Flashcards in Civil procedure pt 2 Deck (23)
When are actions typically consolidated?
When involving a common questions of law or fact
What happens if a necessary party is not joined in terms of joinder & potential dismissal?
If necessary party not joined, action may continue but a ground for dismissal will persist.
When are parties PERMITTED to join others in an action? (permissive joiner)
When each additional parties' claims arise from the same transaction/ occurrence AND common question of law/ fact
*Court must have P.J. over every party joined
What are the 5 categories of activities that a P's case must arise fr to obtain PJ via the long-arm stat?
1. transaction of business by D in state
2. K made outside state where D agreed to supply goods/services in state (including insurance)
3. D's tortious act in state
4. D's tortious act outside state that causes injury in state
5. D's ownership/use/possession of land in state
What are the 4 main ways to obtain personal jurisdiction over a D?
1. presence (even non-domicilliary)
2. consent or waiver -- including consent via contract clause (B4K, FL)
3. domicile in NY
4. long-arm jurisdiction/ stat
When does an entitlement to a contribution right exist?
When 3rd party D breached a duty in tort which contributed to OR AGGRAVATED damages that may be liable to P by D
Is contribution available in MBE when liability is based on intentional wrongdoing? (torts)
When are actions typically severed?
When severance occurs in furtherance of convenience OR to avoid prejudice
What is an impleader action (3rd party practice)?
Procedure used by party (usually D) to join 3rd party alleged liable (in whole or in part) to original D (may have to pay P) for damages
*no court order needed
What is an INTERPLEADER action?
when stakeholder (usually P) initiates lawsuit to compel 2 or more other parties (D's/claimants) to litigate a dispute
*EX: P ins co aware of dispute b/w potential beneficiaries of life ins policy initiates interpleader action
What happens if an indispensable party is not joined in terms of joiner & potential dismissal?
If indispensable party not joined, litigation cannot go forward
What is the general rule for tolling s SOL when the P is an infant or insane at accrual?
until disability ends
When must an action be commenced to satisfy SOL?
No later than last day of prescribed period of limitation
When will the assertion of jurisdiction under the long-arm stat satisfy constitutional due process?
When P's claim arises out of conduct by D that was so purposefully directed at NY that D should reasonably anticipate being brought into NY court
What is a long-arm jurisdiction/ stat?
Jurisdiction gained on basis of acts by D that have sufficient connection w/ NY
What is the distinction b/w domicile & residence?
residence- person lives w/ some degree of permanency (may have many)
domicile- 1 residence at which person intends to remain indefinitely principal home (only 1)
What 5 individuals can service of process properly be made to for a corporate D?
3. designated agent
4. managing agent
5. NY sec of state (licensed corp- 2 copies to sec; unlicensed- 1 copy to see/ 1 to corp by mail)
*leave & mail NOT acceptable for corp D
What is expedient service of process?
IF other methods of service fail/ not practicable, P may make ex parte motion to court for an order allowing improvised service
What are the 3 methods of serving process?
1. serve w/ natural person (cant use a go-between)
2. leave & mail
3. affixing & mail
*server must use due diligence to serve D directly or serve via leave & mail 1st
What is the "leave and mail" serving process?
leave w/ person of suitable age & discretion at D's dwelling & mail to D's work/residence
What is the "affixing & mail" serving process?
affix to D's door of dwelling/ work & mail to D's work/ last known residence
What 2 types of damages may be recovered in a wrongful death action?
1. pecuniary damages
2. punitive damages
**grief, sorrow, heartache and loss of consortium CANNOT be recovered