NY Practice 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 pt in the litigation) nonjoinder of a necessary party failure to state a c/a lack of smjx 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 (inc. 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 thru post office WITHIN NY
When does the ∆’s answerneed to be served?
Time ltds 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 (E.g., D personally served in OH on 3/1/08. Service is “complete” upon delivery so answer is timely if he puts it in the mail by 3/31/08) 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 (b/t same parties on same c/a) 3) Want of capacity of π (e.g. π is an infant suing w/o a proper rep) 4) Non-joinder of nec. party (e.g. joint property owners) 5) Failure to state a c/a (even if allegations are all true, the substantive law does not recognize as a c/a) Std = 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 TIP – 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 Smjx 8) Lack of Pjx…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 w/in 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(e.g., if ∆ makes pre-answer MTD on ground of release, and motion is denied….when ∆ serves the answer, he could properly assert statute of frauds as an AD) EXCEPTION: IF ∆ files pre-answer MTD and DOES NOT bring up pjx defect, ∆ CANNOT LATER assert pjx 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 pt in the litigation) nonjoinder of a NECESSARY party failure to STATE A C/A lack of SMJX
How can the ∆preserve pjx defense (avoid waiver)?
2 Ways… 1) affirmative defense (lack of pjx) 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 pjx defense is based on improper service of process (ONLY), make a follow-up motion for summary judgment on that ground w/in 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 w/ 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 c/ain Affidavit of Merit. 4) ∆ then must serve the Answer OR pre-answer MTD w/in 20 DAYS (can still object to pjx 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 = w/in 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 pjx in the Amended Complaint (as long as he DID NOT make a pre-answer Motion to Dismiss before, which would waive pjx 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 ct’s discretion) the right to amend if the amendment as a matter of right has passed OR been used once Standard for ct: amendment allowed as long as no incurable prejudice to opponent To est. prejudice, opponent has burden of showing thatb/c of the delay in amending, the requesting party has suffered a detrimental change in position(e.g. key witness died, key docs destroyed)
How can ∆ assert a claim of contribution OR indemnity?
1) If tortfeasors already co-∆s → they can assert CROSSCLAIMSagainst ea other 2) If some tortfeasors are NOT part of suit → the ∆ can (i)IMPLEAD the 3P∆;OR (ii) sue in a separate action NOTE: Impleader is better. If ∆ sues outside tortfeasors in a separate action, the findings of liability (i.e. % of fault) in the 1st action are not binding on 2d action (problematic) b/c you CANNOT assert collateral estoppel (“issue preclusion”) against a party who has not had her day in ct; THUS, you’d have to re-prove all the fact finding 3) ∆ must meetSOL: contribution AND indemnity has a 6-yr SOL that runs from the date of pmt of the judgment for which contribution/indemnity is sought
What is indemnity AND how can it be asserted?
Indemnity: Allows ∆ to shift 100% of the responsibility or damages to another party Can be accomplished… by K (e.g. sub-contractor) if implied-in-law Products Liability – mnfr must indemnify retailer for selling defective product Vicarious liability – e.g., driver indemnifies owner of car NOTE: Settlement does NOT extinguish claims for indemnity BY or AGAINST a settling tortfeasor
What is contribution AND its purpose?
Contribution =the sharing of loss (apportionment) among multiple tortfeasors (who are ACTUALLY part of the tort OR aggravated the damages); allowed in ALL tort cases in NY (contrast MBE) EXCEPTIONS: CPLR Article 16 ON MBE – NOT AVAILABLE when liability is based on an intentional tort Purpose = mitigate the harshness of joint & several liability (i.e. EA. tortfeasor is liable to π for FULL amt of π’s damages nws ind. tortfeasor’s % fault) NOTE: ∆ may seek contribution from TP∆ EVEN IF the injured π has NO RIGHT of recover against TP∆ Ex: Mnfr of smoke alarm, fire protection service. Fire protection service not liable to π b/c of clause in K but mnfr-∆ can STILL implead him for aggravating the damages ➩ So contribution can be broader than liability
After a 3P∆ is impleaded, how can π join 3P∆ in action (i.e. make it a ∆)?
