Personal Jurisdiction

Question 1

3 Requirements for Personal Jurisdiction

Answer 1

1) Proper Commencement of the Action
2) Proper Service of Process on the Defendant
3) Proper Basis of jurisdiction over the person or property

Question 2

Commencement of an Action

(2 steps)

Note on timing

Answer 2

1) File process with the clerk of the court

(Process = summons and notice, or summmons and complaint)

2) Serve process on the Defendant within 120 days of filing with the county clerk.

Note: Court has discretion to extend this period if P has trouble serving on D. P must make a motion showing either (1) good cause or (2) the interests of justice justify an extension.

If P is untimely in serving D, D may make motion to dismiss for untimely service of process. If not made, the defense is waived.

Question 3

Form of Process

(2 types of Process, describe each)

Answer 3

Summons: Advises D that P is suing in a particular court, short.

1) Summons and Complaint: Complaint is P’s pleading. Specifies essential elements of P’s COA and specifies transaction or occurence that is subject of the action.
2) Summons with Notice: An alternative. The Notice is shorter than complaint and must include: (1) brief statement of nature of action (“breach of contract action”)
(2) Type of relief being sought (injunction, $ dmgs, dec. judgment)
(3) Specify amount of damages if damages are sought. Exception: NO dmgs specified in personal injury or wrongful death action.

Question 4

When and by whom may process be served?

Answer 4

1) Who: Anyone at least 18 years old who is not a party to the action. [lawyer can serve it]
2) When: Anytime except
a) Sunday
b) Saturday Sabbath D cannot be served Saturday if P knows it.
c) Note: Service MAY be made on a Holiday.

Note: Service must be done correctly - can’t claim D had “notice” even though you did it wrong.

Question 5

Leave and Mail Method

(3 steps)

(Timing)

Answer 5

1) Process server may deliver process to a person of suitable age and discretion at D’s actual dwelling place or actual place of business; PLUS
2) Mail a copy by regular mail to D at D’s actual place of business or last known residence.
3) File proof of service [affadavit from server]

These two steps must be within 20 days of each other, and obviously must both take place within 120 days of filing of process [the general rule].

Note: The 2 steps may occur in any order, and person they leave it with does not have to be over 18.

Question 6

Must the “mailing” step of leave and mail service of process method occur after leaving the process with someone of suitable age and discretion?

Answer 6

No, the steps may occur in any order.

Question 7

How long after filing process with Clerk does P have to serve D with process?

Answer 7

120 days.

Note: Court has discretion to extend this period if P has trouble serving on D. P must make a motion showing either (1) good cause or (2) the interests of justice justify an extension.

If P is untimely in serving D, D may make motion to dismiss for untimely service of process. If not made, the defense is waived.

Question 8

How many copies of process do joint tortfeasors need?

Answer 8

One copy for each tortfeasor. [2 copies each if leave and mail, etc].

Don’t fall for trick if they live together.

Question 9

Affixing and Mailing Method of Serving Process (“Nail and Mail”)

Answer 9

1) Server may affix process to the door of D’s actual dwelling place or actual place of business; PLUS
2) Mail a copy by regular mail to D at D’s actual place of business or last known residence.
3) File proof of service [affadavit from server]

Note: Like leave and mail, these steps must be done within 20 days of each other (any order) and no more than 120 days from filing with clerk.

_*BUT:_ Server must FIRST exercise due dilligence by trying both (1) direct service and (2) leave and mail.

^This is fact specific inquiry, look for multiple attempts on different days of week/times of day.

Question 10

What does “affix” in affix and mail method of serving process mean?

Answer 10

Taping or rubber banding

Question 11

When must P file proof of service?

What effect does proof of service have?

Answer 11

1) Proof of service must be filed after the leave and mail or affix and mail methods of serving process are complete [not for direct service].

Proof of service means the server of process makes an affadavit specifying the details of the service (time, place, manner, person served, due dilligence).

2) The D’s period to respond to the process begins to run 10 days after the proof of service is filed [runs immediately for direct service].

(Failing to file P.O.S. is not a jurisdictional defect, just extends the time D can respond infinitely]

Question 12

Expedient Service of Process (Court invented service of process)

Answer 12

If the 3 traditional methods of serving are not practicable, P make make an ex parte motion to court for an order allowing an improvised method of serving process.

Examples: by email, to family member, to insurance carrier

Note, the court must give the order first, can’t improvise and then ask for retroactive approval.

