General Division-Montgomery County Common Pleas Court

 

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Rule Changes

NOTICE

MONTGOMERY COUNTY COMMON PLEAS COURT, GENERAL DIVISION

AMENDMENTS TO LOCAL RULES 2.01 – 3.15

(EMERGENCY STATUS – EFFECTIVE AUGUST 29, 2014)

 

The General Division of the Montgomery County Common Pleas Court adopted amendments to Local Rules 2.01 – 3.15 effective AUGUST 29, 2014

Pursuant to Mont. Co. C.P.R. 1.03 of the Local Rules of Practice and Procedure for the Montgomery County Court of Common Pleas and Rule 5 of the Rules of Superintendence for the Courts of Ohio, the adopted amendments are being published for a sixty-day comment period beginning Friday, August 29, 2014, through Monday, October 27, 2014.

Comments regarding the adopted amendments to Local Rules 2.01 – 3.15 can be submitted via email to rulecom@montcourt.org or in writing to:

James E. Dare, Court Administrator

Montgomery County Common Pleas Court

41 N. Perry Street

P.O. Box 972

Dayton, OH  45422

Comments must be received by 4:30 p.m. on Monday, October 27, 2014.

 


Rule 2.01 – Civil Case Management Plan

 

A.      PURPOSE:

To establish, pursuant to Sup. R. 5(B)(1), an automated system for civil case management that will achieve the prompt and fair disposition of civil cases, provide the Court with an efficient means of controlling the flow of civil cases, and save time by providing members of the bar with information and case management facilities.

 

B.      PROCEDURE UPON FILING CIVIL ACTION:

1.      Service:

a.      Every civil action filed shall be monitored for return of service.  If service fails on any defendant or party named in a crossclaim, counterclaim, or third party complaint, the filing party shall be notified to reissue service within 14 days.  If any party fails to reissue service or notify the Court why service cannot be reissued within the 14 day period, the action may be dismissed pursuant to Civ. R. 41(B) and Mont. Co. C.P.R. 2.15(B).

b.      Service by Publication:

i.        If a party requests service by publication pursuant to Civ. R. 4.4 and such request is granted by the Court, it is the responsibility of the party seeking service by publication to forward a time-stamped copy of the Court order granting such service to the official law journal and to follow the journal’s procedures for publication.

ii.      The law journal is required to forward notarized proof of publication to the Court.

iii.    The Court shall not forward notices to effect service by publication to the official law journal nor collect fees for the publication.

2.      Answer:

a.      Upon completion of service, every civil action shall be monitored for the answer(s) to be filed within the 28 day period required by Civ. R. 12 or any extension permitted by the Court.

i.        If any defendant fails to answer, the case shall be monitored for the filing of motion(s) for default judgment.  If a motion for default judgment is not filed within a reasonable time, as determined by the Court, the filing party shall be notified to file a motion for default judgment within 14 days. 

ii.      If the party fails to file the motion for default judgment or notify the Court why the motion is premature or otherwise inappropriate within the 14 day period, the action may be dismissed pursuant to Civ. R. 41(B) and Mont. Co. C.P.R. 2.15(B).

b.      In any case where an answer is filed within the 28 day period as required by Civ. R. 12:

i.        if no jury demand was made, the assigned Judge may refer the case to the Magistrate pursuant to Civ. R. 53 and Mont. Co. C.P.R. 2.31; and

ii.      a pre-trial conference call shall be held to establish all filing and discovery deadlines pursuant to Civ. R. 16 and Mont. Co. C.P.R. 2.07.  A final pre-trial order journalizing the filing and discovery deadlines shall be filed.

3.      Termination Entry:  When the case is completed, whether by default judgment, summary judgment, dismissal, settlement or trial, an entry terminating the case shall be indicated on the docket as a final judgment or dismissal entry.

Rule 2.03 – Court Costs and Special Fees

 

A.      FILING FEE:

1.      No civil action or proceeding shall be accepted for filing unless there is deposited as security for costs the amount set forth in Appendix G.

2.      A convenience fee of 2.0% (“Conv. Fee”) shall be added to all eFiled cases and shall be paid at the time of filing, along with the deposit.  This Conv. Fee applies to cases filed by pro se parties who are not registered users of the Court’s eFile system and file in accordance with Mont. Co. C.P.R. 1.15(J).

3.      If the party initiating the civil action is unable to give security or a cash deposit as provided under this Rule, then said party shall file an affidavit of indigence along with the complaint or other filing requiring a filing fee as set forth in Appendix G. 

a.      The affidavit shall be accepted by the Clerk and the collection of costs shall be postponed until the case is terminated.

b.      The Court may review the affidavit of indigence and make a determination whether the filer is, in fact, indigent.  The Court may refer the affidavit of indigence to the Magistrate to make the determination.

 

B.      COURT LEGAL RESEARCH/COMPUTERIZATION FEE:

1.      Pursuant to R.C. § 2303.201(A)(1), the Court has determined that, for the efficient operation of the Court, additional funds are necessary to computerize the Court and to obtain legal research services.

2.      As authorized under R.C. § 2303.201(A)(1), the Clerk shall charge an additional fee of $6.00 on the filing of each cause of action or appeal under divisions (A), (Q), and (U) of R.C. § 2303.20.

3.      All fees collected pursuant to this Subsection shall be used for procuring and maintaining computerization of the Court and computerized legal research services.

4.      All fees collected pursuant to this Subsection shall be paid to the Montgomery County Treasurer (“Treasurer”), who shall place the funds from the fee in a separate fund to be disbursed upon an order of the Court. 

 

C.      CLERK COMPUTERIZATION/TECHNOLOGY ADVANCE FEE:

1.      Pursuant to R.C. § 2303.201(B)(1), the Court has determined that, for the efficient operation of the Court, additional funds are necessary to make technological advances in order to computerize the office of the Clerk.

2.      As authorized under R.C. § 2303.201(B)(1), the Clerk shall charge an additional fee of $20.00 on the filing of each cause of action or appeal; on the filing, docketing, and endorsing of each certificate of judgment; or on the docketing and indexing of each aid in execution or petition to vacate, revive, or modify a judgment under divisions (A), (P), (Q), (T), and (U) of R.C. § 2303.20 and an additional fee of $1.00 each for the services described in divisions (B), (C), (D), (F), (H), and (L) of R.C. § 2303.20.

3.      All fees collected pursuant to this Subsection shall be used for procuring and maintaining technology and computer systems for the office of the Clerk.

4.      All fees collected pursuant to this Subsection shall be paid to the Treasurer, who shall place the funds from the fees in a separate fund to be disbursed upon an order of the Court.

 

D.     SPECIAL PROJECT FEES:

1.      Dispute Resolution Fee:

a.      Pursuant to R.C. § 2303.201(E)(1), the Court has determined that, for the efficient operation of the Court, additional funds are necessary to pay for dispute resolution services.

b.      As authorized under R.C. § 2303.201(E)(1), the Clerk shall charge, in addition to all other costs, a fee of $45.00 on the filing of each criminal cause, civil action or proceeding, or judgment by confession.

c.       All fees collected pursuant to this Subsection shall be used to implement any procedures established for the resolution of disputes between parties to any civil or criminal action that is within the jurisdiction of the Court.

d.      All fees collected pursuant to this Subsection shall be paid to the Treasurer, who shall place the funds from the fee in a separate dispute resolution fund to be disbursed upon an order of the Court.

2.      Electronic Filing And Storage of Case Records Fee:

a.      Pursuant to R.C. § 2303.201(E)(1), the Court has determined that, for the efficient operations of the Court, additional funds are necessary to pay for the costs of eFiling and storage of case records and related materials.

b.      As authorized under R.C. § 2303.201(E)(1), the Clerk shall charge, in addition to all other costs, a fee of $35.00 on the filing of each criminal cause, civil action or proceeding, or judgment by confession.

c.       All fees collected pursuant to this Subsection shall be used for special projects related to eFiling and storage of case records and related materials.

d.      All fees collected pursuant to this Subsection shall be paid to the Treasurer, who shall place the funds from the fee in a separate eFiling fund to be disbursed upon an order of the Court.

3.       General Special Project Fee:

a.      Pursuant to R.C. § 2303.201(E)(1), the Court has determined that, for the efficient operations of the Court, additional funds are necessary to acquire and pay for special projects of the Court.

b.      As authorized under R.C. § 2303.201(E)(1), the Clerk shall charge, in addition to all other costs, a fee of $30.00 on the filing of each criminal cause, civil action or proceeding, or judgment by confession.

c.       All fees collected pursuant to this Subsection shall be used for special projects consistent with R.C. § 2303.201(E)(1).

d.      All fees collected pursuant to this Subsection shall be paid to the Treasurer, who shall place the funds from the fee in a separate general special project fund to be disbursed upon an order of the Court.

Rule 2.05 – Pleadings and Motions

 

A.      PLEADINGS:

1.      Initial Pleadings:

a.      The caption of all initial pleadings shall contain the information required by Civ. R. 10(A).

b.      The eFile system shall generate a Civil Case Information Form based on the information provided to the eFile system when the initial pleading is filed.

2.      Pleadings Filed Subsequent to the Initial Pleading:

All pleadings filed subsequent to the initial pleading shall specify:

a.      the case number;

b.      the name of the assigned Judge or the name of the Judge who heard the case and the Magistrate, if applicable;

c.       the signature of the attorney who is making the filing, as required by Mont. Co. C.P.R. 1.15(F)(4)(a); and

d.      a Certificate of Service as required by Mont. Co. C.P.R. 1.15(H)(4).

3.      Personal and Private Information in Pleadings and Exhibits:

a.      In accordance with Mont. Co. C.P.R. 1.15(I), a filer shall not include personal and private information in any document filed with the Court, unless such inclusion is necessary and relevant to the case.

b.      If personal and private information is necessary and must be included in a document, the filing party must file the document in accordance with Mont. Co. C.P.R. 1.15(I).

 

B.      MOTIONS:

1.      Moving Parties:

a.      All moving parties shall file and serve their motions with the following:

i.        A brief written memorandum that shall:

a)      state with particularity the grounds in support of the motion;

b)      set forth the relief or order sought; and

c)      specify the citations of the authorities upon which the motion is based.

ii.      Copies of all photographs or documentary evidence that will be used in support of the motion, if the motion requires the consideration of facts that do not appear in the record.

iii.    A proposed order or entry filed in accordance with Mont. Co. C.P.R. 1.15(F)(2)(b).  Substantive motions, i.e. motions for summary judgment in non-foreclosure cases, do not require a proposed order or entry to be filed unless otherwise ordered by the Court.

b.      If a memorandum in opposition is filed in accordance with Subsection (B)(2) of this Rule, a moving party may file a reply memorandum within seven days from the date on which the memorandum in opposition is filed.

2.      Opposing Parties:  All parties opposing motions shall file and serve a memorandum in opposition to the motion that has been filed and served against them.  All memoranda shall:

a.      be accompanied by copies of all photographs or documentary evidence that will be used in opposition to the motion, if the motion requires the consideration of facts that do not appear in the record and

b.      be filed and served within 14 days from the date on which the motion was served.  If no memorandum is filed within this time limit, the motion may be decided forthwith.

3.      Other Memoranda:  No other memoranda shall be filed without leave of the Court.

4.      Limitation upon Length of Memoranda:

Memoranda in support or in opposition to any motion or application to the Court shall not exceed 20 pages and otherwise shall comply with Mont. Co. C.P.R. 1.15(F)(1).  The page limitation may be modified by the Court for good cause shown and upon such conditions as set by the Court.

 

C.      PROCESS SERVERS:

1.      One-time Appointment:

If a party desires personal service to be made by a special process server pursuant to Civ. R. 4.1, that party or counsel must file with the Clerk an entry of appointment providing:

a.      The name of the person to be appointed as process server;

b.      That the person to be appointed as process server is 18 years of age or older; and

c.       That the person to be appointed as process server is not a party in the action or counsel for a party in the action.

2.      Standing Appointment:

a.      A person may be designated as a “Standing Special Process Server” for cases filed in the Court by filing a combined affidavit and order (Appendix I).  The affidavit shall set forth the following  information:

i.        The name, address, and telephone number of the person to be appointed as a Standing Special Process Server;

ii.      That the person is 18 years of age or older;

iii.    That the person agrees not to attempt service of process in any case the server is a party or counsel for a party; and

iv.     That the person agrees to follow the requirements of Civ. R. 4-4.6, any applicable local rule, and specific instructions for service of process as ordered by the Court in individual cases.

b.      A standing appointment shall be for no more than a two year period ending on December 31.  Upon expiration of an appointment, a person must reapply in accordance with Subsection (C)(2)(a) of this Rule. 

c.       The Administrative Judge authorizes the appointment order for a Standing Special Process Server.

d.      The order shall be captioned:  “In Re:  The Appointment of [Name of Person Requesting Appointment] as Standing Special Process Server” and state the following:

 

“It appearing to the Court that the following person has complied with the provisions of Mont. Co. C.P.R. 2.05(C), [Name of Person Requesting Appointment] is hereby designated as a Standing Special Process Server authorized to make service of process in all cases filed in this Court and to serve until December 31, ____, or further order of the Court, whichever comes first.”

 

e.      The Clerk shall record such appointment on the Court’s general docket and shall retain the original affidavit and order.  In any case thereafter, the Clerk shall accept a time-stamped copy of such affidavit and order as satisfying the requirements of Civ. R. 4.1(B) for designation by the Court of a person to make service of process.

