personal jx Flashcards
to render valid judgment (ie one entitled to full faith and credit in other states):
need SMJ + PJ + proper service
commencement
a) Action Commenced: When P (1) “files process” with County Clerk (not “Supreme Court Clerk”) within SOL AND (2) pays for index number, PROVIDED process served on D within 120 days from filing
1) Filing of Proof of Service does NOT need to be filed within 120 days!
b) Extension of Time to Serve: court’s discretion to extend 120 day period if ex parte motion showing either (1) good cause (P exercises due diligence) or (2) interest of justice (equity)
c) Challenge to Timing of Service: D’s burden to make a motion.
d) Retroactive Extension: court can grant in court’s discretion.
e) TIP: if “duly commenced” → ignore this
Note: if P makes mistake in filing procedure, court has discretion, upon P’s motion, to permit correction of mistake provided D suffers no prejudice, filing occurs within SOL and filing fee is paid
form of process (two alternative forms)
a) Summons and Complaint: summons tells D that P is suing in particular court; complaint is a pleading (alleges transactional subject matter/lists elements of action) [long]
1) Exception: in personal injury (survival claim) or wrongful death → CANNOT list specific damage amount in summons or complaint! Keep it private. D finds out in pretrial discovery.
b) Summons with Notice: if not accompanied by complaint, needs sufficient notice (on summons or 1-page attachment) shows 3 things:
1) states nature of action—e.g., “breach of contract”
2) type of relief sought—e.g., injunction, declaratory judgment, damages
3) amount of damages—if applicable.
(a) Exception: in personal injury (survival claim) or wrongful death → CANNOT list specific damage amount in summons or complaint! Keep it private. D finds out in pretrial discovery.
c) Naked Summons: If no compliant or notice → defect in personal jdx → on D’s timely motion, action can be dismissed solely for defect in personal jdx → no 6-month grace period!
basics on methods of serving process
1) Server: Any person, at least 18 y/o and not a party (e.g., P’s lawyer or spouse, but NOT P)
2) When: on any day (including holidays) of week except (1) Sunday (all Ds) or (2) if P knows D is Saturday-Sabbath observer (innocent mistake is OK).
3) Defective Service: grounds for dismissal, even if no harm (NO effective notice/harmless error).
(a) Strict Service Required: NY is very strict; service must comply perfectly w/rules or else defective. An out-of-state D may be served in any way in which service may be made in the state
(i) Regular mail is fine; don’t need certified mail.
(b) Multiple Defendants: must be independently to each individual D, even if reside/work together!
(c) D’s Response Time: runs once service is complete
service on natural persons (5 methods)
1) Type 1 – Actual Personal Delivery to D [try first]: complete when server tenders summons directly to D—if D Refuses: leave in D’s immediate vicinity.
(a) Completion: date of delivery; mailing and affidavit NOT required
(b) Proof of Service Not Required
(c) Must be Direct from Server to D—no redelivery; would be basis for dismissal if D timely asserts defense
2) Matrimonial Actions: must be personal service unless court agrees otherwise.
3) Type 2 – Leave and Mail [try first]: Server may (1) DELIVER process to person of suitable age and discretion at D’s actual dwelling or actual place of business PLUS (2) regular mail copy to D’s actual place of business OR last known residence. Must serve each D with own set of process.
(i) Proof of Service IS Required—server must file affidavit with details of service (date, time, place, whom, diligence—why affix)—does not have to be within 120 days service window. Service is complete 10 days after proof of service is filed.
(1) But, Failure to File Proof of Service: NOT grounds for dismissal (no jdx defect).
(2) Merely Postpones D’s Time to Respond—if never complete, time never runs!
(b) Order Irrelevant—just must be performed within 20 days of each other and 120 from filing process.
(c) Different Mailing/Deliver Locations—okay.
(d) No Adult Required—no specific age required; teenager can qualify (not under 12 y/o).
(e) Access to Apartment Blocked: If guard or doorman blocks access → lobby is outer boundary
(f) KEY POINT - If and only if actual delivery or leave/mail fail, TIP: P shows due diligence via more than one attempt (several) attempts at different times of day and on different days of the week → Type 3—Affix and Mail can be used…
4) Type 3 – Affix and Mail [try second]: Server may (1) AFFIX (tape or rubber-band to knob) to door of D’s actual dwelling or actual place of business PLUS (2) regular mail copy to D’s actual place of business or last known residence
(a) Same rules as Type 2 (Leave/Mail)—EXCEPT must first exercise due diligence by (1) making attempt to serve D directly OR (2) leaving process with person of suitable age/discretion at home or place of business.
