Judge Kimbler Journal Entry on Requests for AdmissionsThis case is before the Court on Defendants’ Motion for Reconsideration. Defendants seek reconsideration of a prior Court order which granted Plaintiff’s Motion to Deem Admitted Requests for Admissions. For the reasons that follow, the Court finds that Defendants’ Motion for Reconsideration is well taken.
The facts in this case are not in dispute. On or about January 3, 2007 Plaintiff served Defendants with request for discovery by ordinary U.S. mail. The document was captioned “Plaintiff’s Combined discovery to Defendant gratEful truckin, inc., et al.” It included a request for production of documents, Interrogatories and Requests for Admission. Initially Plaintiff sent Defendant the combined discovery requests via the mail. Plaintiff did not send an electronic copy of the discovery requests until February 13, 2007. Defendants responded to the electronic copy on February 26, 2007, more than 28 days after Defendants were served with the paper copy of the discovery request, but only 13 days after Defendants were served with the electronic copy.
Civil Rule 36(C) provides as follows: "If a party includes a request for admission in a document containing any other form of discovery, the party shall include a caption on the document that indicates the document contains a request for admission. A party is not required to respond to requests for admission that are not made in compliance with this division."
According to the staff notes of Rule 36(C), the rule was amended in 2005 to require that if a document contains requests for admission, as well as other forms of discovery, the caption of that document must state that a request for admission is sought. “The amended rule recognizes that, unlike Civ. R. 33 (written interrogatories) and Civ. R. 34 (requests for production), Civ. R. 36 imposes a virtually self-executing sanction, i.e., admission by default, on a party that fails timely to respond. See generally Cleveland Trust Co. v. Willis, 20 Ohio St.3d 66 (1985). The Rules Advisory Committee is aware that parties intermix requests for admission with Civ. R. 33 interrogatories and Civ. R. 34 requests for production. See, e.g., Seecharan v. Macy, Cuyahoga App. No. 75130, October 28, 2999, unreported. (no abuse of discretion to deny motion to deem matters admitted; "the trial court refused to countenance the obscuring of requests for admissions in the midst of other discovery requests"). The Committee believes that although there often are good reasons for combining requests for admission with other discovery requests, the nature of some discovery documents can cause requests for admission to be overlooked and result in inadvertent admissions by default. The amendment is intended to minimize this risk by requiring the propounding party to include, in the caption of the document, a clear notice that the document contains requests for admission. A party is not required to respond to requests for admission that are not made in compliance with division (C).”
In this case, Plaintiff served Defendants with a discovery request which included requests for admission as well as production of documents and interrogatories. Thus pursuant to Civil Rule 36(C), Plaintiff was required to state in the caption of the document that he sought requests for admission.
As noted above, Plaintiff’s request for discovery was titled, “Plaintiff’s Combined discovery to Defendant gratEful truckin, inc., et al.” There is no mention in the caption that a request for admission was contained therein.The Court finds that Plaintiff failed to comply with the mandatory requirement of Civil Rule 36(C). Consequently, Defendants were not required to respond to the requests for admission because Rule 36(C) relieves Defendants of the obligation to respond. The Court therefore concludes that Defendants response to Plaintiff’s request for admission which was sent to Plaintiff on February 26, 2007 was timely. Based on the foregoing, Defendants’ Motion for Reconsideration is granted. The court order filed in this case on February 26, 2007 which deemed admitted Plaintiff’s requests for admission is vacated and set aside.
Wednesday, March 28, 2007
Monday, March 05, 2007
Judgment Entry Regarding Foreign Judgment
The following is the text of an opinion recently filed by Judge Kimbler denying a motion to vacate a foreign judgment that was filed in the Medina County Court of Common Pleas pursuant to R.C. 2329.01, et seq.:
On December 15, 2006, Zimmerman & Partners Advertising, Inc., (hereinafter referred to as Zimmerman), a Florida corporation filed a foreign judgment and creditor’s affidavit. This pleading was filed pursuant to R.C. 2923.021, et seq. On January 5, 2007, Medina Imports, LLC d/b/a Medina Mitsubishi, (hereinafter referred to as Medina Imports), filed a motion to vacate the judgment that was rendered in the Broward County Circuit Court in Case No. 06-000594-CACE-12 on May 31, 2006. The motion to vacate was filed pursuant to R.C. 2329.022.
R.C. 2329.022 contains the following: “A foreign judgment filed pursuant to this section has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a court of common pleas and may be enforced or satisfied in same manner as a judgment of a court of common pleas.” In this case, Medina Motors is alleging that the Broward County Circuit Court did not have personal jurisdiction over Medina Motors and therefore the judgment granted by the Florida court is void.
In particular Medina Motors is making two arguments. The first is that the service of the complaint was not made pursuant to Florida law and the second is that Medina Motors did not have the minimum contacts with the State of Florida necessary to allow the Broward County Circuit Court to grant a judgment against it. Each of these arguments will be considered separately.
