∆'s Answer:Pre-answer MTD Flashcards
How can ∆ respond to a summons and complaint?
1) Serve and Answer
Answer = ∆’s pleading in which she:
(i) admits/denies π’s allegations AND
(ii) 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) 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):
(i) nonjoinder of a necessary party
(ii) failure to state a c/a
(iii) lack of smjx
3) COUNTERCLAIMS against π
π would then serve a reply, which consists of denials and ADs
4) CROSS-CLAIMS against any other ∆ (multi-∆ case)
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):
Who: ALL OTHER parties to the action
How: (i) Regular mail OR (ii) by personal delivery
Interlocutory papers (other litigations papers after initial service of process - e.g., answer, pleadings, motions, discovery notices, etc)
How: (i) MAILING not RECEIPT (mailbox rule) AND (ii) may be made thru post office WITHIN NY
When does the ∆’s answerneed to be served?
Depends on π’s service of process
1) Personal service (in NY): Within 20 DAYS
2) Mail (1st class) & acknowledgment: Within 20 DAYS of mailing acknowledgement
NOTE: ∆’s return of acknowledgment is just notice of receipt of process; it IS NOT a pleading/answer
3) ANY other method - 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 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 substantive 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”
(i) SOL
(ii) Payment (for a debt being owed)
(iii) Arbitration award
(iv) Release (from liability)
(v) Estoppel (collateral)
(vi) Res judicata
(vii) Infancy of the ∆ (DEFENDANT)
(viii) Bankruptcy discharge
(ix) Statute of frauds
7) Lack of Smjx
8) Lack of Pjx…come in 3 flavors
(i) commencement defects
(ii) improper service of process
(iii) lack of basis jx
What is the procedure to filing a pre-answer MTD?
1) Made BEFORE service of the answer (on OR before the last day of the prescribed deadline for service of the answer)
2) Making motion AUTOMATICALLY extends the ∆’s time to answer
> > IF motion is DENIED, ∆ must then serve the answer w/in 10 DAYS
3) Option to bring up AD in pre-answer MTD OR 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) (i) nonjoinder of a NECESSARY party (ii) failure to STATE A C/A
(iii) lack of SMJX
How can the ∆preserve pjx defense (avoid waiver)?
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:
(i) Demand for the Complaint; OR
(ii) Notice of Appearance
2) Time ltds- Same as w/ answer
- 20 DAYS = Personal delivery
- 20 DAYS = Mail & acknowledgment
- 30 DAYS (from completion) = 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 within 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) Once as a matter of right
2) Time limit = W/in 20 DAYS of service of answer
3) Either party can put ANYTHING that could have been put in the original pleading
NOTE: ∆ 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
Std for ct: allowed as long as no incurable prejudice to opponent
To est. prejudice = burden of showing thatb/c of the delay in amending, requesting party has suffered a detrimental change in position(e.g. key witness died, key docs destroyed)