(i) Due Diligence: requires several attempts, on different days of the week and at different times.
5) Type 4 – Expedient Service [try third]: If personal delivery, leave/mail, and affix/mail not practicable within the 120 days window, P must make ex parte motion for court order to use improvised, expedient method—i.e. some reasonable alternative appropriate in the circumstances—NEED COURT ORDER, otherwise service is defective!
(a) Example: service on D’s insurer, family, business associate, via email
6) Type 5 – Agent Specifically Designated by D to Receive Process
(a) Example: must be explicitly designated to receive process, usually in contract. Not just general agent
service on infants and mentally incapacitated
1) Infant Defendant: Infant D’s name goes on summons but process must be served (via any traditional method) on any of the following adults: (1) parent, (2) guardian, (3) legal custodian, or (4) infant’s adult spouse with whom he resides.
(a) If Infant 14+ y/o: must serve process on eligible adult AND infant D himself!
2) Mentally Incapacitated Defendant
(a) If Court Appointed Guardian: must serve process on guardian AND mentally incapacitated D (via any traditional method)
(b) If No Court Guardian: must serve process on mentally incapacitated D only (via any traditional method)—court will appoint guardian later (guardian ad litem).
service outside NY
if D is located outside NY + valid personal jx (long-arm):
→ (1) use NY methods, but (2) special rules as to who may serve process:
1) Valid Process Servicers (using NY methods only) are (three rules):
(a) any NY resident 18+ y/o
(b) anyone authorized/licensed by the other state’s local law to serve process; OR
(c) any attorney licensed by other state’s local law in jurisdiction where service made.
service on corporations (two traditional methods, one non-traditional method)
1) Type 1 – Personal delivery (in-hand only) to these corporate representatives, anywhere in US:
(a) any officer;
(b) any director;
(c) any designated agent; or
(d) any managing agent—a corporate employee with supervisory responsibility.
2) Type 2 – Service on NY Secretary of State
(a) If D is Licensed (domestic NY OR NY licensed foreign corp): personally deliver 2 copies to secretary of state → complete upon delivery to secretary (even if D never receives it)
(i) Secretary of state is agent by law, and will mail 1 copy by certified mail to address on file
(b) If D is Unlicensed Foreign (Non-NY) Corp: (i) personally deliver 1 copy to secretary PLUS (ii) PLAINTIFF mails 1 copy to corp by CERTIFIED MAIL + return receipt requested
(i) Burden on P to mail to corporation, because nothing on file with secretary of state
Non-Traditional Method: Service by First-Class Mail PLUS Acknowledgement: First Class Mail to D PLUS 2 copies of statutory acknowledgement form and pre-stamped/addressed return envelope.
1) Completion: Only when D signs and returns one acknowledgement form within 30 days after D receive
(a) If D Refuses: D pays costs of re-service via traditional methods (120 day period)—minor penalty!
2) Acknowledgement Form Not Waiver of Jurisdictional Objection: D can make in motion or answer.
3) Available to Persons and Corporations: whether in or out-side of NY, but need basis…
4) Unavailable For Infants or Incapacitated Persons w/ Guardians: traditional methods only!
bases for personal jx
enables NY money damages enforceable in full (attachment)
1) General Jurisdiction: any claim, irrespective of where the claim arose.
(a) Physical Presence in NY—at the time of service
(b) Doing Business in NY—at time action commenced, can be served anywhere.
(c) Domicile in NY—at time action commenced, can be served anywhere in US.
2) Specific Jurisdiction: claim must be specific to NY activity, or a consent clause in contract
(a) Long-Arm Jurisdiction—can serve process anywhere, if P’s claim arises from 5 Categories of acts with a connection to NY
(b) Non-Resident Motorist Statute—unique service of process rule, and extends liability to owner.
(c) Consent—forum selection clause
3) Matrimonial Jurisdiction—may not need personal jdx for res
4) TIP: JDX ESSAY:
(a) Can P establish jdx under non-long-arm categories?