Rule 2.07 – Pretrial Procedures in Civil Cases

 

A.      STATEMENT OF INTENT:

This Rule implements Civ. R. 16.  It designs the basic patterns and instructions for pretrial development of civil actions.  Initiative, ingenuity, and industry on the part of attorneys in these actions will implement this Rule and will determine the quality of pretrial proceedings.  In the effective administration of this Rule, appropriate sanctions will be employed as may be necessary.

 

B.      PRETRIAL CONFERENCE:

Attorneys shall consult with their clients in advance of the conference and be prepared to confer practically and earnestly on settlement and all other matters as may aid in the disposition of the action.

1.      The Court, with counsel, may inquire into the status and possibility of settlement, discovery completed to date and anticipated prior to the time of trial, and establish the date for the delivery of a medical and special damages package.

2.      The Court shall issue a pretrial order establishing:

a.      a date for the parties to reveal to each other the identities of expert witnesses;

b.      a date for the filing of any memoranda on disputed issues of law or fact and a discovery cut-off date;

c.       a date for the filing of all other motions deemed necessary, including motions for summary judgment;

d.      a date for motions to add necessary parties;

e.      a date for trial material exchange and objections to trial materials;

f.        a date for completing perpetuation depositions;

g.      a date for filing a joint or individually prepared pretrial statements;

h.      a date for a final pretrial conference; and

i.        a trial date.

 

C.      WRITTEN MATERIALS TO BE READ INTO EVIDENCE:

If written materials are to be read into evidence, copies of such materials shall be provided by the proponent to the Court and other counsel at least seven days prior to trial.

Rule 2.09 – Discovery

 

A.      INFORMAL DISCOVERY POLICY:

1.      It is the policy of the Court to encourage professional informal discovery in preference to formal discovery and to avoid the Court’s involvement in the discovery process.

a.      This policy is not intended to discourage the use of depositions to discover and record evidence as provided in the Ohio Rules of Civil Procedure.

b.      Counsel shall make every effort to comply with this policy.

2.      Upon informal request, parties and counsel shall participate in pretrial discovery conferences and shall freely exchange discoverable information and documents.

 

B.      INFORMAL DISCOVERY PROCEDURE:

1.      Pro se parties or counsel shall employ informal discovery requests for necessary information or documents.

2.      If the party or counsel to whom an informal discovery request was made complies with the request, in order to preserve the fruits of discovery, the participating parties or counsel may enter a stipulation setting forth the discovery provided in response to the request.  If otherwise admissible, the stipulation may be used in evidence as an agreed statement of fact.

3.      If a party or counsel fails to respond within a reasonable period of time to an informal discovery request or makes objections thereto, the parties or counsel shall discuss the impasse and attempt to resolve such impasse informally.

4.       No application for protective order, objection to any form of discovery, motion to compel, motion for sanctions or the like (“Formal Discovery Request”), pursuant to the Ohio  Rules of Civil Procedure, shall be filed with the Court until diligent effort has been made to resolve the impasse without the involvement of the Court.

 

C.      REQUIREMENTS AND EFFECT OF LOCAL RULE:

1.      Certificate of Impasse:

a.      A certificate of impasse shall be affixed to or made a part of any Formal Discovery Request.  

b.      The certificate of impasse shall include the specific times and methods of attempted informal resolution.

2.      Any insufficient or unwarranted Formal Discovery Request and any unwarranted opposition or failure to respond to formal or informal discovery requests may subject the offender to sanctions under Civ. R. 37 and this Rule, including the imposition of costs, expenses, and reasonable counsel fees.

 

D.     DISCOVERY DEADLINE:

The assigned Judge or Magistrate may order discovery to be completed at a fixed time prior to the trial date.

 

E.      FILING OF DISCOVERY DOCUMENTS:

1.      Except on the order of the Court or for use as evidence in consideration of a motion, deposition, interrogatories, requests for documents, requests for admission and answers and responses thereto (“Discovery Documents”) shall not be filed with the Clerk.

2.      If Discovery Documents are not accompanied by a certification by counsel that the Discovery Documents are being filed on order of the Court or for use as evidence in consideration of a motion, the Clerk shall not accept the Discovery Documents for filing.

3.      All Discovery Documents filed with the Clerk shall be served in accordance with Mont. Co. C.P.R. 1.15(H) and Civ. R. 5.

 

F.       INTERROGATORIES:

1.      Total Number of Interrogatories:  In the interest of facilitating discovery between litigants, and pursuant to Civ. R. 33, the total number of interrogatories submitted by any one party to another party shall not exceed 40, including sub-parts.  For purposes of this Rule, each question or statement requiring a response shall be considered one interrogatory.

2.      Additional Interrogatories:  Additional interrogatories may be submitted by agreement of the party from whom such additional information is sought or upon leave of Court by motion filed by the requesting party showing good cause.

a.      Either party may request a hearing or the Court may, on its own motion, assign the matter for hearing.

b.      The Court may grant or deny the request for additional interrogatories and impose any conditions which the Court deems appropriate considering the circumstances and the nature of the case.

c.       Pursuant to Subsection (A), (B) and (C) of this Rule, the parties shall attempt to resolve any disputes as to the number of interrogatories between themselves prior to involving the Court.

Rule 2.11 – Limitations on Initial Interrogatories

Revised and Incorporated into Mont Co. C.P.R. 2.09 8/12/14; Effective 8/29/14

Rule 2.13 – Payment of Witness Fees

 

A.      METHOD OF PAYMENT:

If a witness fee as set forth in Appendix G is required to be paid in a civil case and the party or counsel has not paid said fee in advance, the party or counsel shall submit a check, payable to the witness, to the Clerk, to be served with the Subpoena.

 

B.      EXCLUSIONS FROM PAYMENT OF WITNESS FEE:

Witness fees shall not apply to police officers and medical records librarians.

Rule 2.15 – Dismissal of Actions

 

A.      VOLUNTARY DISMISSAL – NOTICE REQUIREMENT:

Any party or party’s counsel who has filed a notice of dismissal or a stipulation of dismissal pursuant to Civ. R. 41(A)(1) shall promptly inform the assigned Judge of the voluntary dismissal.

 

B.      INVOLUNTARY DISMISSAL – DISMISSAL FOR WANT OF PROSECUTION:

In accordance with Civ. R. 41(B)(1), the Court, upon its own motion or upon the motion of a defendant, may dismiss an action or a claim if notice is given to the plaintiff or plaintiff’s counsel and any of the following conditions are met:

1.      The plaintiff fails to prosecute;

2.      The plaintiff fails to comply with these Rules;

3.      The plaintiff fails to comply with any Court order; or

4.       The case has been pending an unreasonable length of time without any required action having been taken.

Rule 2.17 – Judgment

 

A.      DEFAULT JUDGMENT:

1.      Motion:  Pursuant to Civ. R. 55, all motions for default judgment, uncontested assessments of damages and statutory ex parte proceedings shall be submitted to the assigned Judge.

2.      Judgment Entry:

a.      If a proposed default judgment entry is submitted to the Court for signature via the Court’s eFiling system, the filing party, not the Clerk, shall be responsible for serving a copy of the default judgment entry, by regular U.S. mail, on all parties that are not registered users of the eFiling system after the default judgment entry has been signed and filed. 

b.      The proposed default judgment entry shall include a certificate of service in accordance with Mont. Co. C.P.R. 1.15 and Civ. R. 5(B)(3).  Failure to provide a certificate of service constitutes an irregularity and is grounds for vacation of judgment, unless the record establishes that the name or address of the party against whom judgment is entered is unknown.

 

B.      JUDGMENT BY CONFESSION:

1.      Issuance of Judgment:  A judgment by confession shall be granted by any available Judge of the Court upon:

a.      An attorney’s warrant or,

b.      If the defendant has confessed judgment to the Court and received the plaintiff’s permission to obtain judgment by confession, by the personal appearance of the defendant in court.

2.      All judgments by confession shall:

a.      Be in writing;

b.      State the debt or cause of action decided; and

c.       Be filed with the Clerk.

3.      Judgment Entry:

a.      If a proposed judgment entry is submitted to the Court for signature via the Court’s eFiling system, the filing party, not the Clerk, shall be responsible for serving a copy of the judgment entry, by regular U.S. mail, on all parties that are not registered users of the eFiling system after the judgment entry has been signed and filed. 

b.      The proposed judgment entry shall include a certificate of service in accordance with Mont. Co. C.P.R. 1.15 and Civ. R. 5(B)(3).  Failure to provide a certificate of service constitutes an irregularity and is grounds for vacation of judgment, unless the record establishes that the name or address of the party against whom judgment is entered is unknown.

4.      Issues Arising or Pending Subsequent to Judgment by Confession:

All issues that arise or are pending in a case subsequent to the judgment by confession shall be referred to the assigned Judge.

 

C.      ENTRY OF JUDGMENT:

The Court may approve or disapprove any proposed judgment entry.  No oral arguments shall be heard on the judgment entries unless ordered by the Court.  The judgment of the Court shall be effective upon the filing and journalization of a judgment entry with the Clerk.

Rule 2.19 – Ex Parte Orders

 

No ex parte applications, orders or entries shall be submitted unless expressly authorized by law.  All motions for temporary restraining orders shall be made and proceed in compliance with Civ. R. 65(A).

Rule 2.21 – Cancellations and Releases

 

Releases and assignments of judgments or certificates of judgment shall be in writing and signed by a person authorized to execute the instrument.   No release, assignment or similar matter shall be written directly upon the appearance or execution dockets.

Rule 2.23 – Judicial Sale of Real Estate

 

A.      CERTIFICATION:

1.      In every action filed in the Court or any other division of the Common Pleas Court of Montgomery County, Ohio wherein a judicial sale of real estate is contemplated by the complaint or subsequent pleadings, the party praying for said sale or the party’s counsel shall endorse the following Certification upon the complaint or subsequent pleading:

“The undersigned hereby certifies that an examination of the public records of Montgomery County, Ohio, has been made to determine the ownership of subject real estate and all parties who may claim an interest therein, and that, in the opinion of the undersigned, all interested parties have been named as parties to this action, [state as exceptions any interested party not so named].” 

2.      Subsection (A)(1) of this Rule shall not apply to proceedings under R.C. § 5721.18.

 

B.      ORDER:   Upon any decree subsequently issued which orders the sale of real estate, the party or party’s counsel who requested said sale shall further certify:

“The undersigned hereby certifies that the examination of title to subject real estate has been extended to [date] to determine if any parties have acquired any interest therein subsequent to the previous examination and the extended examination discloses that, in the opinion of the undersigned, there are no such parties except parties to whom the doctrine of lis pendens applies, [state as further exceptions any such party not subject to lis pendens].”

 

C.      NOTICE OF SALE:

1.      In every action in the Court or any other division of the Common Pleas Court of Montgomery County, Ohio, wherein a judicial sale of real estate is ordered, the party requesting the sale or the party’s counsel shall promptly mail notice of the time, date and location of the sheriff’s sale to:

a.      the record owner(s) of the subject real estate whether or not in default for failure to appear, or counsel for the record owner(s), unless service of summons on the record owner(s) was accomplished only by publication and

b.      all other interested parties not in default for failure to appear or to counsel of record for interested parties not in default for failure to appear.

2.      Said notice may be mailed to:

a.      the last known address(es) of the record owner(s) and other interested parties not in default for failure to appear or

b.      counsel of record for the record owner(s) and other interested parties not in default for failure to appear.

3.      No parties to the proceedings in default of answer need be served with notice of sale except by publication as provided by R.C. §§ 2329.26 and 2329.27.

4.      Failure to provide timely notice pursuant to this Subsection shall constitute grounds for denying confirmation of the sale.

 

D.     REQUIRED FILING:

1.      Not less than 14 days prior to the scheduled sale date, the party requesting the sale or the party’s counsel shall file with the Clerk a Certificate of Service of Notice of Sale Date specifying the date and manner of service of the notice required in Subsection (C) of this Rule, the names and addresses of all record owner(s) and interested parties or counsel of record for the record owner(s), and interested parties who were sent the notice.

2.      Failure to timely file the certificate of service required by this Subsection shall constitute grounds for denial of the confirmation of sale.

 

E.      CANCELLATION OF SALE:

1.      In every action in the Court or any other division of the Common Pleas Court of Montgomery County, Ohio, wherein a judicial sale of real estate that has been ordered is to be canceled due to a filed bankruptcy petition or for any other reason, the party canceling the sale or the party’s counsel shall file a copy of the filed bankruptcy petition or an entry canceling the sale pursuant to Mont. Co. C.P.R. 1.15(F)(2)(b) and 2.05(B)(1)(a)(iii).

2.      The party requesting the cancellation or the party’s counsel shall serve a copy of the file-stamped entry or bankruptcy petition on the Montgomery County Sheriff prior to said sale.

3.      Neither the Clerk nor the Court shall notify the Sheriff of any cancellation.

 

F.       PROCEDURE:

1.      Prior to the sale, the Sheriff, deputy or party conducting the sale shall announce that successful bidder(s) shall have 30 days from the date of sale to obtain an examination of title to said real estate.

2.      Should examination disclose the title to be unmarketable by reason of any defect in the proceedings or the existence of any interest not disclosed in either of the certifications described in Subsection (A) or (B) of this Rule, no liability shall be predicated on the certifications. The successful bidder(s) may, within the 30 day period, notify the Court of the defect and move the Court to set aside the sale.

3.      If the Court finds title to be unmarketable, the Court shall refuse to confirm the sale.  The Court may fix a reasonable time, not to exceed 90 days, within which any defect may be cured.

4.      Waiver:  The successful bidder(s) may waive any part or all of the 30 day period by signing the Confirmation Entry, but no Confirmation Entry not approved by the successful bidder(s) shall be filed until the 30 day period has expired.

