Commencement Process Flashcards
How is an action validlycommenced?
For a valid action, π must… 1) “file process” w/ the County Clerk (if filing action for Sup. Ct.) w/in the relevant SOL window Process = summons and notice OR summons and complaint 2) pay a fee for the purchase of an index number 3) serve process on the ∆ w/in 120 days after filing w/ the county clerk
NOTE: Ct. has discretion to… extend beyond 120 days if π makes an ex parte motion & makes a showing of good cause OR interest of justice (flexible) If ∆ wants to challenge timeliness, must raise untimely service in a Motion to Dismiss. If ∆ fails to raise the defense of untimely service, it is waived. If π makes a mistake in the filing procedure, the ct has discretion, upon π’s motion to permit the correction of a mistake in the filing procedure, PROVIDED (i) the ∆ suffers no prejudice; (ii) the filing occurs w/in SOL; AND (iii) the filing fee is paid
What are the twoforms of process?
1) Summons & Complaint Summons = notifies ∆ that he is being sued in a particular court. Complaint = π’s pleading, which spells out elements of c/a
2) Summons & Notice: Notice must state… brief stmt of nature of action; nature of relief sought (damages, equitable remedy); AND if damages are sought, the amount of damages (UNLESS personal injuryOR wrongful death – then CANNOT state). NOTE:if no complaint or notice attached (a “naked summons”), then defect in pjx & action can be dismissed (PROVIDED the ∆ files a timely jx objection)
What are the basic requirementsserving process?
1) Process server must be 18 or older
2) Process server cannot be a party to the action
3) Process may be served on any day EXCEPT Sunday, and Saturday (provided ∆ is a Saturday Sabbath observer and ∆ knows it) Process can be served on a holiday (provided it doesn’t fall on a Sunday)
4) Process must be served on EACH ∆ in the action.
NOTE: actual notice is IRRELEVANT to a determination of whether π has complied with the formalities for proper service of process (i.e. cts strictly enforce these procedures)
What is the “leave and mail” method of serving process?
W/in in 120 days from filing process, π must… 1) DELIVER process(via process server)to person of suitable age & discretion (NOTE: does not mean 18 neccesarily) at ∆’s actual dwelling place OR actual place of business; AND 2) MAIL a copy by regular mail to ∆ at ∆’s actual place of businessOR at his last known residencew/in 20 days; AND 3) File proof of service. Proof of service is an affidavit by process server describing the details of service (e.g. date, time, place, desc. of person served, due diligence). If π fails to file proof of service, it’s NOT a jx defect (and a grounds for dismissal); the consequence = postponing ∆’s to respond
The filing of proof of service need NOT take place w/in the 120 day pd (even though other steps NEED be). NOTE: If ∆ is personally served, no need to file proof of service (i.e. service is complete upon delivery) Service is COMPLETE (which starts clock on ∆’s response time) 10 days after proof of service is filed NOTE: if the action has more than one ∆, EACH ∆ must be served with his own set of process
What is the “affix and mail” method of serving process? NOTE: This is also known as “nail and mail”
W/in in 120 days from filing process, π must… 1) AFFIX (e.g. via taping/rubber band on the door knob) process (via process server) to the door of ∆’s actual dwelling place OR actual place of business; 2) MAIL a copy by regular mail to ∆ at ∆’s actual place of businessOR last known residence w/in 20 days; 3) Must have exercised DUE DILIGENCE (by making attempts to serve ∆ directlyOR by delivery to person of suitable age/discretion); AND Sufficient due diligence is a fact-specific inquiry, BUT look for several attempts to deliveron different days of the week and at different times of the day 4) File proof of service It’s an affidavit by process server describing the details of service (e.g. date, time, place, desc. of person served, due diligence) If π fails to file proof of service, it’s NOT a jx defect (and a grounds for dismissal); the consequence = postponing ∆’s to respond The filing of proof of service need NOT take place w/in the 120 day pd (even though other steps NEED be) NOTE: If ∆ is personally served, no need to file proof of service (i.e. service is complete upon delivery) Service is COMPLETE (which starts clock on ∆’s response time) 10 days after proof of service is filed NOTE: if the action has more than one ∆, EACH ∆ must be served with his own set of process
When is service “complete” with thepersonal delivery method of serving process?