Question 13

Service of Process on Infants

Answer 13

Infants: The infant D’s name goes on the summons but process must be (1) served on any one of the following adults:

a) Parent, b) Guardian, c) Any person having legal custody, d) If infant is married, upon adult spouse with whom infant resides; AND
(2) If infant is over 14, process must be served on the eligible adult AND the infant (so need 2 copies)

Question 14

Service of Process on the Mentally Incapacitated

Answer 14

If mentally incapacitated person has been appointed a guardian by the court, process must be served on the mentally incapacitated person AND the guardian.

If no court appointed guardian, mentally incapacitated D is served in same manner as any other D, and court will appoint a guardian for the purpose of the litigation.

Question 15

Methods of Serving Process on an individual

(6)

Answer 15

1) Direct Service
2) Leave and mail
3) Affix and Mail
4) Expedient Service (Court invented)
5) Specifically designated Agent to receive process
6) Service by First Class Mail PLUS Acknowledgment

Question 16

Service Outside of NY

1) Who may serve?
2) What methods of Service are allowed?

Answer 16

Assuming there is a basis for out of state service:

1) Who may serve process outside of NY?

a) Any NY resident at least 18 years old
b) Anyone authorized to serve process in the jurisdiction where service is being made
c) Any atty licensed in the jurisdiction where service is being made

2) What methods of service?

NY methods of service are controlling.

Question 17

Service on Corporations

(2 traditional methods)

Answer 17

1) Personal Delivery to any one of the following corporate representatives anywhere in the United States:
a) Any officer, b) any board member, c) a designated agent, d) a managing agent (a corp. employee with supervising responsibility)
(note: there is NO leave and mail option)
2) Service on NY Secretary of State: For a domestic corp (incorp. in NY) or a licensed corp (foreign corp authorized to do business in NY), personally deliver 2 copies of process to NY S.O.S. - will mail to address on file. Serivice complete upon delivery to SOS.

Unlicensed Foreign Corp: Personally deliver (1) one copy of process to NYSOS, and (2) P must mails one copy to corporate headquarters by certified mail, return receipt requested.

Question 18

Service of Process by First Class mail Plus Acknowledgment (Non-Traditional)

Answer 18

1) Mail process to D by first class mail,
2) Enclosing 2 copies of a statutory acknowledgment form, PLUS
3) Self-addressed stamped envelope.

Service is effective only if D signs and returns the acknowledgment form to P within 30 days after D receives the mailed process.

Service complete when D mails back the form. If D doesn’t comply and doesn’t mail back form, D must pay for P’s 2nd attempt of service later.

CAN use for any type of D, EXCEPT infant and mentally incapacitated.

Question 19

How long does a D have to send back acknowledgment in service of process by first class mail plus acknowledgment?

Answer 19

30 days.

Question 20

Who may be served by service of first class mail plus acknowledgment?

Answer 20

1) Any D [person or corp], except infant or mentally incapacitated.

Question 21

Personal Delivery to an Individual

Answer 21

Service is complete upon server’s tender directly to D.

If D refuses the process, server can leave it in D’s immediate vicinity.

Question 22

Bases of Jurisdiction over Defendant’s Person

(6)

Answer 22

General Jurisdiction:

a) Presence in NY
b) Doing Business in NY
c) Domicile in NY

Specific Jurisdiction:

d) Long-Arm Jurisdiction
e) Non-Resident Motorist Statute
f) Consent

Question 23

Basis of Personal Jurisdiction:

Presence in NY

(Individual and Corp)

Answer 23

1) Process server can serve the D in the state of NY and that is a valid basis of personal jurisdiction (GENERAL).
2) A domestic or licensed (authorized to do business in NY) corp is always deemed to be present in NY.

It doesn’t matter whether the D is from NY or the claim has anything to do with NY.

Example: D is NJ resident, and car accident happened in NJ. D comes to NY to visit Grant’s tomb, process server serves him on the steps. This is valid personal jurisdiction.

Question 24

What is the difference between General PJ and Specific PJ?

Answer 24

In General PJ it does not matter where the claim arose.

In specific PJ the claim must be specific to D’s activity in NY or within the terms of the contract.

