caption or at the address set forth in written instructions furnished to the clerk, with instructions to the carrier to return a signed receipt showing to whom delivered, date of delivery, and address where delivered. (2) Docket entries; Return. The clerk shall forthwith enter on the appearance docket the fact of delivery to the United States Postal Service for mailing or the fact of delivery to a specified commercial carrier service for delivery, and make a similar entry when the return receipt is received. If the return shows failure of delivery, the clerk shall forthwith notify the attorney of record or, if there is no attorney of record, the party at whose instance process was issued and enter the fact and method of notification on the appearance docket. The clerk shall file the return receipt or returned envelope in the records of the action. (3) Costs. All postage and commercial carrier service fees shall be charged to costs. If the parties to be served are numerous and the clerk determines there is insufficient security for costs, the clerk may require the party requesting service to advance an amount estimated by the clerk to be sufficient to pay the costs of delivery. (B) Personal service. When the plaintiff files a written request with the clerk for personal service, service of process shall be made by that method. When process issued from the Supreme Court, a court of appeals, a court of common pleas, or a county court is to be served personally under this division, the clerk of the court shall deliver the process and sufficient copies of the process and complaint, or other document to be served, to the sheriff of the county in which the party to be served resides or may be found. When process issues from the municipal court, delivery shall be to the bailiff of the court for service on all defendants who reside or may be found within the county or counties in which that court has territorial jurisdiction and to the sheriff of any other county in this state for service upon a defendant who resides in or may be found in that other county. In the alternative, process issuing from any of these courts may be delivered by the clerk to any person not less than eighteen years of age, who is not a party and who has been designated by order of the court to make personal service of process under this division. The person serving process shall locate the person to be served and shall tender a copy of the process and accompanying documents to the person to be served. When the copy of the process has been served, the person serving process shall endorse that fact on the process and return it to the clerk, who shall make the appropriate entry on the appearance docket. When the person serving process is unable to serve a copy of the process within twenty- eight days, the person shall endorse that fact and the reasons therefor on the process and return the process and copies to the clerk who shall make the appropriate entry on the appearance docket. In the event of failure of service, the clerk shall follow the notification procedure set forth in division (A)(2) of this rule. Failure to make service within the twenty-eight day period and failure to make proof of service do not affect the validity of the service. (C) Residence service. When the plaintiff files a written request with the clerk for residence service, service of process shall be made by that method. When process is to be served under this division, deliver the process and sufficient copies of the process and complaint, or other document to be served, to the sheriff of the county in which the party to be served resides or may be found. When process issues from the municipal court, delivery shall be to the bailiff of the court for service on all defendants who reside or may be found within the county or counties in which that court has territorial jurisdiction and to the sheriff of any other county in this state for service upon a defendant who resides in or may be found in that county. In the alternative, process may be delivered by the clerk to any person not less than eighteen years of age, who is not a party and who has been designated by order of the court to make residence service of process under this division. The person serving process shall effect service by leaving a copy of the process and the complaint, or other document to be served, at the usual place of residence of the person to be served with some person of suitable age and discretion then residing therein. When the copy of the process has been served, the person serving process shall endorse that fact on the process and return it to the clerk, who shall make the appropriate entry on the appearance docket.
