Defendant's Answer/Pre-Trial Motion to Dismiss Flashcards
How can ∆ respond to a summons and complaint?
1) Serve and Answer
Answer = ∆’s pleading in which she admits/denies π’s allegations and sets forth relevant affirmative defenses
2) Pre-answer Motion to Dismiss
What could be in the ∆’s answer?
1) DENIALS of the allegations ∆ wishes to contest
** Failure to deny an allegation is an implied admission and it becomes a FACT
2) Any AFFIRMATIVE DEFENSES (AD)
** Failure to raise an AD is a WAIVER of that AD (subject only to ∆’s possible amendment of the pleadings)
- Certain ADs are NEVER WAIVED (can be raised at any point in the litigation)
- non-joinder of a necessary party
- failure to state a COA
- lack of subject matter jurisdiction
- Certain ADs are NEVER WAIVED (can be raised at any point in the litigation)
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)
How are the ∆’s answer and other interlocutory papers served?
Interlocutory papers (including 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 misy be made through post office WITHIN NY
When does the ∆’s answerneed to be served?
Time limits for serving the ANSWER depends on π’s service of process
** 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)
** If ∆ was served by ANY other method → ∆ must serve answer within 30 DAYS after service is complete
NOTE: if the due date is a saturday/sunday/public holiday, ∆ gets until next business day
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”
1) Documentary evidence as basis for defense (e.g. mortgage, deed of trust)
2) Other pending action (between same parties on same COA)
3) Want of capacity of π (e.g. π is an infant suing without a proper representative)
4) Non-joinder of necessary party (e.g. joint property owners)
5) Failure to state a COA (even if allegations are all true, the substantive law does not recognize as a COA)
** Standard = 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 under the substative law
** When discussing whether a MTD should be granted for, make sure to talk about the substantive law too
6) Add’l Affirmative Defenses = “SPARERIBS”
- SOL
- Payment (for a debt being owed)
- Arbitration award
- Release (from liability)
- Estoppel (collateral)
- Res judicata
- Infancy of the ∆ (DEFENDANT)
- Bankruptcy discharge
- Statute of frauds
7) Lack of Subject matter jurisdiction
8) Lack of Personal jurisdiction…come in 3 flavors
- commencement defects
- improper service of process
- lack of basis jx
What is the procedure to filing a pre-answer MTD?
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?!?)
2) Making the motion AUTOMATICALLY extends the ∆’s time to answer»_space; IF motion is DENIED, ∆ must then serve the answer within 10 DAYS
3) ∆ has the option to bring up AD in EITHER pre-answer MTD OR the answer
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
** EXCEPTION: IF ∆ files pre-answer MTD and DOES NOT bring up personal jurisdiction defect, ∆ CANNOT LATER assert personal jurisdiction defect in the answer as it is WAIVED
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 point in the litigation)
- non-joinder of a NECESSARY party
- failure to STATE A COA
- lack of subject matter jurisdiction
- EXCEPTION: Certain ADs are NEVER WAIVED (can be raised at any point in the litigation)
How can the ∆preserve personal jurisdiction defense (avoid waiver)?
2 Ways…
1) affirmative defense (lack of personal jurisdiction) 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 personal jurisdiction defense is based on improper service of process (ONLY), make a follow-up motion for summary judgment on that ground within 60 DAYS after serving the answer (or it is waived)
Withsummons with notice, how can a ∆ force π to serve the complaint (without defaulting)?
1) Serve on π…EITHER:
- Demand for the Complaint; OR
- Notice of Appearance
2) Time ltds for service of demand for the complaint OR notice of appearance = same as with answer
- 20 DAYS, if ∆ was served summons by personal delivery
- 20 DAYS from acknowledgment, if ∆ was served summons by mail & acknowledgment
- 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 witin 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 COAin Affidavit of Merit.
4) ∆ then must serve the Answer OR pre-answer MTD within 20 DAYS (can still object to personal jurisdiction in EITHER of these filings)
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 = within 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 personal jurisdiction in the Amended Complaint (as long as he DID NOT make a pre-answer Motion to Dismiss before, which would waive personal jurisdiction defense)
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 court’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 establish prejudice, opponent has burden of showing thatbecause of the delay in amending, the requesting party has suffered a detrimental change in position(e.g. key witness died, key docs destroyed)
