Waiver by Participation? The Ohio Supreme Court Says No
Litigation is an immense undertaking, from filing the complaint to your closing statements. One of the most controversial aspects of the process is making sure you have proper service. Imagine the following scenario:
A complaint is filed and the defendant(s) file their answer. Both sides spend countless hours fighting over the case. Then, after years of pouring blood, sweat, tears, and A LOT of money into the case, the whole thing gets dismissed because the plaintiff never perfected service.
Frustration. Irritation. Hulk-like rage. These are just a few of the emotions one undoubtedly experiences. As a plaintiff, you cannot fathom how the law supports this kind of behavior: allowing a party to participate fully in the suit and then claim they “didn’t know they were being sued.” While that might sound strange, the purpose behind the civil rules regarding service is to ensure that parties have notice they are being sued (and why).
Now, as a defendant, you might be happy. You won, right? Motions, hearings, etc.; Now, take a look at your bill and tell me what you really won.
Well, all I can say is “Welcome to Ohio”. In a recent Ohio Supreme Court decision, the court was asked to make active participation in a case waive service of process. Seems like a logical and fair change. Ohio’s rules are modeled after the federal rules and Ohio federal courts have that rule. Unfortunately, this is not what happened. In Ackman v. Mercy Health W. Hosp. L.L.C., the Ohio Supreme Court upheld a dismissal of a case after two years of litigation. The reasoning behind upholding the controversial precedent was that regardless of the defense’s gamesmanship or strategy, the defense still follows the rules.
At the end of the day, whether you like it or not, waiver by participation is not a real thing in Ohio. If you are a plaintiff’s attorney, use the civil rules to your benefit. Utilize all avenues of discovery and, most importantly, remember that just because a party doesn’t raise issues with service during the case, does not mean it won’t present problems later.
