NY Practice - Responsive Pleadings Flashcards
Defendant’s responsive pleading
D can respond to a “summons and complaint” (and thereby avoid DEFAULT) by either:
(1) serving an ANSWER or
(2) making a Pre-Answer MOTION TO DISMISS
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ANSWER consists of:
(1) Denials of the allegations D wishes to contest (failure to deny an allegation is an implied admission), and
(2) any relevant AFFIRMATIVE DEFENSES (e.g. S/L, lack of jurisdiction, P’s comparative negligence etc.)
NOTES ON AFFIRMATIVE DEFENSES:
(i) in general, affirmative defenses not raised in the ANSWER are WAIVED (subject to D’s possible amendment to the pleadings
(ii) 3 AFFIRMATIVE DEFENSES are NEVER WAIVED
- —–(a) nonjoinder of a necessary party
- —–(b) failure to state a COA
- —–(c) lack of SUBJECT MATTER jurisdiction
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If D wishes to assert her own cause of action against P, she may do so in the answer by means of a COUNTERCLAIM
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REPLY is P’s response to a counterclaim and consists of P’s denials and affirmative defenses to D’s claims against P
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in a multi-D case, D may assert CROSS-CLAIM against any other D, and claim can be based on anything (doesnt have to be related to original claim by P)
e.g. if P sues A and B for personal injury damages, A and B can cross-claim against each other for claims based on breach of contract
**Parties must serve copies of their pleadings on ALL other parties who have appeared in the action
3 affirmative defenses that can never be waived and can be raised at any point in the litigation
(1) nonjoinder of a necessary party
(2) failure to state a cause of action, and
(3) lack of subject matter jurisdiction
In multi-Defendant litigation, who must parties serve copies of their pleadings to?
EVERYONE - parties must serve copies of their pleadings on all other parties who have appeared in the action
Interlocutory papers
after P’s initial service of process, all other litigation papers are called INTERLOCUTORY PAPERS.
These include the ANSWER, and all other pleadings, motions, discovery notices etc. If interlocutory papers are served on one party, they must be served on ALL other parties in the action
How the ANSWER and other INTERLOCUTORY PAPERS are served
Regular First-Class Mail, and served on the ATTORNEY for the other party, and service is deemed made UPON THE MAILING, not receipt.
(can also serve by personal delivery)
Service by mail must be made through a post office or official depository under the exclusive care and custody of the United States Postal Service within NY.
Time Limits for Serving the Answer
NOTE: if bar examiners say D “timely responded” do not discuss this issue
time limits given 3 different scenarios:
If D was served with process by
(1) PERSONAL DELIVERY WITHIN NY STATE - D must serve answer within 20 days of delivery
(2) by FIRST CLASS MAIL PLUS ACKNOWLEDGMENT, D’s return of acknowledgment is merely a notification of D’s receipt of process. It is not a pleading. Therefore, D must serve answer within 20 days of D’s mailing of the acknowledgment (bc that is when process is considered complete)
(3) If D was served with process UNDER ANY OTHER CIRCUMSTANCES - D must serve answer within 30 days after service is COMPLETE
Affirmative Defenses that D may assert in Pre-Answer Motion to Dismiss (CPLR 3211)
Motion to Dismiss (CPLR 3211) - Affirmative defenses usually given in ANSWER, but CPLR 3211 singles out 8 defenses (or groups of defenses) that can be asserted in a pre-answer motion to dismiss
DOWNFALL
D - Documentary Evidence - as the basis of a defense (e.g. mortgage, deed or contract - aka very terms of the contract provide defense)
O - Other Actions Pending - between the same parties on the same action (ie this one would be redundant)
W - Want of Capacity (P lacks capacity to sue - e.g. P is an infant suing without a proper representative, or P is beneficiary suing on behalf of a trust)
N - Nonjoinder of a Necessary Party (e.g. co-makers of a promissory note, joint property owners)
F - Failure to State a COA - even if all the allegations are deemed to be true, the substantive law does not recognize a COA
A - Additional Affirmative Defenses (separate mnemonic for these)
L - Lack of Personal Jurisdiction
(i) improper commencement,
(ii) improper service of process,
(iii) lack of basis jurisdiction
L - Lack of Subject Matter Jurisdiction
Failure to State a Cause of Action (COA)
This motion is directed to the substantive insufficiency of the complaint on its face, i.e. even if all the allegations are deemed to be true, the substantive law does not recognize a cause of action.
The standards used by the courts in deciding the motion:
(1) in responding to the motion, plaintiff is entitled to EVERY favorable inference that can be drawn from the allegations of the complaint
(2) the motion should be denied if there is ANY basis for relief under the substantive law
BAR TIP: remember to discuss the elements of the underlying cause of action (easy way to have an essay tie in 2 things…have a failure to state COA and discuss why under the elements of another crime or tort)
3 deficiencies to claim for “Lack of Personal Jurisdiction”
(1) Improper Commencement
(2) Improper Service of Process
(3) Lack of Basis Jurisdiction
Additional Affirmative Defenses
SPARE RIBS
S - Statute of Limitations
P - Payment (e.g. sued on a debt, and defense is that you already paid it)
A - Arbitration Award (if already arbitrated on this claim and award granted)
R - Release (P gave D a “release”)
E - Estoppel (as in “collateral estoppel”)
R - Res Judicata
I - infancy of D (child actor)
B - Bankruptcy Discharge
S - Statute of Frauds
PROCEDURAL ASPECTS of a PRE-ANSWER MOTION TO DISMISS
When is a pre-answer motion to dismiss made?