Service by personal delivery is COMPLETE upon server’s tender of summons directly to ∆ If ∆ refuses to accept the delivery of process, server can leave process w/in ∆’s immediate vicinity NOTE: if the action has more than one ∆, EACH ∆ must be served with his own set of process
What should π do if a traditional method of serving process is not available?
Expedient Service: if the traditional methods (i.e. personal delivery; leave and mail; or affix and mail) are not practicable, π can make ex parte MOTION to the ct for an ORDER allowing an improvised, expedient method An order is NECESSARY if π wants to use an improvised servise of process Reasonable alternatives e.gs: service on ∆’s liability insurer, a family member or business associate, or service by email NOTE: if the action has more than one ∆, EACH ∆ must be served with his own set of process
What is the process for serving process on an infant?
1) Can use one of the traditional methods (e.g. physical delivery; leave and mail; nail and mail; etc)of serving process 2) The infant ∆’s name goes on the summons, BUT process must be served on any of these adults: a parent, a guardian, any person having legal custody of the ∆, if the infant is married, upon an adult spouse with whom the infant lives. NOTE: if the infant ∆ is ≥ 14 yrs old, process must be served on an eligible adult AND the infant (so two sets of process will be necessary!)
What is the process for serving process on mentally incapacitated person?
1) Can use one of the traditional methods (e.g. physical delivery; leave and mail; affix and mail; etc) of serving process 2) If mentally incapacitated ∆ HAS a court-appointed guardian, must serve incapacitated ∆ AND the guardian (two sets of process necessary!) If the mentally incapacitated person DOES NOT HAVE a court-appointed guardian, must serve incapacitated ∆ & then court will later appoint a guardian ad litem
What is the process for serving process a ∆ who’s OUTSIDE NY?
1) Same methods as used w/in NY (assuming that there is a pjx basis for out-of-state service); rules in jx where process is served are IRRELEVANT 2) Who can serve? any NY resident who is ≥ 18 yrs old, anyone authorized to serve process by the law of the jx where service is made, any attorney who is licensed in the jx where services is made
What are the TWO methods for serving process on corporate∆s?
1) Personal delivery to: officer of the corporation; director of the corporation; designated agent; managing agent (employee who has supervisory power) NOTE: Can be served to any of these corporate representatives ANYWHERE IN THE U.S., if there is a basis of pjx over the corporation
2) Service on NY Sec. of State (designated agent) if ∆ is a (i) domestic corp. (incorp’d in NY);OR (ii)a foreign corp. authorized to do business in NY (i.e. licensed), π must personally deliver 2 copies to NY Sec. of State. Service of process is complete upon delivery of process to the Sec. of state, regardless of when corp. receives it
if ∆ is an unlicensed foreign corp., π must personally deliver1 copy to Sec. AND mail 1 to corp. ∆ by CERTIFIED mail (return receipt requested) NOTE: STILL need a valid basis of pjx to serve corporate ∆
What is the non-traditional method of service by first class mail + acknowledgment?
Mail process to ∆ by 1st class mail, enclosing: 2 copies of a statutory acknowledgement form; + a return envelope, postage prepaid and, addressed to the sender. Service is effective ONLY IF ∆ signs 1 form & returns it to π w/in 30 days(complete upon sending signed form) If ∆DOES NOT return the acknowledgement form, service is not effective and π MUST serve process some other way BUT∆ must pay for expenses of making the second service of process NOTE: this method can be used REGARDLESS of whether ∆ is within or outside NY and is available as to all types of ∆s EXCEPT infants and mentally ill persons. ∆’s return of the acknowledgement form is NOT a concession that court has pjx (∆ can still raise jx issues in the answer)
What are the traditional AND non-traditional methods of serving process on a person ∆?
1) Traditional: personal delivery to ∆, leave and mail, affix and mail, expedient service (court improvised), service on ∆’s designated agent 2) Non-traditional: 1st class mail PLUS acknowledgment
What are the methods of serving process on a corporation?
service on corporations: Traditional: personal delivery to particular corporate reps, service on the NY secretary of state Non traditional: service by first class mail + acknowledgement