After TP∆ is joined, π can amend her complaint to assert complaints directly against TP∆… w/in 20 DAYS w/o judicial permission after 20 DAYS w/ judicial permission NOTE: π’s claim against 3P∆ generally MUST occur w/in SOL EXCEPTION: New claims by π “relate back” to date ∆ filed impleader papersAS LONG AS (i)based on same TRXN or OCCURANCE as ∆’s impleader claim; AND (ii) the π’s claim against the 3P∆ WOULD HAVE BEEN TIMELY on the date of impleader
How does a ∆implead a 3d party?
1) ∆ files Summons & 3d Party Complaint 2) w/in 120 DAYS of filing, ∆ (3Pπ) serves a copy of summons & 3d party complaint on 3P∆ AND P make SURE there is basis for pjx & proper service for 3rd parties 3) TP∆ must serve an 3d party answer on ∆ (3Pπ), π & all other parties TP∆’s time ltd for answering is the SAME that would apply to an ordinary ∆ (REVIEW!); either 20 or 30 days DEPENDING on where/how the 3P∆ was served w/ process
What is impleader?
Procedural device used by ∆ to join ANOTHER party alleged to be liable in whole or in part to ∆ for damages that ∆ may have to pay π Two general forms: (i) indemnity; OR (ii) contribution If ∆ joins a 3d party ∆, then ∆ BECOMES 3d party π NOTE: ∆ may implead 3d party any time AFTER ∆ serves the Answer
What isjoint and several liablity?
Each tortfeasor is liable to π for the WHOLE AMT of damages regardless of the individual tortfeasor’s percentage of fault NOTE: This is the default rule in NY (except CPLR Art. 16 matters)
What isComparative Degrees of Fault contribution?
MAJORITY APPROACH (MBE) and ONLY RULE IN NY 1) Each tortfeasor is ULTIMATELY liable for his actual fault (any excess paid is the amt of contribution) 2) Each ∆ CANNOT be compelled to pay more than his own equitable share to another tortfeasor NOTE: π can force any ONE tortfeasor to pay the ENTIRE amt of damages if the others are insolvent
What is theEqual Shares Formula of Contribution?
Equal Shares Formula (MINORITY VIEW) = All liable tortfeasors pay an equal share of the damages NOTE: this is ONLY on MBE – will say “in an equal share jurisdiction” (otherwise assume comparative degree)
How does workers’ compensation ltd contribution and indemnity?
With Workers’ Compensation → π may not sue employer if you are injured on the job Injured π MAY (nevertheless) sue other 3d party tortfeasor (such as manufacturer of machine used, etc.) for ANY injury On MBE: 3P∆ may NEVER implead emloyer for contribution/indemnity In NY: 3P∆ may not implead the employer for contribution/indemnityUNLESS it was a “grave injury” (strictly construed), which is… Death Total loss of arm, leg, hand, foot, ear, nose, OR index finger (NOT a thumb) Total loss of multiple fingers OR toes (NOT loss of finger tips) Paraplegia, quadraplegia Total blindness or deafness (NOT blindness in one eye) Severe facial disfigurement Brain damage causing total disability
What is the rule for contribution in cases involving sucessive tortfeasors?
Rule: tortfeasor is liable to π for all injuries that proximately flow from the accident BUThe may claim contribution from a successive tortfeasor who aggrevates the injury E.g. subsequent malpractice by a doctor who negligently treats π can be sued by accident-causing ∆ REMEMBER: assuming a doctor was impleaded w/in 2.5 yr SOL, the relevant SOL for contribution is 6 YRS FROM PMT
What is the rule re: π settlement with ONE tortfeasor and contribution?
1) Rule: π’s pretrial settlement w/ 1 tortfeasor in partial satisfaction of the claim does NOT discharge π’s claim against other tortfeasors 2) Law prohibits excessive recovery so π can only collect up to total amount of damages THE REDUCTION FORMULA:Any judgment for π against a non-settling tortfeasor MUST be reduced by the LARGER of: the amount of settlement; OR the settling tortfeasor’s equitable share of fault E.g.: πsettles w/ A for $30k. π wins $100k in trial. Ct. says A 10% liable & B 90%. B only owes $70k. 3) A party who settles CANNOT sue or BE sued for contribution (this is NOT the case w/ indemnity) Policy: encouraging settlement b/c the settling party is assured that he cannot thereafter be sued for contribution; BUT the settling party ALSO forfeits his own contribution rights
How does CPLR Art. 16 modify joint and several liability in NY?
