Venue/Defendant's Response

Question 1

Who chooses venue?

Where is venue proper?

Answer 1

1) Plaintiff chooses venue and specifies it in the complaint.
2) Proper vene for a case that affects the title or possession of real property is the count in NY where the real property is located.

Proper venue for all other actions is any county in which any party in the action resides at the time of the action.

If no party resides in NY, P can choose any county.

Question 2

What happens if P chooses an improper venue?

Answer 2

1) D must make a demand for change in venue before or with the answer. [if P consents, change is automatic]
2) If P objects to the demand, D must make a motion for change in venue [court must grant it if the D specifies a proper venue]

Question 3

When does the court have discretion to change venue?

Answer 3

1) For the convenience of material witnesses [often brings venue to the county where the cause of actiono arose]
2) The there is reason to believe an impartial trial cannot occur at the venue where the action is commenced.

Question 4

How does defendant respond to the complaint?

Answer 4

Either with an:

(1) Answer
(2) Pre-answer motion to dismiss

Question 5

What goes in the defendant’s answer?

Answer 5

(1) Denials of the allegations D wishes to contest (failure to deny an allegation is an implied admission), and
(2) Any relevant affirmative defenses.

In general, affirmative defenses not raised in the answer are waived (subject to D’s possible amendment of the pleadings).

3 affirmative defenses are never waived:

1. Nonjoinder of a necessary party
2. Failure to state a cause of action
3. Lack of subject matter jurisdiction

Question 6

What affirmative defenses are never waived?

Answer 6

1. Nonjoinder of a necessary party
2. Failure to state a cause of action
3. Lack of subject matter jurisdiction

Question 7

What is a counterclaim?

When is it instituted?

Answer 7

A counter-claim is instituted by P against D. It may be instituted in the answer.

Question 8

What is the response to a counter-claim called?

Answer 8

Reply. It is the “answer” to the counterclaim.

Question 9

What is a cross-claim?

When is it allowed?

On what parties must it be served?

Answer 9

1) A cross-claim occurs in a multi-defendant case. It is a claim one D has against another D.
2) It can be for ANY claim, and doesn’t have to be related to P’s original claim.
3) Trick question: Copies of all interlocutory papers must be served on all parties in an action [important in multi-party litigation].

Question 10

What are interlocutory papers?

How are they treated?

How are they served?

Answer 10

ALL litigation papers (answer, all other pleadings, motions, discovery notices, etc.)

All interlocutory papers MUST be served on all other parties to the action.

Interlocutory papers are served by regular, first-class mail. they are served on the attorney of the other party.

Question 11

How long does a defendant have to serve an answer when personally served with process in NY state?

Answer 11

20 days [30 days if personally served out of state]

Question 12

How long does D have to serve answer when served by “first class mail plus acknowledgement” method?

Answer 12

D must serve answer within 20 days of D’s mailing of the acknowledgment.

(Remember, D has 30 days to send acknowledgment for this method to work)

Question 13

How long does D have to serve answer if not personally served in NY and not served by first class mail plus acknowledgment?

Answer 13

30 days for any circumstance other than these 2.

Question 14

What are the advantages of asserting affirmative defenses in a pre-answer motion to dismiss as opposed to in the answer?

What happens if the pre-answer motion to dismiss is denied?

Answer 14

Pre-answer motion to dismiss is served BEFORE the answer, and making the motion EXTENDS D’s time to serve the answer:

If the pre-answer motion to dismiss is denied, THEN the D must serve the answer within 20 days.

Question 15

Must a D raise affirmative defenses in a pre-answer motion to dismiss?

Answer 15

No, D does not have to seerve a pre-answer MTD at all, and if he does he may raise the DOWNFALL/SPARERIBS affirmative defenses.

If a particular defense is NOT raised in a pre-answer MTD, it is NOT waived, with the exception of Lack of Personal Jurisdiction.

^This MUST be asserted in any pre-answer MTD made or it is lost [not asserting it at first opportunity impliedly gives court power over D].

Question 16

What is the easiest affirmative defense to waive?

How do you avoid waiving it?

Answer 16

Lack of personal jurisdiction.

Raise it in the pre-answer MTD if one is served, or in the answer if no pre-answer MTD is served.

