Need definition

[NancyLou9]

What is the name of your state? Ohio

I have been trying to find a clear definition of "Responsive Pleading".

In relation to a lawsuit we filed the defendant stalled and has gotten three deadlines to file a response. No atual response has been filed. Instead, they filed a Verified Motion to Dismiss.

The verified motion actually has proveable falsehoods that be disproved using court documentation from another court.

How would the legal eagles here respond to something like this?

(BTW, the motion was to use the grounds of lack of personal jurisdiction. The torts committed were against us while we are residents of Ohio and she is a resident of another state.)

Also, the defendant tried twice to file something with the court as a response and both of them were stricken by the judge as they were in the form of letters and did not address form at all. The first attempt didn't even address the issues. The second one was so filled with rage one couldn't make heads nor tails of it. Also, in the second one, statements were made that were obviously not true and could be proven. Also attached was a printout of an e-mail they said I sent that was obviously made up with the defendant stating I was harrassing her, when in fact I don't even know her e-mail address. In both letters to the judge, the defendant asked if she could attend all hearings via telephone. Both of these were written before the Motion to Dismiss.

Could the defendants actions be considered a waiver of the defense of personal jurisdiction? IMO I think it does, but I'm not an attorney.

Lastly, how would one go about filing charges against a person for perjury? Is this something that can be done in the Court of Common Pleas as a motion that is part of the proceedings or do I take everything to the DA and ask for charges to be filed?


Would appreciate any person's thoughts on this.

[frankrozanc]

By the letter of the Ohio Rules of Civil Procedure, a Motion to Dismiss under Rule 12(b)(1) is not a responsive pleading. It may be served as part of a responsive pleading, as in an answer, but it is not one by itself. It is not a general consent to jurisdiction, but if I were answering a complaint, I would specifically state that I was only appearing only so far as to contest jurisdiction. A court always has jurisdiction to determine whether it has jurisdiction. I assume that the court is giving the defendant every help as she is a pro se party. As to the documentation needed to rebut this, you need affidavits, responses to interrogatories, and other sworn statements of fact to attach to your response. The Court WILL NOT hold an oral hearing on Def.'s motion, so this is the only way to get these things in. See Ohio Civ. Rule 56. If the time given by the Court for answer has passed, and you have proper service on the Def., you may file for a default judgment under Civ. Rule 55.

As to the items in your earlier posts regarding the conduct of your husband's ex, and whether this court would issue an order regarding that, the answer is no. The general division of common pleas court does not have concurrent jurisdiction over what is essentially a domestic relations matter. If the ex is in contempt of a DR order, then that court's jurisdiction must be invoked to address it.

As I stated in an earlier post, you have a hard road in proving the claims you have stated. For both intentional and negligent infliction of emotional distress, there will be no recovery without proof of an actual physical injury to the plaintiff. Check the case law. As to the fraud, even if you can prove it outside of a DR context, damages are going to be next to impossible to substantiate. If you give me a county and case number, I might be able to give you a little help as far as the motion practice is concerned. You need to able to allege facts that will carry the day under Rules 12(b)(1) and 12(b)(6), as even though the court may have subject matter jurisdiction, you must state a claim on which relief might be granted.

[frankrozanc]

By the letter of the Ohio Rules of Civil Procedure, a Motion to Dismiss under Rule 12(b)(1) is not a responsive pleading. It may be served as part of a responsive pleading, as in an answer, but it is not one by itself. It is not a general consent to jurisdiction, but if I were answering a complaint, I would specifically state that I was only appearing only so far as to contest jurisdiction. A court always has jurisdiction to determine whether it has jurisdiction. I assume that the court is giving the defendant every help as she is a pro se party. As to the documentation needed to rebut this, you need affidavits, responses to interrogatories, and other sworn statements of fact to attach to your response. The Court WILL NOT hold an oral hearing on Def.'s motion, so this is the only way to get these things in. See Ohio Civ. Rule 56. If the time given by the Court for answer has passed, and you have proper service on the Def., you may file for a default judgment under Civ. Rule 55.

As to the items in your earlier posts regarding the conduct of your husband's ex, and whether this court would issue an order regarding that, the answer is no. The general division of common pleas court does not have concurrent jurisdiction over what is essentially a domestic relations matter. If the ex is in contempt of a DR order, then that court's jurisdiction must be invoked to address it.

