Create
Learn
Share

Yessie's Bar Review pt. 1

rename
yessieb's version from 2015-06-29 15:01

“Arising under” jurisdiction, a.k.a. “Federal Question” jurisdiction is found in a CAT:

Question Answer
CThe U.S. CONSTITUTION
AACTS of Congress, or
TTREATIES
memorize

SCRAM if you don’t have a justiciable claim:

 

Question Answer
SSTANDING
CCASE or controversy
RRIPENESS
AABSTENTION
MMOOTNESS
memorize

Diversity and supplemental jurisdiction require federal courts to apply state law for PIPS:

Question Answer
PPRIVILEGES
IINCOMPETENCY of witnesses
PPRESUMPTIONS and inferences
SSTATUTE of limitations
memorize

Look at VCR to see the exceptions for the mootness doctrine:

 

Question Answer
VA VOLUNTARY change in position, but not permanently
CCLASS action
RCapable of REPETITION doctrine
memorize

Apply MRS C rules when someone challenges a state law:

Question Answer
MMOOTNESS
RRIPENESS
SSTANDING
CCASE or controversy
memorize

 

JURISDICTION OVER PERSONS AND PROPERTY IN NEW YORK AND FEDERAL COURTS

To obtain valid procedural jurisdiction, the 14th Amendment Due Process Clause requires that the

defendant must have MOP:

 

Question Answer
MSome MINIMUM contact with the forum state
OAn OPPORTUNITY to be heard in the suit
PBeen PROPERLY served with process
memorize

For the court to find sufficient minimum contacts over a defendant, the defendant must CHILI:

Question Answer
CD CONSENTS to jurisdiction in the forum state
HThe state where a corporation or individual is at HOME, e.g. doing business or where an individual is domiciled
IINCORPORATED in the forum state
LD is a non-domiciliary but the court has LONG-ARM jurisdiction
ID is a non-domiciliary served IN-STATE
memorize

In determining whether a non-New Yorker’s business activities are subject to personal

jurisdiction, courts look to PAN:
Whether the non-New Yorker PURPOSELY AVAILED itself
of NEW YORK business opportunities

There must also exist some other 3-S conduct involving a defective product:

Question Answer
SSOLICIATION of business in NY
SSERVICES performed in NY
SSALES consummated in NY
memorize

In a federal or New York (CPLR 327) forum non conveniens motion, the issue is whether the case

should be tried HERE (in New York) or in another forum:

 

Question Answer
HHARDSHIP on D and the courts
ELocation of EVIDENCE
RRESIDENCE of parties
ELocation of EVENT
memorize

By statute, in a New York matrimonial action in the Supreme Court, or a Family Court proceeding where a New York plaintiff is seeking maintenance or support, personal jurisdiction exists over non-domiciliary provided DADA:

 

Question Answer
DNew York was the most recent marital DOMICILE of the parties
AABANDONMENT took place in New York
DClaim for support accrued under a New York DECREE or under New York law
AParties executed a separation AGREEMENT in New York
memorize

In New York, even if a defendant has no minimum contacts with the state or was not properly served with process, he may nevertheless consent to New York jurisdiction by A SCAM:

 

Question Answer
AServing an ANSWER, but failing to include a MOP objection as an affirmative defense, unless the D corrects the omission and amends the answer within 20 days “as of right”
SSTIPULATING to jurisdiction in open court in a signed writing, pleading, contract, or letter
CAsserting an UNRELATED COUNTERCLAIM in the D’s answer
AAsserting improper service of process in the ANSWER, but then failing to move for summary judgment on that issue within 60 days of when the answer was served (except when lack of minimum contacts is asserted in the answer)
MMaking any 3211(a) MOTION to dismiss prior to service of the D’s answer and failing to include the MOP jurisdictional objection in that motion
memorize

Under the federal rules, a defendant must raise VIP or they are waived:

 

Question Answer
VImproper VENUE
IINSUFFICIENT service or process
PLack of PERSONAL jurisdiction
memorize

AN can serve inside New York State: An ADULT NONPARTY

  Federal rules also use “AN” for service inside or outside a state

AL RAN can serve a summons outside New York State:

Question Answer
AAn ATTORNEY admitted in that jurisdiction
LAny individual allowed to do so under the LAWS of that jurisdiction – look to the laws of the jurisdiction
RANA RESIDENT OF NEW YORK ADULT NON-PARTY
memorize

