Jurisdiction/Venue Flashcards
What is proper venue?
π chooses venue & specifies it in summons according to these rules…
1) If it’s an action affecting title/possession to real property, proper venue =county where real property located
2) If it’s any other action, proper venue = county of residency of one of the parties at time action is commenced
3) If neither party resides in NY, proper venue = any county
** NOTE: The location of the COA is generally IRRELEVANT to determine proper venue
What is the effect of improper venue?
π’s choice of an improper venue is NOT a jurisdiction defect (i.e. it’s NOT a basis for dismissal)
∆’s remedy = ∆ designates a property county after serving a demand for change of venue on π (served with or before the answer)
If π concedes to demand»_space; automatic change
If π objects or fails to respond»_space; ∆ must MOTION for Change of Venue, which will be granted as a matter of right if π’s venue choice was improper and ∆’s is proper
What are the discretionary grounds for changing venue?
1) Convenience of a material witness: either party (via MOTION) may request a change in venue from court to a county that would be most convenient for the witness (often where the COA arose)
2) Bias in county: either party (via MOTION) may request venue change if there is reason to believe that an impartial trial cannot be had in the particular county
What can be a basis of generalpersonal jurisdiction?
General personal jurisdiction = court can hear ANY claim REGARDLESS of where the COA originated
1) ∆’s physical presence in NY when served
2) ∆ is doing business/at home in NY (can be served anywhere)
3) ∆ is a NY domiciliary;NOT just a resident (can be served anywhere)
What can be a basis of specificpersonal jurisdiction?
Specific personal jurisdiction = claim must be SPECIFIC to ∆’s NY activity OR within terms of contract
1) ∆ is nondomiciliary subject to long arm statute (served anywhere) AND jurisdiction would not offend Due Process
2) ∆ is a nondomiciliary driver or car owner and is subject to nonresident motorist statute (served via NY Sec. of State & certified mail)
3) ∆ consents
What is the NYdomicile standard (sufficient to establish general personal jurisdiction)?
A ∆ who is a NY domicile at time the action is commenced can be served with process ANYWHERE in the U.S. for ANY COA
Domicile: intends to remain indefinitely & treated as principal home (i.e. only 1 domicile)
Residence: place person lives for fair amount of time with some degree of permanency (i.e. multiple possible residences)
What is the”doing business in NY” standard (sufficient to extend general personal jurisdiction)?
ANY claim whatsoever can be brought in NY REGARDLESS of origin…
1) if domestic corporation OR foreign corporation licensed in state
2) if unlicensed foreign corporation “doing business” in NY
Doing business if AT HOME at the time action commenced
(i) corporation’s employees/agents are in NY; AND (ii) it'sengaged in business activity for the corporation on a "regular, systematic & ongoing basis"(Litmus: must maintain an office/other facility continuously staffed by 1+ employees)
NOTE: “doing business” is NOT:
(i) mere sales of a corp's products in NY; (ii) mere advertising by a corp in NY; OR (iii) mere transient presence of an officer in NY at time of service on him/her
** If corp is AT HOME, service of process is by personal delivery to a proper corporate representative ANYWHERE in the US; OR by service on the NY Sec of State
** NOTE: satisfaction of AT HOME standard is only necessary if COA arose OUTSIDE NY; if COA stems from INSIDE NY, then long-arm jurisdiction will prob be available
What is the standard forlong-arm jurisdiction (specific personal jurisdiction)?
Long-arm jurisdiction follows the “minimum contact” standard, which allows for out-of-state service conferring personal jurisdiction on the basis of
(i) certain acts by ∆ that have sufficient connection with NY; AND (ii) π's claim arising from those acts
Long-arm jurisdiction covers ALL types of ∆s (individuals, corps, partnerships, etc)
- if ∆ dies, his estate can be served - the acts giving rise to jurisdiction can be performed by ∆ OR an agent
5 categories sufficient to confer specific personal jurisdiction on long-arm basis…
1) π’s claim arises from a “transaction of business” of ∆ in NY = single commercial event OR “active negotiation” in NY that MUST give rise to the COA sued upon
∆’s phone, electronic and mail transmissions from out of state relating to perfomance of a significant contractcan = “transaction of business,” IF substantial enough(NEVER personal jurisdiction for isolated incidence)
2) π’s claim arises from a contract to supply SIGNIFICANT ($$) goods OR services in NY
* * NOTE: a promise to pay a debt is NOT “goods or services”
3) π’s claim arises from ∆’s TORTIOUS ACT in NY
* * NOTE: Demafation claims are EXCLUDED as a tortious act
* * An injury in NY ORIGINATES in NY
4) π’s claim/injury arises from ∆’s tortious act OUTSIDE NY PLUS there exists an additional link b/t ∆ and NY
“Additional link” =
a) ∆ regularly solicts business or engages in any other persistent course of conduct in NY; OR
b) ∆ dervies substantial revenue from goods used or consumed, or services rendered, in NY; OR
c) ∆ expects or should reasonably expect the act to have consequences in NY AND ∆ derives subtl revenue from interstate/international commerce that purpo\sefully includes NY (NOTE: physician’s medical services are ALWAYS inherently local in nature)
** NOTE: Demafation claims are EXCLUDED as a tortious act
5) π’s claim arises from ownership, use or posession of REAL PROPERTY in NY
How should you approach a personal jurisdiction essay question?
