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136 Cards in this Set

  • Front
  • Back
Jurisdiction. General Considerations

The Civil Court of the City of New York
The Civil Court of the City of NY is a specialty court which hears only cases for money damages (max. $25,000). Every other county has a similar court with similar jurisdiction - a county court.
Jurisdiction. General Considerations

The Court of Claims
hears only cases about claims for damages against the state of NY. The SC of NY cannot hear these cases.
Jurisdiction. General Considerations

The Appellate Term
exists only in the Southern part of the state and reviews decisions from the supreme courts, civil courts, district courts, and town courts.
Jurisdiction. General Considerations

The Supreme Court of the State of NY
is a trial court of general jurisdiction that can issue any kind of relief. Any action can be brought to the SC. There are 63 counties in NY, each of which has a SC.
Jurisdiction. General Considerations

Appellate Division
the AD has 4 judicial departments. Each department's decision is binding state-wide, unless any other division disagrees. The AD reviews decisions from the SCs, family courts, surrogate courts, the Court of Claims, and the Appellate Term.
Jurisdiction. General Considerations

The Court of Appeals
The COA is the highest court in the state.
Jurisdiction. General Considerations

2 requirements to obtain jurisdiction
(1) jurisdictional basis (connection between the state, the D, and the case);

(2) notice (service of process)
Jurisdiction. General Considerations. Due Process

The Int'l Shoe case
You don't have to be physically present in NY to be sued.
Jurisdiction. General Considerations. Due Process

Worldwide Volkswagen
Jurisdiction was improper. The foreseeability requirement means that by your conduct, deliberate act of reaching out of the state, it is foreseeable for you that you will be hauled in a court in the foreign state.
Jurisdiction. General Considerations. Due Process

The Hustler Magazine case
P's connections do not matter for the minimum contacts requirement. It's D's contacts that matter in order to satisfy due process.

2nd Circuit has held that just 4 newspapers in the foreign state can be insufficient contacts and exercising jurisdiction in such cases would violate the Due Process clause.
Jurisdiction. General Considerations. Due Process

The Shirley Jones case
Jurisdiction was proper. Different from Worldwide Volkswagen because defamation is an intentional tort, which meant that the editor and author both knew that their tort would reach out of the state.
Jurisdiction. General Considerations. Due Process

The Burger King case
D intentionally reached out of its state to do business with Burger King. Jurisdiction was proper.
General Jurisdiction

Governing Statute
CPLR 301
Jurisdiction. General Considerations

General Jurisdiction v. Long Arm Jurisdiction
General jurisdiction: the exercise of jurisdiction is always proper because D is a New Yorker.

Long Arm jurisdiction: the exercise of jurisdiction is proper even though D is not a New Yorker because D did some act that was related in some specific way to NY and the cause of action arises out of that act.
Provisional Remedies

Concept and kinds
They counterbalance D's interest in prolonging the case because they freeze D's assets or enjoin D from doing something.

Article 62 - Attachment
Article 63 - Preliminary Injunction
Article 64 - Receivership
Article 65 - Notice of Pendency
Article 71 - Seizure of Property
Attachment

Concept
P can get in an action where P demanded and is entitled for money damages. The action must be at least in part asking money damages.

Besides that the cause of action has to fit into one of the 5 categories, I have to show a likelihood of success on the merits, that I need an attachment, and that my claim is greater than any counterclaim against me. An attachment is given at the court's discretion.
Attachment

5 grounds
(1) D is not a domiciliary and doesn't reside in NY or is a foreign corporation. The purpose is for quasi in rem jurisdiction. The cause of action doesn't have to arise out of the attached thing. There must be minimum contacts;

(2) D resides in NY but is hiding;

(3) (the most important and the most typical, especially for securities) D, with intent to defraud his creditors or frustrate the enforcement of a judgment that might be rendered in P's favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts;

(4) (too specific, unlikely to be at the exam, see in the notes);

(5) the cause of action is based on a judgment, decree or order of a court of the U.S. or of any other court which is entitled to full faith and credit in this state, or on a judgment which qualifies for recognition.
Attachment

Attaching before Commencing a Lawsuit
You can make a motion for an attachment during the lawsuit or even before the lawsuit (e.g., to obtain quasi in rem jurisdiction).

If you move for an attachment before you commence a lawsuit, you must both commence the action and serve process within 60 days after you get the order of attachment, otherwise the attachment is automatically vacated.
Attachment

Undertaking
The order of attachment must require you to put an undertaking, typically, a bond.
Attachment

Attachable assets
The only assets that are attachable are those which are physically present in the state. If you can't locate any assets, you still can get an attachment because you might find something later.

2 kinds of assets subject to attachment:
(1) a debt that is past due or which is yet to become due certainly or upon demand;
(2) any property which could be assigned or transferred.
Attachment

Attachable Assets. String of Cases
The LAND case. The obligation to pay rent is not attachable because it is a debt but not certain to become due, and because, though it's a property right, it exists where the land is, not where the debtor is.

The Apple Films case. An obligation to pay for the right to distribute a movie isn't a debt certain to become due because there may be no profits. However, it's an attachable property right, regardless of whether its value is contingent (but as long as the property right itself is not contingent).

In another case, the property right itself was contingent on the delivery of the ordered goods, not its value.

The Hotel 71 case. If debtor comes to NY, he carries his debt with him. Thus, the debt can be attached as long as the debtor in NY. If the debt is attached, it becomes a NY property right (regardless of whether the debtor has subsequently left the state?)
Attachment

Procedure to Obtain
Is laid out in CPLR 6210 (with notice by motion) and 6211 (without notice by an ex parte order). Why don't use 6211 all the time? Because if the judge grants you an order of attachment, after the sheriff finds an attachable asset, you have to make a motion to confirm attachment (and D can object at the hearing of this motion) no later than 5 days after has found the asset. If you fail to do this timely, the attachment is vacated automatically.