Non-Compliance with Florida Law Regarding Service
Medina Motors cites to Fla. Stat. § 48.21. That section contains the following:
“Each person who effects service of process shall note on a return-of-service form attached thereto, the date and time when it comes to hand, the date and time when it is served, the manner of service, the name of the person on whom it was served and, if the person is served in a representative capacity, the position occupied by the person. A failure to state the foregoing facts invalidates the service...”
In this case, Medina Motors argues that the person effecting service of process on Medina Motors did not set forth the date and time that the process “came to hand.” Zimmerman argues that when an out-of-state party is served process pursuant to a lawsuit that has been filed in Florida, Florida law does not require the notation of the date and time the process “came to hand.”
Zimmerman relies on Fla. Stat. § 48.194, which apparently is Florida’s long-arm statute. That section contains the following:
(1) “Except as otherwise provided herein, service of process on persons outside of this state shall be made in the same manner as service within this state by any officer authorized to serve process in the state where the person is served. No order of court is required. An affidavit of the officer shall be filed, stating the time, manner, and place of service. The court may consider the affidavit, or any other competent evidence, in determining whether service has been properly made.” (Emphasis added.)
Zimmerman argues that when both Fla. Stat. § 48.21 is read in conjunction with Fla. State. § 48.194, it becomes clear that all that is required to perfect service on an out-of-state defendant is the filing of an affidavit setting forth the time, manner, and place of service. Zimmerman then cites several cases from Florida courts, both Federal and state, in support of its proposition.
This Court believes that the argument advanced by Zimmerman is correct. It is obvious, given the language emphasized above that the drafters of Florida’s long-arm statute intended to give Florida courts some flexibility in deciding whether service of process was accomplished under Florida law. If an affidavit wasn’t filed setting forth time, manner, and place of service by the officer making service, a Florida court could hold a hearing on that issue. If it was the intent of the Florida legislature to make the filing of both an affidavit under Fla. Stat. § 48.21 and § 48.194 necessary to perfect service, why would it give Florida courts the option of considering “other competent evidence” in making such a determination? This Court believes that it would not and therefore the only requirement regarding service on an out of state defendant is imposed by Fla. Stat. § 48.194. Consequently the motion to set aside the judgment on the grounds that service of process wasn’t made pursuant to Florida law is denied.
Lack of Minimum Contacts with Florida
The second argument advanced by Medina Motors is that the default judgment against it violated the Due Process Clause of the United States Constitution. Medina Motors asserts that it didn’t have enough contacts with Florida to give the Broward County Court in personam jurisdiction over it. In support of its position Medina Motors attaches an affidavit of its President.
Zimmerman counters that argument with the assertion that since the contract contained a forum selection clause and since, under Florida law, if a contract is silent as to where the payments are to be made such contract shall be construed as requiring payments to be made at the residence of the party due the payments, there were sufficient minimum contacts with Florida to justify the exercise of long-arm jurisdiction. This argument is based on Florida cases cited in Zimmerman’s memorandum opposing the motion to vacate the judgment.
The Ohio Supreme Court has held that a forum selection clause is one of many factors to be considered by an Ohio trial court in deciding whether to give Full Faith and Credit to the judgment of another state. Anilas, Inc. v. Kern (1987), 31 Ohio St. 3d 163. In Anilas the Supreme Court wrote the following: “The above cases indicate that the focus of analysis ought to be whether one purposely established contacts with the forum state. This invariably requires an analysis of factors peculiar to the individual transaction. In the case here, the locus of breach clause contained in the contract, while not dispositive, is a significant factor.” 31 Ohio St. 3d 164. The Anilas opinion also contains the following: “Thus, where the defendant "has created 'continuing obligations' between himself and residents of the forum, Travelers Health Assn. v.. Virginia [1950], 339 U.S. at 648, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by 'the benefits and protections' of the forum's laws, it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well. Jurisdiction in these circumstances may not be avoided merely because the defendant did not physically enter the forum State." (Emphasis sic.) Burger King Corp. v. Rudzewicz (1985), 471 U.S. 462, 475-476.” 31 Ohio St. 3d 164.
In this case Medina Motors made the conscious decision to do business with a company that was headquartered in Florida and it signed a contract that had a forum selection clause allowing both parties to bring a lawsuit in Florida to enforce the contract. Given the holding of the Ohio Supreme Court in Anilas, supra, this Court finds that it is not a violation of the Due Process Clause of the United States Constitution for this Court to give full faith and credit to the judgment issued by the Broward County Circuit Court.
IT IS THEREFORE ORDERED, ADJUDGED, and DECREED that Defendant’s Motion to Vacate is denied.
On December 15, 2006, Zimmerman & Partners Advertising, Inc., (hereinafter referred to as Zimmerman), a Florida corporation filed a foreign judgment and creditor’s affidavit. This pleading was filed pursuant to R.C. 2923.021, et seq. On January 5, 2007, Medina Imports, LLC d/b/a Medina Mitsubishi, (hereinafter referred to as Medina Imports), filed a motion to vacate the judgment that was rendered in the Broward County Circuit Court in Case No. 06-000594-CACE-12 on May 31, 2006. The motion to vacate was filed pursuant to R.C. 2329.022.