Regardless of where the summons is served, service in a New York action is proper only if it is made pursuant to SAD MIC:

 

Question Answer
SDelivering process to a person of SUITABLE age and discretion (a “SAD” person) at the D’s place of business or residence, and then mailing a copy to D and filing proof of service
AAn AGENT designated by D to accept service
DDUE DILIGENCE (nail, mail, filing proof of service)
MMAILING process to the D, but only if D agrees to such service
IIN-HAND personal delivery to the D
CCOURT-INVENTED service
Rule 4(e)Federal Rule 4(e) requires that delivery to a person of suitable age and discretion only be done at the individual’s dwelling or usual place of abode, and that the person served “resides there.” There are no provisions under Rule 4(e) for service by mail, or nail mail and file.
memorize

Service on a corporation must be made on an A MAC DOG person:

Question Answer
AASSISTANT CASHIER
MMANAGING AGENT
AAUTHORIZED AGENT, expressly, impliedly or by estoppel
CCASHIER (CFO)
DDIRECTOR
OOFFICER (President, VP, etc.)
GGENERAL AGENT
memorize
Federal Rules Similar – Rule 4(h)

There are just three ways for a D to formally appear in New York or federal court an action (MAN):

 

Question Answer
MBy making any pre-answer MOTION, which extends the D’s time to answer
ABy serving an ANSWER to P’s complaint
NBy serving a NOTICE of appearance when the summons is served without a complaint
memorize

A New York or federal court default judgment can be vacated by way of order to show cause within one year of when the D is served with a copy of that judgment, but that requires the D to submit a REAM P of papers:

 

Question Answer
REREASONABLE EXCUSE why the D defaulted
AMAFFADAVIT OF MERIT on the D’s defense
PLack of PREJUDICE to the plaintiff
memorize

 

NEW YORK STATUTE OF LIMITATIONS

SCARF CRIME has a 6 year statute of limitations:

Question Answer
SSPECIFIC performance of a contract
CBreach of CONTRACT actions seeking money damages, except UCC Sale of Goods contracts
AACTIONS recognized at common law for which the legislature has not provided an SOL
RREFORMATION of a K (running from when the K was executed)
FFRAUD, deceit, or negligent misrepresentation. Here, the SOL is either 6 years from the fraud or 2 years from when the fraud was discovered or reasonably should have been discovered, whichever is longer (but the extra 2 years does NOT apply to constructive fraud)
memorize
There are certain “badges of fraud” that are so commonly associated with
fraudulent transfers that their presence gives rise to an inference of an intent to
commit fraud. SHIFTS:
S SECRETLY done
Question Answer
HHASTILY done
IINADEQUATE consideration for the asset transferred
FMade to a FAMILY member or close FRIEND
TTRANSFEROR continues to control the property
SSCIENTER, and inability to pay the claim after the transfer
CCORPORATE derivative actions
RRECISSION of contract (running from when the K was executed)
memorize
I :INDEMNIFICATION and contribution (but the SOL doesn’t start to run until one party has paid more than he/she should have)
Question Answer
MMORTGAGE foreclosures
EOther EQUITABLE claims (e.g., unjust enrichment, constructive trust, etc.)
memorize

A SOFT RAIN has a 3 year SOL:

 

Question Answer
AACTIONS that did not otherwise exist at common law, but were created solely by statute, and the statute did not provide an SOL (e.g., dram shop act claim, a state discrimination claim, UCC Art. 9 breach of the peace, etc.)
SSTRICT PRODUCTS liability (SOL runs from the date of P’s injury)
OMisappropriation of a corporate or partnership OPPORTUNITY
FBreach of a FIDUCIARY DUTY in which P seeks solely money damages (6 yrs if seeking money damages plus equitable relief, or just equitable relief)
TClaim for damages for TRESPASS
RREPLEVIN or conversion If the claim is against the thief, the 3 years runs from when the chattel was stolen. If the chattel was acquired in good faith, then the SOL doesn’t begin to run until P demands the return of the chattel
memorize
A – ANNULMENT of a marriage for fraud. The 3 years does not begin to run until the fraud was discovered
Question Answer
ITortious INTERFERENCE with another person’s contractual rights
NNEGLIGENT or professional malpractice, except for medical malpractice(med mal is 2.5 yrs). The SOL runs from the date the malpractice was actually committed, except where there is a hidden/latent injury.
memorize