If you do this on notice pursuant to CPLR 6210, you have to make a motion.
Attachment

Levy after an Asset Is Found
If the attachable asset is real property, then the sheriff levies by filing a paper with a county clerk which puts everyone on notice that the real property is attached. Personal property can be levied in two ways: (1) the sheriff can seize it; (2) by service. The difference is that if the sheriff does it by service then any subsequent incoming asset is attached automatically.
Attachment

Perfecting after Levying
The levy that the sheriff has made must be perfected. In case of attached real property, filing the paper is also the perfection. Seizure of personal property is perfection itself. Thus, perfection is needed only for personal property levied by service. This kind of levy have to be perfected within 90 days, otherwise the levy falls. Ways to perfect: (1) the sheriff can take the physical possession of the levied asset; (2) I can commence a special proceeding against the garnishee for turnover to compel the garnishee to turn over in fact the levied asset to the sheriff; (3) I can make a motion in the action to extend the time to perfect the levy, typically, until after the judgment. (3) is the most popular.
Attachment

As the basis for quasi in rem jurisdiction
It's the levy that is the basis for quasi in rem jurisdiction. I have to levy before I serve process. In this case, I create time limits: I have to confirm the attachment within 5 days after the sheriff levies the asset, serve a summons within 60 days after I got the order of attachment, and perfect the levy within 90 days after the asset is levied. If I fail to perfect within 90 days, then the claim falls.
Attachment

D's remedies
CPLR 6222 - undertaking (typically, a bond)

CPLR 6223 - D can make a motion to vacate the attachment or modify it on the ground that P doesn't need it

CPLR 6224 - D can move to annul the attachment.

If it turns out that P is wrong, P has to pay D's costs including legal fees that are a result of the attachment. P is wrong when P wasn't entitled to the attachment, or if P loses the case of the merits. D can't get D's legal fees for opposing the motion because it is not resulting from the attachment.

D can get all legal fees if the attachment was the basis for jurisdiction because the lawsuit wouldn't have existed but for the attachment.
Attachment and Preliminary Injunction

Article 75
In aid of arbitration, the court may issue an order of attachment or injunction. The standard for granting is different - when the award may be rendered ineffectual without such an order.
Intervention

Concept and kinds
When a non-party wants to join a pending lawsuit.

CPLR 212 - intervention as of right when representation is inadequate and you might be bound by the decision.

CPLR 1013 - intervention by permission.

The differences between the two don't really matter.

Whenever the constitutionality of a statute or a local law is questioned, the Attorney General can intervene as of right.

When you intervene, you become a party in the lawsuit. If you cannot intervene, you can appear as an amicus.
Intervention

"Bound by the judgment" string of cases
You have to have some basis, connection. Examples:

1. A case between a parent and the Board of Education. The school was allowed to intervene as of right.

2. A divorcing wife can intervene in a case of corporate dissolution involving her husband.
Intervention

String of Cases 2: Intervention by Insurer
Can an insurer intervene in its client's case of personal injury if the client wants to settle contrary to insurer's interests?

The Community Hospital case: The COA allowed insurer to intervene.

The Door case: The insurer was allowed to intervene. Later, the insurer objected to the proposed settlement under which insurer's client got nothing for his medical expenses (i.e., the insurer had to cover these expenses for his injured client). The COA decided that, once you let an insurer to intervene, the insurer becomes a party in the case and must have a right to influence the outcome of the case. The insurer was allowed to object to the terms of the settlement.

The legislature enacted the General Obligations Law 3-335: whenever there is a settlement, it is conclusively presumed that it does not include medical costs.

The answer to the posed question is unclear.
Intervention

Procedure
You can intervene by making a motion. Along with your motion papers, you have to submit your proposed pleadings. There are cases that say that if you don't do this the motion will be denied. Even if the intervention is as of right, you have to make a motion in a timely fashion so that it is not prejudicial.
Statute of Limitations

CPLR 201
No court shall extend the time limited by law for the commencement of an action.
Statute of Limitations

Sources
Article 2 of the CPLR, other statutes (including the General Municipal Law, the UCC, the Court Claims Act, and others), contracts
Statute of Limitations

SOL for a personal injury action
3 years (from the day of the injury?)
Statute of Limitations

SOL for actions against municipalities
1 year and 90 days from the day the cause of action accrued (1 year first and 90 days second - the DeCicco case) - the General Municipal Law
Statute of Limitations

SOL for a breach of contract cause of action
6 years (from the day the breach occurred regardless of consequences)
Statute of Limitations

SOL for the sale of goods
4 years (UCC 2725)
Statute of Limitations

SOL for intentional torts
1 year from the day of the tort (when injured)
Statute of Limitations

SOL for a negligence cause of action
3 years from the day the cause of action accrued (probably, when P was injured as a result of the negligent act)
Statute of Limitations

SOL for defamation
1 year
Statute of Limitations

SOL for a property damage action
3 years
Statute of Limitations

SOL for a fraud cause of action
CPLR 213(8)

The SOL for fraud is 6 years from the time of fraud or 2 years from the time of the discovery of the fraud, whichever is longer.

Discovery means when P has sufficient facts that a reasonable person would conclude that he was defrauded. Mere suspicion is not enough.
Statute of Limitations

Algorithm
To determine when the SOL runs out for your case:

(1) what is the cause of action;

(2) when the cause of action accrues.
Statute of Limitations

A cause of action for replevin accrues... (the Guggenheim Foundation case)
...the SOL begin to run when a demand is made.
Statute of Limitations

SOL in cause of a default (the Phoenix Acquisition case)
The SOL begins to run with each subsequent default because otherwise the lender is forced to choose to accelerate paying back.
Statute of Limitations

The Kronos case: the longest SOL is not necessarily the best option
The SOL for breach of contract is 6 years but from the day the breach occurred regardless when the consequences followed. The SOL for intentional torts is 1 year but when P was actually injured.
Statute of Limitations

A real estate broker case
The cause of action accrued when the client entered into secret negotiations with the buyer - it's the time when the contract between the client and the broker was breached and the broker sued for damages for bad faith conduct (which goes back to secret negotiations). The broker was never entitled to the commissions because the client terminated the contract before the client entered into the deal with the buyer.
Statute of Limitations

The SOL begins to run...
...on the day after the cause of action accrues. It means that the SOL expires at the end of the anniversary date.

If the cause of action accrued on Feb. 29 and the SOL is 3 year, then it expires on Feb. 28.

If the SOL says 4 months and the cause of action accrues on Dec. 31, the SOL runs out on Apr. 30. You don't convert months into days, and vice versa.