 

G.     TERMS OF SALE:

1.      Mortgage Foreclosure Sales, Terms of Sale:

a.      Unless the successful bidder is the first lien holder, the successful bidder(s) shall deposit 10% of the purchase price immediately following the sale. 

b.      The unpaid balance of the purchase price shall be paid to the Montgomery County Sheriff by certified or cashier’s check within 15 days of the filing date of the confirmation of sale and distribution entry.

2.      Treasurer’s Tax Sales, Terms of Sale:

a.      The successful bidder(s) shall deposit $1,000.00 plus transfer and recording fees immediately following the sale.

b.      The unpaid balance shall be paid to the Montgomery County Sheriff by certified or cashier’s check within 15 days of the filing date of the confirmation of sale and distribution entry.

 

H.     APPRAISERS’ FEES:

1.      Non-Commercial Real Estate/Single Unit Property:  Pursuant to R. C. §§ 2335.01, 2335.02, and 311.19, the appraisers’ fee for the judicial sale of non-commercial real estate and single unit property shall be $60.00 per appraiser (Appendix K).

2.      Commercial Real Estate/Multiple Unit Property:  Appraisers’ fees for commercial real estate or multiple unit property shall be $40.00 per hour for every hour actually spent in research to establish a value for the subject property.

a.      Research to establish a property value shall not include payment for previous research on previously evaluated property.

b.      Each fee request pursuant to this Subsection shall include a certification with an accounting of all time expended in determining property value (Appendix L).

c.       The plaintiff or plaintiff’s attorney shall be notified in advance by the appraiser of any request for hourly fees.

d.      The maximum fee that may be paid without Court approval is $300.00.  Any hourly fee request exceeding $300.00 shall be submitted to the Court for approval.

Rule 2.25 – Confirmation of Public Sales

 

A.      Confirmations of sales of real estate and applications for determining priorities of liens shall be submitted to the assigned Judge.

 

B.      Where there is counsel of record other than counsel for the plaintiff or for the moving party, the confirmation of sale entry shall be endorsed by all counsel who have appeared of record.  If the confirmation of sale entry is not endorsed by all counsel of record, then counsel for plaintiff or for the moving party shall submit a motion with a notice of a hearing, which shall be at least three days subsequent thereto, requesting confirmation of sale and stating that the sale has been regular and proper in every respect and in conformity with the statutes provided.

 

C.      Insofar as is possible, all confirmation of sale entries shall distribute proceeds according to the priority of the liens and discharge all liens of record.  Every effort shall be made by counsel for plaintiff or for the moving party for confirmation and distribution to secure and protect the title of the purchaser at the sale.


 

Rule 2.27 – Attorney’s Fees in Mechanic’s Lien Cases

 

A.      If (1) a fund has been created out of the sale of property subject to mechanics’ liens, (2) said fund is in excess of the amount needed to pay prior mortgage encumbrances, (3) said fund is applicable to amounts due to valid lien claimants, and (4) said fund has been brought into the Court by the plaintiff’s action to foreclose a mechanic’s lien, attorney’s fees may be allowed for plaintiff’s counsel.

 

B.      If plaintiff pays counsel a fee, the amount paid shall be considered in the allowance of any attorney’s fees.

 

C.      If, at the time of distribution to the lien claimants, all the liens other than that of the plaintiff have been adjusted and settled, no attorney’s fees shall be allowed for plaintiff’s counsel.

Rule 2.29 – Receiverships

 

A.      RECEIVERS IN NON-FORECLOSURE CASES:

1.      Procedure:  The following procedures shall apply upon the filing of a motion for the appointment of a receiver in a non-foreclosure case:

a.      The assigned Judge shall set a date for a hearing on the appointment of a receiver.

b.      The moving party shall serve notice of the hearing on interested parties unless the Court finds that the time taken to give notice will result in irreparable harm to the plaintiff.

c.       The moving party shall attach a schedule of secured and unsecured creditors to the motion unless otherwise ordered by the Court.  If the moving party does not know the identities of the secured or unsecured creditors, the moving party shall so state in the motion for appointment of a receiver.

d.      The moving party shall provide the Court with a list of persons to be considered for the receivership, unless otherwise ordered by the Court.  The Court shall carefully consider all persons who are recommended for the receivership in relation to any unsecured creditors whose interest is threatened.

2.      Restrictions on Motions:

a.      A motion for the appointment of a receiver based upon an open account or other claims not in judgment shall be denied where there is no showing of a right to equitable relief.

b.      No motion for the appointment of a receiver that has been denied by one Judge shall be renewed before another Judge.

3.      Consent by Defendant:  Whenever a defendant consents to the appointment of a receiver, the defendant shall file the following with the Court:

a.      A verified statement of all current assets and liabilities and

b.      A written statement of consent to the appointment.

4.      Qualifications of Receivers:

a.      Oath:  Before a receiver appointed by the Court performs duties pursuant to Subsection (A)(5) of this Rule, the receiver must be sworn to perform the duties faithfully.  The moving party shall file with the Court a certified copy of the receiver’s oath.

b.      Bond:  The moving party shall execute a surety bond to the receiver, which must be approved by the assigned Judge, so that the receiver will faithfully discharge the duties of the receiver in the action and obey the orders of the Court.  The payment of the bond shall be made to the Clerk to be placed in an interest bearing account, unless otherwise ordered by the Court.

c.       Interested Persons:  No party, attorney, or person who has an interest in the action shall be appointed receiver in the action without the consent of the parties.

d.      Residency Requirements:

i.        All receivers shall reside in Montgomery County, Ohio except, upon a showing of good cause, the Court orders otherwise.

ii.      All receivers appointed to act as a receiver of a railroad or other corporation shall be a resident of Ohio.

5.      Duties of Receivers:

a.      Within 30 days after the date of their appointment, all receivers shall:

i.        file an inventory;

ii.      give notice by mail or by publication, as directed by the Court, to all known creditors that the creditors are required to file any claims within a certain time and that, unless a creditor files its claims by the specified time, the creditor will not be permitted to file any claim without an order of the Court;

iii.    provide written notification to all public authorities that may have claims against the receivership; and

iv.     file a list of all claims with the Court after the specified time for filing has expired.

b.      All receivers who, upon application, are permitted to operate a business as a going concern shall file with the Court, 30 days after the application is granted and monthly thereafter, the following:

i.        A statement of the receiver’s operation which shows a balance sheet for the period;

ii.      An operating statement of income and expenditures that includes:

a)      Necessary accruals that make a comprehensive statement of profit and loss for the period;

b)      A list of estimated inventory;

c)      Peculiar conditions existing in the business; and

d)      A list of expenses of operation; current interest accrued on loans during the period; and depreciation on buildings, machinery, and equipment.

c.       Within 60 days after appointment, all receivers shall apply to the Court for authority to cancel or reject all unprofitable contracts.

d.      Within 30 days after a receiver’s duties are completed, the receiver shall file a final account and appropriate records, receipts, or vouchers.  All accounts must be approved by the Judge who appointed the receiver.

e.      All money coming into the hands of a receiver must be deposited into a federally insured local or national bank and the deposit shall be in the receiver’s name.

6.      Appraisers:

a.      All appraisers shall be suggested to and appointed by the Court.

b.      Documentation:  All appraisers shall be named in the entry of appointment.

c.       Qualifications: 

i.        All appraisers shall take an oath to faithfully and accurately appraise all assets submitted to them by the receivers, including accounts receivable.

ii.      All appraisers shall have the same qualifications as appraisers appointed in the Probate Division of the Common Pleas Court of Montgomery County, Ohio (“Probate Court”) and may be one or more of the appraisers used in the Probate Court.

7.      Claims:

a.      All claims arising out of judgments shall be accompanied by a certified copy of the final judgment.

b.      All claims based upon an instrument for the unconditional payment of money or upon a written contract must be accompanied by a copy of the instrument or contract.

c.       Whenever priority is claimed, attention should be specifically directed to the grounds of priority.

8.      Objections:

a.      All objections to claims must be made in writing and filed by the interested party before distribution is ordered by the Court.

b.      All objections to the accounts of receivers or to any allowance made to them by the Court must be filed within 14 days after the accounts are filed or allowances made.

9.      Vacancies in Receiverships:  Any vacancy in a receivership shall be called to the attention of the Court by the receiver or plaintiff’s counsel as soon as it occurs.

10.  Settling Accounts:  Unless otherwise provided, the procedure prescribed by the Ohio Revised Code for settling accounts in decedents’ estates shall govern.

 

B.      RECEIVERS IN REAL ESTATE FORECLOSURES:

1.      Procedure:  The following procedure shall be applied upon the filing of a motion for the appointment of a receiver in a foreclosure case:

a.      The date for a hearing on the appointment of a receiver shall be stipulated on the motion;

b.      The moving party shall serve notice of the hearing on interested parties either by attachment to the complaint and original summons or by certified mail in accordance with the Ohio Rules of Civil Procedure;

c.       The moving party shall serve notice of the hearing on the owner of the property no later than three days before the hearing; and

d.      The assigned Judge may continue hearings from time to time upon a showing of good cause.

2.      Prerequisites:  Before any receiver is appointed in a foreclosure case, the following must be demonstrated by affidavit, evidence or representation of counsel:

a.      That legal or equitable grounds exist necessitating the appointment of a receiver and

b.      That one or more of the following facts exists:

i.        The property is insufficient to discharge the mortgage;

ii.      The property is in danger of being vandalized, destroyed, or its value materially impaired;

iii.    The premises has been abandoned by the mortgagor;

iv.     The mortgage embraces the rents and profits in the security;

v.       The property is income-producing; or

vi.     The mortgage provides for appointment of a receiver without notice.

3.      Oath:  Before a receiver appointed by the Court performs duties pursuant to Subsection (B)(5) of this Rule, the receiver must be sworn to perform the duties faithfully.  The moving party shall file with the Court a certified copy of the receiver’s oath.

4.      Bond:  Upon appointment, a receiver shall qualify and give a bond in an amount required by the Court.  If the receiver fails to qualify and give bond, the appointment is voidable. 

a.      When the property is vacant and it is anticipated in the motion that the receiver’s duty will be that of a caretaker, unless otherwise ordered by the Court, bond shall generally be in the nominal sum of $100.00. 

b.      Where there are rents and profits to be collected and disbursements made in the management of the property during the litigation, bond shall be in a sum sufficiently adequate to cover the costs of all funds reasonably anticipated to be handled by the receiver during the pendency of the litigation.

5.      Duties of Receivers:

a.      All receivers shall:

i.        take charge of the property pending litigation;

ii.      preserve the property from waste or destruction;

iii.    receive rents and profits;

iv.     hold income subject to order of the Court; and

v.       have authority to sue in forcible entry in the receiver’s name and capacity.

b.      Within 90 days of the date of the appointment and every 90 days thereafter, receivers shall file a report of receipts and disbursements.

c.       Without first procuring an order from the Court, no receiver shall lessen the funds coming into the receiver’s hands by expenditures for:  repairs; exempt real estate taxes and assessments; gas, light and water bills; trash pick-up; or insurance.  Necessary outlays under $200.00 may be made without Court order subject to the final approval of the receiver’s account by the Court.

 

C.      SALES BY RECEIVERS:

1.      No receiver shall offer for sale any property, real or personal, until the receiver has established the receiver’s right to sell the property.

2.      When it becomes necessary to sell property, notice of the time, place, and terms of the sale shall be given to all creditors who have filed claims and to all interested parties.

3.      Sales of all property by a receiver shall be for the best price obtainable, and the receiver shall file an affidavit to that effect within 10 days after the sale.

4.      No sale shall be made to a former owner or to any person interested in the business or operation of the receivership until notice is served on all creditors fixing a date for confirmation of the sale.

 

D.     COMPENSATION OF RECEIVER:

1.      No compensation shall be allowed to a receiver or the receiver’s counsel except upon written application describing the services rendered, the time required, the amount requested for each and the amounts, if any, previously received.  The Court shall set the time for a hearing and determine the nature of the notice of the application to creditors.

2.      Except in operating receiverships where an account has been filed monthly, no compensation shall be paid to or accepted by the receiver or receiver’s counsel unless this Rule has been followed and the final verified account has been filed.

3.      Liquidating Receiverships:

a.      In liquidating receiverships requiring more than one year to liquidate, one third of the probable total fees may be allowed and paid.  A violation of this Rule shall subject the offender to discipline, removal and forfeiture of compensation as determined by the Court.

b.      Total allowances to both receiver and the receiver’s counsel shall not exceed 15% of the receipts in liquidating receiverships, except where extraordinary services have been authorized by the Court.

c.       When fees in excess of 15% are requested for extraordinary services, the receiver shall mail to all known creditors or shareholders, if any, a notice of the hearing on the application, the nature of the request, and the date and place of the hearing.

Rule 2.31 – Magistrate

 

 

A.      APPOINTMENT AND REFERRAL:

Magistrates shall be appointed in accordance with Civ. R. 53(A).  Cases shall be referred to the appointed Magistrate in accordance with Civ. R. 53(D).

 

B.      PRETRIALS:

The Magistrate may require a case to follow the pretrial provisions set forth in Mont. Co. C.P.R. 2.07 prior to the hearing or trial date.

 

C.      TRIALS:

1.      Trials before the Magistrate shall be conducted in accordance with the standard set forth in the Ohio Rules of Superintendence, these Rules and any other applicable rules or laws.

2.      A record shall be made of all proceedings before a Magistrate.

 

D.     MAGISTRATE’S DECISION:

1.      In accordance with Civ. R. 53, after a hearing or trial, the Magistrate shall issue the Magistrate’s decision, including findings of fact, unless otherwise ordered by the assigned Judge.

