Law Commons^™

Playing Monopoly With The Neighborhood: Impact Of Series Limited Liability Companies On Nuisance Abatement Actions And Housing Code Enforcement, Lauren Williams

Cleveland State Law Review

The City of Cleveland has been one of the most active cities in combating the negative effects of the 2008 financial crisis, utilizing nuisance abatement actions in combination with municipal programs aimed at assisting homeowners and renters. However, the Ohio Revised Limited Liability Company Act ("ORLLCA"), passed in 2021, may reverse the progress made in cities like Cleveland by enabling real estate investors to conceal assets in several series under the same limited liability company, resulting in rising vacancy rates and unstable communities. This will negatively impact the effectiveness of nuisance abatement actions and traditional housing code enforcement in curbing …

Entombed Writs' Effective Renaissance: Surveying And Sealing Federal Rule Of Civil Procedure 60(B)'S Interpretive Gaps, Amir Shachmurove

Cleveland State Law Review

For centuries, the hoary principle of finality and the Latin-denominated writs devised so as to mollify its obduracy cast fearsome shadows, unchallenged within the courts of the British Isles. In the United States, these expatiated doctrines stalked with equal aplomb from the time of Chief Justice John James Marshall to the advent of the Federal Rules of Civil Procedure. For nearly 150 years, therefore, federal procedural law recognized only the skimpiest opportunities for renewed introspection afforded by these increasingly anachronistic constructs, ones nonetheless imbued with more and more of antiquity’s nearly sacerdotal sheen with each passing year.

In time, as …

Disqualifying Qualified Immunity, Nicholas Mcgill Hudnell

Et Cetera

The relationship between municipal responsibility and municipal liability in civil suits concerning local police officer misconduct is flawed. Cities have almost unlimited control over their police departments but lack almost any control over the civil litigation of their officers, aside from city attorneys representing them. In police misconduct cases, city attorneys representing police officers are required to invoke any available affirmative defenses, either common law or statutory, regardless of the moral convictions of the city attorneys, city legislators, or local citizens. To bridge the logical gap between municipal responsibility and the lack of municipal control over police misconduct litigation, this …

Frivolous Defenses, Thomas D. Russell

Cleveland State Law Review

This Article is about civil procedure, torts, insurance, litigation, and professional ethics. The Article is the opening article in a conversation with Stanford Law Professor Nora Freeman Engstrom, who has written about the plaintiffs’ bar and settlement mill attorneys. The empirical center of this piece examines 356 answers to 298 car crash personal injury cases in Colorado’s district courts. The Article situates these cases within dispute pyramid elements, including the total number of miles-traveled within Colorado and the volume of civil litigation. The Article then analyzes the defense attorneys’ departures from the Colorado Rules of Civil Procedure, especially Rule 8. …

The Shifting Sands Of Cost Shifting, Andrew M. Pardieck

Cleveland State Law Review

The cost-shifting analysis employed by the federal courts in ruling on discovery disputes is flawed. There is tremendous variability in how courts interpret the factors guiding the analysis. There is tremendous variability in the information courts rely on in deciding whether to preclude the discovery or shift its costs. The result is waste for the litigants, courts, and society as a whole. This Article argues that there is a better way: mandate cooperation before cost shifting. The courts should condition proportionality and cost-shifting rulings on cooperation. The cooperation should be substantive: require disclosure of objective information about the disputed discovery …

Petitioners' Reply Memorandum In Support Of Their Emergency Petetion For A Writ Of Habeas Corpus, Joseph Mead, David J. Carey, Freda J. Levenson, David A. Singleton, Mark A. Vander Laan, Michael L. Zuckerman

Law Faculty Briefs and Court Documents

In the roughly 120 hours since Petitioners filed their emergency petition for a writ of habeas corpus, the death toll at Elkton has doubled, and the number of BOP-confirmed COVID-19 cases among prisoners has tripled. About three dozen corrections staff have tested positive for the virus, a number that has also tripled since this case was filed. Elkton now accounts for more than one-third of all prisoner deaths from COVID-19 in federal prisons nationwide, and over half of the COVID-19 deaths in Columbiana County, making it one of the deadliest places a person can live in the current pandemic. According …

Emergency Petition For Writ Of Habeas Corpus, Injunctive, And Declaratory Relief - Class Action, Joseph Mead, David J. Carey, Mark A. Vander Laan, Freda Levenson, David Singleton

Law Faculty Briefs and Court Documents

As a tragic combination of infectious and deadly, COVID-19 poses a once-in-a-lifetime threat on a worldwide scale. Every state and territory in the United States has now been impacted, with nearly half a million cases and over 20,000 deaths reported to the Centers for Disease Control and Prevention (CDC). Even under ordinary conditions, each person who contracts this illness can be expected to infect between 2 and 3 others.

