That nugget is the parsing of Rule 41(A).  The Court notes that “Civ.R. 41(A)[1] allows for a dismissal of all claims against particular defendants, and not individual claims.”  In other words, a party cannot utilize Rule 41(A)(1) to dismiss part of its claim — the text of the rule actually states that 41(A)(1) is all or nothing.

There are certainly other attorneys who have had a few more trips around the block than yours truly, but in my two years as a law clerk and one year in practice, I have never seen this distinction made by a practicing attorney.  It is absolutely standard procedure to dismiss some but not all claims via a Rule 41(A)(1) notice of dismissal. 

Instead, it appears, if a party wants to dismiss only some of its claim, it must obtain an order of the court under Rule 41(A)(2).  That rule provides that, “[e]xcept as provided in division (A)(1) of this rule, a claim shall not be dismissed at the plaintiff’s insistence except upon order of the court and upon such terms and conditions as the court deems proper.”  In other words, the partial dismissal must come from the court, not the plaintiff, and a court can place conditions upon a partial dismissal.

I could be wrong, but this seems like an awfully important distinction, no?  Think about it — how many partial dismissals have you filed in the last year?  As it turns out, all of those claims are still pending.  Or better yet, how many partial dismissals of claims against your client have been filed?  You might have to defend those yet.

Personal jurisdiction, of course, is a two-part analysis.  A court first must examine whether the Ohio long-arm statute and Civil Rule regarding service, R.C. 2307.382 and Rule 4.3, respectively, permit the exercise of jurisdiction.  Analogizing to the technology of yesteryear–letter writing–the Court explained the allegedly defamatory statemetns were “published” in Ohio by virtue of their actual receipt by several individuals in Ohio.  That fact brings the case within R.C. 2307.382(A)(3) and Rule 4.3(A)(3), which confer jurisdiction over allegedly tortious acts committed in Ohio. 

This, of course, is something of a legal fiction, as the postings were certainly not created within Ohio.  As a fall-back position, the Court cites R.C. 2307.382(A)(9) and Rule 4.3(A)(6), which create jurisdiction over allegedly tortious acts committed outside Ohio where the alleged tortfeasor might reasonably expect that someone in Ohio would be injured by the acts.  The Court’s fall-back seems to be the stronger position and probably should have been the primary holding.  It will be interesting to see whether the Court’s holding that the publication actually occurred in Ohio by virtue of its receipt in Ohio has any unexpected consequences in the future.  (Though to be fair, this is simply an extension of existing precedent, not new doctrine, so perhaps the concern is misplaced.)

Having established that the long-arm statute and Civil Rule are satisfied, the second part of the personal-jurisdiction analysis comes under the due process clause of the Fourteenth Amendment.   As relevant here, due process requires that the exercise of jurisdiction arise out of the defendant’s contacts with Ohio.  The defendant must have purposely availed itself of the privilege of acting in Ohio, and must have reasonably anticipated that it may be haled into court in Ohio; the defendant’s contacts with Ohio must not be random, fortuitous, or attenuated. 

Employing the well-known Calder “effects test,” the Court held that the defendant’s allegedly tortious conduct was not simply “untargeted negligence,” but rather purposeful activity directed at a resident of Ohio.  The defendant therefore should have assumed that the effects of his actions should be felt in Ohio, and as a result he could reasonably anticipate being haled into court in Ohio. 

Kauffman is not a landmark decision.  It is well-supported by existing law on both personal jurisdiction and defamation.  But it is another example of courts’ willingness to engage with technology and to fit current doctrine into the new world order.  Let’s hope that Ohio continues down its path of reasonableness in this regard.

As a side note, Kauffman is now officially my favorite opinion of 2010, thanks to the explanatory parenthetical in ¶13 of “(emoticons omitted).”

In State v. Bodyke, 2010-Ohio-2424 [PDF], the Court held that the reclassification of sex offenders by the Attorney General amounted to a violation of the separation of powers doctrine.  The Ohio Constitution gives exclusive jurisdiction to appellate courts to review the decisions of trial courts; the Court explained that “[o]ur Constitution and case law make it undeniably clear that the judicial power resides exclusively in the judicial branch.”  The Court ordered the severance of the offending sections of the Adam Walsh Act.