(i) Motion is made BEFORE service of the answer (on or before the last day prescribed time limit for service of the answer)
(ii) Making the motion extends the D’s time to answer – D must serve answer within 10 days (note: if motion is granted then suit is over, bc case is dismissed)
(iii) if D has one or more of the defenses listed in CPLR 3211, D DOES NOT HAVE TO RAISE them in the MOTION TO DISMISS - can save them all for the answer if he wants
- – he COULD assert all of them if he wanted, subject to good faith
Rules on Waiver
Assume D makes a pre-answer motion on only one of the 3211 grounds and loses the motion. To what extent may D thereafter raise other 3211 objections in the ANSWER?
A motion to dismiss on any grounds listed in 3211 does NOT preclude raising of any of the other 3211 defenses in the answer,
EXCEPT: LACK OF PERSONAL JURISDICTION (have to bring this up immediately or waive it forever)
However, affirmative defenses not raised in the ANSWER are waived, with exception of the 3 defenses that are NEVER WAIVED and can be raised at any pt in litigation (NFL)
(1) NONJOINDER of a necessary party
(2) FAILURE to state a COA
(3) Lack of Subject Matter Jurisdiction
e. g. assume D makes pre-answer motion to dismiss on grounds of release, and motion is denied. When D serves answer could he properly assert as an affirmative defense
(i) statute of frauds? – YES
(ii) Nonjoinder of necessary party? – YES (never waived)
(iii) improper service of process? – NO, this is defect in PERSONAL JURISDICTION, so waived bc failed to include in pre-trial motion to dismiss
How to Preserve Personal Jurisdiction Defenses
(1) BEFORE serving an ANSWER, D should make a 3211 motion to dismiss that includes LACK OF PERSONAL JURISDICTION
OR
(2) Make no 3211 motion on ANY grounds and instead include “lack of personal jurisdiction” as an AFFIRMATIVE DEFENSE in the ANSWER
- **WARNING: Although pleading IMPROPER SERVICE as a defense in the ANSWER is a proper way to assert that particular jurisdictional defect, the objection of improper service will nevertheless be WAIVED if the D does not make a FOLLOW-UP motion for SUMMARY JUDGMENT on that ground no later than 60 DAYS after serving the ANSWER
(note: this is bc attys toss this objection in just about every time for shits)
Note that the 60-day follow up rule does NOT APPLY to the defense that the court lacks a BASIS of personal jurisdiction (only improper service)
see additional “waiver” hypo on p.48
Responses to “SUMMONS AND NOTICE” (as opposed to “summons and complaint”)
D’s goal is (1) to avoid DEFAULT and (2) force P to serve the complaint
How to accomplish:
(1) serve a DEMAND for the complaint
(2) notice of appearance
[either will serve same purpose, both will avoid default and force P to serve complaint - distinction between them doesn’t matter for our purposes]
D’s TIME LIMIT for serving either a DEMAND FOR THE COMPLAINT or a NOTICE OF APPEARANCE is the same as responsive time for responding to a SUMMONS AND COMPLAINT
(1) If D was served by PERSONAL DELIVERY - 20 days to respond
(2) if D was served by FIRST CLASS MAIL PLUS ACKNOWLEDGMENT, 20 days from the mailing of acknowledgment
(3) any other service on D - D gets 30 days after service is COMPLETE
D’s Service of DEMAND for the complaint and/or notice of appearance both have effect of requiring P to serve the complaint within 20 days of D’s service.
THEN, if P timely serves the complaint, D has 20 days from such service to either:
(1) serve the ANSWER, or
(2) serve a pre-answer MOTION TO DISMISS
If P FAILS TO MEET the 20-day time limit to serve the complaint, D may move to dismiss the action based on P’s noncompliance. When defending against such motion, to avoid dismissal, P must
(1) Show a REASONABLE EXCUSE for the delay, AND
(2) Make an EVIDENTIARY SHOWING of MERIT to P’s COA (typically referred to as “serving an affidavit of merit)
[Affidavit of Merit = a written statement under oath by P and other witnesses who have PERSONAL KNOWLEDGE of the facts]
Note: after P serves the complaint, may D still object to court’s PERSONAL jurisdiction? – YES
NO WAIVER OF JURISDICTIONAL OBJECTIONS OCCURS BY SERVICE OF A DEMAND FOR COMPLAINT OR A NOTICE OF APPEARANCE – D can still raise lack of personal jurisdiction as a defense in the ANSWER or include in a pre-answer motion to dismiss
Amendments to Pleadings
Each party is entitled to amend her pleadings ONCE as a MATTER OF RIGHT (ie 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 pleading.
TIME FRAME: The one amendment as of right can be made by either party during the following time frame – WITHIN 20 DAYS after D serves the ANSWER
May D raise an omitted personal jurisdiction objection by means of an amendment of right to the answer?
YES, IF:
(1) the D made no pre-answer motion to dismiss and
(2) if D adds the jurisdictional objection in the amendment to 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:
Amendment will be allowed if the opponent will suffer no INCURABLE PREJUDICE
In OPPOSING a motion to amend and demonstrating prejudice, a party must show a DETRIMENTAL CHANGE OF POSITION as a result of the delay
– e.g. loss of documentary evidence, or death or disappearance of a key witness