(b) If no, does long-arm apply? One or more categories?
(c) Briefly discuss whether the particular assertion of jdx would satisfy constitutional due process (i.e., claim must arise out of conduct by D so purposefully directed toward NY that D should reasonably anticipate being sued on that claim in a NY court)
general in personam jx
any claim, even if no relationship between claim and NY
a) D Physically in Present NY: if D physically present in NY at time he is served with process → valid basis for general jurisdiction—on any/all claims, regardless of where it arose (“gotcha”)
1) Individuals Only—not applicable corporations except in certain circumstances.
b) “Doing Business” in NY
1) Incorporated or Licensed in NY Corp: any/all claims, regardless of where claim arose (domestic NY corps and authorized foreign corps) → service can be anywhere
2) Unlicensed Foreign Corp: can be served anywhere only if “Doing Business” in NY –>service can be made by personal delivery anywhere in US or by service on NY secretary of state
(a) Doing Business Test: at time action commenced, corporation’s employees or agents are in NY engaging in commercial/business activity for corporation on “continuous, regular, and systematic basis” (i.e., office/physical facility in NY continuously staffed with one or more employees).
(i) Mere sale of products or advertising in NY do NOT constitute doing business in NY.
(ii) Once doing business in NY → can probably get jdx over individuals and partnership too.
(iii) Transient Presence of Corp Officer—not enough for jdx over corp (but is over person)
(iv) Partnerships/Individuals—probably included
3) TIP: Usually implicated/only necessary when claim occurred outside state; otherwise long arm jdx likely applies (so P doesn’t need to show continuous/systematic contact with NY).
c) Domicile: If D domiciled (residency and intent to remain indefinitely; principal home) in NY at time action is commenced (filed) → general jurisdiction (can be sued on any claim, regardless of where arose);
1) Service can be made anywhere in US for any action.
2) Domicile v. Residence: Can have multiple residence, but only one domicile.
specific in personam jx–long arm
must show relationship between claim and NY
a) Long Arm Jurisdiction (CPLR 302): confers personal jdx on basis of certain acts by D (and D’s agents/employees) that have sufficient connection with NY, provided P’s claim arises from those acts (connected to NY forum) → can serve process anywhere in US. Facts must arise out of 5 Categories (narrow):
1) A TRANSACTION of business by D (or agent) INSIDE NY (including signing, executing, or negotiating a contract in NY), even if one-time transaction–cause of action must be regarding that transaction.
(a) Phone, Electronic, and Mail Transmissions from Out of State: if substantial in number and relating to performance of significant contract, can rise to level of transaction of business in NY.
(i) Example: during 2-year legal representation, Cali client sends hundreds of documents and discusses case in dozens of phone calls, faxes, email, etc., → D projected himself into NY.
(b) Example: Pete comes to NY for substantial negotiation of contract, then goes back to Ohio to further consider and then execute; Pete’s job based in Ohio → can serve process anywhere. No need that contract is actually executed in NY–but can only be sued on that K, not anything because not doing business in NY.
2) A CONTRACT made OUTSIDE NY where D agreed to supply goods or services into NY if contract is continuous and economically significant (jdx even if D never physically comes to NY)!
(a) One-Shot Boilerplate Order Insufficient—look for continuous, and significant back-and-forth activity
(b) Promise to Pay/Send Money Is Not “Supplying Goods/Services”
3) D’s TORTIOUS ACT—other than defamation—done INSIDE NY
(a) Example: driving negligently on NY roads, making fraudulent statements during sales negotiation in NY, converting goods while in NY, assaulting P while in NY.
4) D’s (1) TORTIOUS ACT—other than defamation—done OUTSIDE NY causing injury in NY (look for situs of physically injury or financial effect-must be NY), PLUS (2) added link between D and NY:
(a) If D regularly solicits business or engages persistent conduct in NY; or
(b) If D derives substantial revenue from goods/services used in NY; or
(c) If D expects or should reasonably expect tortious act has consequences in NY AND D derives substantial revenue from interstate commerce which “purposefully includes NY” (seeking to engage in NY market) (due process issue)
(i) Advertising—must be purposely trying to service the NY market
(1) TIP: obviously don’t need to rise to “doing business” level!
Examples of #4
(ii) Medical Services—physician’s medical services always “inherently local”—even if famous specialist attracting many out-of-state patients.