Based on its separation-of-powers holding, the Court declined to address the other constitutional challenges, including the ex post facto argument about which we previously wrote.

Where does this leave the Adam Walsh Act?  Clearly it can be applied to new offenders on a going-forward basis.  By simply severing the provisions which required the AG to reclassify, is it possible that the Court has left open an avenue under which courts could reclassify?  However unlikely that seems, a brief review of the decision may not rule it out.

When Michael Bustle started working as a hairstylist at Michael’s in 1995, he signed an agreement which included a one-year non-compete clause.  He left in August 2007 and rented a booth at a competing salon.  Michaels sued Bustle several months later, after noticing that his clients did not return.  The parties agreed to a settlement under which Bustle would not provide any hair styling or hair care treatment for one year — that is, Bustle essentially agreed to abide by his non-compete clause — and the trial court journalized an entry incorporating their agreement.

After Bustle’s customers still did not return, Michaels hired a private investigator to determine whether Bustle was violating the court’s order.  After a seven-month investigation the PI determined that Bustle was still providing the prohibited services, and Michaels filed a motion for contempt.

At the contempt hearing, Bustle admitted to providing prohibited services to 180 former Michaels clients and had profited over $37,000 in nine months of doing so.  Testimony from Michaels revealted that its lost profits for the same work would have been about twice as much, and that it had incurred about $15,000 in attorney’s fees and about $52,000 in PI fees. The trial court found Bustle in contempt, awarded damages and costs totaling about $140,000 to Michaels, and enjoined Bustle from competing for an additional 11 months.

On appeal, the First District rejected Bustle’s arguments that the agreed order did not comply with Rule 65 (because Bustle agreed to it, he had no cause to complain — somewhat similar to invited error, if any error) and that Michaels waited too long to pursue its contempt motion (the court found the time to be reasonable due to the necessary investigation). 

On the issue of whether Michaels was awarded a double recovery by virtue of a disgorgement of profits and an extended non-compete term, the court explained that in a contempt case, the court has power to both coerce compliance with the court’s order, and to compensate the the party injured by the contempt.  By disgorging the profits and awarding the costs to Michaels in addition to extending the non-compete term, the First District said, the parties were merely put back in the position that they would have been in if there had been no contempt.  As a result, there was no double recovery.

Judge Hendon disagreed on the double recovery issue.  Because the non-compete period has now expired, however, and cannot be undone, she concurred in the judgment.

Earlier this week the First District cited Iqbal and Twombly [PDF] for what appears to be the first time, putting it in line with the Eighth and Ninth Districts as Ohio appellate courts which have adopted the heightened standard.  To be sure, Ohio courts have consistently looked to federal case law for guidance in the interpretation of analogous rules, but Iqbal and Twombly were enough of a game changer to lead some to speculate that Ohio courts may demurr and retain the old standard.

Instead, the prosecution witness — a police officer who was also “trained by several purse and jewelry companies to recognize their trademarks and to recognize counterfeit products” — merely testified that in his opinion the items seized were counterfeit.   He also testified that through his “training and experience” he was aware that the trademarks were on the principal register of the USPTO, but he admitted that he had never seen any registration documents.  A five-member majority of the court held that this testimony was insufficient to prove beyond a reasonable doubt that the marks were on the principal register.  Although the majority doesn’t say so, in effect the holding is that the testimony about registration is hearsay–the companies who owned the marks told the officer that they were registered, and the officer told the court.  When viewed in that light, it’s classic hearsay under Evid. Rule 801.

And yet, two justices dissented, arguing instead that the victims are most likely to know which marks were counterfeited, and the fact that the officer was trained by victims qualifies him as an expert with capacity to testify about the registration. 

