D's response Flashcards
response to summons and complaint (do this to avoid default in two ways)
serve an answer (admitting/denying P’s allegations and setting forth relevant aff. def.) or make pre-answer motion to dismiss
serving an answer
D’s Pleadings: formal written allegations of respective claims/defenses. two basic pleadings are P’s complaint and D’s answer.
1) Answer’s Components
(a) Denials: D denies allegations—failure to deny is an implied admission; AND
(b) Affirmative Defenses: Failure to raise affirmative defense results in waiver (unless amend answer)
(i) Except: some defenses NEVER waived (can be asserted at anytime):
(1) non-joinder of a necessary party; or
(2) failure to state a cause of action; or
(3) lack of SMJ.
(c) Counterclaim: D asserts cause of action against P in answer
(i) P must then reply with denials and affirmative defenses; do this in a pleading in response to a counterclaim. if no counterclaim, P cannot serve a reply without ct permission
(d) Cross-Claims: assert cross-claims against other Ds for ANY claim (even unrelated).
(e) All parties must serve all papers to all parties in the action. After P’s initial service of process, all other litigation papers are called interlocutory papers–includes D’s answer and all other pleadings, motions, discovery notices, etc.
2) Service:
(a) First Class Mail: After initial process service (summons/complaint), all other papers (interlocutory papers) are served by first class mail to attorneys.
(i) Mailbox Rule: Service of interlocutory paper made upon mailing within NY (not receipt). Service by mail must be made through post office or official depository under exclusive care and custody of USPS within NY.
(1) If you use a non-NY mailbox, you do not satisfy the rule!
3) Time Limits for Serving Answer: Depends on how service was made—
(a) Personal Delivery Within NY—serve answer 20 days of delivery.
(b) First Class Mail PLUS Acknowledgement—serve answer 20 days of D’s mailing of acknowledgment
(c) Any Other Service (out of state/leave&mail)— 30 days after service complete
(i) Personal out-of-state=delivery. Mail=10 day waiting period.
(d) TIP: If test says “timely responded” → do not discuss.
motion to dismiss (CPLR 3211)
prior to serving answer, D may move to dismiss on following grounds (in pre-answer motion to dismiss):
1) Grounds: DOWNFALL
(a) D: Documentary Evidence—as basis for a defense refuting claim (legally operative document)
(b) O: Other Action Pending—between same parties on same cause of action
(c) W: Want of Capacity—P is infant or beneficiary (representative must sue)
(d) N: Non-Joinder of Necessary Party—never waived—joint property owners/co-cosignors
(e) F: Failure to State of Cause of Action—never waived—must address substance on essay too!
(i) Test: P entitled to every favorable inference from allegations of complaint; deny if there any basis for relief under substantive law –on exam say “Even if all of the allegations are deemed to be true and taken in favor of P, the substantive law does not recognize a cause of action/no basis for relief under substantive law”
(f) A: Affirmative Defenses—SPARERIBS
(g) L: Lack of Personal Jdx—(1) lack of basis; (2) improper service process; (3) defect in form of summons (i.e., improper commencement)
(h) L: Lack of SMJ—never waived
additional affirmative defenses for failure to state a cause of action
SPARERIBS
(i) S: Statute of Limitations
(ii) P: Payment—already made
(iii) A: Arbitration award—already arbitrated
(iv) R: Release—P released me
(v) E: Estoppel—Collateral estoppel/issue preclusion
(vi) R: Res Judicata—claim preclusion
(vii) I: Infancy of Defendant—contracts
(viii) B: Bankruptcy discharge—debt already discharged
(ix) S: Statute of Frauds—contracts; real property
procedural aspects of pre-answer motion to dismiss
(a) Must be Made On/Before Service of Answer
(b) Motion Extends Time for D’s Answer—if motion denied, D must answer within 10 days.
(c) Raising Affirmative Defenses Is Optional—D’s option to raise them or wait to claim them in answer as aff. defs.
(d) Only 1 Pre-Answer Motion Permitted—but can make it on multiple grounds.
rules on waiver
(a) Rule: If D makes Pre-Answer Motion to Dismiss on ANY 3211 grounds → MAY raise any other 3211 grounds in answer,
(b) EXCEPT: lack of personal jdx (lack of basis; improper service of process; defective summons). Waived.
(i) Preserve Personal Jdx Defense: either:
(1) Make Pre-Answer 3211 Motion to Dismiss that includes lack of personal jdx, OR
(2) NO 3211 motion and include lack of personal jdx as affirmative defense in answer.
a. WARNING: If D asserts “improper service of process” in answer → MUST make FOLLOW-UP motion for SJ within 60 days of answer, else waived!
b. But: No 60-day rule follow-up rule for “basis” or “defect in summons”
3 defenses never waived:
1) non-joinder of necessary party
2) failure to state a cause of action
3) lack of SMJ
D’s response to summons with notice
if there isn’t a complaint, there is no possibility to serve an answer. So, in order to avoid default and force P to serve complaint, D must:
serve demand for complaint OR notice of appearance
a) Timing: same as for Summons & Complaint
1) Personal Delivery Within NY—serve answer 20 days of delivery.
2) First Class Mail PLUS Acknowledgement—serve answer 20 days from return of acknowledgment
3) Any Other Service (out of state/leave&mail)— 30 days after service complete
b) Effect of Demand for Complaint or Notice of Appearance:
1) Both require P to serve complaint within 20 days of D’s service.
2) If P Serves: D then has 20 days to (1) Answer or (2) Pre-Answer Motion to Dismiss.
3) If P Fails to Serve within 20 days:
(a) D motions to dismiss for failure to prosecute.
(b) To defend against such motion, P must show reasonable excuse for delay AND evidentiary showing of merit to P’s claim
(i) Can show merit through Affidavit of Merit: written statement under oath by P or witnesses showing personal knowledge.
4) After P Serves Complaint: D may still object to personal jdx (in Answer or in Pre-Answer Motion to Dismiss—notice of appearance/demand for complaint do NOT waive jurisdictional objection.
amendments of pleadings
a) Amend As a Matter of Right: Each party can amend ONCE as matter of right (ie without judicial permission) at any time within 20 days after D serves answer and may put anything into amendment that could have been in original.
1) Exception: can’t amend to include previously omitted personal jdx defense if D made pre-answer motion to dismiss → it’s waived!
b) Motion for Leave to Amend when period for amendment expired or party has already used up amendment as of right: Court discretion to grant motion for leave to amend—allowed so long as opponent will suffer NO incurable prejudice
1) Opposing Party’s Burden—must show detrimental change in position as a result of delay in amending.
(a) Example: loss of evidence; witnesses; can also show that proposed amendment has no merit
