Motion to Dismiss and Summary Judgment Flashcards
When a defendant receives a summons and complaint, what must he or she do?
The defendant must respond to avoid default. Defendant can respond to the summons and complaint (and thereby avoid default) by either of two methods:
- Serve an answer (defendant’s pleading - where the defendant admits/denies plaintiff’s allegations and sets forth relevant affirmative defenses) OR
- Make a pre-answer motion to dismiss.
What does the defendant’s answer consist of?
- Denials of the allegations defendant’s wishes to contest (failure to deny an allegation is an implied admission), AND
- Any relevant affirmative defenses.
The defendant may include an counterclaims they wish to assert against the plaintiff or cross-claims against other defendants.
What is the reply?
It is the plaintiff’s pleading in response to a counterclaim. The reply consists of denials and affirmative defenses. If there is no counterclaim, plaintiff cannot serve a reply without court permission.
How is the answer and other interlocutory papers served?
By ordinary first class mail on the attorneys of the parties. Service of an interlocutary paper by mail is deemed made upon mailing, not receipt.
What are the time limits for serving the answer?
To avoid being in default, defendant must reply with an answer in certain number of days:
a. If defendant was served with process by personal delivery within NY state: defendant must serve an answer within 20 days of delivery.
b. If defendant was served process by first class mail plus acknowledgement: defendant must serve an answer within 20 days of mailing acknowledgment.
c. If defendant was served process under any other circumstances: defendant must serve an answer within 30 days after service is complete.
What are the 8 affirmative defenses that a defendant may assert in a pre-answer motion to dismiss?
Remember DOWNFALL
Documentary evidence: as the basis for a defense, e.g. mortgage, deed or contract: legally operative documents.
Other action pending: between the same parties on the same cause of action.
Want of capacity (lack of capcity): e.g. plaintiff is an infant suing without a proper representative, or plaintiff as beneficiary is suing on behalf of a trust (only the trustee has capacity).
Non-joinder of a necessary party: e.g. co-makers of a promissory note, joint property owners.
Failure to state a cause of action: This motion is directed to the substantive insufficiency of the complaint on its face, i.e. even if all of the allegations are to be true, the substantive law does not recognize a cause of action.
Additional affirmative defenses: there are 9 of them using SPARERIBS mnemonic (other card).
Lack of personal jurisdiction: which includes (1) improper commencement, (2) improper service of process, (3) lack of basis jurisdiction.
Lack of subject matter jurisdiction
What is the standard that the court uses for deciding a motion to dismiss for failure to state a cause of action?
- In responding to the motion, plaintiff is entitled to every favorable interest that can be drawn from the allegations of the complaint.
- The motion should be denied if there is any basis for relief under the substantive law.
What are the 9 additional affirmative defenses?
Remember SPARE RIBS
Statute of limitations
Payment of debt
Arbitration award
Release
Estoppel (collateral)
Res judicata
Infancy
Bankruptcy Discharge
Statute of Frauds
What are the procedural aspects of the pre-answer motion to dismiss?
The motion is made before service of the answer, on or before the last day of prescribed time limit for service of the answer. Making the motion automatically extends defendant’s time to answer - if motion is denied, defendant must serve the answer within 10 days.
What are the rules of waiving the affirmative defenses made in a motion to dismiss?
The defendant is not precluded from raising any of the other defenses, except for lack of personal jurisdiction.
The general rule is that affirmative defenses not raised in the answer are waived. Three defenses are never waived, though, and they can be raised at any point in the litigation:
- non-joinder of a necessary party;
- failure to raise or state a cause of action;
- Lack of subject matter jurisdiction.
What are defendant’s responses to a summons with notice? What are the time limits?
- Demand for complaint OR
- Serve notice of appearance
Both have the effect of avoiding default and forcing the plaintiff to serve the complaint.
The time limits are:
a. 20 days from delivery if served by personal delivery;
b. 20 days from acknowledgement if served by mail and acknowledgment;
c. 30 days from when service was complete in all other circumstances.
What happens after defendant’s service of a demand for the complaint or notice of appearance?
Both have the effect of requiring the plaintiff to serve the complaint within 20 days of defendant’s service.
If plaintiff timely services the complaint, defendant has 20 days from such service to either (1) serve an answer OR (2) make a pre-motion to dismiss.
If plaintiff fails to meet the 20 day time limit to serve the complaint, defendant may move to dismiss the action based on plaintiff’s noncompliance. Plaintiff must counter by (1) showing reasonable excuse for delay AND (2) make evidentiary showing of merit to the plaintiff’s complaint - provide an affidavit of merit.
When and how are amendment to the pleadings made?
- Each party is entitled to amend her pleading once as a matter of right (i.e. without the need to obtain judicial permission). When making an amendment as of right, the party can put anything into the pleading that could have been in the original. It can be made within 20 days after the defendant provides the answer.
- When the period for the amendment as of right has expired, or the party has already used up her amendment as of right, a motion for leave to amend is required. The decision to permit an amendment on a motion lies in the court’s discretion. The standard applied by courts on a motion for leave to amend is whether or not the opponent will suffer any prejudice. In opposing a motion to amend and demonstrating prejudice, a party must show that ti will suffer a detrimental change in position as a result of delay.
What is the standard for granting a summary judgment motion?
The party must show, before trial, that even though the pleadings may be sufficient on their face, there is no genuine issue of material fact requiring a trial.
The moving party is contending that reasonable persons cannot differ, and that she is therefore entitled to judgment as a matter of law.
When should a party move for summary judgment?
Any party can move for summary judgment with respect to any claim or defense asserted in the pleadings. The motion must be made after the answer has been served and no later than 120 days from the filing of the note of issue (a paper that places trial on the court calendar).