R.C. 2329.022 contains the following: “A foreign judgment filed pursuant to this section has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a court of common pleas and may be enforced or satisfied in same manner as a judgment of a court of common pleas.” In this case, Medina Motors is alleging that the Broward County Circuit Court did not have personal jurisdiction over Medina Motors and therefore the judgment granted by the Florida court is void.
In particular Medina Motors is making two arguments. The first is that the service of the complaint was not made pursuant to Florida law and the second is that Medina Motors did not have the minimum contacts with the State of Florida necessary to allow the Broward County Circuit Court to grant a judgment against it. Each of these arguments will be considered separately.
Non-Compliance with Florida Law Regarding Service
Medina Motors cites to Fla. Stat. § 48.21. That section contains the following:
“Each person who effects service of process shall note on a return-of-service form attached thereto, the date and time when it comes to hand, the date and time when it is served, the manner of service, the name of the person on whom it was served and, if the person is served in a representative capacity, the position occupied by the person. A failure to state the foregoing facts invalidates the service...”
In this case, Medina Motors argues that the person effecting service of process on Medina Motors did not set forth the date and time that the process “came to hand.” Zimmerman argues that when an out-of-state party is served process pursuant to a lawsuit that has been filed in Florida, Florida law does not require the notation of the date and time the process “came to hand.”
Zimmerman relies on Fla. Stat. § 48.194, which apparently is Florida’s long-arm statute. That section contains the following:
(1) “Except as otherwise provided herein, service of process on persons outside of this state shall be made in the same manner as service within this state by any officer authorized to serve process in the state where the person is served. No order of court is required. An affidavit of the officer shall be filed, stating the time, manner, and place of service. The court may consider the affidavit, or any other competent evidence, in determining whether service has been properly made.” (Emphasis added.)
Zimmerman argues that when both Fla. Stat. § 48.21 is read in conjunction with Fla. State. § 48.194, it becomes clear that all that is required to perfect service on an out-of-state defendant is the filing of an affidavit setting forth the time, manner, and place of service. Zimmerman then cites several cases from Florida courts, both Federal and state, in support of its proposition.
This Court believes that the argument advanced by Zimmerman is correct. It is obvious, given the language emphasized above that the drafters of Florida’s long-arm statute intended to give Florida courts some flexibility in deciding whether service of process was accomplished under Florida law. If an affidavit wasn’t filed setting forth time, manner, and place of service by the officer making service, a Florida court could hold a hearing on that issue. If it was the intent of the Florida legislature to make the filing of both an affidavit under Fla. Stat. § 48.21 and § 48.194 necessary to perfect service, why would it give Florida courts the option of considering “other competent evidence” in making such a determination? This Court believes that it would not and therefore the only requirement regarding service on an out of state defendant is imposed by Fla. Stat. § 48.194. Consequently the motion to set aside the judgment on the grounds that service of process wasn’t made pursuant to Florida law is denied.
Lack of Minimum Contacts with Florida
The second argument advanced by Medina Motors is that the default judgment against it violated the Due Process Clause of the United States Constitution. Medina Motors asserts that it didn’t have enough contacts with Florida to give the Broward County Court in personam jurisdiction over it. In support of its position Medina Motors attaches an affidavit of its President.
Zimmerman counters that argument with the assertion that since the contract contained a forum selection clause and since, under Florida law, if a contract is silent as to where the payments are to be made such contract shall be construed as requiring payments to be made at the residence of the party due the payments, there were sufficient minimum contacts with Florida to justify the exercise of long-arm jurisdiction. This argument is based on Florida cases cited in Zimmerman’s memorandum opposing the motion to vacate the judgment.
The Ohio Supreme Court has held that a forum selection clause is one of many factors to be considered by an Ohio trial court in deciding whether to give Full Faith and Credit to the judgment of another state. Anilas, Inc. v. Kern (1987), 31 Ohio St. 3d 163. In Anilas the Supreme Court wrote the following: “The above cases indicate that the focus of analysis ought to be whether one purposely established contacts with the forum state. This invariably requires an analysis of factors peculiar to the individual transaction. In the case here, the locus of breach clause contained in the contract, while not dispositive, is a significant factor.” 31 Ohio St. 3d 164. The Anilas opinion also contains the following: “Thus, where the defendant "has created 'continuing obligations' between himself and residents of the forum, Travelers Health Assn. v.. Virginia [1950], 339 U.S. at 648, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by 'the benefits and protections' of the forum's laws, it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well. Jurisdiction in these circumstances may not be avoided merely because the defendant did not physically enter the forum State." (Emphasis sic.) Burger King Corp. v. Rudzewicz (1985), 471 U.S. 462, 475-476.” 31 Ohio St. 3d 164.
In this case Medina Motors made the conscious decision to do business with a company that was headquartered in Florida and it signed a contract that had a forum selection clause allowing both parties to bring a lawsuit in Florida to enforce the contract. Given the holding of the Ohio Supreme Court in Anilas, supra, this Court finds that it is not a violation of the Due Process Clause of the United States Constitution for this Court to give full faith and credit to the judgment issued by the Broward County Circuit Court.
IT IS THEREFORE ORDERED, ADJUDGED, and DECREED that Defendant’s Motion to Vacate is denied.
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