1st – discuss if π can establish general personal jurisdiction
2nd – discuss where facts of π’s case fall within 1 or more of the long-arm categories (specific personal jurisdiction)
3rd – briefly discuss whether assertion of jurisdiction would satisfy due process
Satisfied if: the π’s claim arises out of conduct by ∆ “that is so purposefully directed toward NY” that the ∆ should “reasonably anticipate being sued in NY”
What is the standard to establish personal jurisdiction with a Non-Resident Motorist Staute?
Confers personal jurisdiction over an accident claim arising from a nondomiciliary motorist’s ownership OR use of an auto on NY roadways.
Overlap w/ Long-arm category of “tortious act”, but has two UNIQUE features:
1) π MUST personally serve 1 copy on NY Sec. of State PLUS mail 2nd copy by CERTIFIED mail to ∆
2) Applies to nondomiciliary owners who gave PERMISSION to drive in NY (Agency/busniess relationship is NOT necessary)
When is a forum selection clause (consenting to jurisdiction) NOT enforceable?
A forum selection clause is NOT enforceable if it were:
(i) fraudulent; (ii) overreaching; OR (iii) unreasonable
What is necessary for a valid basis of jurisdiction in a matrimonial action?
1) Must be in NY Supreme Court
2) π must be adomiciliary of NY(means marital status is located in NY & gives court in rem jurisdiction)
3) Serve process personally; all other methods require court order
…IF the c/a is SOLELY for MONETARY SUPPORT…
4) πwould need personal jurisdiction over ∆, which is accomplished through a matrimonial long-arm statute… When π-spouse is a resident of NY, long-arm jurisdiction can be acquired over ∆-spouse IF:
- NY was the matrimonial domicile of π and ∆ PRIOR to their seperation; OR
- ∆ abandoned π in NY, OR
- ∆’s monetary obligation accrued under an agreement executed in NY (separation agreement); OR
- ∆’s money obligation accrued “under the laws of NY” (a catch-all; never been litigated)
…IF the c/a is ONLY to affect the matrial status (divorce, etc)…
4) Do not need personal jurisdiction for case involving matrimonial status
5) Compliance w/ Durational Residency Requirements
** NOTE: If π is not compliant with this requirement, the case is subject to dismissal ON THE MERITS (i.e. will be dismissed as a “failure to state a COA”)
- π’s complaint must allege satisfation of 1 of the following 3 options…
(i) BOTH parties are NY RESIDENTS at the time the action is commenced; AND
(ii) the GROUNDS for the action arose in NY; OR
- EITHER party is a resident of NY for 1 year or more immediately prior to the action; AND
- NY has a PRIOR LINK to the marriage (i.e. married in NY, NY was matrimonial domicile at any point, grounds for action arose in NY)
- EITHER party has been a NY resident for a continuous period of at least 2 years immediately prior to action
- π’s complaint must allege satisfation of 1 of the following 3 options…
What ispersonal jurisdiction AND subject matter jurisdiction?
Personal jurisdiction = power of the court to adjudicate claims for damages or injunctive relief against particular parties
Subject matter jurisdiction = power of the court to hear a particular KIND of matter; goes to competency
Over what matters does the Supreme Court have EXCLUSIVEsubject matter?
1) Matrimonial actions where court is asked to adjudicate marital status (e.g. divorce, separation, annulment, validity of marriage - not family court)
2) CPLR Article 78 Proceedings:judicial review of NY state/local government administrative actions
* * REMEMBER: claims against NYS for money damages in tort and contract go to NY Court of Claims
3) Declaratory judgment action:judicial declaration about smtg which could cause liability before a party does it
Where must the State of NY be sued?
Claims for money damages in tort ORcontract against the State of New York must be brought in NY Court of Claims
** NYS is the ONLY ∆ that can be sued in the NY Court of Claims»_space;government subdivisions (counties, cities, school districts) AND employees of the state must be sued in NY Supreme Court
** If there is a non-state co-∆, they have to be sued in SEPARATE courts (no joint actions)