2.      After the trial or hearing and prior to issuing a decision, the Magistrate may require that briefs, proposed findings or other memoranda be submitted by the parties or parties’ counsel.

 

E.      PROCEDURES FOR OBJECTING TO MAGISTRATE’S DECISION:

1.      Objections, Cross Objections, Memoranda:

a.      Objections, if any, shall be filed within 14 days following the Magistrate’s decision.

b.      If objections are filed by a party within the 14 day period, any other party may file cross objections within 10 days of when the objections were filed.

c.       Any memoranda in opposition or reply briefs shall be filed in accordance with Mont. Co. C.P.R. 2.05(B).

2.      All objections, cross objections or memoranda shall cite to a specific time designation on the recording of proceedings before the Magistrate.  Failure to cite objections in this manner may result, at the discretion of the assigned Judge, in adoption of the Magistrate’s factual findings, and any review may be limited to the Magistrate’s legal conclusions.

3.      A party may file a brief in opposition to the objections or cross objections within 14 days of the filing of objections or cross objections.  An extension of time for filing a brief in opposition may be obtained, for good cause shown, upon written motion.

4.      The objecting party may file a reply brief to a brief in opposition to the objections within 7 days from when the brief in opposition was filed.  Should a party file cross objections, as allowed for in this Rule, and should a brief in opposition to the cross objections be filed, the party filing the cross objections may file a reply brief to a brief in opposition to the cross objections within 7 days from when the brief in opposition was filed.

5.      Objections, cross objections, and memoranda shall not exceed 20 pages in length, and shall otherwise comply with Mont. Co. C.P.R. 1.15(F).

 

F.       STIPULATIONS TO FINDINGS OF FACT:

1.      The parties may enter stipulations of fact either before or after the Magistrate’s decision.  Said stipulations shall not preclude any objections to errors of law.

2.      If the parties agree that the findings of fact of the Magistrate are to be final, as contemplated in Civ. R. 53(D)(3)(iii), the parties shall file a written entry with the Court.

 

G.     TRANSCRIPTS:

1.      Pursuant to Civ. R. 53(D)(3)(b)(iii), if objections to the findings of fact of the Magistrate are made, the objecting party shall file a transcript of the hearing within 30 days.

2.      The transcript may be filed in CD or paper form.  All requests for transcripts shall be made in accordance with Mont. Co. C.P.R. 1.29.

 

H.     FINAL ENTRIES:

If no objections to the Magistrate’s decision are filed pursuant to this Rule, the Magistrate shall prepare a judgment entry and submit the judgment entry to the assigned Judge for approval.

Rule 2.33 – Aid of Execution

Repealed 6/2/09; Effective 6/8/09

REPEALED

Rule 2.35 – Arbitration

 

 

Repealed 5/5/09; Effective 5/11/09

REPEALED

Rule 2.37 – Appeal from Administrative Agencies

4

 

This Rule shall govern all appeals from administrative agencies to the extent that the appeals are not otherwise governed by statute or by the Ohio Rules of Superintendence.

 

A.      NOTICE:

Any party desiring to appeal from an order of an administrative agency shall file the notice with the Court and the agency from which the appeal is taken.

 

B.      MEMORANDA:

Unless otherwise ordered by the assigned Judge, or set by the governing statute or the Ohio Rules of Superintendence, all briefs shall be filed as follows:

1.      The appellant shall file a claim of error, memorandum, and all other essential papers within 40 days after the notice of appeal has been filed or the filing of the transcript, whichever is later.  Failure to file a memorandum and assignment of errors within the requisite period of time may result in dismissal of the appeal.

2.      Counsel for appellee shall file a memorandum, if any, within 30 days after service of appellant’s memorandum.

3.      Appellants may file reply memoranda within 14 days after appellee’s memoranda have been served.

Rule 2.39 – Civil Mediation

 

 

A.      REFERRAL FOR MEDIATION:

1.      Except as set forth in Subsection (A)(1)(b)(i)-(iii) of this Rule, any civil case may be referred for mediation pursuant to a party’s motion or by agreement of the parties.  The assigned Judge, in his or her discretion, may refer any civil case for mediation. 

a.      After the Court’s pre-trial scheduling conference, the Court shall issue its standard pre-trial order which shall establish a cutoff date of 90 days, unless otherwise ordered by the Court, for the parties to request mediation through the Court’s mediation program.  After a case is referred for mediation, the mediation staff will conduct an initial telephone conference with the parties to select a Mediator pursuant to Subsection (C)(2)(a) of this Rule and to schedule a mediation date.

b.      Domestic Relations and Protective Orders

i.        The Court shall not refer cases for mediation in the following circumstances:

a)      As an alternative to the prosecution or adjudication of domestic violence;

b)      In determining whether to grant, modify, or terminate a protection order;

c)      In determining the terms and conditions of a protection order; and

d)      In determining the penalty for violation of a protection order.

ii.      Exception:  Nothing in Subsection (A)(1)(b)(i) of this Rule shall prohibit the use of mediation in a subsequent divorce or custody case in another division of the Common Pleas Court for Montgomery County, Ohio  or any other court, even if such case may result in the termination of the provisions of a protection order issued by the Court.

iii.    Allegations of Domestic Abuse

a)      In any case referred for mediation, all parties and counsel have a continuing duty to and shall disclose to the assigned Judge, the Mediator, and the mediation staff whether any of the opposing parties have resided in a common residence or are related by blood, adoption, or marriage, and, at any time prior to or following the referral for mediation and before conclusion of the mediation process, have committed or are alleged to have committed domestic abuse.

b)      The party who committed or is alleged to have committed the act of domestic abuse shall participate in any screening required by Sup. R. 16 prior to the mediation session(s).   The Mediator may order additional screenings, at the Mediator’s discretion, throughout the duration of mediation.

 

B.      PROCEDURE AFTER REFERRAL FOR MEDIATION:

1.      The Chief Magistrate shall serve as “Mediation Liaison” to settle disputes that arise during the mediation process.  The Mediation Liaison may refer a dispute to the assigned Judge.

2.      Selection of Mediator:

a.      Pursuant to Subsection (C)(2) of this Rule, the Court shall maintain a list of Court approved Mediators (“Mediator List”).  Parties, by agreement, may select a Mediator from the Mediator List.  If the parties fail to agree or elect not to choose a Mediator, the Court shall assign a Mediator from the Mediator List on a rotating basis.

b.      Conflicts of Interest:  

                                            i.            In accordance with R.C. 2710.08(A) and (B), the Mediator selected by the parties or assigned by the Court shall disclose to counsel, the parties, and any nonparty participants any known potential conflicts that may affect the Mediator’s impartiality as soon as such conflict(s) become known to the Mediator.

                                          ii.            Withdrawal and Removal:

a)      If a party or counsel requests that the Mediator withdraw because of the potential conflict(s), the Mediator may withdraw and request that the assigned Judge appoint a new Mediator. 

b)      If the Mediator determines that withdrawal is not warranted, the Mediator may elect to continue. 

a)      If the Mediator elects to continue, any party may request the Mediator’s removal by submitting a request to the assigned Judge to remove the Mediator.

1)      The assigned Judge may remove the Mediator and appoint another Mediator from the Mediator List. 

2)      If the assigned Judge decides that the request for removal is unwarranted, the Mediation process shall proceed from the point where the objection was first raised, with events rescheduled as necessitated by any delay.

3.      Telephone Conference:  The Mediator shall conduct a telephone conference prior to the date of the scheduled Mediation session.

a.      The Mediator shall set the time for the telephone conference.

b.      All counsel and pro se parties shall make themselves available for the scheduled telephone conference.

c.       During the telephone conference, the Mediator shall inquire of the parties or counsel of their readiness for the mediation, including any additional information needed to be obtained or exchanged.  The Mediator shall determine if the parties are required to submit a mediation statement.  If a mediation statement is required the following shall apply:   

i.        The Mediator shall instruct the parties how to submit the mediation statement.

ii.      Mediation statements shall not exceed three pages in length, unless otherwise ordered by the Mediator, and shall set forth the relevant positions of the parties concerning factual issues, issues of law, damages, and the settlement negotiation history of the case, including a recitation of any specific demands and offers that have been conveyed.

iii.    Mediation statements shall not be filed with the Clerk.  Mediation statements shall be submitted to the Mediator and all parties or counsel no later than 10 days prior to the mediation session, unless otherwise requested by the Mediator.

d.      Confidential Information: 

i.        If a party or counsel believes it is necessary or desirable to convey confidential information to the Mediator, the party or counsel may submit the information to the Mediator.  The confidential information shall not be filed with the Clerk.

ii.      The party submitting the information shall clearly mark the information as confidential and indicate that the information shall not be shared with the opposing party without consent of the party submitting the information.

4.      Mediation Conference:

a.      Timing:  Unless otherwise ordered by the assigned Judge, the mediation session shall be scheduled to take place no later than 90 days prior to the scheduled trial date.

b.      If the parties and Mediator believe additional mediation sessions would be beneficial, the parties and Mediator shall schedule additional sessions on a schedule that shall not negatively impact the scheduled trial date.

i.        For good cause shown, the parties may seek a continuance of the trial date from the assigned Judge to continue to explore mediation.

ii.      The Mediator may direct the parties to exchange additional information that the Mediator believes will assist the Mediation process.

c.       If the case is settled or dismissed prior to a scheduled Mediation, the parties shall promptly file a settlement and conditional dismissal entry with the Court and inform the Mediator. 

5.      Continuance:

a.      For good cause shown, the Mediator may grant a continuance of a mediation session.

b.      A mediation session shall not be continued more than once without the approval of the Mediation Liaison or assigned Judge.

6.      Attendance

a.      Unless otherwise directed by the Mediator, any party or person whose presence is required in order to supply authority to settle the case, as well as counsel for all parties and an adjuster for an insurer, are required to be present at the mediation session(s).

b.      If counsel or parties become aware of a person or entity whose consent is required to resolve the dispute but who is not yet a party to the case, counsel or parties shall promptly inform the Mediator and the assigned Judge of the identity of the person or entity.

c.       The Mediator shall report to the assigned Judge any failure of a necessary party or counsel to attend a mediation session or act in good faith, including but not limited to, performing obligations expeditiously and not using mediation for the purposes of delay or discovery.  The assigned Judge may impose sanctions, including but not limited to, an award of attorneys’ fees and other costs, contempt, or other appropriate sanctions.

7.      Location:  Unless otherwise agreed by the Mediator and the parties, the mediation session(s) shall take place at the Court.

8.      Procedure

a.      All mediation shall be governed by the Ohio Uniform Mediation Act, R.C. §§ 2710.01 – 2710.10, as amended from time to time.

b.      Confidentiality:

i.        “Mediation Communications”, as defined in R.C. § 2710.01(B), in addition to the privileges set forth in R.C. § 2710.07, shall not be disclosed by parties, counsel, the Mediator or the Court without consent of the other participants.

ii.      The parties shall execute a written confidentiality agreement prior to the beginning of the mediation session.  If new or additional persons attend a subsequent mediation session, the new or additional persons shall sign the confidentiality agreement prior to proceeding.

iii.    Exceptions to Confidentiality requirements:  Information that is:

a)      Statutorily mandated to be reported;

b)      Not privileged pursuant to R.C. § 2710.05; and

c)      Permitted to be reported pursuant to R.C. § 2710.05.

9.      Settlement:  If a settlement agreement is reached:

a.      The Mediator may prepare a written memorandum memorializing all material terms of the agreement (“Settlement Agreement”). 

b.      Parties or counsel shall provide the Notice required pursuant to Mont. Co. C.P.R. 2.15(A) to the assigned Judge.

c.       Parties or counsel shall file an agreed Termination Entry for approval by the assigned Judge within 30 days.  If the parties or counsel fail to file an agreed Termination Entry within the specified time, the Court may administratively dismiss the case.

10.  Termination:  If the Mediator determines that further mediation efforts would be of no benefit to the parties, the Mediator shall inform all interested parties and the assigned Judge that the mediation is terminated.

11.  Throughout the mediation process, the assigned Judge shall continue to manage the case pursuant to Mont. Co. C.P.R. 2.07.

 

C.      COURT APPROVED MEDIATORS:

1.      Prospective mediators shall submit an application pursuant to a process established by the Court, as amended from time to time. 

a.      The Court shall review all applications in accordance with the procedures adopted by the Court.

b.      Prospective mediators shall be approved at the sole discretion of the Judges of the Court.

c.       Prospective mediators approved by the Court shall participate in an orientation session conducted by the Court.

2.      The Court shall maintain a list of Court approved Mediators (defined as “Mediator List” in Subsection (B)(2)(a) of this Rule).

a.      All persons whose names are placed on the Mediator List shall submit a regularly updated Curriculum Vitae (including a list of professional or association memberships) which, along with the Mediator’s application, shall be provided to those requesting information on the assigned Mediator’s qualifications to mediate a dispute, as required by R.C. § 2710.08(C).

b.       Mediators serve at the pleasure of the Judges of the Court and may be terminated from the Mediator List at any time for any or no cause.

D.     MEDIATOR FEE:

1.      Mediators shall be paid a fee in an amount set by the Court, as amended from time to time.

a.      Upon petition by the Mediator and for good cause shown, the assigned Judge may allow additional compensation.

b.      Except as provided in Subsections (D)(1)(c) and (D)(2)(b) of this Rule, Mediators shall be paid, upon proper warrant, from the funds of Montgomery County, Ohio, allocated for the operation of the Court.

c.       The Judges of the Court may determine that, in order to provide effective mediation services, it is necessary for mediating parties to pay a portion of the Mediator Fee or other costs of mediation. 

i)        If the Judges of the Court make the determination referred to in Subsection (D)(1)(c) of this Rule, a schedule of mediation costs shall be provided to all parties upon request or upon referral for mediation.

ii)      Upon motion of a party for good cause shown, the Mediation Liaison or the assigned Judge may waive mediation costs imposed pursuant to Subsection (D)(1)(c) of this Rule.