1) Rule: in a personal injury claim a joint tortfeasor whose fault is found to be 50% or lessCANNOT be required to pay the π more than his equitable share of the π’s noneconomic damages Noneconomic damages= paint & suffering, mental anguish, loss of consortium, loss of companionship (but NOT wrongful death or property damage) 2) BUT for economic damages, ALLtortfeasors are J&S liable for full judgment e.g. medical expenses, lost income Ex:π sues A & B for pain and suffering. A = 60% liable & B = 40% liable. $100k award. A is J&S liable for ALL of the damages but B is only liable up to $40k
What are the exclusions fromCPLR Art. 16?
Exceptions from Art. 16 (i.e. these tortfeasors ALWAYS liable for J&S liability): 1) Tortfeasors who acted w/intentional tortfeasors or w/ reckless disregard If multiple tortfeasors - only intentional ones are J&S liable (i.e. the merely negl. tortfeasors ARE eligible for Art. 16) 2) Tortfeasors who release hazardous substance into the environment. 3) Drivers & owners of CARSEXCEPT police or fire cars NOTE: police officers/firemen, passangers and auto mnfrs ALL get benefit of Art. 16
What is arbitration?
Arbitration = a private procedure, based on K, for the BINDING resolution of disputes Two parties may agree to submit any existing or future dispute to arbitration (as a cl in a commercial K) Two major characteristics: (i) arbitrators are NOT bound by the substantive law OR the rules of evidence (i.e. they do justice as they see fit); AND (ii) the scope of judicial review is EXTREMELY narrow Ct serves a “gatekeeping” function, deciding certain “threshold issues”, as to whether the arbitration should PROCEED (if ct decides in favor of arbitration, it retreats from scene) NOTE: public policy of NY FAVORS arbitration (and the cts are guided by this principle when deciding whether a particular case should be arbitrated)
What are the 5 threshold issues that can be presented to the ct to AVOID arbitration?
1) Did the parties agree to arbitrate? – (i) must be in writing; (ii) agmt must be”clear, explicit & unequivocal”; AND (iii) the right to arbitration NEED NOT be mutual (i.e. only one party has right to invoke) 2) Is the dispute within the scope of the arbitration cl? – arbitrator can decide almost anything, so it depends on the scope of the cl as written 3) Is the arbitration cl valid? –cl is PRESUMPTIVELY valid UNLESS induced by fraud, duress or coercion Doctrine of severability – cts will examine validity of arb clause separately from validity of K AS A WHOLE 4) Is there an express condition precedent to arbitration, AND has been complied w/? 5) Is there a SOL issue?
How does a party bring a “threshold issue” to the ct?
1) If already pending action»_space; proponent should make motion to stay the action & compel arbitration 2) If NO pending action»_space; proponent served opponent w/ Notice of Intention to Arbitrate Opponent who wants to avoid arbitration must commence a special proceeding for stay of arbitration Special proceeding MUST be w/in 20 DAYS of receipt of Notice of Intention or waives any of the threshold objections
What are the 3 gounds of judical review of arbitration awards?
3 grounds for VACATING an arbitration award… 1) “Corruption, fraud, misconduct” in the arbitration proceeding; 2) Bias of an arbitrator who was chosen to be neutral; OR 3) Arbitrator exceeded his powers (almost always loses b/c arbitrators usually have unlimited power unless the parties agree otherwise) NOTE: In NY, an arbitrator CANNOT award punitive damages
What are the 3 other types of alternative dispute resolution (ADR)?
1) Mediation: A NON-BINDING process in which a neutral mediator attempts to facilitate a settlement by speaking confidentially to ea. party and then jointly with both parties present If there is an agmt, the parties can include a prvn for confidentiality (or they can waive confidentiality) 2) Neutral Evaluation: A NON-BINDING process in which a neutral expert in a subject matter at issue received a condensed ppt abt the merits of each side, evaluates the ppts and PREDICTS ow a ct would decide the dispute 3) Summary Jury Trial (SJT): a CONDENSED version of a real trial in which a REAL JUDGE presides and a REAL JURY is empanneled to hear the case and RENDER a verdict Rules of evidence are relaxed After trial, parties may question the jury abt their thought processes Jury verdict can be binding or non-binding NOTE: ADR is a creature of K and is ENFORCED in accordance w/ the agmt NY public policy FAVORS ADR The ct can recommend, but generally can’t REQUIRE parties submit to ADR No specific statutory rules governing ADR (where there ARE such rules w/ arbitration; “judical gatekeeping”)
How is an action validlycommenced?
