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How can ∆ respond to π's Summons and COMPLAINT?
- Serve an ANSWER, or
- Pre-answer MOTION to DISMISS
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What may ∆'s ANSWER contain?
- DENIALS (failure to deny any allegation is an implied admission)
- AFFIRMATIVE DEFENSES (affirmative defenses not raised in Answer are waived)
- COUNTER CLAIMS against π
- CROSS-CLAIMS against other ∆s
***Parties must serve copies of their pleadings on ALL other parties who have appeared in the action
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INTERLOCUTORY PAPERS
1) What are they?
2) How are they served?
INTERLOCUTORY PAPERS are all litigation papers other than π's initial service of process
SERVICE may occur by
- a) regular mail***
- b) personal delivery
- c) facsimile
- d) overnight courier
****Service is complete when MAILED (not on receipt) provided that mailing occurs through a post office or depository under the exclusive care and custody of the USPS within New York State
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TIME LIMITS FOR SERVING ANSWER if service made by
1) Personal delivery within NY?
2) First class mail with acknowledgement?
3) All other cases?
- 1) 20 days from date of service
- 2) 20 days after return acknowledgement has been sent back
- 3) 30 days after service is complete
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MOTION TO DISMISS
What are grounds for dismissal? (hint: DOWNFALL)
- D: Documentary evidence
- O: Other action or pleading
- W: Want of capacity of the π (e.g., π is infant suing w/o proper representative)
- N: Non-joinder of necessary party
- F: Failure to state cause of action (NB, state elements of underlying claim)
- A: Affirmative defenses
- L: Lack of basis of jurisdiction (personal, in rem, quasi in rem)
- L: Lack of subject matter jurisdiction (can be raised anytime)
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AFFIRMATIVE DEFENSES
What are they? (hint: SPARE RIBS)
- S: Statute of limitations
- P: Payment
- A: Arbitration and award
- R: Res judicata (claim preclusion)
- E: Estoppel (collateral estoppel—i.e., issue preclusion)
- R: Release
- I: Infancy of ∆
- B: Bankruptcy discharge
- S: Statute of frauds
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PROCEDURAL ASPECTS OF PRE-ANSWER MOTION TO DISMISS (PAMTD)
1) When made?
2) Time for filing answer?
3) Waiver of defenses, if not included?
- 1) Made BEFORE service of the answer
- 2) Must file Answer within 10 DAYS if motion is denied
- 3) EXCEPT for Lack of Personal Jurisdiction (LOPJ), failure to waive an affirmative defense in PAMTD does not bar ∆ from raising it in the Answer
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If ∆ pleads IMPROPER SERVICE as a defense in his Answer, what else must happen? (hint: motion for something)
Must make a follow-up motion for SUMMARY JUDGMENT on that ground (i.e., improper service) within 60 DAYS of serving the Answer
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RESPONSE TO SUMMONS WITH NOTICE
How do you force π to file a Complaint?
Serve
- 1) notice of APPEARANCE, and
- 2) DEMAND for complaint
***No waiver of jurisdictional objections occurs by service of a demand for the complaint or a notice of appearance
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RESPONSE TO SUMMONS WITH NOTICE
After being served with π's summons and notice, how long does ∆ have to respond?
∆ must serve demand or notice of appearance within
- 1) 20 DAYS of personally served in NY
- 2) 20 DAYS if served by First Class Mail with Acknowledgement
- 3) 30 DAYS in all other cases
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RESPONSE TO SUMMONS AND NOTICE.
If ∆ timely responds
1) How long does π have to serve complaint?
2) If π serves complaint, what must ∆ do next?
3) If π doesn't serve complaint, what can ∆ do?
- 1) 20 DAYS from ∆'s service
- 2) ∆ has 20 DAYS to (i) serve an Answer, or (ii) make a PAMTD
- 3) ∆ can move to dismiss based on π's noncompliance (though π can defend by showing BOTH (i) reasonable excuse for delay, and (ii) affidavit of merit of π's claim)
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AMENDMENTS OF PLEADINGS
When may π amend the pleadings?
- AS OF RIGHT: ONCE within 20 DAYS of when ∆ serves Answer
- ON MOTION: if opponent (i.e., ∆) has suffered NO incurable prejudice (e.g., loss of evidence, death of witnesses, running of S/L)
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