2.      Cancellation of Mediation Session

a.      Mediators shall not receive a fee for a mediation session canceled more than 48 hours prior to the scheduled session.

b.      If a mediation session is canceled with less than 48 hours notice, the Court may assess costs. 

i)        If a cancellation is the result of a settlement resulting in termination of the case, the cancellation fee shall be divided equally between the parties.  In addition to informing the Mediator, parties shall provide the Notice required pursuant to Mont. Co. C.P.R. 2.15(A) to the assigned Judge.

ii)      If a cancellation is the result of a requested continuance or other reason, the fee shall be assessed against the party requesting the continuance or causing the cancellation. 

iii)    Cancellation fees may be assessed in all cases, including mediation scheduled before a Magistrate or other Court employee.    Magistrates and other Court employees shall not receive additional compensation for mediation services. 

iv)    Cancellation fees shall be deposited with the Clerk, shall not be taxed as costs in the case, and shall be paid to the Special Project Fund for Dispute Resolution establish by Mont. Co. C.P.R. 2.03(D)(1).

v)      Upon motion and for good cause shown, the Mediation Liaison or the assigned Judge may waive any cancellation fees assessed pursuant to Subsection (D)(2)(b) of this Rule.

Rule 2.40 – Certificate of Qualification for Employment (CQE)

 

 

This Rule defines the specific requirements and processes that support a petitioner’s application for a Certificate of Qualification for Employment (“CQE”) as set forth in R.C. § 2953.25 and related rules established by the Ohio Department of Rehabilitation and Corrections (“ODRC”).

 

A.      In order to request a CQE, a petitioner shall follow the ODRC procedures to complete a petition, obtain ODRC approval and obtain an ODRC petition number.

 

B.      The Court shall not take action on the petition until the petitioner pays a deposit in accordance with Mont. Co. C.P.R. 2.03. Judgment granting a CQE shall not be issued until costs are paid in full.

 

C.      ASSIGNMENT:

1.      If the conviction upon which a CQE Petition is made originated in Montgomery County, Ohio, the case shall be assigned to the sentencing Judge.

2.      If the conviction upon which a CQE Petition is made did not originate in Montgomery County, Ohio, the case shall be randomly assigned pursuant to Mont. Co. C.P.R. 1.19.

3.      The assigned Judge may refer the petition to a Magistrate.

 

D.     The Court shall obtain a criminal history for the Petitioner.

 

E.      Records or information received by the assigned Judge to assist in making a decision on the CQE Petition, including information from the Petition, shall remain public or non-public records as otherwise provided by law.

Rule 3.01 – Criminal Practice

 

A.      The purpose of these rules of practice for criminal cases (“Criminal Rules”) is to provide the fairest and most expeditious administration of criminal justice possible within the requirements of the Ohio Rules of Criminal Procedure and the provisions of the Ohio Revised Code, the Ohio Constitution and the United States Constitution.

 

B.      The rules of practice and procedure of the Court set forth in Mont. Co. C.P.R. 1.01 et. seq. and the rules of practice and procedure for civil cases set forth in Mont. Co. C.P.R. 2.01 et. seq. apply to all criminal proceedings, except where clearly inapplicable.

C.      The Criminal Rules shall be constructed and applied to eliminate delay, unnecessary expense, and all other impediments to a just determination of criminal cases.  The disclosure and discovery requirements placed upon both the prosecution and the defense by the Criminal Rules are intended to fully implement Crim. R. 16 and the requirements of Brady v. Maryland, 373 U.S. 83 (1963).

Rule 3.03 – Arraignment, Pretrial and Scheduling Conference

 

A.      ARRAIGNMENT

1.      Schedule:  All arraignments shall be:

a.      Scheduled as ordered in the indictment on Tuesdays and Thursdays at 8:30 a.m., unless otherwise ordered by the assigned Judge; and

b.      Heard by the Grand Jury Judge or the assigned Judge.

2.      Explanation of Rights:  If a defendant not represented by counsel is brought before the Court and called upon to plead, the Judge shall:

a.      Inform the defendant of the charge and the defendant’s rights as required by R.C. § 2937.02 and Crim. R. 10;

b.      If the defendant expresses a desire to consult with an attorney, continue the case for a reasonable time to obtain counsel; and

c.       If the defendant is unable to obtain counsel, order the assignment of an attorney for the defendant from the Appointed Counsel List as set forth in Mont. Co. C.P.R. 3.09(A) or from the Public Defender’s Office.

3.      Joint Arraignment:

If there are multiple defendants to be arraigned, the Judge may, by general announcement, advise all defendants of their rights.

4.      Pleas Made During Arraignment:

a.      Guilty:

i.        Felony Offense:

If the defendant enters a guilty plea to a felony offense, a disposition date shall be set before the assigned Judge.

ii.      Misdemeanor Offense:

If the defendant enters a guilty plea to a misdemeanor offense, the Grand Jury Judge may make an immediate disposition.

b.      Not Guilty or Not Guilty by Reason of Insanity:  If the defendant enters a not guilty plea or a not guilty by reason of insanity plea, the following provisions shall apply:

i.        The defendant must be present, except that the Grand Jury Judge or the assigned Judge, with the written consent of the defendant and the approval of the prosecuting attorney, may permit arraignment without the presence of the defendant.

ii.      The Grand Jury Judge shall set a date and time for a scheduling conference before the assigned Judge.  The Grand Jury Judge shall order defense counsel to meet with the prosecutor for a pretrial conference prior to the scheduling conference.

iii.    If a not guilty by reason of insanity plea is entered, the Grand Jury Judge shall notify the assigned Judge so that the appropriate referrals for evaluations may be made to determine the defendant’s mental condition at the time of the commission of the offense.

5.      Bail:

If the charged offense is a bailable offense, the Grand Jury Judge shall set bail.

 

B.      DISCOVERY:

1.      Upon demand by the defendant, if pro se, or defense counsel (“Demand”), the prosecutor shall deliver an information packet (“Discovery Packet”) to the defendant or defense counsel (“Discovery Recipient”).  A receipt for the Discovery Packet shall be executed by the prosecutor and the Discovery Recipient (“Receipt”).  The Receipt shall be filed of record.  The Discovery Packet shall contain:

a.      Copies of all police reports, including the defendant’s prior criminal record;

b.      Copies of all witness statements;

c.       All statements made by the defendant and co-defendant(s), if any;

d.      Copies of all reports of examinations and tests made in connection with the particular case that are available to or within the possession, custody, or control of the State;

e.      The names and addresses of all witnesses; and

f.        Copies of all documents and a list of all tangible objects which are available to or within the possession, custody, or control of the State and are material to the preparation of a defense; are intended for use by the prosecuting attorney as evidence at trial; or were obtained from or belong to the defendant.

2.      Execution of a Demand and Receipt for a Discovery Packet and acceptance of the Discovery Packet by the Discovery Recipient triggers the reciprocal discovery requirements set forth in Crim. R. 16, and the defendant, if pro se,  or defense counsel is required to submit to the prosecutor discovery as defined in Subsection (B)(1) of this Rule.  As set forth in Crim. R. 16(A), the prosecutor and defendant, if pro se, or defense counsel have a continuing duty to supplement discovery.

3.      Police reports included in the Discovery Packet shall not be used for cross examination of any witness unless properly qualified under Crim. R. 16(B)(6) and Evid. R. 613.

 

C.      SCHEDULING CONFERENCE:

1.      The dates for hearing preliminary motions and for trial shall be fixed at the scheduling conference or as soon thereafter as is practicable, as determined by the assigned Judge.

2.      Change of Plea:

a.      If, during the arraignment, the defendant entered a not guilty or not guilty by reason of insanity plea and the defendant later decides to enter a guilty or no contest plea, the defendant or defense counsel shall inform the assigned Judge of the guilty or no contest plea before or during the scheduling conference.

b.      The defendant may enter a guilty or no contest plea at any time following the scheduling conference to the charge or charges against the defendant set forth in the indictment or bill of information, but, after the scheduling conference, the defendant may not enter a guilty or no contest plea to reduced charges, unless approved by the assigned Judge for good cause shown.

 

D.     WITNESS LIST:

1.      At the final pretrial conference, or if there is no scheduled final pretrial conference, no later than seven days before trial, the prosecutor and defendant, if pro se, or defense counsel shall file a written list of witnesses.  The list need not include possible rebuttal witnesses.

2.       Failure to comply with Subsection (D)(1) of this Rule may result in the exclusion of the testimony of any witnesses who were not so identified.

Rule 3.05 – Continuance of a Criminal Case

 

Requests for continuance of a conference, hearing, or trial shall be in writing and filed in accordance with Mont. Co. C.P.R. 1.15 or made in open court before the assigned Judge.  If the request is made in open court before the assigned Judge and the request is granted, the party making the request shall file a proposed order in compliance with Mont. Co. C.P.R. 1.15 within three days.  Any order granting a continuance shall set forth the date to which the conference, hearing, or trial is continued.

Rule 3.07 – Grand Jury

 

Criminal cases bound over to the Court on which the Grand Jury takes no final action within 28 days shall be dismissed forthwith and without prejudice.  However, if the complaining witness’ testimony is not available within the 28 day period, the case may be continued by the Court for a definite period of time, and such continuance shall be noted in the report of the Grand Jury.

Rule 3.09 – Court Appointment of Counsel

 

A.      APPOINTED COUNSEL LIST:

1.      The Judges of the Court shall specify the qualifications for participating in the appointed counsel program.  The Court shall create a master list of attorneys approved to participate in the appointed counsel program (“Appointed Counsel List”).

2.      Placement on the Appointed Counsel List is a privilege, not a right, and an attorney may be removed by the Court at any time, with or without cause.

 

B.      ELIGIBILITY FOR APPOINTED COUNSEL LIST:

1.      Any attorney not included on the Appointed Counsel List may apply by submitting an application to the Court Services Division.

2.      The purpose of the application process is to allow the Court to determine whether counsel qualifies under this Rule and the Administrative Code and is in compliance with the Ohio Public Defender Standards and Guidelines for Reimbursement prior to the submission of a bill.

3.      An attorney on the Appointed Counsel List whose qualifications and training as set forth in Subsection (C) of this Rule have changed may request reclassification on the Appointed Counsel List by submitting a new application, with supporting documentation, to the Court Services Division.  The attorney’s request shall be reviewed by the Court’s Criminal Practice Committee and a recommendation will be submitted to the Judges of the Court for decision.

 

C.      QUALIFICATIONS AND TRAINING:

1.      Where the defendant is charged with aggravated murder with death penalty specifications or has been convicted and sentenced to death, any attorney appointed for trial, appellate, post-conviction or habeas corpus representation must meet the qualifications set forth in Sup. R. 20 and must appear on the list of attorneys qualified to accept appointments in capital cases promulgated by the Committee on the Appointment of Counsel for Indigent Defendants in Capital Cases set forth in Sup. R. 20 (II)(c).

2.      Where the defendant is charged with aggravated murder without death penalty specifications, murder, or rape under the age of 13, counsel shall possess:

a.      At least three years of experience as an attorney and prior jury trial experience as trial counsel in two first degree felony or aggravated felony trials, or

b.      At least three years of experience as an attorney and prior experience as trial counsel in ten or more jury trials, at least one of which was for a felony of the first degree.

3.      Where the defendant is charged with a felony of the first or second degree, other than aggravated murder without death penalty specifications, murder, or rape under the age of 13, counsel shall possess:

a.      At least two years of experience as an attorney, and

b.      Prior experience as trial counsel in two or more first, second, or third degree felony trials, at least one of which was a jury trial.

4.      Where the defendant is charged with a felony of the third degree, counsel shall possess:

a.      At least one year of experience as an attorney, and

b.      Prior experience as trial counsel in at least one fourth or fifth degree felony jury trial.

5.      Where the defendant is charged with a felony of the fourth or fifth degree, counsel shall possess:

a.      Prior experience as trial counsel or co-counsel in at least one criminal jury trial, felony or misdemeanor, and

b.      Prior completion of a training program on criminal practice and procedure which is certified for continuing legal education (“CLE”) credit by the Ohio Supreme Court Commission on CLE and approved by the Court for the purposes of this Rule.

c.       In evaluating compliance with this Rule and O.A.C. 120-1-10(B)(5)(b)-(c) pertaining to the qualifications of appointed counsel for indigent criminal defendants charged with a felony of the fourth or fifth degree, the Court may evaluate an attorney’s overall experience, knowledge, training, and other qualifications and determine that the attorney meets or exceeds the level of experience, knowledge, and training conveyed by the approved CLE, thereby fulfilling the objective of those requirements and meeting the specified criteria.

 

D.     ASSIGNMENT:

1.      When it appears to the Court that the defendant in a criminal case is indigent, and if the Public Defender’s Office is not representing the defendant pursuant to Mont. Co. C.P.R. 3.03(A)(2)(c), the Court shall utilize and appoint an attorney from the Appointed Counsel List.

2.      As far as is practical, assignment shall be independent from individual influence or choice by any member of the judiciary, prosecution, or other elected official and distributed as widely as possible among attorneys on the Appointed Counsel List on a rotating basis, designed to pair the defendant’s level of offense with an attorney who meets the qualifications of assignment set forth in Subsection (C) of this Rule.