Cramped, overcrowded prisons amplify this threat. With thousands of people literally stacked on top of each other and unable to move around without rubbing shoulders, such environments are fundamentally incompatible with …

Legislative Reform Or Legalized Theft?: Why Civil Asset Forfeiture Must Be Outlawed In Ohio, Alex Haller

Cleveland State Law Review

Civil asset forfeiture is a legal method for law enforcement to deprive United States citizens of their personal property with little hope for its return. With varying degrees of legal protection at the state level, Ohio legislators must encourage national policy reform by outlawing civil asset forfeiture in Ohio. Ohio Revised Code Section 2981.05 should be amended to outlaw civil asset forfeiture by requiring a criminal conviction prior to allowing the seizure of an individual’s property. This Note proposes two plans of action that will restore Ohio resident’s property rights back to those originally afforded in the United States Constitution.

Social Data Discovery And Proportional Privacy, Agnieszka Mcpeak

Cleveland State Law Review

Social media platforms aggregate large amounts of personal information as "social data" that can be easily downloaded as a complete archive. Litigants in civil cases increasingly seek out broad access to social data during the discovery process, often with few limits on the scope of such discovery. But unfettered access to social data implicates unique privacy concerns—concerns that should help define the proper scope of discovery.

The Federal Rules of Civil Procedure, as amended in 2015, already contain the tools for crafting meaningful limits on intrusive social data discovery. In particular, the proportionality test under Rule 26 weighs the burdens …

The Award Of E-Discovery Costs To The Prevailing Party: An Analog Solution In A Digital World, Steven Baicker-Mckee

Cleveland State Law Review

Against this backdrop of the spiraling cost and burden of the discovery process, an issue is percolating through the lower and intermediate courts—the recoverability of e-discovery expenses as a component of the costs awarded to the successful party under Rule 54(d). Two divergent approaches have emerged in the judicial opinions and in the limited scholarship addressing the application of Rule 54(d) to e-discovery costs. The first contingent contends that Rule 54(d) is only intended to reimburse the prevailing party for a small subset of the total costs that the party has incurred. These jurists and scholars reason that Congressional intent …

Updating Ohio's Class Action Rules After More Than Forty Years, Geoffrey J. Ritts

Cleveland State Law Review

In 1970, the Ohio Rules of Civil Procedure made their debut. The new set of rules included Civil Rule 23, governing procedure in class actions. Like most of the new Ohio civil rules, Rule 23 closely tracked its federal counterpart, Federal Rule of Civil Procedure 23, which itself was then relatively new, having been adopted in 1966. Since 1970, Ohio’s Rule 23 has sat untouched. In the meantime, the Ohio Supreme Court has amended other civil rules more than thirty times. During the more than forty years since Ohio Rule 23 was adopted, there have been significant changes in class-action …

Solving A Pleading Plague: Why Federal Courts Should Strike Insufficient Affirmative Defenses Under The Twombly-Iqbal Plausibility Standard, Nathan A. Leber

Cleveland State Law Review

The plausibility standard is the remedy to the rampant pleading of meritless affirmative defenses in federal courts. Set forth in Bell Atlantic Corp v. Twombly, and later clarified in Ashcroft v. Iqbal, the plausibility standard requires pleadings to contain sufficient factual allegations that give rise to a plausible claim for relief. In both Twombly and Iqbal, the Supreme Court used the plausibility approach to dismiss factually-deficient complaints. Applying the plausibility test to insufficient affirmative defenses produces the same result. The central proposition of this Note is that federal courts should analyze affirmative defenses under the Twombly-Iqbal plausibility standard. In order …

Using The Scientific Method In The Law: Examining State Interlocutory Appeals Procedures That Would Improve Uniformity, Efficiency, And Fairness In The Federal Appellate System, Hannah M. Smith

Cleveland State Law Review

[T}he current use of the federal interlocutory appeal process operates much like an appeal-less system. A pretrial motion is filed, the interlocutory order is given, and the petition for interlocutory review is usually denied. Thus, the case continues. It may continue into settlement negotiations or go to trial where the losing party files an appeal. That final appeal could find that the lower court erred, rendering that trial meritless. In reaching any of those stages, the adversely affected party more than likely devoted unnecessary time, resources, and finances in the case. Additionally, the parties are often unable to predict success …

Creating Diversity Jurisdiction In Removal Actions Through The Improper Use Of Federal Rule Of Civil Procedure 21: Procedural Blackjack Or Judicial Bust, Anthony Andricks

Cleveland State Law Review

Recently, federal district courts have held that Federal Civil Rule of Procedure 21 bestows upon them the power to sever nondiverse parties or claims to create diversity jurisdiction without first finding that a party or claim is improperly joined. Severance may mean that a plaintiff who brings a state court action against multiple parties, one or more of which is not diverse, runs the risk of a federal court severing the action in a removal analysis, even where the plaintiff has committed no improper joinder of parties. Severance may leave a plaintiff with the need to conduct simultaneous suits--one in …

