Lecture 2 - Ny And Federal Civil Practice And Procedure Part Ii

Front 1

Under supplemental jurisdiction, a federal court can hear the state claim when? (as related to CAP)

Back 1

Plaintiff sued in federal court on a claim of CAP (copyright infringement) and plaintiff asserted a state claim for unfair competition - since both claims are related the federal court can hear this (under supplemental jurisdiction)

Front 2

T or F? As long as one plaintiff's claim in the class satisfies the $75,000 requirement, then the court can hear all other related claims? (think supplemental jurisdiction)

Back 2

True.

Front 3

Can a plaintiff amend a complaint to add a defendant under the same jurisdiction? (think supplemental jurisdiction)

Back 3

No, diversity jurisdiction would be defeated.

Front 4

T or F? The federal court has supplemental jurisdiction over a counterclaim that arose from the same transaction of a previous claim?

Back 4

True.

Front 5

Finish this sentence: Where supplemental jurisdiction has been exercised by a court, then if the federal claim is dismissed or withdrawn, then the federal court may remand or dismiss the state claim without prejudice, but...

Back 5

... but, if the federal claim is dismissed for lack of subject matter jurisdiction, then the federal court must dismiss the state claims without prejudice.

Front 6

Define 'REMOVAL' as it refers to state and federal court.

Back 6

The procedure by which a state court defendant petitions a federal court where the state court is sitting asking the federal court to assume federal jurisdiction over the claims pending in the state court.

Front 7

A civil action which could have been commenced in a federal court can be removed from the state court into the federal court when? (two conditions)

Back 7

A) The action involves a CAT claim (e.g. any action against an officer of the US, a foreign country, a federal agency, or a 1983 civil rights claim OR
B) There exists complete diversity jurisdiction between the parties and the claim exceeds $75,000 and none of the defendants are citizens of the state where the state action is pending.

Front 8

When is removal from state court into the federal court based on DJ available?

Back 8

1. All of the multiple defendants consent to the removal (aka unanimity),

2. None of the named defendants is a local citizen from that state, AND

3. Within 30 days from the defendant's receipt of a document in which the defendant can ascertain the claim is removable to the federal court, the defendant must file with the federal court, a 'notice of removal' indicating the basis for complete diversity and simultaneously serve a copy of that notice on the clerk of the state court and all other parties in the action.

Front 9

What occurs under the 'last served rule' where there are multiple defendants in a lawsuit who were not served simultaneously?

Back 9

Removal is timely if all defendants consent within 30 days after the last defendant was served.

Front 10

When must this removal be done in any event?

Back 10

Within one year from service of process unless the district court finds the plaintiff acted in bad faith in purposely preventing or denying removal from the state to the federal court.

Front 11

Who and why was the one year s/l imposed?

Back 11

By congress to prevent removal notice on the plaintiff.

Front 12

How many days does the defendant have in order to demand a jury trial?

Back 12

14 days from when the defendant filed the removal notice with the federal court.

Front 13

T OR F: Infrequently federal courts will allow a late jury demand when a case has been removed from state court to federal court.

Back 13

FALSE. It's frequently.

Front 14

What occurs after a case is removed to federal court?

Back 14

The court on motion or on its own initiative may drop parties, drop claims, or order parties added at any stage of the litigation even after the start of trial or after the trial itself.

Front 15

What can the plaintiff do to oppose the removal to the federal court?

Back 15

Quickly file a motion in the federal district court to REMAND the action back to the state court within 30 days from when the defendant first filed the notice of removal.

Front 16

When does the plaintiffs opposal of the removal to the federal court go through?

Back 16

The opposal goes through if the remand is based entirely on improper procedure, but if the basis for the plaintiff's remand is substantive then there is no complete diversity jurisdiction, then the 30 day time limit to remand doesn't apply and that motion can be made at any time simply because the federal court lacks subject matter jurisdiction.

Front 17

How many federal districts does NY have?

Back 17

4: Eastern, Southern, Western, and Northern

Front 18

How many federal districts does the state have?

Back 18

In most cases, 1.

Front 19

What doe federal venue rules seek to do?

