Responding to an Ohio complaint: 28 days, and the notice you get before a default judgment

Ohio's answer period is 28 days. It is one of the few states that picked a number in multiples of seven, and it catches people who assume the neighbouring states' 20 or 30.

The deadline

Ohio Civ.R. 12(A)(1):

The defendant shall serve his answer within twenty-eight days after service of the summons and complaint upon him; if service of notice has been made by publication, he shall serve his answer within twenty-eight days after the completion of service by publication.

Civ.R. 12(A)(2) applies the same period to related pleadings: a party served with a cross-claim serves an answer within 28 days after service on them, and a plaintiff serves a reply to a counterclaim in the answer within 28 days after service of the answer.

What a motion does to the clock

Civ.R. 12(B) lists the defences that may, at the pleader's option, be made by motion rather than in the responsive pleading:

1. lack of jurisdiction over the subject matter;
2. lack of jurisdiction over the person;
3. improper venue;
4. insufficiency of process;
5. insufficiency of service of process;
6. failure to state a claim upon which relief can be granted;
7. failure to join a party under Rule 19 or Rule 19.1.

"A motion making any of these defenses shall be made before pleading if a further pleading is permitted." And the rule preserves joinder: "No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion."

Civ.R. 12(A)(2) sets what replaces the 28 days once a Rule 12 motion is served — the responsive pleading follows the court's ruling, on the period the rule provides.

The consolidation rule, and what it forfeits

Civ.R. 12(G):

A party who makes a motion under this rule must join with it the other motions herein provided for and then available to him. If a party makes a motion under this rule and does not include therein all defenses and objections then available to him which this rule permits to be raised by motion, he shall not thereafter assert by motion or responsive pleading, any of the defenses or objections so omitted, except as provided in subdivision (H) of this rule.

One motion, carrying everything then available. Grounds left out are gone.

Civ.R. 12(H)(1) says which defences that kills: lack of jurisdiction over the person, improper venue, insufficiency of process, and insufficiency of service of process are waived if omitted from a motion in the circumstances described in (G), or if neither made by motion nor included in a responsive pleading or an amendment permitted by Rule 15(A) as a matter of course.

Civ.R. 12(H)(2) preserves three for longer: failure to state a claim upon which relief can be granted, failure to join a party indispensable under Rule 19, and failure to state a legal defence to a claim. Those may be raised in any pleading permitted or ordered under Rule 7(A), by motion for judgment on the pleadings, or at trial on the merits.

Default — and the seven-day notice

Ohio Civ.R. 55(A) has a protection that is easy to miss and decisive when it applies:

If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least seven days prior to the hearing on such application.

Two things follow.

Appearing is not the same as answering. A defendant who did something in the case — but not the right thing, or not in time — may still be entitled to the notice. A default judgment taken against an appearing party without it doesn't comply with the rule.

There is a hearing to be noticed. Civ.R. 55(A) contemplates an application, made in writing or orally to the court.

The subdivision also provides that no default judgment shall be entered against a minor or an incompetent person unless represented by a guardian or other representative who has appeared. And where the court needs to take an account, determine damages, establish the truth of an averment by evidence, or investigate any other matter, it may conduct hearings or order references — and "shall when applicable accord a right of trial by jury to the parties."

Civ.R. 55(B): a default judgment may be set aside in accordance with Rule 60(B).

Undoing a default judgment — Civ.R. 60(B)

The grounds:

(1) Mistake, inadvertence, surprise or excusable neglect; (2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) The judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) Any other reason justifying relief from the judgment.

The timing sentence:

The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.

Same two-part structure as the federal rule: reasonable time always, plus a one-year ceiling on the first three grounds. And the same warning: "A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation." Filing it does not stop collection.

Ohio's list differs from the federal one in a detail worth noting. FRCP 60(b) has a separate ground (4) for a void judgment; Ohio's numbered list does not. Ohio courts address void judgments through the court's inherent power rather than through Civ.R. 60(B) — a distinction that comes from case law rather than the rule's text.

Extensions

Civ.R. 6(B): when an act is required within a specified time, the court for cause shown may at any time in its discretion

1. with or without motion or notice, order the period enlarged if the request is made before the period expires; or
2. upon motion made after the period expires, permit the act to be done "where the failure to act was the result of excusable neglect."

The familiar two-track structure. The subdivision then lists the periods the court may not extend — the post-judgment motions, as in the federal rule.

Amending

Civ.R. 15(A) governs amendment, including the as-of-course amendment that Civ.R. 12(H)(1) refers to as a way of preserving the waivable defences. A defendant who answered without raising a personal jurisdiction or service defence may still be able to add it by an amendment permitted as a matter of course — but only within Rule 15(A)'s window.

How Ohio's numbers compare

The 28 days is the headline, but the seven-day notice in Civ.R. 55(A) is the provision most likely to matter to someone who has already missed the deadline.

The order of operations

1. Calendar 28 days from service — or from completion of service by publication.
2. If you have a Rule 12(B) defence, decide before you plead. Civ.R. 12(G) requires every then-available motion defence to be joined in one motion.
3. Watch the four waivable defences. Personal jurisdiction, venue, process and service disappear under Civ.R. 12(H)(1) if omitted from that motion or from the responsive pleading.
4. If you need more time, Civ.R. 6(B) — good cause before expiry, excusable neglect after.
5. If a default is looming and you have appeared, Civ.R. 55(A) entitles you to seven days' written notice of the application.
6. If judgment has been entered, Civ.R. 60(B) — and the one-year ceiling on grounds (1) to (3) is not extendable.

Where these rules live

• Ohio Civ.R. 4 — Process: Summons
• Ohio Civ.R. 6 — Time
• Ohio Civ.R. 8 — General Rules of Pleading
• Ohio Civ.R. 12 — Defenses and Objections
• Ohio Civ.R. 15 — Amended and Supplemental Pleadings
• Ohio Civ.R. 55 — Default
• Ohio Civ.R. 60 — Relief from Judgment or Order

The Ohio Supreme Court publishes self-help material and forms at supremecourt.ohio.gov. This page explains what the rules say. It isn't legal advice.