Question 17

What affirmative defenses may a D raise in a pre-answer motion to dismiss?

Answer 17

DOWNFALL/SPARERIBS

• D - Documentary Evidence [defense arising from a document like deed, mortgage, contract]
• O - Other action pending [between same parties on same COA]
• W - Want of capacity of P [P lacks capacity to sue, like infant suing without representative, or beneficiary suing instead of trustee]
• N - Non-joinder of a necessary party
• F - Failure to state a cause of action
• A - Additional affirmative defenses [SPARERIBS]
• L - Lack of Personal Jurisdiction
• L - Lack of SMJ

Question 18

What is the standard for a motion to dismiss for failure to state a cause of action?

Answer 18

(Idea is that even if all the allegations are deemed to be true, the substantive law does not recognize a cause of action)

Standard: Plaintiff is entitled to every favorable inference that can be drawn from the allegations in the complaint.

The motion should be denied if there is any basis for relief under the substantive law.

Question 19

What are the SPARERIBS affirmative defenses? When can they be asserted?

Answer 19

SPARERIBS affirmative defenses go under the “A” in DOWNFALL, and can be asserted in a pre-answer motion to dismiss.

• S - Statute of Limitations
• P - Payment [already paid the debt]
• A - Arbitration Award [already resolved]
• R - Release [some agreement that releases D from liab]
• E - Estoppel [like collateral estoppel]
• R - Res Judicata
• I - Infancy of D
• B - Bankruptcy Discharge
• S - Statute of Frauds

Question 20

Example:

If D makes a pre-answer MTD on the ground of release, and the motion is denied. When he serves the answer, could D properly assert as affirmative defenses:

Statute of Frauds?

Nonjoinder of a necessary party?

Improper service of process?

Answer 20

1) Statute of Frauds: Yes, it is not waived.
2) Nonjoinder of a necessary party: Yes, never waived.
3) NO. Too late, because this is lack of personal jurisdiction.

Question 21

What must accompany a pleading of improper service of process.

Answer 21

*Often tested*

When D pleads improper service of process, D MUST make a follow-up motion for Summary Judgment on that ground no later than 60 days after serving answer or the objection will be WAIVED.

Question 22

How may D respond to a summons with notice?

What is D’s time limit?

Does this demand waive PJ if not raised therein?

Answer 22

D wants to force them to serve the complaint, and that can be done in 2 ways:

1) Hereby command to serve complaint
2) Notice of appearance

(little detail in handout, but these force P to serve the complaint)

TIME LIMIT For D to demand service of complaint is the same as response time for responding to a summons and complaint [20 days for personal service in NY and acknowledgment method, 30 days for all else]

Note, the demand does NOT waive PJ or anything else.

Question 23

If D timely demands that P serve complaint [when P had previously served summons with notice], how long does P have to serve the complaint?

Answer 23

Within 20 days of D’s service.

Question 24

What happens if D serves demand for complaint (after having received summons with notice) and P does not timely provide complaint?

Answer 24

To avoid dismisall, P must show both

1) A reasonable excuse for the delay, AND
2) An evidentiary showing of merit as to P’s Cause of Action [called an “affadavit of merit”] (this is to show the court the claim is worthwhile)

Question 25

How does a party amend pleadings?

(2 ways)

Answer 25

2 ways:

1) Amendment as of right: EACH party may amend their pleading ONCE as of right (no judicial permission required). They can add anything to pleading that could have been in original. The TIME FRAME for this is within 20 days after D serves the answer.

Note: D may raise the PJ objection through amendment, as long as D made no pre-answer motion and it is within 20 days of answer.

2) Motion for Leave to Amend Pleadings: Party can ask court to allow amendment. Standard is Amendment is allowed if opponent will suffer no incurable prejudice.

Ex. Other party must show a detrimental change of position as a result of the delay. [loss of documentary evidence, or death or disappearance of a key witness].

Question 26

What is the standard for a motion for leave to amend pleadings?

Answer 26

Standard is Amendment is allowed if opponent will suffer no incurable prejudice.

Ex. Other party must show a detrimental change of position as a result of the delay. [loss of documentary evidence, or death or disappearance of a key witness].

Question 27

What is a bill of particulars?

Answer 27

A demand to make any of the pleadings more specific. In a negligence action, the bill of particulars must be verified.