Question 25

Basis of Personal Jurisdiction:

Doing Business in NY

Answer 25

(General PJ), “probably” applies to individuals/partnerships, def corps (not needed for domestic or licensed corps, they are always present in NY)

Can sue in NY if D is doing business in NY. Doing Business test = P must show at the time the action is commenced, the corporation’s employee’s or agents IN New York engaging in commercial activity for the corp. on a regular, systematic, and ongoing basis.

MOST SIGNIFICANT FACTOR: If corp has an office or some other physical facility in NY (always satisfies DB test)

Three limitations (not enough):

1) Mere sales of corp’s products, 2) Mere advertising/solicitation, 3) Mere transient presence of a corporate officer in NY

(Note: Doing Business will only be needed if COA arose outside of NY, otherwise long-arm jurisdiction could be used)

Question 26

Test for Doing Business in NY (General PJ)

Answer 26

P must show D corp (or maybe individual/partnership) has employees or agents engaged in commercial activity on a regular, systematic, or ongoing basis at the time the action is commenced.

Question 27

Basis of Personal Jurisdiction:

Domicile

Answer 27

(General PJ)

D who is a domiciliary of NY at the time of the action can be served with process anywhre in the US.

Domcile = one residence at which a person intends to remain indefinitely. A person can only have one domicile.

Distinguish domicile from residence.

Question 28

What are the 3 methods of general PJ?

Answer 28

Presence in NY

Doing Business in NY

Domicile in NY

Question 29

What are the 3 methods of Specific PJ?

Answer 29

Long-Arm Jurisdiction

Non-Resident Motorist Statute

Consent

Question 30

What is the theory behind long-arm jurisdiction?

What are the categories of long-arm jurisdiction? (5)

Answer 30

P’s claim must arise from acts specifically related to NY. There are 5 categories of NY related activity.

Five categories of NY related activity:

P’s claim arises from:

1. Transaction of business by D in NY
2. A Contract transacted anywhere by which D agreed to supply goods or services in NY
3. D’s tortious act in NY
4. D’s tortious act outside NY which caused injury in NY
5. D’s ownership, use or posession of Real Property in NY

Question 31

Long-Arm Category:

D’s Transaction of Business in NY

Answer 31

This is a single commercial event in NY, as distinguished from the “doing business” general PJ.

Example: Pete Rose comes from OH to NY for one day to negotiate with Trump for an employment contract for a job Pete will perform in OH. Trump later sues on this K in NY.

Answer: There is PJ under this single transaction, negotiation is enough (as would be signing). Note, Pete can only be sued in NY on something related to this transaction.

Note: One phone call or email is not enough, but a significant number of them can be enough to be a significant “transaction of business in Y” if it is a significant contract.

Question 32

Long-Arm Category:

A Contract Transacted Anywhere by which D agreed to supply goods or services in NY

Answer 32

Self-explanatory. The amount of goods or services must be economically significant (sizable quantity of goods, or professional services).

A promise to pay money alone is NOT enough (not a good or service). I.e., promise to pay a debt in NY is not enough.

Question 33

Example:

Buyer in MA calls Seller in NY. Orders goods. Buyer agrees to send check to NY upon delivery of goods.

Buyer receives goods, never sends check. NY Seller sues MA buyer in NY.

Is there long-arm jurisdiction?

Answer 33

NO!

Contract to supply goods or services in NY analysis: Paying money to NY does not fall under this prong. All buyer did was send a check to NY.

Transaction of Business in NY analysis: A single phone call to NY is not enough to constitute a transaction of business in NY.

Question 34

Long-Arm Category:

P’s Claim arises from D’s Tortious act in NY

(important exception)

Answer 34

Very clear. Long-arm jurisdiction for torts that occur in NY.

NOTE: DEFAMATION claims are excluded from both of the NY Long-Arm tort prongs. You need some other basis of jurisdiction.

Question 35

What types of tort claims are excluded from the NY Long-Arm statute?

Answer 35

Defamation claims under the tort prongs (tort committed in NY, tort committed outside of NY with injury in NY).

Question 36

Long-Arm Category:

P’s Claim Arises from D’s tortious act outside NY, which causes injury inside NY

Answer 36

Need:

1) P’s Claim Arises from D’s tortious act outside NY, which causes injury inside NY; AND
2) Additional link between D and NY:
a) D regularly solicits business or engages in any other persistent course of conduct in NY; or
b) D derives substantial revenue from goods used or consumed, or services rendered, in NY; or
c) D expects or should reasonably expect the act to have consequences in NY and D derives substantial revenue from interstate or international commerce. Such commerce must purposefully include NY.

