NY Practice
I. Jurisdiction
a. 2 req’s:
i. Jurisdictional “basis” AND
1. Basis – rel b/w D and state which is sufficient to justify the exercise of state’s judicial power over D’s interests
2. Rel must be substantial enuf to satisfy due process clauses of fed and state C
3. Must also be shown that state has, by statute, authorized its courts to exercise power over D
ii. Proper notice of the commencement of the action
b. Types:
i. General – if D is present within the state when summons is served
1. Court can entertain c/a regardless of if it arises out of D’s activities in the state
ii. Specific – D who is not present in state when summons is served
1. Limited to claims arising from D’s contacts, ties or rels w/ state
c. Physical presence – general juris
i. CPLR 301 – state may exercise juris over person present in that state at the time summons is served
ii. Burnham v. Superior Court of Cali
1. H/W separate and W moves to Cali; H visits Cali on biz; upon returning child to W he’s served w/ Cali court summons
2. Courts have juris over nonresidents physically present in the state
3. Statutes/CL rules that exempt ppl who were brought into the forum by force or fraud
4. Validity of assertion of juris depends upon whether the qual and nature of his activity in relation to the forum renders such juris consistent w/ traditional notions of fair play and substantial justice
5. Benefits H derived from state of Cali:
a. His health/safety were guaranteed by State’s police, fire and emergency medical services
b. He was free to travel on State’s raod/waterways
c. He likely enjoyed fruits of State’s economy
6. D voluntarily present in particular state has reasonable expectation that he is subject to suit there
iii. What if you’re flying over LA and get served there? You didn’t voluntarily go there; even tho u didn’t choose the flight path, you still run the risk! This was a fed case
iv. Hammett v. Hammett
1. H (who lives in PA) & W (who lives in NYC); W tells him that he should come over to reconcile; W told H to stop by on Sunday and when he stopped by on Sat, she served him
2. If D is not lured into juris but is here of his own free will, the service will not be invalidated simply cuz it was accomplished thru use of deception
a. If he showed up on Sunday and she served him, it would NOT be valid process! You can’t serve process on Sun (Sabbath)
b. Also if you know the person u wanna serve celebrates Sabbath another day and serve on that day, service will not be good! (you have to know they’re Orthodox)
3. Court says H was voluntarily in the state and had contacts w/ state; he wasn’t tricked into coming into the state
a. During marriage he spent 1 weekend/mo in NYC
b. He came to NY from time to time during the week on biz and social occasions
v. What about settlement conference in NY? Fed court, for most part, has per se rule that if D is in settlement negotiations at P’s behest, they cannot be served
1. Do NOT hold that every court will accept this proposition! This is typically not followed in NY courts
2. How do u protect your client? U can get agreement – you can’t serve us and if u do, it’s invalid à that will be enforced
vi. Merigone v. Seaboard Capital Corp
1. D served in NY while in court on another matter; he was there for a traverse hearing on another case
2. NY exempts from service of civil process a non-resident party or witness who comes to state voluntarily to attend court
3. Court says this is exception – he’s a NJ resident; he’s here and you’d have long-arm juris any other day
a. Exercise of common sense! If you can serve him any other day, no need to make him immune today
vii. 1st American Corp v. Price Waterhouse LLP
1. BCCI collapsed and PW-UK was their auditor; 1st Am was acquired by BCCI right b4 the collapse; 1st subpoena is served in Sept 1996 – it says PW is the worldwide org and includes PW-UK; they don’t give the docs
2. Aug 1997 they try to get the docs again and define PW as worldwide actting firm; who’s served w/ subpoena? Mr Newton, a partner of PW-UK; PW still doesn’t provide docs
3. They go fed court; he found juris was sufft; motion 4 reconsid-eration filed–judge holds them in contempt & says give docs
4. Partner in NY was served w/ process
5. 310(a) – personal service upon persons conducting biz as p’ship may be made by personally serving the summons upon any partner of p’ship
a. **If a partner is present in NY, serve him and you’ll have juris over the p’ship!
6. Mr. Newton was a partner and was served by hand in NY à this suffices to confer PJ over PW-UK!
7. Due process concerns à PW-UK knew, or should’ve known, that by sending 1 of it’s P’s to NY office of affiliate, PW-UK was risking exposure to PJ in NY
viii. If gen partner is served w/in NY, you can have juris over the limited p’ship or gen p’ship
ix. Corporate presence
1. Domestic corp (inc’d in this state), it has appointed Sec of State as its agent for service of process
2. Foreign corp that obtained authorization to do biz here will also have designated Sec of State as its agent for service of process
3. If corp is, as matter of law, present in NY, then it may be sued here on any claim, whether or not the claim is rel to particular activity which constitutes the corp presence
4
ought their tix in WA; they also said they didn’t have enuf resources to sue in FL
3. SC finds forum selection clause should be enforced; why?
a. There were cost savings w/ forum selection clause; it didn’t seem that it was to deter legit claims
4. S’s conceded that they had notice of forum-selection clause
5. Why include forum selection clause:
a. Cruise line has special interest in limiting the for a where it could be subject to suit
b. It has salutary effect of dispelling any confusion about where suits arising from the k must be brought and defended, sparing litigants time/expense of pretrial motions and conserving judicial resources
c. Passengers who buy tix w/ forum clause benefit in form of reduced fares reflecting savings the cruise line enjoys by limiting the for
f. Long-arm juris – specific
i. Did contacts arise out of or relate to c/a?
1. Way to get juris over out-of-state D w/o serving him in NY
ii. CPLR 302 – NY’s long-arm statute
iii. 4 ways to get long-arm juris:
1. D transacts biz or k’s to supply g/s in the state
2. Commit a tortious act in the state w/ exception of defamation
3. 302(a)(3) – tortuous act outside state causing injury of personal prop in state w/ exception of defamation
a. Add’l inquiry (sub 1 and 2) à look to see if actor does or regularly solicits biz… or derives substantial revenue
4. D owns, uses, or possesses real prop in NY
iv. Burger King v. Rudzewicz
1. BK sues MI franchise in FL; suit based on failure of pmt under franchise agreement; R moves to dismiss on basis of juris
2. Looking for min contacts w/ state; to see R purposely established min contacts w/ state; purposely availed himself of benefits of state
3. Satisfied if D has purposefully directed his activities at residents of the forum and the litigation results from alleged injuries that arise out of or relate to those activities
4. Foreseeability is critical to due process analysis – D’s conduct and connection w/ forum state are such that he should reasonably anticipate being haled into court there
5. Contacts w/ FL:
R reached out and negotiated w/ FL corp for purchase