As I stated in an earlier post, you have a hard road in proving the claims you have stated. For both intentional and negligent infliction of emotional distress, there will be no recovery without proof of an actual physical injury to the plaintiff. Check the case law. As to the fraud, even if you can prove it outside of a DR context, damages are going to be next to impossible to substantiate. If you give me a county and case number, I might be able to give you a little help as far as the motion practice is concerned. You need to able to allege facts that will carry the day under Rules 12(b)(1) and 12(b)(6), as even though the court may have subject matter jurisdiction, you must state a claim on which relief might be granted.

[NancyLou9]

I have filed two Motion for Default Judgement but the first time, the judge didn't feel we had a good service so we had it served again.

The second time, between the service and the default date, the defendant mailed a letter to the judge that basically told him off for not making this go away and could she attend the Rule 16 hearing via telephone as she didn't have the money to come to Ohio for it.

The judge denied our motion and gave her more time to file the response. Her response to the next deadline was another letter, this time, she attempted to respond, only her responses had nothing to do with the counts and it had an attachment of an e-mail she said I sent, but it was obviously made up. She also didn't address three of the complaints which were related to her telling my husband that unless he divorced me, he would never see the kids again. I filed a Rule 11 Motion against it and the judge had it stricken from the record as non-responsive and gave her another deadline. This particular attempt at a filing was so filled with rage it actually had me wondering for her sanity. In this letter she asked a second time if she could attend hearings via telephone using the second excuse that she was afraid of us.

We have substantial documentation of the injuries suffered in the form of medical records for several stress related illnesses. disorders and injuries, including dysthymia (sp) and bleeding ulcers. None of these problems were evident until his ex started her crap. He eventually was medically retired as a result of a suicide attempt when she gave him her final ultimatum.

I recenlty got a full copy of hubby's medical records and was shocked at what I saw. The 10 years he was married to her might have about 20 pages. The 10 years since the divorce covers about 200+ pages. His medical records easily are 5 inches thick. My son and I also have related illnesses and disorders. My son has been under the care of a military child psychologist since he was around 2, which correlates to when the ex started her crap.

The defendant in this case has never filed any response.

Her only filing to this was the Motion to Dismiss for lack of personal jurisdiction. She has filed no responsive pleading with this. The judge has given us until 28 April to file our response and she was given until 25 May to file her final response.

I think one thing that's important to note is that her own kids are prepared to testify against her. They are now 22 and 20 and they can't wait to tell any court the things she has done. The family courts would never listen to them when they begged the judge there to let them live with us.

Our case is in Clinton County, OH and is case # 2003-0609.

Also, while the court seems to be bending the rules for her, probably because she is pro se and has illustrated to the judge what we have complained of in our original filing.

The defendant has refused to respond to our filing, nor has she responded to the interrogatories we had served with the filings. I am guessing that she really doesn't want the truth to come out, since we are asking for information regarding her current husband. See, she tried to have hubby's visitation removed by stating I was a danger to the kids. The judge slammed her for it, but the denials went on. She then proceeded to marry a man who has served several years in prison for drug possession and domestic violence. So how am I a danger, when I have not even a speeding ticket on my record?

I am in the process of formulating my response to her motion to dismiss. The reason I feel that Ohio has jurisdiction is my reliance on a case out of Holmes County and Ohio Civ. R. 4.3(A)(9) and R.C. 2307.382(A)(6). I have also found some case law with reference to jurisdiction of a non-resident, but they also involve people who used to be residents. There is no case law that pertains to a case like this.

The case out of Holmes County had a person prevailing with the exact same symptoms, illnesses and injuries as my husband. Also, it removed the need to have expert witnesses in the civil suit, allowing testimony from the wife to affirm that the person did indeed suffer a personality change after the harrassment from their neighbor.

I honestly think we can prevail given the language of tort law, that the actions of the defendant would offend a person of normal sensibilities. Her actions would certainly do that.

Also, my thinking is that in her asking if she could attend hearings via telephone, she has already given up her right to the defense of lack of jurisdiction. And with her motion not being filed with a responsive pleading, she has again lost her right to use this.

Finally, at not time in her Motion to Dismiss did she state that she was only appearing in order to file the motion. She merely said that she didn't feel the judge had jurisdiction. IN our response, I am asking that this be set for hearing, per Civ. R. 12(D).

I realize you are really getting the Reader's Digest version of events and I would be happy for any assistance you can give me. If you have any more questions, my e-mail is [email]ndickinson@cinci.rr.com[/email]