For a valid action, π must… 1) “file process” w/ the County Clerk (if filing action for Sup. Ct.) w/in the relevant SOL window Process = summons and notice OR summons and complaint 2) pay a fee for the purchase of an index number 3) serve process on the ∆ w/in 120 days after filing w/ the county clerk NOTE: Ct. has discretion to… extend beyond 120 days if π makes an ex parte motion & makes a showing of good cause OR interest of justice (flexible) If ∆ wants to challenge timeliness, must raise untimely service in a Motion to Dismiss,but court can still grant π an extension & apply it retroactively (NOTE: if ∆ fails to raise the defense of untimely service, it is waived) permit the correction of a mistake in the filing procedure, PROVIDED (i) the ∆ suffers no prejudice; (ii) the filing occurs w/in SOL; AND (iii) the filing fee is paid
What are the twoforms of process?
1) Summons & Complaint Summons = notifies ∆ that he is being sued in a particular court Complaint = π’s pleading, which spells out elements of c/a 2) Summons & Notice Notice must state… brief stmt of nature of action; nature of relief sought (damages, equitable remedy); AND if damages are sought, the amount of damages (UNLESS personal injuryOR wrongful death – then CANNOT state) NOTE:if no complaint or notice attached (a “naked summons”), then defect in pjx & action can be dismissed (PROVIDED the ∆ files a timely jx objection)
What are the basic requirementsserving process?
1) Process server must be 18 or older 2) Process server cannot be a party to the action (∆) 3) Process may be served on any day EXCEPT Sunday, and Saturday (provided ∆ is a Saturday Sabbath observer and ∆ knows it) Process can be served on a holiday (provided it doesn’t fall on a Sunday) 4) Process must be served on EACH ∆ in the action NOTE: actual notice is IRRLEVANT to a determination of whether π has complied with the formalities for proper service of process (i.e. cts strictly enforce these procedures)
What is the “leave and mail” method of serving process?
W/in in 120 days from filing process, π must… 1) DELIVER process(via process server)to person of suitable age & discretion (NOTE: does not mean 18 neccesarily) at ∆’s actual dwelling place OR actual place of business; AND 2) MAIL a copy by regular mail to ∆ at ∆’s actual place of businessOR at his last known residencew/in 20 days; AND 3) File proof of service It’s an affidavit by process server describing the details of service (e.g. date, time, place, desc. of person served, due diligence) If π fails to file proof of service, it’s NOT a jx defect (and a grounds for dismissal); the consequence = postponing ∆’s to respond The filing of proof of service need NOT take place w/in the 120 day pd (even though other steps NEED be) NOTE: If ∆ is personally served, no need to file proof of service (i.e. service is complete upon delivery) Service is COMPLETE (which starts clock on ∆’s response time) 10 days after proof of service is filed NOTE: if the action has more than one ∆, EACH ∆ must be served with his own set of process
What is the “affix and mail” method of serving process? NOTE: This is also known as “nail and mail”
W/in in 120 days from filing process, π must… 1) AFFIX (e.g. via taping) process (via process server) to the door of ∆’s actual dwelling place OR actual place of business; 2) MAIL a copy by regular mail to ∆ at ∆’s actual place of businessOR last known residence w/in 20 days; 3) Must have exercised DUE DILIGENCE (by making attempts to serve ∆ directlyOR by delivery to person of suitible age/discretion); AND Sufficient due diligence is a fact-specific inquiry, BUT look for several attempts to deliveron different days of the week and at different times of the day 4) File proof of service It’s an affidavit by process server describing the details of service (e.g. date, time, place, desc. of person served, due diligence) If π fails to file proof of service, it’s NOT a jx defect (and a grounds for dismissal); the consequence = postponing ∆’s to respond The filing of proof of service need NOT take place w/in the 120 day pd (even though other steps NEED be) NOTE: If ∆ is personally served, no need to file proof of service (i.e. service is complete upon delivery) Service is COMPLETE (which starts clock on ∆’s response time) 10 days after proof of service is filed NOTE: if the action has more than one ∆, EACH ∆ must be served with his own set of process
When is service “complete” with thepersonal delivery method of serving process?
