D's Answer_Pre-answer MTD Flashcards
OVERVIEW of ∆’s Responses to a summons & complaint
How can ∆ respond to a summons and complaint?
The defendant can respond by either of two ways to have made a timely response which avoids a default:
1) Serve an Answer
Answer = ∆’s pleading in which she admits/denies π’s allegations and sets forth relevant affirmative defenses
2) Make a Pre-answer Motion to Dismiss
∆’s ANSWER AND OTHER PLEADINGS
What could be in the ∆’s answer or other pleadings?
NOTE: NY DISTINCTION
∆’s ANSWER MAY CONSIST OF:
1) DENIALS of the allegations ∆ wishes to contest Failure to deny an allegation is an implied admission and it becomes a FACT
2) Any relevant AFFIRMATIVE DEFENSES (AD)
Note: Failure to raise the following AD will be a WAIVER of that AD (subject only to ∆’s possible amendment of the pleadings):
(i) Lack of PJ (must go into MTD if filed, otherwise waived)
(ii) Improper venue
(iii) Improper process (a problem w/ the service docs)
(iv) Improper service of process
Note: Certain ADs are NEVER WAIVED (can be raised at any pt in the litigation) (i) Failure to join an indispensable party
(ii) Failure to state claim for which relief can be granted
(iii) Lack of smjx
3) Any COUNTERCLAIMS against π
π would then serve a reply, which consists of denials and ADs
4) In a multi-∆ case, ∆ may assert CROSS-CLAIMS against any other ∆
Can be based on ANY type of claim that ∆ has against the other ∆s (does’t have to be related to π’s original complaint)
Includes one ∆ versus another ∆
*NOTE: THIS IS A NY DISTINCTION Different from FRCP
5) Copies: ALL parties in an action MUST receive a copy of ANY pleading, even if the pleading does not concern them
SERVICE OF ANSWER AND OTHER INTERLOCUTORY PAPERS
How are the ∆’s answer and other interlocutory papers served?
Interlocutory papers (inc. the answer) must be served on ALL OTHER parties to the action by regular mail OR by personal delivery
Interlocutory papers = all other litigations papers after initial service of process (e.g., answer, pleadings, motions, discovery notices, etc)
Service of interlocutory papers are deemed served upon MAILING not RECEIPT (mailbox rule) AND MUST be made thru post office WITHIN NY
Note: Interlocutory papers are served on the ATTORNEYS and NOT to the parties directly
TIMING OF SERVING ANSWER
When does the ∆’s answerneed to be served?
Time limits for serving the ANSWER depends on π’s service of process:
20 Days:
1. If ∆ was personally served in NY → ∆ must serve answer within 20 DAYS
- If ∆ was served by mail (1st class) & acknowledgment → ∆ must serve answer within 20 DAYS of mailing acknowledgement (NOTE: ∆’s return of acknowledgment is just notice of receipt of process; it IS NOT a pleading/answer)
30 Days
3. If ∆ was served by ANY other method → ∆ must serve answer within 30 DAYS after service is complete (E.g., D personally served in OH on 3/1/08. Service is “complete” upon delivery so answer is timely if he puts it in the mail by 3/31/08)
NOTE: if the due date is a Saturday/Sunday/Public Holiday, ∆ gets until next business day
PRE ANSWER MOTION TO DISMISS: AFFIRMATIVE DEFENSES
What are specific ADs that may be included in a pre-answer motion to dismiss (MTD)?
"D O W N F A L L" / "S P A R E R I B S" (D) Documentary evidence as basis for defense (O) Other pending action (W) Want of capacity of π (N) joinder of nec. party
(F) Failure to state a CoA
(A) Add’l Affirmative Defenses = “SPARERIBS”
(L) Lack of Smjx(L)
(L) Lack of Pjx
NOTE: (A) Add’l Affirmative Defenses = "SPARERIBS" (S) SOL (P) Payment (for a debt being owed) (A) Arbitration award (R) Release (from liability) (E) Estoppel (collateral) (R) Res judicata (I) Infancy of the ∆ (DEFENDANT) (B) Bankruptcy discharge (S) Statute of frauds
——–DOWNFALL—–
(D) Documentary evidence as basis for defense (e.g. mortgage, deed of trust)
(O) Other pending action (btwn same parties on same c/a)
(W) Want of capacity of π (e.g. π is an infant suing w/o a proper rep so no capacity to sue)
(N) Non-joinder of nec. party (e.g. joint property owners)
(F) Failure to state a CoA even if allegations are all true, the substantive law does not recognize the issue as as a c/a)
Std = π is entitled to “every favorable inference” that can be drawn from the allegations
MTD should be denied if there is ANY basis for relief for π under the substantive law
TIP – when discussing whether a MTD should be granted for, make sure to talk about the substantive law too (***Guaranteed Bar Exam Question)
(A) Add’l Affirmative Defenses = “SPARERIBS”
(S) SoL
(P) Payment (for a debt being owed) (A) Arbitration award (R) Release (from liability) (E) Estoppel (collateral) (R) Res judicata (I) Infancy of the ∆ (DEFENDANT) (B) Bankruptcy discharge (S) Statute of frauds
(L) Lack of Smjx
(L) Lack of Pjx…comes in 3 flavors
(i) commencement defects (ii) improper service of process (iii) lack of basis of jrx
PROCEDURAL RQMT for PRE ANSWER Motion to DISMISS
What is the procedure to filing a pre-answer MTD?