A DIMPLE FIB has a 1 year SOL:

Question Answer
AARBITRATION award must be confirmed by the Supreme Court within 1 year
DThere is 1 year for the defendant to open a DEFAULT judgment or 1 year for the plaintiff to enter a default judgment
ITo recover excess INTEREST paid on a usurious loan
MMALICIOUS prosecution
PRight to PUBLICITY claim, based on a D’s unauthorized commercial use of a living person’s name, picture, or voice for advertising purposes without the P’s written consent
LLIBEL and slander
EWrongful EVICTION of a tenant, including constructive eviction or retaliatory eviction
FFALSE imprisonment or false arrest
IINTENTIONAL infliction of emotional harm
BAssault or BATTERY
memorize

If the applicable SOL has expired, then the P should consider New York’s tolling and extending

provisions – LEAP DAD’S CAT:

 

Question Answer
LThe parties LENGTHENED the SOL
EEQUITABLE estoppel
AWritten ACKNOWLEDGEMENT of an old debt (Federal Rules also)
PPART-PAYMENT of an old debt
DDISABILITY of the P
AAMENDING a pleading to add a time-barred claim
DDEATH of a party
SSOLDIERS and Sailors Civil Relief Act
CTime-barred, related COUNTER-CLAIM (Federal Rules also)
AClaims ARISING outside New York where personal jurisdiction cannot be obtained in a New York court
TTERMINATION of a timely action and recommencing it after the SOL has expired
memorize

In New York, parties united in interest frequently involve the vicarious liability of POPE parties:

 

Question Answer
PPARTNERS who are jointly and severally liable for each other’s torts committed in the scope of the partnership
OOWNER and driver of a motor vehicle used with the owner’s permission, except when the owner leases the motor vehicle to the driver, in which case vicarious liability is not imputed to the lessor. Vicarious liability is also imputed onto the joint owners of realty (TICs, JTs, and TEs).
PPRINCIPAL and agent
EEMPLOYER and employee, under the doctrine of respondeat superior
memorize

Amending a New York or federal pleading to add a time-barred related claim can be done with an

ANT:

 

Question Answer
AIt AROSE out of the same facts in the earlier pleading
NThe original pleading gave NOTICE of the new claim
TThe new claim was TIMELY when the original pleading was filed with the County
memorize
  Clerk

If the P’s action is timely commenced in any state or federal court, but is subsequently dismissed

due to a technical defect which can be remedied in a new action, then even though the SOL has
expired while the first action was pending, the P is given an additional 6 months from termination
to re-file and re-serve the D. However, the 6 month rule does not apply if the P’s action was
dismissed because of J.P. M.D.:

 

Question Answer
J.Lack of JURISDICTION
P.First claim was dismissed b/c of the P’s neglect to PROSECUTE
M.Dismissal was on the MERITS (b/c res judicata would bar the second action)
D.P voluntarily DISCONTINUED the first action
memorize

 

MOTION PRACTICE

There are 2 types of corrective motions – SS:

Question Answer
SA motion for a more definite STATEMENT in the pleading
SA motion to STRIKE irrelevant, prejudicial, or scandalous matter from a pleading
memorize
Federal Rule 12(f) and (e)

CPLR 3211(a)(5) seeks dismissal based on 9 grounds, which can be asserted in a motion to

dismiss and/or in the D’s answer as affirmative defenses. They are SPARE RIBS:

 

Question Answer
SSTATUTE of limitations
PPAYMENT
AARBITRATION and award
RRELEASE
ECollateral ESTOPPEL
RRES JUDICATA
IINFANCY or incompetency of the D
BP’s claim against D was discharged in BANKRUPTCY
SSTATUTE of Frauds
memorize

 

“IF” – collateral estoppel is available in a New York or federal court if issues are identical and the
party against whom collateral estoppel is being asserted previously had a full and fair opportunity
to litigate that issue:

 

Question Answer
IIDENTICAL ISSUES
FFULL AND FAIR OPPORTUNITY TO LITIGATE ISSUE
memorize

 

When thinking of summary judgment in a New York or federal court, think of LIPS:
Question Answer
LThe motion can be decided as a matter of LAW
IThere are no material ISSUES of fact to be litigated
PThe court can grant PARTIAL summary judgment
SThe court can SEARCH the record, but only on issues raised in the motion papers
memorize