crabbypatty

Help with arbitration

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@crabbypatty I deleted the image to remove inadvertently posted personal info. Your affidavit declares that the Dell agreement is a true and correct copy, but doesn't state that it was given to you by plaintiff in response to a discovery request. 

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6 hours ago, crabbypatty said:

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.

 

Forget about contesting their business records.  Idaho rules are irrelevant. Your opposition to their MSJ must be based solely on your right to compel them to stay their case and enter into arbitration. If the court grants your motion, it is likely they will drop their case because of the expense of arbitration.

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They pretty much have everything needed to get a judgment against you. The best course of action is arbitration. If you did not assert arbitration as your defense, I would heed Brotherskeeper's advise, to file a leave to file an amended answer. Make sure to point out that you did not know of arbitration until the plaintiff provided you the agreement, it is only then you learned your right to arbitration.

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Do you feel like I should try to settle before they win MSJ?  I will upload my opposition to Motion Summary shortly.

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@crabbypatty All of the advice you've received in your thread from experienced members is that your (so far unopposed and scheduled for a hearing) motion to compel arbitration and stay the case is the genuine issue of material fact (which forum the disputes should be decided in, based on the contract plaintiff provided in discovery) most likely to defeat their MSJ. (IANAL) Ohio rule 56 appears to be based on the federal rule 56. Evidence at the summary judgment stage has to be admissible, but does not have to be in admissible form. 

{¶12} Civ.R. 56(C) sets forth an exclusive list of evidentiary materials that a trial court may consider when ruling upon a summary judgment motion. Partnership v. Emerson Tool, LLC, 9th Dist. No. 26200, 2012–Ohio–5647, ¶ 14, citing Spier v. American Univ. of the Caribbean, 3 Ohio App.3d 28, 29, 443 N.E.2d 1021 (1st 1981). The rule prohibits a trial court from considering any evidence or stipulation except the “pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact.” Civ.R. 56(C). Accord Davis v. Eachus, 4th Dist. No. 04CA725, 2004–Ohio–5720, ¶ 36; Wall v. Firelands Radiology, Inc., 106 Ohio App.3d 313, 334, 666 N.E.2d 235 (6th Dist.1995). Furthermore, when ruling on a summary judgment motion, a court may consider only evidence that would be admissible at trial. Pennisten v. Noel, 4th Dist. Pike No. 01 CA669, 2002 WL 254021 (Feb. 2, 2000), at *2.

Submitting Evidence in Support of a Motion for Summary Judgment (Federal)

"Evidence submitted in connection with summary judgment does not have to be presented in an admissible form. The trial court may consider the evidence on summary judgment provided the submitting party demonstrates that it would be possible to present the evidence in admissible form at trial.4 

4.See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 538 (4th Cir. 2015); see also Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (submissions by party opposing summary judgment need not themselves be in form admissible at trial, but party “must show that she can make good on the promise of the pleadings by laying out enough evidence that will be admissible at trial to demonstrate that a genuine issue on a material fact exists, and that a trial is necessary”); Jones v. UPS Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 2012) (“The most obvious way that hearsay testimony can be reduced to admissible form is to have the hearsay declarant testify directly to the matter at trial”). 

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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?

 

 

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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.

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8 hours ago, crabbypatty said:

I think my complaint was served with improper service.  This is the civil rule of Ohio on service

It's neither here nor there at this point. You've made an appearance effectively waiving any objection over service if process. 

Don't complicate things.  Just stay the course with arbitration. 

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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 :(

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12 hours ago, crabbypatty said:

I was thinking of filing an amendment to my affirmative defenses adding improper service.

The whole point of 'proper' service is to ensure you have adequate notice of the lawsuit. It's kind of impossible to cite improper service as an affirmative defense after you've filed a timely answer. It's like turning in a homework assignment on time and then saying you didn't know when the assignment was due. Who cares? You turned the assignment in on time. Now, if you've been prejudiced in some way, like you made mistakes because you were rushed, that's a different story (still not an alternative defense, though) but I don't hear you saying that. It just looks like you're being petty over a harmless failure to follow a rule.

 

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