Service by personal delivery is COMPLETE upon server’s tender of summons directly to ∆ If ∆ refuses to accept the delivery of process, server can leave process w/in ∆’s immediate vicinity NOTE: if the action has more than one ∆, EACH ∆ must be served with his own set of process
What should π do if a traditional method of serving process is not available?
Expedient Service: if the traditional methods (i.e. personal delivery; leave and mail; or nail and mail) are not practicable, π can make ex parte MOTION to the ct for an ORDER allowing an improvised, expedient method An order is NECESSARY if π wants to use an improvised servise of process Reasonable alternatives e.gs: service on ∆’s liability insurer, a family member or business associate, or service by email NOTE: if the action has more than one ∆, EACH ∆ must be served with his own set of process
What is the process for serving process on an infant?
1) Can use one of the traditional methods (e.g. physical delivery; leave and mail; nail and mail; etc)of serving process 2) The infant ∆’s name goes on the summons, BUT process must be served on any of these adults: a parent of the infant ∆ a guardian of the infant ∆ any person having legal custody of the infant ∆ if the infant is married, upon an adult spouse with whom the infant lives NOTE: if the infant ∆ is ≥ 14 yrs old, process must be served on an eligible adult AND the infant NOTE: if the action has more than one ∆, EACH ∆ (or adult rep) must be served with his own set of process
What is the process for serving process on mentally incapacitated person?
1) Can use one of the traditional methods (e.g. physical delivery; leave and mail; nail and mail; etc) of serving process 2) Depends on whether there is an appointed guardian… If mentally incapacitated ∆ HAS a court-appointed guardian, must serve incapacitated ∆ AND the guardian (two sets of process necessary!) If the mentally incapacitated person DOES NOT HAVE a court-appointed guardian, must serve incapacitated ∆ & then court will later appoint a guardian ad litem
What is the process for serving process a ∆ who’s OUTSIDE NY?
1) Same methods as used w/in NY (assuming that there is a pjx basis for out-of-state service); rules in jx where process is served are IRRELEVANT 2) Who can serve? any NY resident who is ≥ 18 yrs old anyone authorized to serve process by the law of the jx where service is made any attorney who is licensed in the jx where services is made
What are the TWO methods for serving process on corporate∆s?
1) Personal delivery to: officer of the corporation director of the corporation designated agent managing agent (employee who has supervisory power) NOTE: Can be served to any of these corporate representatives ANYWHERE IN THE U.S., if there is a basis of pjx over the corporation 2) Service on NY Sec. of State (designated agent)… if ∆ is a (i) domestic corp. (incorp’d in NY);OR (ii)a foreign corp. authorized to do business in NY (i.e. licensed), π must personally deliver 2 copies to NY Sec. of State if ∆ is an unlicensed foreign corp., π must personally deliver1 copy to Sec. AND mail 1 to corp. ∆ by CERTIFIED mail (return receipt requested) NOTE: STILL need a valid basis of pjx to serve corporate ∆
What are is the method to service process by 1st class mail plus acknowledgment?
1) Mail process to ∆ by 1st class mail, enclosing: 2 copies of statutory acknowledgement form; AND a return envelope, postage prepaid, addressed to sender (π) 2) Service is effective ONLY IF ∆ signs 1 form & returns it to π w/in 30 days(complete upon sending signed form) If ∆DOES NOT return it, service is not effective and π MUST serve process some other way BUT∆ must pay for expenses NOTE: this method can be used REGARDLESS of whether ∆ is within or outside NY this method CANNOT be used on infantsORinsane (i.e. MUST use traditional method) ∆’s return of form is NOT a concession that court has pjx (∆ can still raise jx issues in the answer)
What are the traditional AND non-traditional methods of serving process on a person ∆?
1) Traditional… personal delivery to ∆ leave and mail “nail and mail” (affixing and mailing) expedient service (court improvised) service on ∆’s designated agent 2) Non-traditional… 1st class mail PLUS acknowledgment
What is a motion?
Motion = an application for an ORDER of the ct (a request for some type of preliminary or incidental relief in a pending action) Ex: motion to dismiss; change of venue; amend pleadings; etc