Decisions in recent cases clarify the rules and procedures governing the Commercial Docket.
Durst Kerridge is at the forefront of practice before Hamilton County’s newly instituted Commercial Docket, having recently brought and won the first opposed Motion for Transfer to the Commercial Docket and the first appeal to the Administrative Judge.
As we previously reported, Ohio commercial litigation cases filed in the Hamilton County Court of Common Pleas are now placed on a specialized Commercial Docket. This will streamline business litigation and increase efficiency, uniformity, and predictability—all to the great benefit of litigants and attorneys faced with commercial litigation in Greater Cincinnati.
For the basic rules and procedures, see our previous blog post, which explains what cases are eligible for the Commercial Docket and the available mechanisms for transfer. Some of the finer procedural points were not yet known at the time of our previous post. Based on Durst Kerridge’s experience, more answers are now known.
Are cases filed before the Commercial Docket was established eligible to be transferred to the Commercial Docket?
Yes! In the case referenced above, we filed a motion requesting a transfer to the Commercial Docket. That motion was granted over the objection of the opposing party, who subsequently appealed unsuccessfully to the Administrative Judge. We were informed that it was the first appeal ever since the institution of the new Commercial Docket.
The opposing party fought our motion tooth-and-nail and pulled out all the stops—including quoting Durst Kerridge’s prior blog post in one of the filings! Opposing counsel took a deep dive into the Rules of Superintendence and crafted an argument that those Rules do not permit transfers of cases filed before a commercial docket is established.
Word to the wise—for newly filed cases, Sup.R 49.07(A) requires a “notification” to be filed along with the initial pleading that it is a commercial case, while Sup.R 49.07(B) requires the opposing party to file a motion for transfer to the Commercial Docket along with that party’s first responsive pleading if the plaintiff fails to file that notification. But per Sup.R 49.07(C), even if neither party complies with those rules, the Judge “shall sua sponte request the administrative judge to transfer the case to the commercial docket.” In our case, the opposing party essentially argued that, other than Sup.R 49.07(C), the rules do not explicitly contemplate (though they also do not preclude) transfers of pre-existing cases. These issues of first impression have now been analyzed and ruled upon by the Court.
The assigned Judge granted the transfer. The opposing party then appealed, reiterating the same arguments. We filed a brief in opposition to the appeal. The opposing party then filed a “Reply” stating that the Court informed opposing counsel during a conversation for which we were not present that the assigned Judge approved the transfer merely “because he was instructed to do so (when a Motion to Transfer was received) in a memorandum which had been issued to all of the Common Pleas Court judges.” According to opposing counsel, this memorandum instructed the Judges to grant motions to transfer “in civil cases involving facially-‘eligible’ business or commercial matters.”
The Administrative Judge quickly overruled the appeal, leaving the transfer to the Commercial Docket to stand.
Are pre-existing cases eligible for transfer to the Commercial Docket even if they are past the Deadlines imposed by the Supreme Court of Ohio?
Yes. To clarify, the Supreme Court of Ohio imposes rules upon Judges of Ohio Courts of Common Pleas to resolve commercial litigation and other civil cases within certain timeframes. Due to the high volume of litigation Ohio courts are currently facing, many cases are “out of time.” These cases are eligible for transfer to the Commercial Docket if they qualify, subject to the discretion of both the assigned Judge and Commercial Docket Judge.
We recently moved for transfer of an out-of-time commercial litigation case to the Commercial Docket. After it was confirmed that the Commercial Docket Judge would accept the case, the assigned Judge granted the transfer.
Note: no opposition or appeal was filed, though the opposing party did oppose the transfer.
What briefing is permitted in connection with opposition and appeals pertaining to transfers to the Commercial Docket?
This is not currently specified in Loc.R 48. But as evidenced by our case referenced above, it appears the Court will consider an opposition brief to the motion for a transfer, a response to any appeal, and possibly even a reply in support of an appeal.
What do out-of-state attorneys who appear pro hac vice in Commercial Docket cases pending in the Hamilton County, Ohio Court of Common Pleas need to know?
First, pro hac vice practice before the Commercial Docket is the same in all respects as in other Ohio civil cases in state court. Second, the rules and procedures governing the Commercial Docket continue to evolve by the day.
If you are an out-of-state attorney seeking Ohio local counsel with experience navigating the Commercial Docket, Durst Kerridge welcomes your call.
