NY Personal Jurisdicition Flashcards
In addition to SMJ, court must have PJ over parties to render a valid judgment.
What are the three parts of personal jurisdiction?
- Proper commencement of the action;
- Proper service of process on D (i.e., giving notice to D); AND
- Proper basis of jurisdiction over the person or property involved
How is an action commenced in NY? (3 steps)
- P files process with clerk of court (summons and notice OR summons and complaint) AND
- P purchases and index number; AND
- P serves process on D within 120 days of filing
Who is the clerk of court for a particular supreme court?
The county clerk in that county
*NOT the Supreme Court clerk*
How long does P have to serve process on D after filing with county clerk?
120 days
When may P obtain an extension of time to serve process on D?
At court discretion, P may obtain an extension to serve process on D upon P’s ex parte motion IF:
- Good cause (due diligence) OR
- The interest of justice
justifies the extension.
How can D challenge untimely service of process by P?
Make timely motion to dismiss for untimely service (court cannot dismiss sua sponte)
(If no timely motion, issue waived)
What is the difference between filing of process AND service of process?
Filing is with the court, and satisfies the SoL
Service is with D, and must occur 120 days after filing, unless an exception applies
What are the two forms of process (filing)?
- Summons and complaint
- Summons with notice
What is a “summons and complaint”?
Two separate documents:
- SUMMONS: Advises D that he’s being sued in a particular court
- COMPLAINT: P’s pleading; it specifies the transaction or occurance that us the subject of the action and lists essential elements of the cause of action
What is a “summons with notice”?
Allows P to get the action started with minimal paperwork; but will have to follow up later with a complaint
What is the difference between a summons and complaint AND a summons with notice?
If the summons is NOT accompanied by a complaint, i.e., it is a “summons with notice,” it must have sufficient notice inscribed on the summons or an attached one-page attachment.
What must the notice consist of in a “summons with notice” filing? (3 things)
“Notice” on the face of the summons or an attached one-pager MUST:
- Briefly state the nature of the action (e.g., “breach of contract”);
- Specify the type of relief being sought (damages; injunction); AND
- If damages are sought, specify the amount (UNLESS personal injury/wrongful death: then may not specify amount)
What is the exception for specifying amount of damages sought when filing by summons with notice?
Personal injury/wrongful death: May not specify the amount (to avoid media attention)
What is a naked summons?
A summons that has neither notice nor complaint.
(This is a defect of PJ, making action subject to dismissal if timely objection is made!)
Who may serve process?
Anybody who is at least 18, PROVIDED THAT that person is not a party (a party’s lawyer is okay, though)
On what day may process NOT be served?
(What is the additional gloss?)
May not serve process on:
- Sunday, AND
- Saturday, if P is a Sabbath observer and D knows it
(N.B. Service on non-Sunday holidays is okay! i.e., You can serve someone on Thanksgiving)
What is the impact of actual notice by D of service of process?
Actual notice is IRRELEVANT; the real test is whether the process server followed all proper formalities.
Service adequate if formalities observed; Service inadequate if formalities not observed, regardless of notice.
What are the five traditional methods of serving process on natural persons?
- Personal delivery to D
- Leave and mail;
- Affixing and mailing (“Nail and mail”);
- Expedient service (“Court-ordered service”); AND
- Agent specifically designated by D to receive process
What satisfies service of process by personal delivery?
Complete when process server tenders process DIRECTLY to D
(D may not refuse. If D refuses, server may leave process in D’s vicinity)
When does D’s time to respond begin after service of process?
When service is complete
What satisfies service of process by leaving and mailing?
Process may be adequately served by leaving and mailing IF:
- Process server delivers process to (i) person of suitable age and discretion (ii) at D’s actual dwelling or actual place of business AND
- P MAILS a copy of process by regular mail to D’s actual place of business or last known residence
((NOTES:
i. Both steps must occurwithin 20 days of each other;
ii. The order of mailing and delivery is irrelevant;
iii. Mailing and delivery need not be to the same location;
iv. Certified mail not needed; AND
v. The person of suitable age and discretion need not be an adult))
(ALL WITHIN 120 DAYS OF FILING)
What are the requirements for serving multiple defendants?
