1) Recent Case Law Updates in First Appellate District Court of Ohio           

        2) Local Rules in First Appellate District Court of Ohio                                   

        3) Preserving Error                                                                                             

RSVP crother@fssp-law.com

Second Amendemnt opponents take note: the Court has implied that it will allow certain “reasonable” restrictions on gun ownership short of an outright ban, though the extent of those restrictions is not clear.

The First District affirmed in all respects, and agreed with the trial court’s statement that the “successful prosecution of the action had prevented illegal government activity in the form of ‘the assumption of power by the Cincinnati city council that it was not entitled to assume or exercise.’”

The case was brought by Christopher Smitherman.  He was represented by FSSP lawyers Chris Finney and Josh Bolinger, as well as The Law Firm of Curt C. Hartman.

The case is City of Cincinnati ex rel. Christopher Smitherman v. City of Cincinnati [PDF].

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).”

1. The Usual Suspects
2. What to look for if the usual suspects aren’t available
3. Things to Remember

RSVP lls@fssp-law.com

Website: www.Ohioconstitution.org

ALEC’s 37th Annual Meeting will be held in the Manchester Grand Hyatt in San Diego, CA from August 5-8, 2010.

The ALEC is a non-profit organization dedicated to advancing the Jeffersonian principles of free markets, limited government, federalism, and individual liberty, through a nonpartisan public-private partnership of America’s state legislators, members of the private sector, the federal government, and general public.

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.