If the last day of the SOL is Saturday, Sunday, or a public holiday, then the SOL runs on the first day that is not Saturday, Sunday, or a public holiday.
Statute of Limitations

What can extend the SOL?
Tolls and relation back
Statute of Limitations

What stops the clock
The commencement of an action (whatever the rule is, but generally by filing a summons with notice or a summons and complaint)
Statute of Limitations

Suspension of the SOL
The governor of the State of NY has the power to suspend any statute upon declaring a disaster emergency.

See details in the notes.
The SOL for Professional Malpractice

Generally
The SOL is 3 years. It includes professionals, excluding medical, dental or podiatric professionals.
The SOL for Professional Malpractice

Bargain for result
The concept was revived in Matter of Kliment: it's possible to go with two theories - professional malpractice and breach of contract, but the latter is possible only if the professional promised in the contract to do something specific that the law doesn't require him to do anyway.
The SOL for Professional Malpractice

CPLR 214(6)
Effective Sep. 4, 1996:

3 years statue of limitations applies regardless of whether the underlying theory is based in contract or tort.
The SOL for Professional Malpractice

Professionals v. Non-professionals
If a professional screws up, the SOL for professional malpractice is 3 years. If a non-professional, you have 2 theories - negligence (3-year SOL) and breach of contract (6-year SOL).

Professionals: lawyers, accountants, engineers, architects, land surveyors, investment bankers (1st Dept.).

Non-professionals: insurance brokers, actuaries, exterior wall consultants.
The SOL for Professional Malpractice

Standard for Professionals
Look at:

(1) is there the requirement for extensive formal learning and training in order to do this occupation;

(2) is there licensure and regulation that indicates some kind of qualifications;

(3) is there a code of conduct that imposes standards beyond those accepted in the marketplace,

(4) is there a method for disciplining those who don’t live up to the code;

(5) is the relationships between you and your client one of trust and confidence.

If you got most of these, you are a professional.
The SOL for professional malpractice

Matter of Kliment
The case revived the concept of "bargain for result" but only if the professional promised in the contract to do something that he doesn't have to do anyway (because such promise is in effect the promise not to commit malpractice).

The cause of action for malpractice accrues at the time of the malpractice. In this case, when the architect finished his work.

If a third party was injured because of the architect's malpractice, the cause of action doesn't accrue until the time of the injury. When the architect finished his work is irrelevant for such a third party.
The SOL for professional malpractice

The Ackerman case and the Atkins rule
The CoOA rejected the Atkins rule - the SOL for professional malpractice runs from the time of the malpractice. If an accountant makes a mistake and you have problems with the IRS, the cause of action accrued when you signed the papers, not when the IRS comes.
The SOL for professional malpractice

The McCoy case
The lawyer committed malpractice when he orally presented the terms of the settlement of a divorcing couple, not when he filed the judgment without a quadro, and not when the wife suffered loss as a result of the failure to file a quadro.
Medical Malpractice

Generally
CPLR 214-a.

A cause of action for medmal generally accrues at the time of the malpractice, not when you suffer injuries and not when you discover the malpractice (with some exceptions). The SOL for medmal is 2 years and 6 months.
Statute of Limitations

Constructive Fraud
Constructive fraud is an exception to the discovery rule (the discovery rule doesn't apply to constructive fraud). The SOL for constructive fraud is 6 years from the date of the constructive fraud. Constructive fraud is a fraud without intent, i.e., when the person misrepresents without knowing that he is misrepresenting.
Statute of Limitations

Fraud v. Breach of Contract
Don't try to make a breach of contract claim to look like a fraud claim - the courts don't buy it.
Medical Malpractice

Who is legally capable of committing medmal?
The Bleiler case: A nurse acting in a medical capacity is capable of committing medmal. A claim against a hospital sued under the theory of respondeat superior should be subject to the medmal SOL because the hospital is liable only vicariously and the first thing it'll do is implead the doctor. A claim under the theory of negligent hiring should stay a pure negligence claim with its 3-year SOL because, under this theory, the hospital is liable for its own negligence.

Only claims against psychiatrists amon professionals dealing with mental health should be subject to the medmal SOL. Claims against other such professionals should be normal negligence claims.

Veterinarians cannot commit medmal.
Medical Malpractice

What conduct is medmal?
Misdiagnosing is medmal.

Bed rail cases: Cases go both ways. In one case, the judge said that the answer should depend on why the bed rails were supposed to be up. If because of the patient's health condition, that's medmal. If because of a hospital's rules, that's negligence.

In the Scott case, the COA decided that the failure to keep the bed rails up was medmal because the failure stemmed from the wrong assessment of patient's needs.
Medical Malpractice

How to distinguish medmal from negligence?
Two line of cases are coexisting:

(1) if you need an expert to explain to a lay jury why what happened was either good or bad, then it's medmal.

(2) It depends upon the nature of the duty that's been violated: if the violated duty was the duty to give proper medical care to the patient, it's medmal. If it was any other duty, e.g., custodian duty, it's negligence.

Cases supporting the second proposition:
(1) The Weiner case (transfusion of bad blood): The COA held that it was negligence because the claim was that the blood never had to be in the supply, not how it was transfused.
(2) Blood misfiled cases: The 1st Dept. said that it was medmal because giving the result of a blood test is part of testing. 2nd Dept. said that it was negligence because misfiling was a clerical error.
(3) The D'Elia case and the Friedman case (a patient fell): It was negligence because it was a custodial care error, not a medical error.
(4) P required to be examined by D's doctor: The COA held that it was malpractice because the doctor was acting as a doctor, regardless of the fact that he came to the doctor not for treatment.
(5) A woman raped in the cardiac department: The claim was for negligence because the violated duty was the duty to keep her safe from harm while she was unconscious.
Medical Malpractice

2 exceptions to the rule that the medmal SOL begins to run at the moment of the malpractice
(1) Foreign Object Rule

(2) Continuous Treatment
Medical Malpractice

Foreign Object Rule. The Flanagan case
In such cases, there is no credibility issues; D is not prejudiced because the proof is entirely objective.

The Foreign Object Rule: The SOL for malpractice in such cases is 2,5 years from the day of the malpractice or 1 year from the day of discovery (or the time the malpractice should have been discovered), whichever is longer.
Medical Malpractice

"What is a foreign object" string of cases
(1) A stitch inside the body where it wasn't supposed to be: Not a foreign object; a foreign object must be something that isn't supposed to be inside or left inside.