  3. Thank you all for you help. I have another question though, I just realized that I think my complaint was served with improper service. This is the civil rule of Ohio on service TITLE II. COMMENCEMENT OF ACTION AND VENUE; SERVICE OF PROCESS; SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS SUBSEQUENT TO THE ORIGINAL COMPLAINT; TIME RULE 3. Commencement of Action; Venue (A) Commencement. A civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing upon a named defendant, or upon an incorrectly named defendant whose name is later corrected pursuant to Civ.R. 15(C), or upon a defendant identified by a fictitious name whose name is later corrected pursuant to Civ.R. 15(D). (B) Limited Appearance by Attorney. An attorney’s role may be limited in scope, as authorized by Prof.Cond.R. 1.2(c), if that scope is specifically described in a “Notice of Limited Appearance” stating that the limited appearance has been authorized by the party for whom the appearance is made, and filed and served in accordance with Civ.R. 5 prior to or at the time of any such appearance. The attorney’s limited appearance terminates without the necessity of leave of court, upon the attorney filing a “Notice of Completion of Limited Appearance” filed and served upon all parties, including the party for whom the appearance was made, in accordance with Civ.R. 5. If there is no objection within ten days of service of this notice, then no entry by the court is necessary for the termination of the limited appearance to take effect. (C) Venue: where proper. Any action may be venued, commenced, and decided in any court in any county. When applied to county and municipal courts, “county,” as used in this rule, shall be construed, where appropriate, as the territorial limits of those courts. Proper venue lies in any one or more of the following counties: (1) The county in which the defendant resides; (2) The county in which the defendant has his or her principal place of business; (3) A county in which the defendant conducted activity that gave rise to the claim for relief; (4) A county in which a public officer maintains his or her principal office if suit is brought against the officer in the officer’s official capacity; (5) A county in which the property, or any part of the property, is situated if the subject of the action is real property or tangible personal property; (6) The county in which all or part of the claim for relief arose; or, if the claim for relief arose upon a river, other watercourse, or a road, that is the boundary of the state, or of two or more counties, in any county bordering on the river, watercourse, or road, and opposite to the place where the claim for relief arose; I believe the documents were sent via fedex or possible usps but I never signed for them. Does a complaint have to be served via certified mail. If so, I did not list improper service as an affirmative defense so do I file ammendment to my affirmative defenses? PRA currently filed a MSJ and I filed Opposition to it and I am waiting for the judge to make a decision. Should I file for an amendment and then file a motion to dismiss?
  4. I have to turn this in today so please, please, please let me know if there is anything I need to change.
  5. Do you feel like I should try to settle before they win MSJ? I will upload my opposition to Motion Summary shortly.
  6. Here is a copy of the affidavit that I attached to the MTC.
  7. Yes I did attach an affidavit to my MTC.
  8. What do you think about the Ohio Civil Rule that I posted above? Is that saying that an avvidavit is admissible WITHOUT a statement from the custodian of business records? RULE 406. Habit; Routine Practice Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. [Effective: July 1, 1980.] Im panicking because that is what all of the information in my MSJ was targeting. I found a great response to MSJ on that tough nickel website but it is based on Idaho rules.
  9. I was also going to use the fact that the affidavits would be admissible under ohio rules which state that business recprds are admissible given a statement from a custodian of business records whch are created in the normal course of business but it doesn't look like it in Ohio Civil Rules. Is that how you take this: RULE 406. Habit; Routine Practice Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. [Effective: July 1, 1980.]
  10. This is their response to my discovery.
  11. This is the discovery I sent PRA.
  12. Exhibit B is all the statements, do you want me to upload those also?
  13. So far PRA has not filed written opposition to my motion. I am thinking that they are banking on winning a motion summary judgement. I did not raise arbitration as a defense in my affirmative defenses but I did put as my eleventh defense that "Defendant does reserve the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.
  14. I have a copy of the terms and agreements that PRA attached with their discovery requests and it does have an arbitration clause in it. Since we have already made it through the discovery phase I did file a motion to compel arbitration with the court and they scheduled a hearing for June 13, 2019. Of course I will be on a family vacation that has been scheduled since January of 2019 so I just requested a continuance due to a family obligation that has been scheduled since January. I called the the court to make sure they received and she said they wont reschedule it yet because they are waiting on my response to the Plaintiff's request for motion summary judgement. I will be working on my response this weekend because I am almost out of time to respond and I need to turn it in Monday. Also, do I not file a case with Jams until after they grant my request for arbitration? Do you have any suggestions on how to oppose a motion summary judgement? I am worried that if I put in my response to motion summary judgement that I do not have a copy of the contract and the Plaintiff does not have a copy of the contract then when Jams looks at that they will deny my request to arbitrate with them because no one has a copy of the contract. As for my information, I have just been googling and studying Ohio laws, local rules of the court, Supreme court rules, following threads and just fumbling my way through this. I do not want to hire an attorney because it would cost more to do that than to pay the debt. I have only found one attorney that would be willing to represent me and she charges a flat fee of 2000. I did find an attorney who would let me consult with him over the phone for 75.00 for 30 minutes. Any help with this would be so appreciated. Thanks.
  15. Exhibit B is all the statements, do you want me to upload those also?