JURISDICTION / SERVICE Flashcards
D has ______ days from when service is complete to appear in P’s action and avoid a default judgment.
- HOWEVER: D has _____ days where D:
- (2)
D has ___30___ days from when service is complete to appear in P’s action and avoid a default judgment.
_HOWEVER: D has __20___ days where D: _
- Is served personally in NY
- D consents to service by mail
To obtain valid procedural jurisdiction 14th due process clause requires that:
- D must have MOP:
- DIIAL C (under M)
- If D timely raises the jurisdictional defense,
- P’s action will be_________:
- If D does not appear can P enter default judgment?
To obtain valid procedural jurisdiction, 14th due process clause requires that D Must have a MOP:
-
M: MINIMUM contacts with NY:
- quality and nature of D’s contacts w/ NY are sufficient =
- does NOT offend traditional notions of fair play and substantial justice.
- **O: ** D must have an OPPORTUNITY to be heard:
- **P: ** D must be PROPERLY served with process:
**For the CT to find sufficient minimum contacts over D, D must DIIAL C: **
- D: DOMICILED in NY
- I: INCORPORATED in NY
- I: Served IN-STATE (non-domicile)
- A: Proper service on AGENT designated to accept service
- L: CT has LONG-ARM jurisdiction over non-domicile (Asahi-5)
- **C: D CONSENTS to NY jurisdiction **
Asahi: CT determines “traditional notions of fair play” when asserting personal juris over out-of-state D based on:
- Burden on the D:
- Interest of the forum state in litigation
- interest of P in litigating in the state
- interstate efficiency
- interstate policy interests
If D timely raises the jurisdictional defense:
- CT must dismiss P’s action.
If D does not appear and P enters a default judgment:
- Judgment is nullity: w/out MOP = violates due process
Whether Non-NY business is subject to personal jurisdiction:
- PAN
Whether the Non-New Yorker:
- PURPOSELY
- AVAILED itself of
- NY business opportunities.
NY: Matrimonial Action
- NY P seeking maintenance or support:
- Has personal jurisdiction over non-domicile IF:
- DADS
- Has personal jurisdiction over non-domicile IF:
In a matrimonial action, a NY P seeking alimony has personal jurisdiction over a non-domicile IF:
- D: NY was most recent DOMICILE of the parties
- A: ABANDONMENT took place in NY
- D: Claim for support accrued under NY DECREE of NY law
- S: Parties executed a SEPERATION agreement in NY
Even if D has NO minimum contacts w/ NY or was NOT properly served:
- D may consent to NY Jurisdiction by:
- **SCAMS ** (A SCAM)
Even if D has NO minimum contacts w/ NY or was NOT properly served:
**D may consent to NY Jurisdiction by SCAMS: **
-
S: STIPULATING in open court,
- pleading, contract, signed writing, or letter
- C: Asserting UNRELATED COUNTERCLAIM in answer:
-
A: Failing to include MOP objection as AFFIRMATIVE defense in answer:
- BUT: D has 20 days to amend answer, “as of right.”
-
M: Making MOTION to dismiss prior to answer, AND
- failing to include MOP objection.
-
S: Failing to move for SUMMARY judgment w/in 60 days:
- After serving answer asserting improper service of process
- Unless lack of minimum contacts was in answer
- After serving answer asserting improper service of process
AL RAN can serve a summons outside NY state:
AL RAN can serve a summons outside NY State:
- A: ATTORNEY admitted in that jurisdiction;
- L: Anyone allowed under LAWS of that jurisdiction; OR
- RAN: NY RESIDENT ADULT NON-PARTY
Service is only proper if made pursuant to:
- CID’S MAIL:
- *Service is only proper if made pursuant to**
- *CID’S MAIL:**
- C:COURT-Intervened service
- I:IN-HAND personal delivery to D
- D:DUE DILIGENCE: (nail, mail, file proof of service)
-
S:Delivering to SAD person of Suitable Age & Discretion:
- At D’s place of business, residence: THEN
- Mail copy to D, & File proof of service
-
MAIL:Process to D, but:
- ONLY if D agrees to such service
Service on a Corp must be made on:
- A MAC DOG person
- *Service on a Corp must be made on**
- *A MAC DOG person:**
- A: ASSISTANT cashier
- M: MANAGING agent:
- A: AUTHORIZED AGENT: (Expresly, impliedly, or by estoppel)
- C: CFO (CASHIER)
- D: DIRECTOR
- O: OFFICER (President, VP, etc.)
- G: GENERAL AGENT
3 ways for D to formally appear in action:
- MAN
- *3 ways for D to formally appear in action:**
- MAN**
- M: Making any pre-answer MOTION, which extends D’s time to answer
- A: Serving ANSWER to P’s complaint
-
N: Serving NOTICE of appearance:
- when summons is served w/out complaint
Transitory vs Local Actions:
- Jurisdictional Limitations
Transitory Action:
-
Can commence anywhere personal Service of Process can be made on D:
- E.g. to recover damages in breach of contract or tort actions.
Local Actions:
-
Can only be brought where the subject matter of the controversy exists.
- E.g. IF title to real prop will be directly affected by the judgment of the CT.
- Such actions generally must be tried in the county where the particular property is located.
Demmanding a jury trial:
- Fed CT: W/in _____ days of the last pleading is served.
- NY: When the _________ and ___________ is filed.
Demanding a jury trial:
Fed CT: W/in _10_ days of the last pleading is served.
NY: When the notice of issue and statement of readiness is filed:
- placing the case on the trial calendar.
P must serve D w/in ____ days of filing process w/ county clerk.
- Service is complete _____ days after proof of service is filed.
D has ____ days after service is complete to respond.
- Or, ____ days if D is personally served.
P must serve D w/in __120__ days of filing process w/ county clerk.
- Service is complete __10__ days after proof of service is filed.
D has __30__ days after service is complete to respond.
- Or, _20_ days if personally served.
To change venue as of right: D must demand _____ or_____ serving his ______.
Motion to change venue may be made __________.
To change venue as of right, D must demand with or before serving his answer.
Motion to change venue may be made at any and is addressed to the CTs discretion.
Latent Exposure Rule:
- SOL for P exposed to to injury from latent effects of a harmful substance.
- Not applicable to injuries caused by _________________.
Latent Exposure Rule:
- P is exposed to injury from the latent effects of a harmful substance.
- P has 3 years from discovering the symptoms of the injury.
Latent Exposure Rule does NOT apply to Medical Malpractice.