Each D must be served with her own separate service of process
What satisfies service of process by nailing and mailing?
[Very similar to leave and mail, except you affix process to “door” rather than deliver it to a person]
- Affix process to actual dwelling or actual place of business AND
- Mail to actual place of business or last known residence
- Process service must use due diligence (i.e., Must try personal service first, then deliver and mail, at several times and places, before resorting to nail and mail)
((NOTES:
i. Order doesn’t matter;
ii. Both steps must be within 20 days; AND
iii. Need not mail and nail to the same place.))
(ALL WITHIN 120 DAYS OF FILING)
What constitutes affixing for nail and mail service?
Rubberband/tape
(Don’t nail! …You’ll get counterclaimed for property damage)
What constitutes due diligence for nail and mail service?
Server must make (i) several attempts (ii) on different days of the week (iii) at different times of day (iv) to ascertain actual dwelling place AND actual place of business (v) to serve process in person.
What types of service require proof of service to be filed?
- leave and mail
- nail and mail
(not required for personal service)
What constitutes proof of service?
Affidavit describing details of service: Date, time, place, description of person served, due diligence if relevant
When is service complete for deliver and mail and nail and mail?
10 days after proof of service is filed
What happens if P delays filing proof of service?
P’s delay postpones D’s time to respond
(Is NOT a jurisdictional defect)
(Filing of proof need not occur within 120 days of filing)
When is expedient service available?
Expedient/Court-ordered service may be available when other methods are not practicable.
(P must obtain a court order through an ex parte proceeding.)
What satisfies service by expedient service (court-ordered service)?
Some reasonable alternative appropriate in the circumstances
(e.g., If D is impossible to reach by physical means, Court may allow service of process via PDF e-mail attachment)
What satisfies designated service agent?
Agent must be specifically identified to accept service of process
On whom must process be served when D is an infant? (Infant name goes on the summons)
- Parent;
- Guardian;
- Any person having legal custody; OR
- If the infant is married, upon an adult spouse with whom the infant resides.
(N.B. If D is at least 14, must ALSO serve D. Two sets of process necessary.)
When D is mentally incapacitated AND a guardian has been appointed for him, how must process be served?
On both the D and the guardian
When D is mentally incapacitated BUT no guardian has been appointed, how must process be served?
The usual manner (i.e., Treat the mentally incapacitated person as anyone else)
(Court will appoint guardian ad litem later)
Who may serve process in jurisdictions outside of NY? (3 types of people)
**Frequently tested**
- Any NY resident who is at least 18;
- Any person authorized to serve process by laws of jurisdiction where service made; AND
- Any attorney licensed in jurisdiction where service is made.
What are the two traditional methods of serving process on corporate defendants?
- Personal delivery
- Service on the NY secretary of state
What satisfies personal delivery of process to corporations?
Service of process to ANY of the following:
- An officer of the corporation
- A director
- A designated agent of the corporation
- A managing agent (corporate employee with supervisory responsibilities)
Where may service of process be made on a corporation?
Anywhere in the US, if made to one of the eligible persons
When is service of process on a corporation via NY secretary of state available?
When the corporation is a:
- Domestic corporation (incorporated in NY), OR
- Foreign corporation (incorporated outside NY) that is authorized to do business in NY
What satisfies service of process on a corporation by NY secretary of state?
Server MUST personally deliver two copies of process to office of NY secretary of state (designated agent of these corporations)
When is service by way of NY secretary of state complete?
Upon delivery to secretary of state
What satisfies service of process to a corporation via secretary of state when corporation is UNLICENSED?
