Venue & D's Response to Action

Question 1

Venue: If it’s an action affecting title to real property, P must file case in ______?

Answer 1

P must file in NY county where R/E is located.

Question 2

Venue for non-R/E case, proper venue for P to file is _____?

Answer 2

Any NY county where any party resides at time action is commenced.

Question 3

Venue: If no party has NY residence, P must file in which NY county?

Answer 3

Anywhere P wants.

Question 4

1. If P files in wrong jurisdiction, what’s D’s remedy? 2. If P consents, then? 3. If P objects to demand or remains silent?

Answer 4

1. D serves demand for change of venue to property county designated by D.
2. Consent = automatic switch
3. If P objects or doesn’t respond, D must make motion and be right.

Question 5

2 discretionary grounds for change of venue?

Answer 5

1. For convenience of material witnesses.

2. Impartial trial can’t be had in county where trial was commenced

Question 6

2 ways D can respond to summons and complaint?

Answer 6

1. File an answer to complaint.

2. Pre-answer motion to dismiss

Question 7

What goes into D’s answer?

Answer 7

1. Denial of allegations (otherwise implied admission)
2. Affirmative defenses (bring them up or waived)
3. Counterclaim (optional)
4. Crossclaims against other D’s (optional - no req that crossclaims be related to P’s complaint)

Question 8

Affirmative defenses are generally waived if not stated in D’s answer. 3 affirmative defenses that are never waived (can be raised at any point)?

Answer 8

1. Non-joinder of a necessary defendant.
2. Failure to state a CoA
3. Lack of subject matter jur

Question 9

How are D’s answer and all other interlocutory papers served? On whom are they served? When is interlocutory paper “served”?

Answer 9

Ordinary mail (put in NY mailbox). Served upon attorneys. Served by mailbox rule: day it went in the box.

Question 10

What’s the time limit for D serving answer or for D serving pre-answer motion to dismiss? (3 timing reqs depending on means of P’s initial delivery)

Answer 10

1. If D was served by personal process in NY, D must serve answer w/in 20 days of initial delivery.
2. If served by mail + acknowledgment, D serves answer w/in 20 days of D’s mailing of acknowledgment. (RARE! IGNORE!)
3. If D served with process in any other manner (than #1 and #2), D must serve answer w/in 30 days after service is complete.

Question 11

While affirmative defenses generally go in D’s answer to the complaint, EIGHT AFFIRMATIVE DEFENSES go in D’s pre-answer motion to dismiss (DOWNFALL)

Answer 11

1. DOCUMENTARY evidence (terms of doc create defense)
2. OTHER action pending b/t same parties & same CoA
3. WANT of capacity of P
4. NONJOINDER of nec party
5. FAILURE to state CoA (substantively insufficient complaint) -
6. ADDITIONAL affirmative defenses (nine of them)
7. LACK of personal jurisdiction
8. LACK of subject matter jurisdiction

Question 12

Standard for judging motion to dismiss for failure to state a CoA (2 steps + substantive law)

Answer 12

1. P entitled to EVERY FAVORABLE INFERENCE from complaint;
2. Motion to dismiss should be denied if there’s ANY BASIS FOR RELIEF UNDER THE SUBST LAW
   (after doing procedural analysis in essay DON’T FORGET TO DO SUBSTNATIVE LAW ANALYSIS)

Question 13

LACK of personal jurisdiction (3 bases)

Answer 13

a. improper commencement procedure;
b. improper service of process;
c. lack of basis jurisdiction

Question 14

A in DOWNFALL for affirmative defenses stands for ADDITIONAL affirmative defenses. They are: 9 items = SPARERIBS

Answer 14

1. STAT of lim
2. Payment (already paid you!)
3. Arbitration award
4. Release
5. Estoppel (collateral)
6. Res judicata
7. Infancy of D
8. Bankruptcy discharge
9. STAT of frauds

Question 15

Is D required to raise DOWNFALL or SPARERIBS affirmative defenses by pre-answer motion?

Answer 15

No. You can put them in the answer as affirmative defenses.

Question 16

If you raise a DOWNFALL or SPARERIBS affirmative defense in a pre-answer motion to dismiss, are you precluded from raising any OTHER of those affirmative defenses in your answer to the complaint?

Answer 16

Generally not precluded, EXCEPT FOR LACK OF PERSONAL JURISDICTION. If you’re filing a pre-answer motion to dismiss, you raise lack of PJ or your waive it.

Question 17

How to preserve personal jurisdiction defenses (2 ways)?

Answer 17

1. Before serving answer, make pre-answer motion to dismiss that includes lack of PJ
2. Make no pre-answer motion to dismiss on any ground, and raise lack of PJ in the answer’s affirmative defenses ==> THIS REQUIRES FOLLOW-UP MOTION FOR SUMM JUDGMENT W/IN 60 DAYS AFTER ANSWER FOR lack of PJ

Question 18

1. How do you respond to summons with notice (2 ways)?

2. What time limit for D’s response?

Answer 18

1. (A) Serve demand for complaint
   (B) Serve notice of appearance
2. Same time limit as response to summons with complaint.

Question 19

1. What’s time limit for P’s response and D’s reply? (with summons and notice and D demands complaint)
2. What if P doesn’t respond in time – excused if you have 2 things

Answer 19

1. P must respond w/in 20 days, and D has 20 days to answer or make pre-answer motion to dismiss.
2. P’s late response (more than 20 days) okay if P shows (A) Good excuse for delay; and (B) Affidavit of facts backing up the merits of the case.

Question 20

Amending pleadings: Amending as a matter of right – def and timing for P and D?

Answer 20

Each party entitled to amend pleadings once as a matter of right w/ anything that could’ve been in the original – amend w/in 20 days of D filing answer.

Question 21

After done with window where you can amend as a matter of right, you can make a motion to amend pleadings. What must amending party demonstrate? What must opposing party show to stop amendment?

Answer 21

Leave to amend allowed if:

1. Opponent will suffer no incurable prejudice (presumption in favor of amendment)
2. Opposing party must show detrimental position as a result of the delay (e.g., loss of documentary evidence or key witness has died or disappeared)