Defendant's Response

Question 1

What are D’s two means of responding to a summons and complaint?

Answer 1

D can:

1. Serve an answer, OR
2. Make a pre-answer motion to dismiss

Question 2

What must D’s answer consist of?

Answer 2

1. Denials of the allegations D wants to contest (failure to deny is an implied admission);
2. Statement of any relevant affirmative defenses (NOTE: Affirmative defenses not raised are waived. EXCEPT there are three affirmative defenses that are never waived); AND
3. Statement of any counterclaims

Question 3

Which three affirmative defenses are never waived?

Answer 3

1. non-joinder of a necessary party
2. failure to state a claim
3. lack of SMJ

Question 4

When may P file a reply to D’s answer?

Answer 4

When D makes a counterclaim (BUT requires court permission)

Question 5

Must cross-claims be related to the plaintiff’s complaint?

Answer 5

No

Question 6

On whom must copies of the pleadings be served?

Answer 6

All other parties to the litigation

Question 7

How must the interlocutory papers be served?

Answer 7

By ordinary first class mail On the attorneys

Question 8

What are interlocutory papers?

Answer 8

All papers other than commencement papers (i.e., answer, motions, etc)

Question 9

When does service of interlocutory papers happen?

Answer 9

Upon mailing, not receipt

Question 10

What is the time limit for serving the answer? (to avoid default)

(Three different circumstances)

Answer 10

1. If D served by personal delivery within NY state: 20 days
2. If D was served with process by first class mail plus acknowledgment: 20 days within mailing of acknowledgment
3. If D was served with process under any other circumstances: 30 days after service complete

(N.B. Next business day applies to all of these)

Question 11

What are the eight defenses that D may assert in a pre-answer motion to dismiss?

(Hint: DOWNFALL)

Answer 11

DOWNFALL

1. Documentary evidence (deed, mortgate, contract)
2. Other action pending (on the same cause of action)
3. Want of capacity of P (e.g., infancy)
4. Non-joinder of necessary party
5. Failure to state a cause of action
6. “Additional affirmative defenses” (SPARERIBS)
7. Lack of PJ
8. Lack of SMJ

Question 12

What is the standard used by the court to evaluate motions to dismiss for failure to state a cause of action?

Answer 12

1. In responding to the motion, P is entitled to every favorable inference that can be drawn from the allegations
2. The motion should be denied if there is any basis for relief under the substantive law

Question 13

What are the nine additional affirmative defenses?

(i.e., the “A” in “DOWNFALL”)

(Hint: SPARERIBS)

Answer 13

(SPARERIBS)

1. Statute of limitations
2. Payment
3. Arbitration award
4. Release
5. Estoppel
6. Res Judicata
7. Infancy
8. Bankruptcy discharge
9. Statute of Frauds

Question 14

What do DOWNFALL and SPARERIBS refer to?

Answer 14

DOWNFALL: Eight defenses D may assert in a pre-answer motion to dismiss;

SPARERIBS: Nine additional affirmative defenses within the DOWNFALL defenses

Question 15

What are the procedural requirements of pre-answer motions to dismiss?

Answer 15

1. Motion is made before service of the answer (and the accompanying time limit thereof)
2. Making the motion automatically extends D’s time to answer (if denied, 10 days to answer) 3. D may make only a single motion to dismiss, but it may be on multiple grounds (D is not required to make pre-answer motions for his defenses)

Question 16

What is the rule for waiver of pre-answer defenses?

Answer 16

1. Pre-answer motion to dismiss does not preclude raising any other dismissal defense in the answer except PJ
2. Affirmative defenses not raised in the answer are waived (but the unwaivable defenses aren’t waived here either)

Question 17

How can PJ defenses be preserved?

Answer 17

1. Before serving the answer, make a motion to dismiss that includes lack of PJ, OR
2. Make no pre-answer motion on any ground whatsoever, AND include lack of PJ as an affirmative defense in the answer

Question 18

What must D do to preserve improper service of process defenses after making a pre-trial motion to dismiss?

Answer 18

Make a follow-up motion for summary judgment no later than 60 days after answer

Question 19

What are the available responses to summons with notice?

Answer 19

1. Serve a demand for the complaint OR
2. A notice of appearance (both avoid default and force a complaint)

Question 20

What is D’s time limit for serving either a demand for the complaint or a notice of appearance?

Answer 20

Same as the response time for responding to a summons and complaint

Question 21

How long does P have to serve a complaint after D’s response to summons with notice?

Answer 21

20 days

Question 22

If P timely serves the complaint what must D do within 20 days?

Answer 22

1. serve an answer
2. make a pre-answer motion to dismiss

Question 23

If P fails to serve complaint within 20 days, what may D do?

Answer 23

File a motion to dismiss based on P’s noncompliance

Question 24

How can P avoid dismissal for failure to timely serve a complaint?

Answer 24

1. Show a reasonable excuse for the delay, AND
2. Make an evidentiary showing of merit to P’s cause of action

Question 25

What are the rules for amendment of complaints?

Answer 25

1. One amendment as matter of right for each party within 20 days of D’s answer (may include anything that could have been there to start with)
2. D may raise PJ objection in amendment if D made no pre-answer to dismiss (and makes amendment within 20 days)
3. Other amendments by motion for leave to amend

Question 26

What is the standard for granting a motion for leave to amend?

Answer 26

If opponent will suffer no incurable prejudice

Prejudice = detrimental change of position as result of delay (dead witness or document)