(2) A nasal surgery case where the object left inside the nose was supposed to be removed 10 days later: Not a foreign object because when the operation was completed the object was supposed to be inside.
Medical Malpractice

Continuous treatment. Generally
When the patient is continuously treated by the same doctor or the hospital who committed malpractice for the same condition that gave rise to the claim, the SOL runs from the end of the treatment. The rule was created so that the patient isn't in a position when he has to choose between treatment and suing the doctor.
Medical Malpractice

Continuous treatment hinges on the dilemma
The Rizk case: not continuous treatment because the patient didn't have to choose between treatment and suing.

In another case, not continuous treatment because the patient didn't expect a worse treatment if she sued.
Medical Malpractice

Continuous treatment. Continuous v. Episodic
The Delaney case: Each pregnancy is a separate event, and malpractice committed during the first pregnancy does not continue until the next pregnancy.

The courts have said that if the period of the break more than the SOL, the treatment is not continuous. If it comes close, it depends on the fact whether you anticipate further treatment. The mere fact that the break period is long does not make treatment episodic.
Medical Malpractice

When continuous treatment ends?
When you start seeing another doctor or stop seeing the same doctor for the same medical condition. In this case, the treatment ends when:

(1) In case of regular appointments, when the next regular appointment is missed.

(2) If the patient leaves without making an appointment, from the day of the last actual appointment.

(3) If the patient cancels an appointment, from the day of the cancellation.

The fact that you consult a medmal lawyer does not end the continuity.
Medical Malpractice

Continuous treatment. What is treatment? string of cases
(1) The Cooper case: The patient had appointments with the doctor, and the doctor prescribed her pills. The treatment was the appointments, and the treatment ended with the last appointment, not when the medication ended, even though the patient kept calling the doctor and telling him that the pills were causing "side effects."

(2) The Massie case: Well-patient routine examinations are not treatment.

An exception to Massie: If the purpose of the exam is to check on a particularly either known or suspected condition, then that's treatment even though it's mere use of a diagnostic tool because it is not a well-patient routine exam.

(3) The Nykerchuk case: In misdiagnose cases, P never gets the benefit of the exception because the doctor never treats the right disease.

(4) If the doctor not just misdiagnose a disease but fails to recognize it, P doesn't get the benefit of the rule because the doctor never treated P.

(5) The Ganess case: Simple meliorating of symptoms is treatment - you don't have to be tried to be cured.

(6) The question remains whether treatment in another unit within the same hospital is continuous treatment. A transfer after birth to a pediatric unit breaks continuity.

(7) The Levitan case on the exception to Massie: The doctors noticed some irregularities and conducted an examination. There was a question of fact whether it was an exam of a well patient or not.
Medical Malpractice

Continuous Treatment. The same condition string of cases
(1) The Adam case: The patient was treated from one problem, and, in the course, she fell of the table and broke her arm. No continuous treatment.

(2) The Pattern case: The patient had one disease, and the pills that the doctor prescribed her caused her develop a cancer. No continuous treatment because she was not treated from the cancer.

(3) An exception to Nykerchuk: If you are continuously treated from the symptoms of a disease that was never diagnosed, it's continuous treatment because it fits the language of the statute.

(4) The doctor misread the results of H's test, and the child was born ill. No continuous treatment because the W's treatment was separate and it was H's results that were misread.

(5) The Brannigan case: Here, opposite to the previous case, it was the mother whose disease was misdiagnosed, and she got the benefit of the exception.
Statute of Limitations

When does the SOL begins to run with respect to an injured fetus
The clock begins to run after the birth of the child because you don't have a claim until you are born.
Medical Malpractice

Can continuous treatment be imputed from one doctor to another?
(1) With respect to transfers between units within the same hospital, the COA hasn't passed on this issue (the Plummer case).

(2) If one doctor treats a patient based upon a diagnosis made by another doctor, no continuous treatment because not the same doctor continues to treat. Continuous reliance on the wrong diagnosis by itself is insufficient. It can be different if the doctor continues to consult with the diagnosing doctor.

(3) The Kocks case: Two medical groups were affiliated and referred patients to each other. According to the 2nd Dept., no continuous treatment because they are different entities.
Parties

Multiple Ps
CPLR 1002(a): The Court should look at the commonality of the claims and possible prejudice to D.

(1) The Bender case: Multiple Ps wanted to sue a hair transplant doctor together. The court refused because it would be prejudicial to the doctor: the jury would think that if there are so many complaints, the allegations must've been true.

(2) But see the Kinnika case: Investors wanted to sue together claiming that D manipulated stocks. No prejudice.
Parties

Multiple Ds; DES cases and likes
CPLR 1002(b): A P can sue them all together.

The Haimovitz case (a DES case): DES was always prescribed generically. There was no way to discover who manufactured DES. The COA held what was "fair": To take evidence was to each D's share of the market in the relevant place at the relevant time. If P wins, Ds are liable severally but not jointly (P can get from each D only its share).

The result in Haimovitz hinged on the fact that it was unknown whose pills were taken. Because of this, the Haimovitz test didn't work in other cases. In asbestos cases, it's known who manufactured asbestos. In cigarette cases, P knows what cigarettes s/he smoked. In the Goodyear case (an exploded tire caused injuries with pieces of the rim), it didn't work as well. The concerted action theory didn't work in Goodyear as well because it applies only in tort cases (riots), but doesn't fit product liability.
Parties

Consolidation (Joinder)
See CPLR 602: The Court should look at the questions of commonality of claims and possible prejudice to D. Parties cannot stipulate to consolidate. It only the court who can consolidate.
Parties

Consolidation. Insurance cases
When an insures sues his insurance company because the latter refuses to pay insurance in case of an auto accident, the auto accident case and the insurance case cannot be consolidated: there is a possible prejudice - the jury must not know that there is insurance because it can predispose their decision.
Parties

Consolidation. Mandatory Joinder
See CPLR 1001: A joinder is mandatory if the absence of the party mandates dismissal of the action. A party is necessary when the action cannot continue without the party, or when the current parties might be inequitably affected by the judgment.

The Mecta case: When a couple puts down a deposit for a purchase of a house and the deal doesn't close, both spouses are necessary parties to sue for the deposit.

The joint holders of a bank account are both necessary parties.

However, merely because someone is an important witness, it doesn't mean that s/he is a necessary party. Thus, for example, if a seller receives guarantees from a bank for payments from a buyer, the buyer is not a necessary party if the seller (the assignee of the receivable) sues the bank.