The procedral aspects of a pre answer MTD are:
1) The motion is made BEFORE service of the answer (on OR before the last day of the prescribed deadline for service of the answer…REVIEW: what are the deadlines?!? which will be 20 or 30 days)
2) Making the motion AUTOMATICALLY extends the ∆’s time to answer
→ IF motion is DENIED, ∆ must then serve the answer w/in 10 DAYS
3) ∆ has the OPTION to bring up THIS AD in EITHER in the pre-answer MTD OR the ANSWER
AFFIRMATIVE DEFENSE WAIVER RULES
What are the AD waiver rules?
1) Filing ADs in pre-answer MTD DOES NOT preclude bringing up ADs on different grounds in SUBSEQUENT answer
E.g., if ∆ makes pre-answer MTD on grounds of release, and motion is denied….when ∆ serves the answer, he could properly assert statute of frauds as an AD
EXCEPTION FOR PERSON JRX: (**Important)
IF ∆ files pre-answer MTD and DOES NOT bring up pjx defect, ∆ CANNOT LATER assert pjx defect in the answer as it is WAIVED
REMEMBER: Lack of Pjx…comes in 3 flavors
(i) commencement defects (ii) improper service of process (iii) lack of basis of jrx
2) NOT bringing ADs in EITHER pre-answer MTD OR the answer, generally WAIVES the AD from being asserted later in litigation
EXCEPTION: Certain ADs are NEVER WAIVED (can be raised at any pt in the litigation) (i) nonjoinder of a NECESSARY party
(ii) failure to STATE A C/A
(iii) lack of SMJX (this is never waived, can be raised at appeal)
SUMMARY:
HOW TO PRESERVE Personal Jrx Defense
How can the ∆preserve pjx defense (avoid waiver)?
There are 2 Ways to Preserve Personal Jrx…
1) Include affirmative defense (lack of pjx) in pre-answer MTD;
OR
2) DO NOT make a pre-answer MTD on ANY ground and raise it as affirmative defense in the Answer… AND,
If the lack of pjx defense is based on IMPROPER SERVICE OF PROCESS (ONLY), make a follow-up motion for summary judgment on that ground w/in 60 DAYS after serving the answer (or it is waived)
*THIS EXTRA STEP w/in 60 days for IMPROPER SERVICE OF PROCESS is a Guaranteed Bar Question
Recall: Lack of Pjx…comes in 3 flavors
(i) commencement defects (ii) improper service of process (iii) lack of basis of jrx
RESPONSE TO SUMMONS WITH NOTICE
Withsummons with notice, how can a ∆ force π to serve the complaint (without defaulting)?
∆’s Goals are to (1) avoid default and (2) force π to serve the complaint.
Therefore ∆ should serve on π…EITHER:
(1) Demand for the Complaint; OR
(ii) Notice of Appearance
2) Time limitation for service of demand for the complaint OR notice of appearance = same as w/ answer which is: (i) 20 DAYS, if ∆ was served summons by personal delivery;
(ii) 20 DAYS from acknowledgment, if ∆ was served summons by mail & acknowledgment; OR
(iii) 30 DAYS after service is complete, if ∆ was served summons by ANY OTHER METHOD
3) After ∆’s service of demand for the complaint and/or a notice of appearance, π is REQUIRED to serve the complaint within 20 DAYS of ∆’s service
If π does not serve the Complaint w/in the 20 DAYS, ∆ can move for dismissal on the basis of noncompliance (i.e. failure to prosecute the claim)
To avoid dismissal, π would have to
(i) show there was reasonable excuse for the delay; AND
(ii) make an evidentiary showing that there is merit to his c/ain Affidavit of Merit.
4) ∆ then must serve the Answer OR pre-answer MTD w/in 20 DAYS
***NOTE: TRICKY Jrx ISSUE: ∆ can still object to pjx in EITHER of these filings (MTD or Answer) even though ∆ filed a demand for complaint or an appearance
AMENDED PLEADING (First Time and w/in Time Limit)
How can EITHER party amend their pleading for the FIRST time?
1) Each party can amend 1 TIME, as a matter of right
2) Time limit to amend = w/in 20 DAYS of service of answer
3) Either party can put ANYTHING that could have been put in the original pleading
NOTE: this means ∆ can assert lack of pjx in the Amended Complaint (as long as he DID NOT make a pre-answer Motion to Dismiss before, which did not have pjx and would thus have waived the pjx defense)
AMENDED PLEADING (NOT First Time OR NOT w/in Time Limit)
How can EITHER party amend their pleading AFTER the amendment as a matter of right has passed or been used?
Either party can request (at Ct.’s discretion) the right to amend if the amendment as a matter of right has passed OR been used once
STANDARD FOR COURT:
amendment allowed as long as no incurable prejudice to opponent
To est. prejudice, the opponent has the burden of showing thatb/c of the delay in amending, the requesting party has suffered a detrimental change in position(e.g. key witness died, key docs destroyed)