Server must personally deliver one copy of process to NY secretary of state, AND
P must mail one copy to the corporation by certified mail, return receipt requested
What is the nontraditional method of “service of process by first class mail plus acknowledgment”? (3 requirements)
- P mails process to D by first class mail
- P encloses two copies of statutory acknowledgment form
- P encloses prepaid return envelope
(N.B. Service is complete ONLY IF D returns the signed form (i.e., this works only with a cooperative D))
Against whom is “service by first class mail plus acknowledgment” effective?
Effective against all types of Ds, whether in NY or not.
Exception: Such service is NOT effective against (1) infants OR (2) mentally incapacitated persons with a guardian
What happens to Ds who refuse to return acknowledgment form from nontraditional service of process?
D must pay expenses of making a follow-up method
Is D’s return of acknowledgment a concession of jurisdiction?
No; it is merely an acknowledgment of receipt
What are the three (seven) bases for PJ over the D?
- General Jurisdiction: (i) Presence in NY, (ii) Domicile in NY, or (iii) Corporation at home in NY
- Specific Jurisdiction: (iv) Long-arm jurisdiction, or (v) Non-resident motorist statute
- Consent: (vi) Forum selection clause, or (vii) Corporate license
What can confer general jurisdiction over D? (3)
- Presence in NY
- Domicile in NY
- Corporation D “at home” in NY
What can confer specific jurisdiction over D? (2)
- Long-arm jurisdiction
- Non-resident motorist statute
What can confer consent jurisdiction over D? (2)
- Forum selection clause
- Corporate license in NY (maybe)
What satisfies presence in NY for general jurisdiction over D?
Personal service of process to D while D is physically present in NY (even transient presence okay)
What constitutes “domiciled in NY” for general jurisdiction? (measured when action commenced)
Domicile is the one residence at which a person intends to remain indefinitely, and is treated by D as her permanent home (only one domicile; higher standard than mere residence)
When is a corporation at home in NY for personal jurisdiction?
- NY is the state of incorporation, OR
- NY is the principal place of business (BUT, transient presence of corporate officer does NOT confer personal jurisdiction over the corporation
(N.B. Merely doing business in NY is NOT enough)
Broadly, what must be true of P’s claim for NY long-arm jurisdiction to apply?
P’s claim arises from D’s acts (the minimum contacts in question)
What are the five long-arm categories for personal jurisdiction?
To obtain long-arm jurisdiction, the facts in P’s case MUST arise from one of five NY-touching categories:
- P’s claim arises from a transaction of business in NY
- P’s claim arises from a contract transacted anywhere by which D agreed to supply goods or services in NY
- P’s claim arises from D’s tortious act in NY
- P’s claim arises from D’s tortious act outside NY, that causes injury in NY, PLUS an additional link
- P’s claim arises from D’s ownership, use, or possession of real property in NY
What are examples of transactions of business in NY that will satisfy the long-arm statute?
- Negotiate a contract
- Sign a contract
- Transmissions from out of state IF (i) the contract is significant, and (ii) there is a substantial number of communications
What is specifically excluded from an agreement to provide goods/services in NY for long-arm jurisdiction?
- Agreement to pay a debt
- Insubstantial contracts (trivial quantity of goods)
What satisfies the additional link requirement for the long-arm statute for tortious conduct outside NY causing harm in NY?
(Three times)
- D regularly does business, solicits business, or engages in other persistent conduct in NY;
- D derives substantial revenue from NY; OR
- (i) D should reasonably expect the tortious act to have consequences in NY, (ii) D derives substantial revenue from interstate/international conduct, AND (iii) D makes efforts to engage in NY commercial activity
What constitutes injury in NY for tortious conduct outside NY?
Injury must originate in NY (loss of sales in other states doesn’t count)
What is excluded from both long-arm categories of tortious acts?
Defamation claims
BUT, NY still has PJ if defamation results from a transaction of business in NY
What are four general and broadly applicable rules to the long-arm statute?
