∆'s Answer:Pre-answer MTD 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)