 

E.      COMPLIANCE:

Attorneys on the Appointed Counsel List are required to comply with the Ohio Revised Code, the Ohio Rules of Superintendence, the Criminal Rules of Practice and Procedure, the State Public Defender’s Commission’s “Attorney Qualifications to Represent an Indigent Client”, these Rules and any other applicable rules or laws.

 

F.       MENTOR LIST:

1.      Attorneys on the Appointed Counsel List whose experience exceeds the requirements in Subsection (C)(1)-(5) of this Rule, as determined by the Court, may apply to be placed on the Court’s Mentor List (“Mentor List”).

2.      Assignment of Mentor

a.      When an attorney applies to be included on the Appointed Counsel List, the Court may require assignment of a mentor from the Mentor List.

b.      An attorney on the Appointed Counsel List may request that the Court assign a mentor from the Mentor List.

3.      Attorneys on the Mentor List will be volunteers and will meet with the mentee on an “as needed” basis, as determined by the mentor.

Rule 3.11 – Appointed Counsel Fees

 

Counsel appointed by the Court to represent indigent defendants (“Appointed Counsel”) shall be paid by Montgomery County, Ohio as provided herein.

 

A.      REQUEST FOR PAYMENT:

Appointed Counsel shall not be paid for services unless request for payment is submitted in accordance with this Rule.  All requests for payment shall be:

1.      Made by completing a Criminal Appointed Counsel Pay Packet (“Pay Packet”) using the prescribed forms provided in OPD-1026R, Appointed Counsel Fee Form Program Software created by the Ohio Public Defender’s Commission (“Fee Software”).  Appointed Counsel is required to obtain a copy of the Fee Software from the Ohio Public Defender’s Office.  If Appointed Counsel is unable to use the Fee Software, a special exemption must be requested, in writing, to the Administrative Judge;

2.      Accompanied by a Financial Disclosure and Affidavit of Indigence Form completed by the indigent defendant or Appointed Counsel on forms prescribed by the Ohio Public Defender’s Commission; and

3.      Presented to Court Administrative Services within 30 days after filing of the termination entry of the case for which reimbursement is requested.

 

B.      COMPENSATION AND EXPENSES:

1.      No compensation shall exceed the following amounts:

a.      A flat fee as established by the Ohio Public Defender’s Commission and set forth in Appendix J (“Basic Fee”) per felony case for basic legal services.  As defined in this Rule, basic legal services includes:  arraignment, pretrial conference with prosecutor, initial client interview, scheduling conference, and final disposition; all telephone calls; all appearances for continuances; basic legal research; and review of the nature of the charge(s), routine criminal procedures, and the Discovery Packet.

b.      An hourly rate as established by the Ohio Public Defender’s Commission and set forth in Appendix J (“Hourly Rate”) for special research and writing; field investigation; court conferences, hearings, and trial beyond those set forth in the Basic Fee; witness conferences; and other activities approved in advance by the assigned Judge.

c.       Compensation shall not exceed the maximum fee permitted in trial level proceedings for the case type as established by the Ohio Public Defender’s Commission and set forth in Appendix J (“Maximum Fee”).

d.      Pursuant to Sup. R. 20, death penalty specification cases require the appointment of two attorneys.  The Maximum Fee shall be paid on the combined bills of both attorneys appointed to the case.

e.      Additional compensation:  If a trial continues beyond the time frames set forth in this Subsection, Appointed Counsel may seek approval of additional compensation from the assigned Judge.  If approved by the assigned Judge, compensation in excess of the Maximum Fee shall be at the Hourly Rate if a trial continues beyond the following periods:

i.        For Aggravated Murder,                     13 days;

ii.      For Murder,                                          8 days; or

iii.    For all other felonies,                           4 days.

2.   Expenses:

a.      Reimbursement and payment for reasonable expenses associated with providing representation shall be made when submitted with the Appointed Counsel’s Pay Packet and approved by the assigned Judge. 

b.      Reasonable expenses include expert witness fees, polygraph examination costs, long distance phone calls, photocopying, certain travel expenses, and other necessary items as approved at the discretion of the assigned Judge.

Rule 3.12 – Drug Court

 

 

A.      CREATION OF SPECIALIZED DOCKET – “DRUG COURT”:

Drug Court is created pursuant to the specialized docket standards set forth in Sup. R. 36.20-36.28, including Appendix I.  The purpose of Drug Court is to facilitate efficient and effective treatment of drug addicted or drug abusing offenders.  Eligible offenders as defined in Subsection (C) of this Rule shall be supervised by the Montgomery County Adult Probation Department (“Probation Department”) to ensure compliance with community control sanctions and to assist with criminogenic needs.

 

B.      DRUG COURT TEAM:

The “Drug Court Team” shall consist of the Judge assigned to Drug Court (“Drug Court Judge”), Adult Probation Department Manager and staff, Probation Officers, licensed treatment providers, community based employment program personnel, the Assistant Prosecuting Attorney, and Defense Counsel.  The Drug Court Team shall convene weekly to discuss the progress and status of individual offenders, apply sanctions as needed, and for any other matters.

 

C.      ELIGIBILITY CRITERIA FOR DRUG COURT ADMISSION:

1.      The assigned Judge may order a defendant to Drug Court through a guilty or no contest plea, probation violation, judicial release, other early release options, or Intervention in Lieu of Conviction pursuant to R.C. § 2951.041 (“ILC”).

2.      In order for a defendant to be eligible for Drug Court the defendant shall:

a.      Be amenable to community control;

b.      Be charged with a third, fourth, or fifth degree felony;

c.       Be a resident of Ohio;

d.      Have little or no history of violent behavior;

e.      Have a chemical abuse addiction in which the defendant’s current or past criminal behavior has been alcohol or drug driven;

f.        Have no acute health condition; and

g.      Demonstrate a sincere willingness to participate in a long term treatment process.

 

D.     REFERRING DEFENDANTS TO DRUG COURT:

1.      Drug Court receives referrals from the assigned Judge.  The Drug Court Team shall review the case for legal and clinical eligibility as identified in Subsection (C)(2)(a)-(g) of this Rule.

2.      The assigned Judge shall have final discretion to decide if the defendant is ordered to Drug Court.

 

E.      SENTENCING:

After a defendant is ordered to Drug Court as a community control or ILC sanction, along with any other appropriate sanctions, the case shall be transferred to the Drug Court Judge for any and all further court proceedings.  The Drug Court Judge shall have the authority to conduct arraignments, accept pleas, enter findings and dispositions, revoke community control or ILC, and order or modify community control or ILC sanctions. 

 

F.       TREATMENT PHASES:

Drug Court offenders shall be required to complete phases of treatment as individually necessary and complete all other requirements as identified in the Drug Court Participant Handbook and the Drug Court Participation Agreement.  Drug Court offenders shall comply with all the rules indicated to them by the Drug Court Judge at their initial appearance.  While in Drug Court, the offender shall receive services to assist in meeting criminogenic needs.  Upon graduation from Drug Court, the offender may be required to remain under community control or ILC sanctions to ensure continued compliance and success.

 

G.     SANCTIONS FOR NON-COMPLIANCE:

Sanctions for a Drug Court offender’s non-compliance vary in intensity and may include, but are not limited to, the following:

1.      Warning and admonition from the Drug Court Judge;

2.      Demotion to an earlier Drug Court phase;

3.      Increased frequency of drug or alcohol testing and court appearances;

4.      Increased supervision contacts and monitoring;

5.      Community service or work program;

6.      Jail or out of home placement;

7.      Community control or ILC violation;

8.      Termination from Drug Court; and

9.      Commitment to the Secure Transitional Offender Program (“S.T.O.P.”), the MonDay Community Correctional Facility, or any other community based facility approved by the Court.

 

H.     UNSUCCESSFUL TERMINATIONS:

1.      Reasons for termination from Drug Court include, but are not limited to:

a.      Failure to remain clean from illegal substances or alcohol;

b.      Violation of the General Conditions of Supervision;

c.       Violation of any community control or ILC sanctions; and

d.      Failure to comply with the Drug Court Participation Agreement or any other orders of the Drug Court Judge.

2.      If an offender is terminated from Drug Court for reasons stated in Subsection (H)(1) of this Rule, or for any other reason as determined by the Drug Court Judge, the offender may be subject to a community control or ILC revocation hearing.

3.      If a hearing is required pursuant to Subsection (H)(2) of this Rule:

a.      The Drug Court Judge shall adjudicate the proceedings;

b.      The offender may have his or her community control or ILC sanctions modified.  Modifications may include, but are not limited to, commitment to a Community Based Correctional Facility (“CBCF”), revocation of community control or ILC, or termination from Drug Court;

c.       The Drug Court Judge shall have the sole discretion to refer an offender to the original assigned Judge for further proceedings; and

d.      The laws governing revocation apply, and the offender has a right to counsel.

 

I.        STATISTICAL REPORTS:

For purposes of Supreme Court statistical reports, the case shall be considered disposed by the assigned Judge when the defendant is sentenced to Drug Court or the defendant is ordered into Drug Court as a condition of ILC.

Rule 3.13 – Veterans’ Court

 

A.      CREATION OF SPECIALIZED DOCKET – “VETERANS’ COURT”:

Veterans’ Court is created pursuant to the specialized docket standards set forth in Sup. R. 36.20-36.28, including Appendix I.  The purpose of Veterans’ Court is to facilitate efficient and effective treatment of eligible veterans suffering from drug addiction or mental health issues.  Eligible offenders shall be supervised by the Probation Department to ensure compliance with community control sanctions and to assist with criminogencic needs.

 

B.      VETERANS’ COURT TEAM:

The “Veterans’ Court Team” shall consist of the Judge assigned to Veterans’ Court (“Veterans’ Court Judge”), Adult Probation Department staff, Probation Officers, licensed treatment providers, community based employment program personnel, the Veterans’ Justice Outreach Coordinator, the Assistant Prosecuting Attorney, and Defense Counsel.  The Veterans’ Court Team shall convene bi-weekly to discuss the progress and status of individual offenders, apply sanctions as needed, and for any other matters.

 

C.      ELIGIBILITY CRITERIA FOR VETERANS’ COURT ADMISSION:

1.      The assigned Judge may order a defendant to Veterans’ Court through a guilty or no contest plea, probation violation, judicial release, other early release options, or ILC.

2.      In order for a defendant to be eligible for Veterans’ Court the defendant shall:

a.      Be amenable to community control;

b.      Be charged with a third, fourth, or fifth degree felony (Felonies of the first and second degree will be determined on a case by case basis by the Veterans’ Court Judge);

c.       Be a resident of Ohio;

d.      Have received an Honorable or General (Under Honorable Conditions) discharge from the United States Military;

e.      Have a chemical abuse or mental health condition in which the defendant’s current or past criminal behavior has been alcohol or drug driven; and

f.        Demonstrate a sincere willingness to participate in a long-term treatment process.

 

D.     REFERRING DEFENDANTS TO VETERANS’ COURT:

1.      Veterans’ Court receives referrals from the assigned Judge.  The Veterans’ Court Team shall review the case for legal and clinical eligibility as identified in Subsection (C)(2)(a)-(f) of this Rule.

2.      The assigned Judge shall have final discretion to decide if the defendant is ordered to Veterans’ Court.

 

E.      SENTENCING:

After a defendant is ordered to Veterans’ Court as a community control or ILC sanction, along with any other appropriate sanctions, the case shall be transferred to the Veterans’ Court Judge for any and all further court proceedings.  The Veterans’ Court Judge shall have the authority to conduct arraignments, accept pleas, enter findings and dispositions, revoke community control or ILC, and order or modify community control or ILC sanctions.

 

F.       TREATMENT PHASES:

Veterans’ Court offenders shall be required to complete phases of treatment as individually necessary and complete all other requirements as identified in the Veterans’ Court Participant Handbook and the Veterans’ Court Participation Agreement.  Veterans’ Court offenders shall comply with all the rules indicated to them by the Veterans’ Court Judge at their initial appearance.  While in Veterans’ Court, the offender shall receive services to assist in meeting criminogenic needs.  Upon graduation from Veterans’ Court, the offender may be required to remain under community control or ILC sanctions to ensure continued compliance and success.

 

G.     SANCTIONS FOR NON-COMPLIANCE:

Sanctions for a Veterans’ Court offender’s non-compliance vary in intensity and may include, but are not limited to, the following:

1.      Warning and admonition from the Veterans’ Court Judge;

2.      Demotion to an earlier Veterans’ Court phase;

3.      Increased frequency of drug or alcohol testing and court appearances;

4.      Increased supervision contacts and monitoring;

5.      Community service or work program;

6.      Jail or out of home placement;

7.      Community control or ILC violation;

8.      Termination from Veterans’ Court; and

9.      Commitment to S.T.O.P., the MonDay Community Correctional Facility, or any other community based facility approved by the Court.

H.     UNSUCCESSFUL TERMINATIONS:

1.      Reasons for termination from Veterans’ Court include, but are not limited to:

a.      Failure to remain clean from illegal substances or alcohol;

b.      Violation of the General Conditions of Supervision;

c.       Violation of any community control or ILC sanctions; and

d.      Failure to comply with the Veterans’ Court Participation Agreement or any other orders of the Veterans’ Court Judge.

2.      If an offender is terminated from Veterans’ Court for reasons stated in Subsection (H)(1) of this Rule, or for any other reason as determined by the Veterans’ Court Judge, the offender may be subject to a community control or ILC revocation hearing.