- Covers all types of Ds
- Acts of agents subject both the agent and the principal to PJ
- Decedent’s estate representatives can be treated exactly like other Ds
- P must use the same methods of service on D outside NY as would be used in NY
What are the long-arm essay tips? (3)
- Discuss whether PJ is available under non long-arm
- Discuss whether multiple categories of PJ are available
- Discuss whether particular assertion of PJ satisfies constitutional due process
What is the Constitutional requirement for due process for PJ?
Conduct so purposely directed toward NY,that D should reasonably anticipate being sued on that claim in NY
What are the two requirements of the non-resident motorist PJ statute?
Two whom may the statute apply?
- Claim arises from non-domiciliary motorist’s ownership or use of an auto on a NY roadway; AND
- P serves process by personally serving one copy of process on the NY secretary of state AND mailing one copy by certified mail to D’s out of state residence.
(N.B. Also applies to non-domiciliary vehicle owner who gave user permission to drive in NY (not just driver!))
What satisfies consent to PJ by forum selection clause?
These are generally enforceable absent fraud, overreaching, or unreasonableness
What consent to PJ by Corporate Licensing?
(Unclear whether “at-home” has killed this)
- Foreign corp has become authorized to do business in NY
- Foreign corp has appointed secretary of state as agent for service of process
What satisfies the matrimonial long-arm statute?
(4 options)
When P spouse is a NY resident, she can get long-arm jd over D spouse for monetary support IF:
- NY was the matrimonial domicile of P and D shortly prior to their separation;
- D abandoned P in NY;
- D’s monetary obligation accrued under an agreement executed in NY; OR
- D’s monetary obligation accrued under the laws of NY (nobody knows what this means)
How must process be served pursuant to the matrimonial long-arm statute?
Personal delivery to D (alternative methods available ONLY with court order)
What grants PJ for a matrimonial action?
A valid basis of PJ is NOT required for matrimonial actions
In rem is sufficient (and can serve anywhere)
What constitutes in rem jurisdiction in a matrimonial action?
It is sufficient that P spouse is a domiciliary of NY
i.e., If P is domiciled in NY, then marital status (the res (thing)) is domiciled in NY; Supreme Court has in rem jurisdiction
When is the matrimonial long-arm statute relevant?
When P seeks monetary support
(In rem jd is not sufficient, so PJ required)
What are durational residency requirements for matrimonial long-arm statute availability?
Even if P can obtain sufficient jd in NY for a divorce, the action might still be subjst to dismissal if the parties don’t meet NY’s threshold durational residency requirements
Broadly, what are the 3 possible durational residency requirements for matrimonial actions?
(P’s complaint MUST allege satisfaction of any of the three optional durational residency categories)
- IF both partis are NY residents at the time the action is commenced AND grounds for matrimonial action arose in NY: No period of prior NY residency required to bring the action in NY.
- IF either party has been an NY resident for a continuous period of at least one year immediately prior to the action AND NY is where (i) Marriage took place, (ii) the marriage was domiciled at some point, or (iii) the grounds for divorce arose: P must have been a NY resident for at least one year to bring the action in NY.
- IF either party has been a NY reisdent for a continuous period of at least two years IMMEDIATELY PRIOR to the action, P may bring the action in NY.
When is no period of prior NY residency required for matrimonial actions?
When both parties are NY residents at the time the action is commenced AND the grounds for the matrimonial action arose in NY
When is at least one year of residency prior to the matrimonial action required?
When either party has been an NY resident for a continuous period of at least one year immediately prior to the action AND NY is where:
- Marriage took place,
- the marriage was domiciled at some point, OR
- the grounds for divorce arose.
What is the proper defense if P fails to allege and prove satisfaction of one of the residency requirements?
Failure to state a cause of action
When do durational requirements not apply?
When they seek solely monetary support
(but see PJ)
What if either party to a matrimonial action has been a resident of NY for two years prior to the matrimonial action required?
That residency is sufficient to bring the action in NY