If you sue a corporation, it doesn't mean that all shareholders are necessary parties because the value of the shares will diminish (i.e., they are inequitably affected by the outcome). If the only interest is the value of the shares, the shareholders are not necessary parties. If the interest is more than the value of the shares, then they will be necessary parties (an injunction against using air-conditioners case).
Parties

Failure to procure mandatory joinder
CPLR 3211 says that the failure to involve all necessary parties requires dismissal of the case. Thus, D can move to dismiss the action on the ground of the failure to name all necessary parties.

One amelioration to that rule is CPLR 1001(b) - when non-joinder is excused. The court shall look at listed considerations - whether P has a comparable remedy, prejudice that the non-joinder creates for the present D or the D who is missing, etc. (See Matter of Redbook) This provision should especially help if the situation is such that there is no place where you can sue both Ds.

If the court has jurisdiction and the reason for non-joinder is that the SOL has run, then the court has to go through the whole process: make such a D a party, take the D's motion to dismiss on the SOL ground, grant the dismissal of the case against the D, and then dismiss the original case because not all necessary parties are named.
Parties

Adding parties
CPLR 1003: You can do this in three ways:

(1) by stipulation of all the current parties. Such a stipulation must be in writing and by all the parties who appeared in the action;
(2) by making a motion;
(3) once early enough in the case by amending the pleadings as of right.

The mere fact that you can add a party does not negate that party's SOL defense.

There are time limits for (3):
(a) within 20 days after service of the original summons, OR
(b) at any time before th period for responding to that summons expires, or
(c) within 20 days after service of a pleading responding to it,

whichever is longer.

If you miss these time limits, it makes the joinder voidable - if D doesn't assert the misjoinder, he has waived it. Only the added party can assert misjoinder, not the current parties.
Parties

Substituting parties in case of death
CPLR 1015 governs substitution upon death. The court shall order substitution of the proper parties. At the moment a party dies, the case comes to a halt. The court cannot act until there is a substitution of representative. The lawyer loses the right to act. The stay is automatic.

If a representative is not substituted within reasonable time, the case is dismissed, regardless of who died. If D died, you should request D's estate to substitute.

To determine what reasonable time is, the court should look at (1) how much time has passed, (2) the diligence in seeking substitution, (3) the prejudice to the other side from the delay.

Who do I serve in order to get a motion dismissed? I have to serve the heirs, next in keen, those who in position to seek a representative to be appointed.

Sometimes, stay is not automatic - it can happen if an obvious representative is already a party (H & W, for example).
Parties

Unknown parties. Generally
CPLR 1024: You can proceed against John Doe. You can use the first name if you know it and "Doe." You have to reasonably describe JD. However, to be able to proceed against JD, you have to demonstrate diligent efforts to learn the identity of D. Diligent efforts must be made before the SOL has run.

If you knew or reasonably should have known D's identity, it's a jurisdictional failure for the case.
Parties

Unknown parties. Service of process problem.
Normally, you have 120 days to serve process. However, when you sue JD, you have to ascertain JD's identity and serve. Does it mean that you have less time? There are remedies.

See the Bumpus case. (1) I can try to obtain a pre-action order to disclose JD's identity from someone who knows him. (2) Before commencing an action against the real person, I can start an action against JD and seek to consolidate later. (3) Ds maybe united in interest, and I can use relation back for the purposes of the SOL. (4) I can ask the court to extend my time to serve D.
Parties

Interpleader. Generally
If you have a fund and there are two claimants for the fund, you can sue both of them and let them fight for the money which you give to the court.
Parties

Defensive Interpleader
When one claimant for a fund sues me, I can implead the other claimant, give the fund to the court and let them to decide who gets the money.
Parties

Interpleader cases
(1) If one claimant is not subject to NY jurisdiction and does not want to be in the lawsuit, interpleader is not possible (the Metropolitan Life case)

(2) If a real estate broker tells you not to pay his boss but to pay him, interpleader is not proper because there are not two claimants - you have a contractual obligation, and the fund is not subject to two competing acts.

(3) If two employees claim to the employer that they are entitled to money, interpleader is not proper because there might be no fund - the employer might owe money to both of them.
Parties. Article 16

Generally
If a party is 50% or less responsible, P can only collect what the jury said that party is responsible for. That party is severally liable, but not jointly and severally. Article 16 applies only to personal injuries actions and only to non-economic loss, i.e., pain and suffering. It does not apply to medical expenses, lost earning, etc.
Parties. Article 16

Trying the case against an empty chair
Ds can ask the judge to add a person over whom the court had personal jurisdiction but who P didn't sue. If there is enough percentage ascribed to that person (more than 50%), then Article 16 applies.

If the missing party is the state of NY, it might be because the court lacks subject matter jurisdiction. However, it doesn't help P, Ds can try the case against the state. The only time P can get rid of Article 16 is when P cannot obtain personal jurisdiction over the missing party.
Parties. Article 16

Exemptions
See CPLR 1602:

(1) Auto accident cases unless the accident involves police or fire department cars.

(2) actions requiring proof of intent. To decide whether the action requires proof of intent, you have to find out what the claim against this D. If it's not an intentional tort, D can get the benefit of Article 16.
Parties. Article 16

CPLR 1602(2): Non delegable duty
CPLR 1602(2) says that the limitation shall not be construed to impair any liability arising by the reason of a non-delegable duty. The County of Nassau case: In an auto accident case, P sued the driver of the other car, the town for failure to keep the lights working, and the contractor whom the town hired to repair the lights. The town said that it was entitled to the benefit of Article 16. P argued that the town was not entitled to the benefit because the duty to keep lights in order is non-delegable. The court decided that P was wrong - what 1602(2) means is that because the town had a non-delegable duty, the court had to add to the town's share the contractor's share and decide whether their combined share entitled them to benefit from Article 16.
Parties. Article 16

Application to claims of indemnification
There is some contradiction between CPLR 1602(1) and (2), however, the COA decided that Article 16 applies to claims of indemnification (albeit not in all cases).
Parties. Third Party Practice

Concept
When D wants to bring somebody else to the court. D may proceed against a person, not a party, who is or may be liable to that D for all or part of P's claim against that D. Thus, primarily, it is used for the purpose of contribution (note that contribution applies only to torts), however, there must be minimum jural relationship between the P's claim against D and D's claim against the third party.