3.      If a hearing is required pursuant to Subsection (H)(2) of this Rule:

a.      The Veterans’ Court Judge shall adjudicate the proceedings;

b.      The offender may have his or her community control or ILC sanctions modified.  Modifications may include, but are not limited to, commitment to a CBCF, revocation of community control or ILC, or termination from Veterans’ Court;

c.       The Veterans’ Court Judge shall have the sole discretion to refer an offender to the original assigned Judge for further proceedings; and

d.      The laws governing revocation apply, and the offender has a right to counsel.

 

I.        STATISTICAL REPORTS:

For purposes of Supreme Court statistical reports, the case shall be considered disposed by the assigned Judge when the defendant is sentenced to Veterans’ Court or the defendant is ordered into Veterans’ Court as a condition of ILC.

Rule 3.14 – Felony Non-Support Court

 

A.      CREATION OF SPECIALIZED DOCKET – “FELONY NON-SUPPORT COURT” (“FNS COURT”):

FNS Court is created pursuant to the specialized docket standards set forth in Sup. R. 36.20-36.28, including Appendix I.  The purpose of FNS Court is to supervise felons who are convicted of criminal non-support, who owe support to dependent children, and who are required to complete community control sanctions.  Offenders shall be supervised by the Probation Department to ensure compliance with community control sanctions and to assist with criminogencic needs.

 

B.      FNS COURT TEAM:

The “FNS Court Team” shall consist of the Judge assigned to the FNS Court (“FNS Court Judge”), Adult Probation Department supervisor and staff, Probation Officers, Case Manager/Employment Liaison, CSEA Representative, the Assistant Prosecuting Attorney, and Defense Counsel.  The FNS Court Team shall convene bi-weekly to discuss the progress and status of individual offenders, apply sanctions as needed, and for any other matters.

 

C.      ELIGIBILITY CRITERIA FOR FNS COURT ADMISSION:

1.      The assigned Judge may order a defendant to FNS Court after a felony conviction for criminal non-support, probation violation, judicial release, or as a result of a preliminary hearing held by the Probation Department.

2.       In order for a defendant to be eligible for FNS Court the defendant shall:

a.      Owe current child support for dependent children;

b.      Be amenable to community control;

c.       Be a resident of Ohio; and

d.      Demonstrate a sincere willingness to participate in a long-term treatment process.

 

D.     REFERRING DEFENDANTS TO FNS COURT:

1.      FNS Court receives referrals from the assigned Judge. 

2.      The Pre-sentence Investigator, or his or her designee, shall review the case for legal and clinical eligibility as identified in Subsection (C)(2)(a)-(d) of this Rule and as in the FNS Court Program Description.  Written eligibility information is then sent to the assigned Judge.

3.      The assigned Judge shall have final discretion to decide if the defendant is ordered to FNS Court.

 

E.      SENTENCING:

After a defendant is ordered to FNS Court as a community control or ILC sanction, along with any other appropriate sanctions, the case shall be transferred to the FNS Court Judge for any and all further court proceedings. 

 

F.       FNS COURT PHASES:

FNS Court offenders shall be required to complete FNS Court phases as well as all other requirements as identified in the FNS Court Program Description, the FNS Court Participant Handbook, and the FNS Court Participation Agreement.  FNS Court offenders shall comply with all the rules indicated to them by the FNS Court Judge at their initial appearance.  While in FNS Court, the offender shall receive services to assist in obtaining employment and meeting criminogenic needs.  Upon graduation from FNS Court, the offender may be required to remain under community control or ILC sanctions to ensure continued compliance and success.

 

G.     SANCTIONS FOR NON-COMPLIANCE:

Sanctions for a FNS Court offender’s non-compliance vary in intensity and may include, but are not limited to, the following:

1.      Warning and admonition from the FNS Court Judge;

2.      Demotion to an earlier FNS COURT phase;

3.      Increased frequency of drug or alcohol testing and court appearances;

4.      Increased supervision contacts and monitoring;

5.      Community service or work program;

6.      Jail or out of home placement;

7.      Community control or ILC violation;

8.      Termination from FNS Court; and

9.      Commitment to S.T.O.P., the MonDay Community Correctional Facility, or any other community based facility approved by the Court.

 

H.     UNSUCCESSFUL TERMINATIONS:

1.      Reasons for termination from FNS Court include, but are not limited to:

a.      Failure to remain clean from illegal substances or alcohol;

b.      Violation of the General Conditions of Supervision;

c.       Violation of any community control or ILC sanctions; and

d.      Failure to comply with the FNS Court Participation Agreement or any other orders of the FNS Court Judge.

2.      If an offender is terminated from FNS Court for reasons stated in Subsection (H)(1) of this Rule, or for any other reason as determined by the FNS Court Judge, the offender may be subject to a community control or ILC revocation hearing.

3.      If a hearing is required pursuant to Subsection (H)(2) of this Rule:

a.      The FNS Court Judge shall adjudicate the proceedings;

b.      The offender may have his or her community control or ILC sanctions modified.  Modifications may include, but are not limited to, commitment to a CBCF, revocation of community control or ILC, or termination from FNS Court;

c.       The FNS Court Judge shall have the sole discretion to refer an offender to the original assigned Judge for further proceedings;

d.      The laws governing revocation apply, and the offender has a right to counsel; and

e.      Termination from FNS Court does not preclude re-admission at a later date.

 

I.        STATISTICAL REPORTS:

For purposes of Supreme Court statistical reports, the case shall be considered disposed by the assigned Judge when the defendant is sentenced to FNS Court or the defendant is ordered into FNS Court as a condition of ILC.

Rule 3.15 – Women’s Therapeutic Court

 

A.      CREATION OF SPECIALIZED DOCKET – “WOMEN’S THERAPEUTIC COURT” (“WTC”):

WTC is created pursuant to the specialized docket standards set forth in Sup. R. 36.20-36.28, including Appendix I.  The purpose of WTC is to facilitate efficient and effective treatment of drug addicted or drug abusing offenders.  Eligible offenders as defined in Subsection (C) of this Rule shall be supervised by the Probation Department to ensure compliance with community control sanctions and to assist with criminogenic needs.

 

B.      WTC TEAM:

The “WTC Team” shall consist of the Judge assigned to WTC (“WTC Judge”), Adult Probation Department Manager and staff, Probation Officers, licensed treatment providers, community based employment program personnel, the Assistant Prosecuting Attorney, and Defense Counsel.  The WTC Team shall convene weekly to discuss the progress and status of individual offenders, apply sanctions as needed, and for any other matters.

 

C.      ELIGIBILITY CRITERIA FOR WTC ADMISSION:

1.      The assigned Judge may order a defendant to WTC through a guilty or no contest plea, probation violation, judicial release, other early release options, or ILC.

2.      In order for a defendant to be eligible for WTC the defendant shall:

a.      Be amenable to community control;

b.      Be charged with a third, fourth, or fifth degree felony;

c.       Be a resident of Ohio;

d.      Have little or no history of violent behavior;

e.      Have a chemical abuse addiction in which the defendant’s current or past criminal behavior has been alcohol or drug driven;

f.        Have no acute health condition; and

g.      Demonstrate a sincere willingness to participate in a long term treatment process.

 

D.     REFERRING DEFENDANTS TO WTC:

1.      WTC receives referrals from the assigned Judge.  The WTC Team shall review the case for legal and clinical eligibility as identified in Subsection (C)(2)(a)-(g) of this Rule.

2.      The assigned Judge shall have final discretion to decide if the defendant is ordered to WTC.

 

E.      SENTENCING:

After a defendant is ordered to WTC as a community control or ILC sanction, along with any other appropriate sanctions, the case shall be transferred to the WTC Judge for any and all further court proceedings.  The WTC Judge shall have the authority to conduct arraignments, accept pleas, enter findings and dispositions, revoke community control or ILC, and order or modify community control or ILC sanctions. 

 

F.       TREATMENT PHASES:

WTC offenders shall be required to complete phases of treatment as individually necessary and complete all other requirements as identified in the WTC Participant Handbook and the WTC Participation Agreement.  WTC offenders shall comply with all the rules indicated to them by the WTC Judge at their initial appearance.  While in WTC, the offender shall receive services to assist in meeting criminogenic needs.  Upon graduation from WTC, the offender may be required to remain under community control or ILC sanctions to ensure continued compliance and success.

G.     SANCTIONS FOR NON-COMPLIANCE:

Sanctions for a WTC offender’s non-compliance vary in intensity and may include, but are not limited to, the following:

1.      Warning and admonition from the WTC Judge;

2.      Demotion to an earlier WTC phase;

3.      Increased frequency of drug or alcohol testing and court appearances;

4.      Increased supervision contacts and monitoring;

5.      Community service or work program;

6.      Jail or out of home placement;

7.      Community control or ILC violation;

8.      Termination from Drug Court; and

9.      Commitment to S.T.O.P., the MonDay Community Correctional Facility, or any other community based facility approved by the Court.

 

H.     UNSUCCESSFUL TERMINATIONS:

1.      Reasons for termination from WTC include, but are not limited to:

a.      Failure to remain clean from illegal substances or alcohol;

b.      Violation of the General Conditions of Supervision;

c.       Violation of any community control or ILC sanctions; and

d.      Failure to comply with the WTC Participation Agreement or any other orders of the WTC Judge.

2.      If an offender is terminated from WTC for reasons stated in Subsection (H)(1) of this Rule, or for any other reason as determined by the WTC Judge, the offender may be subject to a community control or ILC revocation hearing.

3.      If a hearing is required pursuant to Subsection (H)(2) of this Rule:

a.      The WTC Judge shall adjudicate the proceedings;

b.      The offender may have his or her community control or ILC sanctions modified.  Modifications may include, but are not limited to, commitment to a CBCF, revocation of community control or ILC, or termination from WTC;

c.       The WTC Judge shall have the sole discretion to refer an offender to the original assigned Judge for further proceedings; and

d.      The laws governing revocation apply, and the offender has a right to counsel.

 

I.        STATISTICAL REPORTS:

For purposes of Supreme Court statistical reports, the case shall be considered disposed by the assigned Judge when the defendant is sentenced to WTC or the defendant is ordered into WTC as a condition of ILC.

 

PROPOSED AMENDMENTS TO LOCAL RULES OF PRACTICE AND PROCEDURE

FOR THE GENERAL DIVISION OF THE MONTGOMERY COUNTY

COURT OF COMMON PLEAS

 

NOTICE

 

On March 21, 2014, amendments to Local Rules 1.01 – 1.41 were published for comment.  After reviewing the comments, the General Division of the Montgomery County Court of Common Pleas approved the proposed revision(s) to Mont. Co. C.P.R. 1.15, Filing of Court Documents and Removal of Papers from Custody of the Clerk. 

 

Pursuant to Mont. Co. C.P.R. 1.03 of the Local Rules of Practice and Procedure for the Montgomery County Court of Common Pleas and Rule 5 of the Rules of Superintendence for the Courts of Ohio, the proposed revisions are being published for a thirty-day comment period beginning Friday, August 29, 2014, through Monday, September 29, 2014.

Comments regarding the adopted modifications to Local Rule 1.15 can be submitted via email to rulecom@montcourt.org or in writing to:

James E. Dare, Court Administrator

Montgomery County Common Pleas Court

41 N. Perry Street

P.O. Box 972

Dayton, OH  45422

Comments must be received by 4:30 p.m. on Monday, September 29, 2014.

Rule 1.15 – Filing of Court Documents and Removal of Papers from Custody of the Clerk

 

Except as otherwise provided in Subsection (J) of this Rule, all civil and criminal cases, including all pleadings, motions, briefs, memoranda of law, deposition transcripts, transcripts of proceedings, orders or other documents, shall be filed electronically through the Court’s authorized electronic filing system (“eFile system”).  Paper courtesy copies of documents filed electronically shall not be delivered to the Court.  The Court’s authorized eFile system is hereby appointed the agent of the Clerk for the purpose of filing, receipt, service and retrieval of electronic documents.

 

A.      DEFINITION OF TERMS:  The following terms in this Rule shall be defined as follows:

1.      Document:  A filing made with the Clerk in either electronic format or paper form, becoming the Court’s official record.

2.      Electronic Filing (“eFile”):  The electronic transmission, acceptance, and processing of a filing.  A submission consists of data, one or more documents, and images.  This definition of eFile does not apply to facsimile or email.

3.      Court Initiated Filings:  Official Court documents entered into the docket or register of actions, such as notices or orders.  The term “Court initiated filings” is a simplification to indicate that documents will be submitted as part of the electronic court record, but could be submitted using exactly the same process as external filings if the Court so desires.

4.      Electronic Service (“eService”):  The electronic transmission of an original document to all case participants who are registered users of the Court’s eFile system via the eFile system.  Upon the completion of any transmission to the eFile system, an electronic receipt shall be issued to the sender acknowledging receipt by the eFile system.

5.      Case Management System (“CMS”):  The Court CMS manages the receipt, processing, storage and retrieval of data associated with a case and performs actions on the data.

6.      Document Management System (“DMS”):  A DMS manages the receipt, indexing, storage and retrieval of electronic and non-electronic documents associated with a case.

7.      Court Electronic Record:  Any document that the Court receives in electronic form, records in the CMS and stores in its DMS.  This includes Court initiated filings as well as pleadings, other documents and attachments created by parties or their counsel.  It does not include physical exhibits brought into the courtroom for the Court or jury’s edification that cannot be captured in electronic form.

8.      Clerk Review:  A review of Documents by the Clerk in accordance with Court rules, policies, procedures, and practice.  The Clerk may review the data and documents electronically submitted to ensure compliance with Court rules, policies, procedures and practices before creating a docket entry or before docketing the case.