(d) Not Defamation—must argue defamation claim arises out of D’s transaction of business in NY → use one of the other categories.
(e) Injury in NY: must originate in NY;
(i) For Commercial Tort: NY is situs if P suffers direct financial injury—must lose NY sales or NY customers—indirect losses from other states felt on balance sheet of NY corp insufficient.
5) D’s Ownership, Use, or Possession of REAL PROPERTY LOCATED INSIDE NY
(a) Includes: contracts, specific performance, personal injury related to the property.
General points about long-arm
- covers all types of Ds
- acts giving rise to jx can be performed by D herself or her agent or employee
- even if D dies, decedent’s estate representative can be served outside NY
- serving process: P must use same methods of services on D outside NY as would be used inside NY
- can’t use long-arm for defamation suits
Due process test for long-arm:
Due process will be satisfied if claim arises out of conduct of D that is so purposefully directed towards NY that D should reasonably anticipate being sued on that claim in NY
other bases for specific in personam jx
A)Non-Resident (Non-Domiciliary) Motorist Statute: confers personal jdx over accident claim arising from non-domiciliary’s ownership or use of auto on NY roadway; two unique features:
1) (Unique) Service of Process: P can personally serve one copy on NY Secretary of State AND certified mail copy to D’s out-of-state residence.
2) Owner Liability: also jdx over owner if driven with owner’s permission –>so applies to nondomiciliary vehicle owner who gave permission to drive in NY (agency or business relationship not required)
(a) Note: use when driver is not agent of owner and owner can’t be vicarious liable for tort via agent in NY under long-arm
B) Consent: Parties to contract consent (“forum selection clause”) in advance; enforce absent fraud, overreaching or unreasonableness.
matrimonial jx
1) Subject Matter Jdx: Only Supreme Court has SMJ for matrimonial matters. Basis of personal jx not necessary for matrimonial action–in rem is sufficent. SM over marital status–NOT if for monetary support.
- to obtain a divorce, separation, or annulment, all that is necessary is that P spouse is a domiciliary of NY
(a) Claim for Marital Status: if P be domiciliary of NY → court has In Rem Jdx over marriage → no personal jdx needed
(i) Must Meet Durational Residency Requirements
(ii) Marital Status: separation, divorce, annulment; service of process anywhere.
2) Personal Jdx: based on whether claim is for marital status or monetary support. If seeking monetary support, need personal jx.
How to get long-arm
(a) Monetary Support: Matrimonial Long Arm Statute: If P-spouse is NY resident, long-arm jurisdiction can be acquired over D spouse for monetary support if:
(i) NY was matrimonial domicile of P and D at or about time of separation, or
(ii) D abandoned P in NY, or
(iii) D’s monetary obligation accrued under agreement executed in NY (separation agreement), or
(iv) D’s monetary obligation accrued “under the laws of NY”—catch all category; no case law.
(c) Service in matrimonial action: Must be Personal Delivery only (statutory preference).
(i) Otherwise, must get court order to use leave & mail or affix & mail.
3) Durational Residency Requirement—govern merits/substance (not a jdx issue) in marital status action. requirements don’t apply in action solely to enforce monetary support obligations**; apply only in actions seeking to affect marital status
(a) In Practice: proper defense is “failure to state a cause of action”—not a jdx defect
(b) No Period Required—if both parties NY residents when action commenced (filed) AND grounds for divorce arose in NY
(c) 1 Year Required—if either party has been NY resident for 1 year (continuous) immediately prior to action AND has one of three possible prior NY link:
(i) marriage took place in NY, or
(ii) NY was matrimonial domicile at some point; or
(iii) grounds for divorce arose in NY
(d) 2 Years Required—either party NY resident for 2 years (continuously) immediately prior (no other link).
Note: see this requirement in essays on domestic relations
in rem jx
even if personal jx cannot be obtained, ct may proceed if it has jx over property or status involved in suit
-adjudicates rights in specific real or personal property
service in rem:
personal preferred; also service by publication (court order); service by publication in matrimonial actions
quasi in rem jx
cannot be based solely on attachment of a D’s NY property, since due process requires that there be connect among D, state, and litigation. can be used to “fill the gap” in cases where due process allows but courts don’t have personal jx