It would be stupid to start a new case and then consolidate (the COA in the George Cohen Agency case).

Allowing this kind of impleader is highly discretionary - it must not be delayed and prejudicial.
Parties. Third Party Practice

When D waives his jurisdiction defense
If D failed to raise jurisdiction defense and thus waived it, the third party, who D wants to implead later on, can raise that D's jurisdiction defense against P even though D has waived it.
Parties. Contribution

Concept
The claim for contribution is a claim that you can either bring somebody else who is at least partially responsible for P's injury or, if P already sued all conceivable Ds, that you want to sue some of your co-Ds (if Ds are jointly and severally liable).
Parties. Contribution

String of cases
The rule: As long as the new party injured either P or D, the party can be brought into the case for contribution.

(1) The Nassau Roofing case (Roofer who built a bad roof, or Consultant to gave bad advice?): No claim for contribution because there was no theory under which the consultant was responsible for the bad roof - it was either-or: either the roof was good or it was bad, and no shares of fault between the roofer and the consultant.

(2) The Agrobusiness case (a barn burner and an insurance broker): Yes to the claim for contribution because, unlike in the roofer case, there was a single harm (the loss of the value of the barn) and each of the two contributed in different ways to that single harm.

(3) A case with a lawyer who committed malpractice in a medmal case and the doctors from that medmal case: The amount of damages P seeking from the lawyer depended upon the damage suffered from the medmal. However, there are two different injuries (medmal and professional malpractice), and it's more like the roofer case.

(4) A drunk assaulted P. The bar owed no duty to the drunk (D), but owed duty to P. Could D implead the bar? Yes because there could be contribution from the bar.

(5) A driver hitting a drunk. The drunk sued the driver. The bar didn't owe duty to the drunk, but it owed duty to the driver because the bar put the driver into the position in which he was liable. Yes to the claim for contribution.

(6) Auto accident case and then medmal committed by the hospital. The driver is liable for everything including the injuries resulted from the medmal. Therefore, the driver could seek contribution from the hospital.

(7) The Cantino case: A doctor who advised exercising and the club where P was injured. The club knew about the condition. P sued the club, the club was entitled to implead the doctor because it was for the same injury to which both contributed.

(8) P hit by car 1 and then by car 2. Driver 2 can seek contribution from Driver 1 because, "but for" the first accident, Driver 2 would've been less likely to be liable.

(9) The Taft case: D lolled P's lawyer into not commencing an action promising to settle. The SOL run. P sued D for fraud. D was entitled to implead P's lawyer because the lawyer committed malpractice.

(10) An insurance company advised its client to settle for a sum less that the client could've won. The client sued the company, the company was entitled to implead the client's lawyer despite that the lawyer relied on the company's advice - the lawyer mustn't have trusted the company.
Parties. Article 16

"If P is responsible too" cases
(1) P is 20% responsible, D1 is 40%, and D2 is 40%. The Ds are severally liable, not jointly.

(2) P is 40% responsible, D1 is 40% responsible, D2 is 20% responsible, the damage is $100,000. You exclude P's share of responsibility ($40,000). In the remaining, D2 is 66% responsible and, thus, responsible jointly and severally for $60,000.
Parties. Settlement

Math in multi-Ds cases after with a decision in P's favor after some Ds have settled
What if, in a multi-D case, D1 has settled and, subsequently, the jury found in P's favor? We have to deduct from the amount of the decision the amount of D1's settlement or D1's equitable share of damages, whichever is greater.

(1) D1 settled for $30,000. The decision: the damage is $100,000, D1 is 40% responsible, D2 is 60% responsible. We deduct $40,000 from $100,000, and P gets eventually not more than $90,000.

(2) D1 settled for $30,000. Decision: D1 is 10% responsible, D2 is 90%, the damage is $100,000. We deduct $30,000 from $100,000, and D2 has to pay $70,000 instead of $90,000 (D2 benefits).

(3) The Didner case: 3 Ds. D1 settles for $20,000. D2 settles for $35,000. Decision: damages are $100,000, D1 is 35% responsible, D2 is 15% responsible, D3 is 50% responsible. Do we calculate each D's settlement separately or aggregate? We aggregate: they settled for $55,000 and they are 50% responsible. Thus, from $100,000 we deduct $55,000 (not $70,000).

(4) A structured settlement case: D1 settles for $150,000 in cash, and $125,000 in an annuity. D1 has actually paid 275,000, but P will totally get $510,000. We have to deduct the actual payment, not the eventual.

(5) The Kawasaki case: D1 settled for $50,000. Decision: damages are $100,000. P is 50% responsible, D1 - 10%, D2 - 40%. How much does D2 have to pay? First, you deduct the settlement, and then apply P's share: $100,000 - $50,000 = $50,000 - $25,000 (50% P's share) = $25,000.
Parties. Settlement

Contribution v. Indemnification
The General Obligations Law 15-108: Settling tortfeasor is released from a claim for contribution. It does not release from a claim for indemnification - even if you've settled with P, you can be brought in under the claim for indemnification.

Indemnification exists only in 2 circumstances:
(1) by agreement;
(2) in cases of vicarious liability: Indemnification is created through my status - I didn't do anything wrong, it's only because of my status that I'm liable for your conduct and not for any other reason.

See instructive cases in the notes.
Pleadings

Importance
Pleadings matter because of the rule of res judicata - we need to know what was litigated.
Pleadings

Complaint
The rule of notice pleadings - a complaint needs only to state a cause of action and notice of what the claim is. Pleading is a promise to the court that you can prove it. Thus, you have to be careful because pleadings are admissible at trial.

P doesn't have to specifically plead the jurisdiction of the court. However, there must be facts that allow to conclude that there is jurisdiction.
Pleadings

Kinds of pleadings
(1) Complaint
(2) Answer
(3) Reply, but only if the answer to the complaint contained a counterclaim. The reply is P's answer to the counterclaim.
(4) Cross-claims (they are between Ds)
Pleadings

When a complaint has to state more than cause of action
See CPLR 1316:

(1) libel, slender: you have to state was was said by D, and who in particular made the statement and to whom in particular.

(2) Fraud or mistake: the circumstances constituting the wrong shall be stated in detail; however such a complaint shall be interpreted liberally because P may not know all the particulars in the beginning of the case.

(3) Separation or divorce.

(4) If you plead the application of a foreign law, you have to state the substance of the foreign law.