9.      System Error:  When the Court’s eFile system is not operational.

10.  Public Access Terminal:  A terminal located in the Clerk’s office for use by the public during regular business hours.  Users shall be charged for printed copies of documents at rates permitted by law.

B.      SERVICE OF COURT INITIATED FILINGS:  

Subject to the provisions of this Rule, the Court shall eFile all Court Initiated Filings.  Service of Court Initiated Filings shall be made via eService. 

 

C.   REGISTRATION IN eFILE SYSTEM:

1.      All counsel of record shall register with the Court’s eFile system to file, serve, receive, review, and retrieve copies of eFiled pleadings, orders and other documents in the case.  Pro se parties may, but are not required to, register with the Court’s eFile system.

2.      The Court shall not accept or file any pleadings or instruments in paper form except as provided in Subsection (J) of this Rule.

3.      If a party or counsel of record does not have internet access, the party or counsel of record may use the Clerk’s Public Access Terminal to register to use the Court’s eFile system and to eFile documents.

D.     CONFIDENTIAL AND UNIQUE ELECTRONIC IDENTIFIER:

1.      The Court’s eFile system shall assign an individual who has registered pursuant to Subsection (C) of this Rule a confidential and unique electronic identifier that shall be used to file, serve, receive, review, and retrieve eFiled pleadings, orders, and other documents in the case.

2.      Each person to whom a unique identifier has been assigned shall be responsible for the security and use of such identifier.

3.      All eFiled documents shall be deemed to be made with the authorization of the party who is assigned the specific unique electronic identifier, unless the party proves to the satisfaction of the Court, by clear and convincing evidence, that the contrary is demonstrated.

E.      OFFICIAL COURT RECORD:  For documents that have been eFiled pursuant to Subsection (G) of this Rule or documents filed in paper format pursuant to Subsection (J) of this Rule that have been scanned and uploaded to the eFile system by the Clerk, the electronic version constitutes the Official Court Record.  eFiled Documents have the same force and effect as those filed by traditional means.

F.       FORM OF DOCUMENTS:

1.      Format:  All pleadings, motions, briefs, and other documents shall be formatted in accordance with the following:

a.      Typewritten or printed, double spaced, on 8 ½” x 11” paper, not less than 11-point and not greater than 12-point regular type font, paginated sequentially.

b.      Filings prepared in a pleading format shall reserve a blank space of at least 2 ½ inches at the top of the first page for endorsements and shall have appropriate side and bottom margins of not less than one inch.

c.       Forms prescribed and approved by the Court shall reserve an adequate space in the top right-hand corner for endorsements or file stamps and shall have appropriate side and bottom margins proportional with the format of the form or document.

d.      A filed document shall not contain links to other documents or references to the CMS, unless they are incorporated into the filed documents.  External links are prohibited.

2.      Portable Document Format (“.pdf”):

a.      Except as provided in Subsection (F)(2)(b) of this Rule, all eFiled documents, pleadings, and papers shall be filed with the Clerk in .pdf.

b.      A proposed order or proposed entry shall be submitted in Word [.doc] or WordPerfect [.wpd] format and reference the specific motion to which it applies.

3.      Size of eFiled Documents:

a.      Individual documents included in a submission shall not exceed 10 megabytes in size.

b.      Any combination of documents eFiled in one submission shall not exceed 30 megabytes in size.

4.      Signatures:

a.      Attorney/Filing Party Signature:  eFiled documents that require the signature of the attorney or filing party shall be signed with a conformed signature of “/s/ [name].”  The correct format for an attorney’s conformed signature is as follows:

/s/Attorney Name

Attorney Name

Bar Number 1234567

Attorney for [Plaintiff/Defendant] XYZ Corporation

ABC Law Firm

Address

Telephone

Fax and/or E-mail address

b.      The conformed signature on an eFiled document is deemed to constitute a signature on the document for the purposes of signature requirements imposed by the Ohio Rules of Superintendence, Rules of Civil Procedure, Rules of Criminal Procedure and any other law.

c.       Multiple Signatures:  When a stipulation or other document requires two or more signatures, the filer shall:

i.        confirm that the content of the document is acceptable to all persons required to sign the document;

ii.      indicate the agreement of other counsel or parties at the appropriate place in the document, usually on the signature line; and

iii.    eFile the document, indicating the signatories, e.g., /s/ Jane Doe, /s/ John Smith, etc.

d.      Original Signatures:  Documents requiring an original signature, such as an affidavit or other notarized documents shall be eFiled as a .pdf.

i.        The filer shall maintain the signed document in the filer’s records and have it available for production upon request of the Court.

ii.      The signed document shall be maintained until the case is closed and the time for appeal has expired or the appeals have been heard or denied and all opportunities for post judgment relief are exhausted.

e.      Signature of Judge or Judicial Officer:  eFiled documents may be signed by a Judge or judicial officer via a digitized image of his or her signature combined with a digital signature.  All orders, decrees, judgments and other documents signed in this manner shall have the same force and effect as if the Judge had affixed his or her signature to a paper copy of the order and journalized it.

G.     TIME, EFFECT AND PROCESS OF eFILING:

1.      Submission:  Any filing may be eFiled with the Clerk 24 hours a day, 7 days a week.

2.      Receipt:  Upon receipt, the Court’s eFile system shall issue a confirmation that the submission has been received.  The confirmation shall include the date and time of receipt and serve as proof of receipt.

3.      Clerk Review:  After Clerk Review, a filer will receive notification from the Clerk that the submission has been accepted or rejected by the Clerk.

a.      If the submission is rejected, the document shall not become part of the Court record and the filer shall be required to re-submit the document to meet the requirements.  The re-submitted document shall receive a new submission date and time.

b.      If the submission is accepted, the document shall be docketed and filed.

4.      Official Time Stamp:  Upon acceptance, the submission shall be deemed filed and shall receive an electronic stamp that includes the date and time that the filer submitted the document to the Court’s eFile system as well as the unique confirmation number of the filing.

5.      System Errors:  If a submission is not received by the Court because of a System Error, the Court may, upon satisfactory proof, enter an order permitting the document to be filed nunc pro tunc to the date it was submitted.

H.     SERVICE:

1.      Instructions for Service:  For all documents that require service by the Clerk or documents for which a party is requesting that service be made by the Clerk, Instructions for Service shall be filed as a separate document.  The Clerk shall not accept Instructions for Service that do not designate the names and addresses of the parties to be served.  If the address of the party to be served is unknown, the filer shall substitute “unknown” for the address.

2.      Complaint and Related Documents in Civil Cases:

a.      Upon filing the original complaint or any counterclaim, crossclaim, or third party complaint, in addition to the Instructions for Service required by Subsection (H)(1) of this Rule, the filer shall include the address of the plaintiff(s) and defendant(s) in the caption of the document.  If the address of any plaintiff or defendant is unknown, the filer shall substitute “unknown” for the address in the caption.

b.      Unless an attorney or party has obtained permission signed by the assigned Judge to defer service of summons for a specific period of time, the Instructions for Service filed with the original complaint or any counterclaim, crossclaim or third party complaint shall indicate a method of service pursuant to Civ. R. 4.

c.       The Clerk shall issue a summons and process the method of service in accordance with the Ohio Rules of Civil Procedure.

3.      Indictments in Criminal Cases:  Indictments in criminal cases shall be filed through the Court’s eFile system in compliance with these Rules and shall be served on defendants according to the Ohio Rules of Criminal Procedure.

4.      Documents Filed Subsequent to Complaint or Indictment:

a.      In accordance with Civ. R. 5 and Crim. R. 49, unless the filer requests service by the Clerk and files the Instructions for Service required by Subsection (H)(1) of this Rule, the filer, not the Clerk, shall be responsible for serving all documents filed subsequent to the original complaint on all parties or their attorneys.

i.        When a submission is deemed filed pursuant to Subsection (G) of this Rule, the eFile system shall generate a Notification of Electronic Filing to the filer and any other party who is a registered user of the eFile system.  The Notification of Electronic Filing shall constitute service under Civ. R. 5 and Crim. R. 49.

ii.      eService of documents subsequent to the complaint or indictment shall be considered valid and effective service and shall have the same legal effect as an original paper document.

iii.    The filer shall serve a paper copy of the document on all pro se parties who are not registered users of the Court’s eFile system in accordance with Civ. R. 5 and Crim. R. 49.

b.      Entries and Orders:

i.        The Court’s eFile system shall generate a Notification of Electronic Filing for all entries and orders signed by the Judge.  This Notification of Electronic Filing shall constitute service under Civ. R. 5 and Crim. R. 49.

ii.      After the order or entry has been signed and filed, the filer, not the Court or Clerk, shall serve on all pro se parties who are not registered users of the Court’s eFile system copies of all entries and orders submitted to the Court for signature in accordance with Civ. R. 5 and Crim. R. 49.

c.       Certificate of Service:

i.        Proof of service of all documents required or permitted to be served shall be made in compliance with Civ. R. 5(B)(3) and Crim. R. 49(C).

ii.      The Certificate of Service shall be signed in accordance with applicable Ohio court rules and laws, including these Rules, and shall contain the following language for each party entitled to service:

 

“I hereby certify that on [date] this document was eFiled via the Court’s eFile system which shall send notifications of this filing to the following:  [list parties or their counsel who are registered users of the Court’s eFile system].

 

I hereby certify that on [date] I served this document in accordance with [Civ. R. 5 or Crim. R. 49] on the following:  [list pro se parties who are not registered users of the Court’s eFile system].”

5.      Service Date and Time to Respond or Act:

a.      For pro se parties who are registered users of the Court’s eFile system and counsel of record, service shall be deemed complete at the time the Notification of Electronic Filing is generated by the Court’s eFile system.  Documents served after 5:00 p.m. local time shall be deemed served on the next day.

b.      The time to respond to the served documents or perform any right, duty, or act shall be strictly governed by the applicable Rules of the Court.  Pro se parties who are not registered users of the Court’s eFile system and who are served by regular U.S. mail shall receive a three day extension of time to respond or perform any right, duty, or act.  Parties and counsel of record served via eService are not entitled to the three day extension.

6.       Failure of eService:  If the eFile system fails to generate the Notice of Electronic Filing, the party to be served may be entitled to an order extending the date for any response or the period within which any right, duty or act must be performed.

I.        PERSONAL AND PRIVATE INFORMATION IN DOCUMENTS FILED WITH THE CLERK:

1.      Definition:  Personal and private information includes, but is not limited to, social security numbers, financial account numbers, names of minors, information protected by law from public disclosure, and driver’s license or other personal identification numbers.

2.      Exclusion:  The filer shall not include personal and private information in any document filed with the Court unless such inclusion is necessary and relevant to the case.  This requirement extends to and includes exhibits or addenda attached to filings, such as preliminary and financial reports which itemize state liens that use social security numbers as case numbers or medical records.

3.      Redaction:  If personal and private information is necessary and must be included in a document, the filer shall redact the personal and private information from the document in the following manner:

a.      For social security numbers, financial account numbers, and drivers’ license or other personal identification numbers, all but the last four digits of the number shall be redacted.

b.      For minors, only the child’s initials shall be included.

c.       For any other personal or private information, the information shall be replaced with “[REDACTED]”.

4.      Responsible Party:  The filer is responsible for redacting personal and private information.  The Clerk shall not review each document for compliance with this Rule; however, the Clerk may refuse to accept any document that contains personal and private information that has not been redacted or submitted in accordance with this Rule.

5.      Entries and Orders:  Personal and private information required to be included in entries and orders shall be redacted in the manner set forth in Subsection (I)(3) of this Rule.  In the event that the redacted information is insufficient for an entry or order, the entries and orders, including the unredacted personal and private information, shall be filed in accordance with Mont. Co. C.P.R. 1.41.

J.        EXCEPTIONS TO eFILING:

1.      Documents filed under seal or in camera shall be filed in accordance with Mont. Co. C.P.R. 1.41.

2.      Exhibits, attachments, or other documents that may not be comprehensibly viewed in a .pdf shall be filed in their physical form with the Clerk.

3.      All documents related to Certificates of Judgments and Executions of Judgment shall be filed in paper form with the Clerk in accordance with Subsection (J)(4) of this Rule.

4.      Pro se parties who are not registered users of the Court’s eFile system may file documents in paper form with the Clerk in person, by U.S. Mail, or by using the Clerk’s Public Access Terminal.  Documents filed in accordance with this Rule shall be deemed filed and shall become the Court’s Official Court Record when they are entered by the Clerk in the Court’s eFile system.

 

K.      COLLECTION OF FILING DEPOSIT AND FEES:  Any document requiring payment of a filing deposit or fee to the Clerk in order to achieve valid filing status shall be filed in the same manner as any other eFiled document.  The eFile system accepts payment of deposits and fees electronically.  Alternatively, the eFile system can accommodate the filing of an affidavit of indigence.

L.       REMOVAL:

1.      No person, except a Judge or Magistrate of the Court or an authorized Court employee, shall remove any documents or case files from the Clerk’s custody.

2.      Examination:  Upon request, during regular business hours, the Clerk shall allow any person to examine, but not remove, any original document or case file that is maintained by the Clerk.

3.      Transcripts of Testimony:  The inspection, examination, and duplication of transcripts of testimony shall be governed by Mont. Co. C.P.R. 1.29.

 

EFFECTIVE AUGUST 29, 2014

 

The proposed amendments to Mont. Co. C.P.R. 1.15, Filing of Court Documents and Removal of Papers from Custody of the Clerk, will take effect on August 29, 2014, unless prior to such date the Court, in its discretion, amends, modifies, or withdraws the amendments.  In the event the Court amends, modifies, or withdraws the amendment, the revision will be published for a thirty-day notice period.

 

 

 

 

 
     
 
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