Litigation in NY
Pleadings (complaint and answer): complaint is a blueprint that recites the facts the plaintiff will prove; answer responds to the blueprint by trying to defeat it or adding to it with affirmative defenses
Motions: first motion is usually a motion to dismiss (i.e. for failure to state a claim upon which relief can be granted)
Discovery: process through which the parties collect the facts (from your own party as well as the other side)
– how cases are evaluated and settlements are reached
– often involves the courts (because of discovery disputes)
Preparation of expert witnesses
Motions: 2nd is usually for summary judgment
– Look at the facts that are undisputed; given those facts, the plaintiff can’t prove his claim (first place to look is the plaintiff’s own deposition)
Trial
Appeal: usually only at the end of the case at the entry of final judgment
– In NY, a party can appeal any order that affects a substantial right
– Every appeal takes a minimum of 9 months and is very expensive (a good reason for choosing a forum other than NY)
Procedural law descended from the common law
§103(a) – no more distinction between law and equity (only one form of civil action)
§104 – construction: purpose of the CPLR is to secure the just, speedy and inexpensive resolution of every civil judicial proceeding
Elements of Jurisdiction
Basis (Personal) Jurisdiction: court’s power over a particular defendant
Notice: accomplished by service of process, part of personal jurisdiction
if service satisfies the NY rule, it satisfies the Constitution
Subject Matter Jurisdiction: court’s power over the cause of action
Basis Jurisdiction
In personam: power over the person of the defendant (the judgment follows the defendant everywhere and can be enforced in any state under full faith and credit)
In rem: power over the defendant’s property (does not attach to the defendant himself, judgment enforced only to the extent of that property)
Quasi in rem: judgment limited to the value of property in the state
In Personam Jurisdiction
General: gives court power over all causes of action against the defendant (§301)
Presence:even if fleeting (tag jurisdiction)
Exceptions
Fraudulent enticement: deception in procuring presence in state
once defendant is in the jurisdiction, can use deception to get the defendant to come to the place of service
fact-intensive: if the defendant has other reasons for being there, the fact that he was deceived won’t have an impact
Hammett: court found defendant was in NY anyway, fact that plaintiff lied to get him to come to her apartment so that he could be served has no bearing on jurisdiction once he is in the state
Immunity if coming to NY to attend court (includes parties, witnesses, etc., and depositions and trials)
Does not count if subject to jurisdicti
agent to receive service
Doing Business: for unauthorized foreign corporations, present if conduct regular and systematic business activities in state
solicitation “plus” (collecting revenue, bank account, employees and/or office in state)
Permanent physical presence is probably sufficient even if not doing much
Tauza: a Pennsylvania corporation had a NY office with NY employees, a bank account in the state, and NY customers as well as a steady course of business from one state to the other. Court found this was sufficient business in the state to subject the corporation to jurisdiction.
Bryant: corporation had solicitation of business in the state “plus” NY office, NY lease, NY employees, NY bank account, NY public relations. Court found enough for jurisdiction.
foreign parent may be doing business if it has control over present sub so that sub is a mere department
common ownership of assets, financial dependency, control over selection and assignment of personnel, control over marketing
if foreign corporation has an agent in NY acting on behalf of the corporation, there is enough control for vicarious presence