(5) If I'm suing a client for unpaid fees, I can optionally plead with particularity: give notice of each item I'm suing for. In this case, D in his response shall by a verified answer indicate specifically those items that he disputes.
Pleadings

D's response to the complaint (choice)
D has to either (1) answer, or (2) make a motion that has the effect to extend the time for an answer: (a) a motion to dismiss, or (b) a motion for a more definite statement or to correct pleadings.
Pleadings

Answer
Part of the answer can be affirmative defenses. CPLR 3018(b): A party shall plead all matters which, if not pleaded, would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading. Anytime you have any kind of defense, you have to plead the defense affirmatively if it is not stated in the denials of the pleadings. However, don't give details to your defenses.

The answer may also contain counterclaims against P.
Pleadings

Counterclaims
They are claims that D has against P. It can be completely unrelated to the original action with one limitation: you can counterclaim P only in the capacity P sued you and only in the capacity you've been sued.
Pleadings

Compulsory counterclaims v. collateral estoppel
NY does not have a rule of compulsory counterclaims. However, NY has collateral estoppel - you may be barred to use your claim later if you didn't assert it in your answer because you are collaterally estopped.
Pleadings

Verification
CPLR 3020. The only practical advantage of verification: if D defaults and P is seeking to have a default judgment entered, P has to submit certain documents including an affidavit of merit ("I swear" from somebody with personal knowledge of the events). If you have a verified complaint, you don't need an affidavit of merit.

In some situations, the law requires verification of pleadings.

Once a pleading is verified, all subsequent pleadings must be verified. Also the answer has to be verified when the complaint alleges fraud (even if the complaint is not verified), when the complaint is about non-payment of a written instrument; when defense does involve merits.

If a pleading had to be verified but it isn't, you can reject the pleading as long as you do it within reasonable time, usually, 2 days.
Pleadings

3 ways to amend pleadings
(1) once as of right if it is done early enough in the action (you don't have to ask anybody). Early enough means: (a) within 20 days after service of the pleading; or (b) at any time before the period for responding to it expires; or (c) within 20 days of the service of the pleading responding to it, whichever is longer. If you want to amend as of right too late, then the 1st Dept. says that it's jurisdictional failure and an annulity, others say that it can be overlooked (as long as it's not prejudicial?)

(2) by stipulation of all the parties; or by making a motion. The motion must be supported by an affidavit of somebody with the knowledge of the fact and information explaining the delay. The court will look at how long the party has known the facts in the amendment, what the excuse for the delay is, and whether there is any harm to any party from the delay. "Prejudice" here means prejudice resulting from the delay. So if the SOL has run, P loses, but it doesn't result from the delay.

If by the amendment you want to increase the amount of damages, you need two affidavits: (a) regular and (b) explaining the amount of damages.

If the amendment is not patently meritless, the amendment will be usually allowed.

(3) Absent prejudice to the other side, an amendment must be freely given.
Pleadings

Amending post-trial
(1) On appeal, you cannot amend to change the facts.

However, you might get your the theory under which you sued changed. You can ask the appellate court to put the right label on something that you has proved below (the Dimmer case).

(2) The Lumus case: If P's complaint demanded $2,000, and the jury came back with $5,000, P can make a motion to amend the pleadings to conform to the proof. Unless D can prove prejudice (apart from the fact that D has to pay more) from the fact that he didn't know that it was the amount that was claimed; it's OK to allow such an amendment.
Motion Practice

When the court clerk can refuse to accept your motion papers?
CPLR 2102(c): A clerk shall not refuse to accept for filing any paper presented for that purpose except where specifically directed to do so by statute or rules promulgated by the chief administrator of the courts, or by an order of the court.

The Chief Administrator issued a rule when a clerk can refuse to accept papers:

(1) the paper lacks an index number

(2) if without full caption (don't use "et al."

(3) If the paper is filed with a wrong court

(4) If the paper is not signed by the lawyer

(5) if the case was designated only for electronic filing unless the paper has a notice of emergency attached to it.
Motion Practice

Concept
A motion is an application for an order, request for some sort of relief. The usual motion is a notice motion.
Motion Practice

Requirements for the form
In the end of your motion paper, write "such further indifferent relief" to enable the court to grant you a closely related relief.

The Torrado case (2nd Dept.): The Court can grant you the relief you requested on entirely different grounds, especially where the notice motion has needed language.

With the motion, you submit all the papers to demonstrate why the motion should be granted. The only papers that are before the court on the motion are the papers you submit with the motion. The court cannot take judicial notice of knowledge.
Motion Practice

Deciding a motion
When the court grants or denies a motion, it has to state the reasons. CPLR 2219 provides that judges are required to decide motions within 60 days, except motions for provisional remedies (20 days).
Motion Practice

Rules for Service of any interlocutory papers, including motion papers (thus, except the summons)
CPLR 2103. I have choice to serve the attorney for the other side, or to serve the party pro se.

If I choose to serve the attorney, I can do it:

(1) by personal delivery,

(2) by mailing at the address designated by the attorney. The service is completed upon mailing. However, where a period of time prescribed by law is measured from the service of the paper and the service is done by mail, then 5 days shall be added to the prescribed period. "Mailing" means within the state. If mailing was done outside NY, it's annulity. In addition, you need an affidavit of service from the person who mailed if you didn't mail personally, you cannot give an affidavit that you caused somebody to mail.

(3) give it to a person in charge of the attorney's office, or leave the papers in a conspicuous place at the office. If the office is closed, you can stick the papers in their mailbox.

(4) by serving papers to a person of a suitable age and discretion at the attorney's home.

(5) by faxt, but only if the other side has consented to be served by fax. The service is complete when you get a response from the machine that everything was transferred. Then, you have to mail a copy, but there is no 5 days added.

(6) By overnight delivery. Analogously to 5 day rule, you add 1 business day.

(7) by electronic means where and in the manner authorized by the chief administrative judge.

Pro se service can be done in all ways the attorney can be served except leaving the papers in the office in a conspicuous place or by email.

