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How can ∆ respond to π's Summons and COMPLAINT?
- Serve an ANSWER, or
- Pre-answer MOTION to DISMISS
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)
- REPLY (π's pleading in response to a counterclaim, consisting of denials and affirmative defenses)
- 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
1) What are they?
2) How are they served?
INTERLOCUTORY PAPERS are all litigation papers other than π's initial service of process
- Papers must be served on ALL parties in the action.
- 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
TIME LIMIT FOR SERVING ANSWER for service other than personal delivery within NY or First class mail with acknowledgement
30 days after service is complete.
TIME LIMIT FOR SERVING ANSWER if service made by First class mail with acknowledgement
20 days after sending back acknowledgment
TIME LIMIT FOR SERVING ANSWER if service made by Personal delivery within NY?
20 days from date of service
DEFINITION: Failure to State a Cause of Action
Even if all allegations are deemed true, the substantive law does not recognize a cause of action.
- (1) π is entitled to every favorable inference that can be drawn from complaint
- (2) The motion should be denied if there is any basis for relief under substantive law.
MOTION TO DISMISS
What are grounds for dismissal?
- 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)
List the AFFIRMATIVE DEFENSES
- 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
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
If ∆ pleads IMPROPER SERVICE as a defense in his Answer, what else must happen?
Must make a follow-up motion for SUMMARY JUDGMENT on improper service grounds within 60 DAYS of serving the Answer.
∆'s RESPONSE TO SUMMONS WITH NOTICE
- ∆ can (1) avoid default; and (2) force π to serve the complaint by serving–
- 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
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
RESPONSE TO SUMMONS AND NOTICE
If ∆ timely serves demand for the complaint and/or notice of appearance:
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)
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)