Ripple Effects: The Unintended Change To Jurisdictional Pleading Standards After Iqbal, James E. Von Der Heydt

Cleveland State Law Review

This Note describes a little-observed ripple effect of the new pleading standard announced in Iqbal, the antiterrorism case whose holding swept broadly and changed the ground rules for considering allegations in so-called 12(b)(6) motions for all civil cases. This Note examines the interplay between the Twombly/Iqbal doctrine and federal courts’ practical approach to subject-matter jurisdiction. Part II describes the background jurisprudence on subject-matter jurisdiction, including the sharp line the Supreme Court has consistently re-drawn between claims lacking merit and those lacking jurisdictional basis, from Bell v. Hood through Arbaugh v. Y & H Corp. The consistent theme of this jurisprudence …

Internet Contracting And E-Commerce Disputes: International And U. S. Personal Jurisdiction , Anne Mccafferty

Global Business Law Review

In cases involving international defendants, a variety of bases have been deemed appropriate for a U.S. court to assert personal jurisdiction, including nationality, domicile, “purposeful availment,” and a number of federal statutes. With the explosion of the Internet and the resulting expansion of international business transactions via the Web, courts have struggled to adapt traditional modes of adjudication consistent with established common, statutory and international law. Internet transactions—now known as e-commerce—involve the “practice of buying and selling goods and services through online consumer services on the Internet.” In a sphere of commerce apparently limitless in its reach, this article explores …

The Emerging Federal Class Actions Brand , John C. Massaro

Cleveland State Law Review

Class actions raise a fundamental question about our judicial system. Is the purpose first and foremost to achieve a societally-desired level of law enforcement and deterrence, or is the primary goal to foster citizen participation in the resolution of private disputes? This Article provides the first extended analysis of this question in light of five recent Supreme Court decisions regarding class actions, the evolution of legislative initiatives in the area, and the docket activity in sixteen of the largest recent federal securities class actions. A single conclusion follows: we are witnessing the emergence of a new national “brand” of class …

Pleading In Ohio After Bell Atlantic V. Twombly And Ashcroft V. Iqbal: Why Ohio Shouldn't Notice A Change, Alana C. Jochum

Cleveland State Law Review

Ohio has only briefly addressed the entrance of Bell Atlantic onto the pleading stage, and, thus far, Ohio state courts have mostly retained the Conley standard for determining pleadings. However, multiple pleading standards are emerging, making the issue ripe for a determination by the Supreme Court of Ohio as to what the true pleading standard is for Ohio. This Note will explain why Ohio should preserve Conley, even if doing so diverges from the original intent of federal-state uniformity embodied by the Federal Rules of Civil Procedure.

Plaintiff's Motion To Remand Denied: Arguing For Pre-Service Removal Under The Plain Language Of The Forum-Defendant Rule, Matthew Curry

Cleveland State Law Review

This Note will examine all sides of the district court split and ultimately argue in favor of the plain language of the forum-defendant rule to permit pre-service removal.

Voluntary Dismissal In Ohio: A Tale Of An Ancient Procedure In A Modern World, S. Ben Barnes

Cleveland State Law Review

This Note will demonstrate that a modified Federal Rule is the best rule for voluntary dismissal. First, this Note will survey the history of voluntary dismissal and the progression from the common law in England to the current Federal Rule. Second, this Note will discuss the abuses of the rule in Ohio and the need for change. Third, this Note will dissect the Ohio Rule and compare it alongside the Federal Rule. Fourth, this Note will examine possible alternatives. Finally, this Note will propose why a modification of the Federal Rule is the most practical answer to the abuses of …

Review: Voices Of American Law: Us Supreme Court Cases Meet The 21st Century, Lauren M. Collins

Law Faculty Articles and Essays

Review of documentary series Voices of American Law (Thomas B. Metzloff & Sarah Wood, producers)

The Standing And Removal Decisions From The Supreme Court's 2006 Term, Steven H. Steinglass

Law Faculty Articles and Essays

This article reviews some of the more important jurisdictional decisions of the U.S. Supreme Court during the court's 2006-07 term, the first full term that included both of the court's newest justices--Chief Justice John G. Roberts Jr. and Associate Samuel A. Alito Jr. The term begins an era that will likely become known as the Roberts Court, but this term surely belonged to Associate Justice Anthony M. Kennedy, who cast the deciding vote in all 24 of the court's 5-4 decisions.