The dissent’s approach strikes me as somewhat similar to the practice rejected by the Supreme Court of the United States in Melendez-Diaz v. Massachusetts.  In that case, the Court held that the prosecution may not introduce a forensic report at trial without making the report’s author available to testify (or to be otherwise cross-examined by the defendant).  What the dissent in Triosi would allow is something of the complement to what was rejected in Melendez-Diaz — whereas Melendez-Diaz prohibited admitting the documentation without the foundation testimony of the witness, the Triosi dissent would allow the testimony of the witness without the foundation documents.

(For what it’s worth, there was some sentiment in Sixth Amendment circles that Melendez-Diaz, however young it may be, was not long for the world when Justice Sotomayor joined the Court; she was seen as a possible fifth vote to overturn Melendez-Diaz, and the case of Briscoe v. Virginia — which was already on the Court’s docket for OT09 when Justice Sotomayor took the bench — was seen as a possible vehicle to do so.  Briscoe was fully briefed, but on January 25 of this year – just two weeks after argument — the Court issued a one-sentence per curiam decision vacating and remanding in light of Melendez-Diaz.)

In a January 28 memo, the Conference recommended the following addition to its model jury instructions:

You may not communicate with anyone about the case on your cellphone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, MySpace, LinkedIn and YouTube.

Judge Julie Robinson explained that “more explicit mention in jury instructions of the various methods and modes of electronic communication and research would help jurors better understand and adhere to the scope of the prohibition against the use of these devices.”

The pattern jury admonishment for Ohio does not yet include a phone-, electronic-, or social-media-specific instruction, and reads as follows:

The court reminds you not to discuss the case. You are reminded, also, not to obtain or receive information concerning this case from outside the courtroom. You must not read, listen to, or watch any source of information relating to the case. You must report to the bailiff or the court any attempt by anyone to discuss the case with you or in your presence. Any violation of this order could result in serious penalties under the law.

We have previously covered courts and Twitter or other social media several times:

• SCOTUS blocks YouTube coverage of Prop 8 trial (and part II)
• More fun with Twitter
• Federal Rules of Criminal Procedure Interpreted as Barring Twitter Coverage of Trial from Inside Courtroom
• Australia allows media coverage of cases by Twitter
• Could an American court order service of an injunction by Twitter?

The appeal in this domestic relations case had been dismissed due to the retroactive application of Wilson v. Wilson, 2007-Ohio-6056 [PDF], which was issued the day after the notice of appeal was filed, and which held that a divorce decree is final and appealable even when it provides for the subsequent issuance of a qualified domestic relations order (QDRO).  Applying Wilson retroactively, the Ninth District determined that the appeal was untimely even though it was filed less than thirty days after the QDRO, as the divorce decree had been issued five months earlier.  The Supreme Court reversed, reasoning that prior to the issuance of Wilson, the settled law of the Ninth District was that a divorce decree was not appealable until after the QDRO was issued.  As a result, if the notice of appeal had been filed within 30 days after the divorce decree, it would have been dismissed for lack of a final appealable order, and when it was filed within 30 days after the QDRO, it was dismissed as untimely. 

To remedy this wrong, the Court remanded the case to the Ninth Distrct to allow the appellant a reasonable opportunity to file a notice of appeal.  But the Court also instructed all Ohio courts of appeals to afford the same to other litigants who may have had their appeals denied after the issuance of Wilson:

�
We recognize that there may be similarly-situated litigants in other cases where appeals from a divorce decree that provides for the issuance of a QDRO have been dismissed based on the retroactive application of Wilson. Such litigants should be accorded the opportunity to file a notice of appeal. Accordingly, the courts of appeals are instructed to allow any similarly-situated litigants the opportunity to file notices of appeal, provided that such notices are filed on or before March 31, 2010.

The Court held that the statute does not provide for compound interest, and that therefore only simple interest is available — unless the written instrument or some more specific statute provides otherwise.  But the Court also held that interest accrues after default on all sums which were due and payable before the default; if the written agreement called for interest to be paid before the default, then R.C. 1343.02 allows interest to accrue on that prior interest (in addition to any principal, of course).