NOTE: A physician’s services are always deemed to be local in nature, even if they attract people from all over.

Note: Defamation excluded from this long-arm prong as well as torts in NY prong.

Question 37

Long-Arm Category:

P’s Claim arises from D’s ownership, use, or possession of Real Property in NY

Does this apply to a slip and fall in an NY building?

A contract action to sell that RP?

Answer 37

Clear, broad.

Yes to both, Long-arm statute covers anything concerning RP in NY.

Question 38

3 Steps for a Personal Jurisdiction Essay:

Answer 38

1) Discuss whether P can establish jurisdiction under any non-Long-Arm categories
2) Discuss whther facts fit into one or more Long-Arm Categories

**3) Briefly discuss whether the assertion of PJ would satisfy Constitutional Due Process

Due Process Test for Long-Arm Jurisdiction:

“Due processed is satisfied if claim arises out of D’s conduct that is so purposefully directed toward NY that the D should reasonably anticipate being on that claim in a NY court.

Question 39

Due Process Test for Long-Arm Jurisdiction

Answer 39

Due Process Test for Long-Arm Jurisdiction:

“Due processed is satisfied if claim arises out of D’s conduct that is so purposefully directed toward NY that the D should reasonably anticipate being on that claim in a NY court.

Question 40

Non-Resident Motorist Statute

(Basis for Specific PJ)

Answer 40

Confers PJ over an accident claim arising from a nondomiciliary motorist’s ownership or use of an automobile on an NY roadway. (Often overlaps with tort in NY long-arm prong) but has 2 unique features:

1) Service of Process: P serves process on D by (1) personally serving one copy on the NY Secretary of State, PLUS (2) mailing second copy to D by certified mail to D’s out of state residence.
2) Applies to nondomiciliary vehicle OWNER who gave driver permission to drive in NY.

Question 41

Who does NY Long-Arm Statute grant jurisdiction over?

Answer 41

The actor herself or her agent or employee.

Question 42

Consent Basis of Specific PJ

Answer 42

Parties in a contract may consent in advance to PJ in NY in a “forum selection clause.”

Note: This clause is generally enforceable absent fraud, overreaching, or unreasonableness.

Question 43

Matrimonial Jurisdiction

When does court have jurisdiction over marital status?

Answer 43

Proper Court: Only the NY Supreme Court can have jurisdiction over marital status.

Basis of Jurisdiction: IN REM is all that is needed, and it is accomplished if the P spouse is a domiciliary of NY [it is thought that the marriage is an interests that exists in NY].

Question 44

Matrimonial Jurisdiction

If P spouse seeks monetary support, when does court have a basis of personal jurisdiction?

Answer 44

1) If D spouse can be served in NY (obvious); or
2) Marital Long-Arm Statute: When P spouse is a resident of NY, long-arm jurisdiction can be acquired over D spouse for monetary support if:

1. NY was the matrimonial domicile of P and D prior to their separation; or
2. D abandoned P in NY
3. D’s monetary obligation accrued under an agreement executed in NY (separation agreement)
4. D’s monetary obligation accrued under the “laws of NY” - (never happens.)

Question 45

What are Durational Residency Requirements?

How do they affect PJ?

Answer 45

1) Durational residency requirements ensure that NY has a sufficient interest in the marriage.
2) They are not an element of court’s PJ, but instead they are part of the merits of an action to affect matrimonial status [not monetary obligation]. The P’s complaint must allege satisfaction of any 1 of 3 durational residency requirements:
1. If BOTH PARTIES are NY RESIDENTS at the time the action is commenced AND the GROUNDS for the matrimonial action AROSE IN NY.
2. One-Year Residency: If EITHER PARTY has been a NY RESIDENT for a continuous year immediately prior to the action AND NY has any one of these 3 links to marriage:
a) Marriage took place in NY, b) NY was the matrimonial domicile of the spouses at some point, c) Grounds for the divorce action arose in NY.
3. Two-Year Residency: If EITHER PARTY has been a NY RESIDENT for 2 continous years immediately prior to the action.

Question 46

Are durational residency requirements needed for a marital claim for monetary support?

Answer 46

No! Just for actions affecting the marital status.

Question 47

Who can only be served by personal service?

Answer 47

Someone in a matrimonial action,

Unless otherwise authorized by court order.