Reconsidering The Scope And Consequences Of Appellate Review In The Certification Decision Of Dukes V. Wal-Mart Stores, Inc. , Nicole Hitch

Cleveland State Law Review

This article will explore the Federal Rules of Civil Procedure and their application in the granting or denial of certification in an employment discrimination class action. In doing so, this article will examine how the district court applied these rules in the Wal-Mart action, which resulted in the certification of the largest private class action suit in American history. Additionally, this article will consider the consequences of the Ninth Circuit's utilization of permissive and liberal standards and, alternatively, the consequences of incorporation of stricter standards from various other circuit courts and the possible result of denial of certification.

Novel Approach To Mass Tort Class Actions: The Billion Dollar Settlement In The Sulzer Artificial Hip And Knee Litigation: A Symposium, Susan J. Becker, R. Eric Kennedy, Kathleen Mcdonald O'Malley The Honorable, Sidney A. Backstrom

Journal of Law and Health

This is a transcript of a two hour symposium which deals with the Sulzer knee and hip replacement class action. A copy of the settlement is included as an appendix. The settlement in the U.S. District Court for the N.D. Ohio was unique and creative approach to resolving a mass tort class action. In a novel move, Sulzer agreed to open its books to an independent review firm to determine how much the firm could pay without going bankrupt. The number was $1 billion. As negotiated by the parties and approved by the court, the final settlement provides compensation for …

E-Mail: A Constitutional (And Economical) Method Of Transmitting Class Action Notice, Jennifer Mingus

Cleveland State Law Review

This Note argues that courts should find that notice by e-mail satisfies the standards of due process that the United States Supreme Court has developed for class action notice. First, this Note establishes that e-mail is a form of individual notice, as required by Eisen v. Carlisle & Jacquelin. Second, this Note shows that e-mail notice is "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action" and "reasonably certain to inform those affected" as required by Mullane v. Central Hanover Bank & Trust Co. Third, this Note contends that due process is a …

Pro's And Con's Of Proposed Rule 23 Amendments , Susan J. Becker

Law Faculty Articles and Essays

This article investigates whether the proposed amendments to Rule 23 (recently approved for publication and comment by the U.S. Judicial Conference's Standing Committee on Rules of Practice and Procedure) are a modest first step toward necessary class action reforms, or "a presciption for class action abuse."

Perspectives: The Federal Rules' Quest For Efficiency, Susan J. Becker

Law Faculty Articles and Essays

As lawyers celebrate (or mourn) the first anniversary of the new Federal Rules of Civil Procedure, it is worth noting that last year's amendments marked a major philosophical metamorphosis in our theory of civil justice. They reflect an attempt to move away from a system aptly suited to war analogies and toward increased cooperation between the parties and "hands-on" management by the judiciary. This, in turn, is supposed to encourage efficiency--the oft-cited yet elusive goal of civil justice reform.

An Application Of Federal Rule Of Civil Procedure 26(A)(1) To Section 1983 Actions: Does Rule 26(A)(1) Violate The Rules Enabling Act, Shilpa Shah

Cleveland State Law Review

The purpose of this note is to generally explain the problems associated with Rule 26(a)(1), and to specifically examine whether it violates the Rules Enabling Act's prohibition on affecting substantive rights. To illustrate the problem with applying Rule 26(a)(1) to all cases, the note will examine mandatory disclosure as it applies to civil rights cases brought under 42 U.S.C. § 1983. The note concludes that Rule 26(a)(1) infringes on substantive rights in violation of the Rules Enabling Act; however, instead of invalidating the mandatory disclosure rule entirely, federal courts should not apply Rule 26(a)(1) to cases brought under § 1983 …

A Mandatory Disclosure And Civil Justice Reform Proposal Based On The Civil Justice Reform Act Experiments, Eric F. Spade

Cleveland State Law Review

The objective of this note is to examine the CJRA experiments with mandatory disclosure and, based on that examination, to propose an alternative approach to the current trend of micromanaging case management through the Federal Rules of Civil Procedure. This note begins by defining mandatory disclosure and providing a brief account of its origin. Next, the Civil Justice Reform Act is described, followed by an examination of the various CJRA mandatory disclosure experiments conducted by district courts nationwide. The main portion of this note endeavors to apply some of the lessons learned in the CJRA context to the flawed approach …

Special Proceedings In Ohio: What Is The Ohio Supreme Court Doing With The Final Judgment Rule, Donald I. Gitlin

Cleveland State Law Review

This note will analyze special proceedings in Ohio insofar as they relate to the appealability of interlocutory orders. Because of the complex and evolving nature of the Ohio Supreme Court's interpretation of special proceedings, this note's analysis must necessarily be largely descriptive of Ohio case law. In addition, this note will highlight differences between Ohio appellate practice and federal practice in order to acquaint the reader with the dramatically different results reached by the two systems. In addition, Part II of this note will examine what is meant by the phrase "substantial right," which appears in the second prong of …