I have to give 8 day notice. In this case, the answer is due 2 days before the motion is returnable. I can optionally give 16 day notice: then, I can demand opposition papers 7 days before the return day, and my reply to the opposition papers is 1 day before the return day.
Motion Practice

Motion to seal the files
UCR 216.1: Absent good reasons, records should be open to the public. The fact that court filings will be embarrassing to the parties it insufficient, and it doesn't even matter that the documents were obtained illegally or entirely irrelevant to the motion.
Motion Practice

Motion to Resettle
A motion to resettle is made to fix a computational, technical error.
Motion Practice

Cross-motions
CPLR 2215: A cross-motion is a motion made against the moving party. Generally, a cross-motion must be made no later than 3 days before the return date of the original motion. Example: P makes a motion on Feb. 1, the motion is scheduled for review by the court on Feb. 9, it's returnable on Feb. 7, and a cross-motion must be made on Feb. 6. If you serve a cross-motion by mail, you have to add 3 days (analogous to the 5-day rule).
Motion Practice

Replies to the opposition papers
Replies are supposed to respond to the opposition papers or to reaffirm what you said in the initial motion papers. Replies should not add anything new because the other party won't be able to address new arguments.

If reply is due on Sunday, the due date is moved to Monday.
Motion Practice

The Individual Assignment System
A motion judge makes his own rules how he will handle motions in the case.

To make a motion, you have to make a request for judicial intervention (RJI). You have to pay fee when you file for a RJI. You have to file a RJI the first time you ask the judge to do something/intervene. When you don't need to ask to intervene, you have to file a RJI when the trial has begun. The filing for a RJI triggers the assignment of a judge, and once a motion judge is assigned for the case, he will hear motions for the case till the end of it.

Each judge can create his own motion practice rules, but they have to comply with the Uniform Court Rules.
Motion Practice

After winning a motion
If the paper you got doesn't end with "settle order," you got an order. You can enforce, and it can be appealed.

If the last words are "settle order," then you got a decision, and you have to prepare an order. To settle the order means that you have to serve it on your adversary with a 5-day notice of settlement. If you serve by mail, it must be a 10-day notice. You have to settle within 60 days after the signing and filing of the decision directing that the order be settled. Failure to do so shall be deemed an abandonment of the mation unless a good cause shown, meaning that the court should act as the motion was never made (the movant can make the same motion again).

With respect to a motion for SJ: 1st Dept. said that abandoning this motion means that you can't make it again. 2nd Dept. said that it must mean that it the motion was never made. The answer is unclear.

In case of discrepancies between the decision and the order, the decision governs.

To enforce the order, you have to serve a copy of it on your adversary. It's measured ONLY by service by the winning side on the losing side (even if the court served too).
Motion Practice

Motion for reargument or renewal
If you lose on a motion, you can make a motion to reargue or to renew (CPLR 2221).

A motion to reargue shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court. A motion to reargue must be made within 30 days.

A motion to renew inovlves new facts (1) because I didn't know them, or (2) they didn't exist by that time, or (3) I had a reason not to tell the facts at that time. A motion to renew can be made at any time (except if the case is over) because new facts can happen any time.

A decision that grants or denies a renewal is appealable. A decision that denies a motion to reargue is not appealable. A decision that grants a motion to reargue is appealable.
General Jurisdiction. Individuals

NY Resident
I.e., you live here measured from the time the lawsuit was commenced (not from the time when the cause of action accrued).
General Jurisdiction. Individuals

Tagging Jurisdiction
If D comes to NY voluntarily, it creates general jurisdiction over him.

The Burnham case: Tagging jurisdiction is constitutional. Minimum contacts substite presence. If you are physically present, you don't need minimum contacts.
General Jurisdiction. Individuals

Doing business in NY regularly, but doesn't live in NY
The 1st Dept. - it's enough to make you a New Yorker for the purposes of jurisdiction.

The 2nd Dept. - not enough.
General Jurisdiction. Individuals

Exceptions to tagging jurisdiction
(1) If you are enticed into the state to be served with a summons, there is no jurisdiction over you.

(2) If I voluntarily come to NY in order to testify in a proceeding, I have immunity from service of process. If I linger, the immunity is off. If I'm here not voluntarily to testify, no immunity. If I can be served wherever, immunity doesn't matter and it doesn't matter whether I was served in NY.
General Jurisdiction

Partnerships
The easiest way to get jurisdiction over a partnership is to tag its general partner. Any basis of getting jurisdiction over a general partner can give you jurisdiction over the partnership.
General Jurisdiction

Consent to jurisdiction
2 ways:

(1) by designating under CPLR 318 an agent for service of process in NY.

(2) In a contract. You need to say that any dispute arising out of the contract will have exclusive jurisdiction in NY. Merely choosing the law of the contract is not the same as choosing jurisdiction.
General Jurisdiction. Corporations

Generally
A NY corporation is subject to NY jurisdiction. A foreign corporation authorized to do business in NY is subject to NY jurisdiction.

A foreign corporation that is not authorized to do business in NY but does it on a regular basis is subject to NY jurisdiction.

However, the Helicopteros case: purchases are different from sales - with purchases in NY you do not subject yourself to NY jurisdiction.
General Jurisdiction. Corporations

Branch
The presence of a branch office is enough to exercise jurisdiction over the corporation because it does business in NY systematically, not casually (the Finn Air case).
General Jurisdiction. Corporations

Agent
Mere solicitation by an agent is not enough. Activities beyond solicitation must be substantial to subject the principal to NY jurisdiction.

However, if what the corporation does is solicitation, then mere solicitation by its agent is enough to exercise jurisdiction over the corporation.
General Jurisdiction. Corporations

Subsidiary Corporation
A subsidiary corporation in NY is not enough to subject the parent corporation to NY jurisdiction unless the subsidiary acts as an agent (but it doesn't need to do as much as an ordinary agent), or if the parent treats the subsidiary merely as a department (not as a separate corporation).

Mere control over a corporation is not enough without owning it (the VW case).

4 things at which the court should look: (1) common ownership, (2) financial dependency of the sub on the parent, (3) does the parent assigns executive personnel and keeps corporate formalities; (4) corporate control over marketing, etc.
Long Arm Jurisdiction

Bases
See CPLR 302:

(1) who in person or through an agent transacts any business in NY;

(2) contracting to supply goods and services in NY

(3) Tortious Act within NY

(4) Tortious Act without NY causing injury within it

(5) Ownership of Property within NY
Long Arm Jurisdiction

Matrimonial Actions
Matrimonial actions are in rem by their nature. The res is the marital status. Thus, if either party is in NY, NY courts have the power to adjudicate the marriage (but not financial issues). Financial lawsuits require in personam jurisdiction.