Back 19

To protect defendants from having to litigate in an inconvenient or burdensome district.

Front 20

What occurs in both diversity and CAT federal question claims?

Back 20

The distinction between transitory action, local action, and actions to recover a chattel have been abolished.

Front 21

Venus is proper only in a judicial district when? (3 things)

Back 21

1. The event took place,
2. The property affected by the lawsuit is located, OR
3. all defendants reside.

Front 22

Is the plaintiffs residence relevant in federal practice?

Back 22

No, it's irrelevant, thus a plaintiff cannot sue at home unless the disputed property is there, or the claim arose there.

Front 23

What occurs is multiple defendants reside in the same state?

Back 23

Venue is proper in any judicial district in that state where a defendant resides.

Front 24

If defendants reside in different states then the venue can be based on what?

Back 24

1. Where the event took place, OR
2. Where the property affected by the lawsuit is located.

Front 25

What occurs is a plaintiff misplaces venue?

Back 25

This defense can be waived if the defendant makes a pre-answer Rule 12 motion to dismiss and does not include improper venue in that motion.

Front 26

What occurs if the defendant does not make a pre-answer motion to dismiss when a plaintiff misplaces venue?

Back 26

If the plaintiff also serves an answer without including improper venue as an affirmative defense, then this defense is waived. VIP.

Front 27

For venue purposes, a corporate defendant is deemed what?

Back 27

A corporate defendant is deemed to reside in the federal district where it is subject to personal jurisdiction (DIAL C). AKA where it was incorporated, where it's principal place of business is located (corporate headquarters), where major decisions are made, where the cause of action arose, or in the district where it is subject to long arm jurisdiction. In a multi-district state, it is that one district where the defendant is at home or where the cause of action arose.

Front 28

Can venue be transferred to any federal district?

Back 28

Yes, upon consent of all parties and the court, even if the claim could not have been originally filed in that district, but the court must find that the transfer is for the convenience of the parties and witnesses and in the interest of justice.

Front 29

What are the two types of forum selection clauses (aka a venue selection clause)?

Back 29

1. Permissive where the action may be commenced, AND
2. Mandatory selection clauses where the action must be commenced.

Front 30

What occurs when a plaintiff chooses a venue that is proper under federal law, but is improper because of the existence of a venue selection clause?

Back 30

The defendant's proper procedure to change venue is not a motion to change venue because the plaintiff chose an improper venue because the Supreme Court held the plaintiff chose a proper venue under federal law.

It is not a motion to dismiss, but instead a motion to change venue to a district where the parties have agreed.

Front 31

In 2013, the US Supreme Court held what mandatory in regards to venue selection?

Back 31

That venue selection clauses must be enforced absent extraordinary circumstances unrelated to the parties' convenience.

In overwhelming number of cases the interests of justice are served by holding the parties to their contract and placing venue where the party selected. By the contract selecting a venue, a party waived the right to change it. The plaintiffs initial choice of venue should be given no weight by the courts and a plaintiff's inconvenience should not even be considered.

Front 32

A well-drafted NY forum selection clause should contain what three items?

Back 32

1. a consent to NY jurisdiction ( A SCAM),

2. a CPLR Article 5 venue designation selecting the NY county or the federal district where the action must be commenced.

AND

3. that New York law shall govern a party's dispute.

Front 33

An FNC motion presupposed the court has subject matter jurisdiction for what?

Back 33

To hear the claim as well as procedural jurisdiction over the defendant.

Front 34

A NY FNC motion asks the NY court to transfer the case where?

Back 34

To a more convenient forum outside the state.

Front 35

An FNC motion in the federal court asks the court to transfer the action where?

Back 35

To a court outside the US.

Front 36

What is a threshold issue in an FNC motion?

Back 36

It's whether there is an adequate forum in another jurisdiction to adjudicate the plaintiff's claims.

Front 37

In determining whether to grant the defendant's FNC motion, the court should consider whether the case should be tried HERE. Define HERE.

Back 37

H - the hardship on the defendant and the NY courts

E - the location of the evidence needed to support the claim

R - the residence of the parties

E - the location of the event

Front 38

What happens if neither plaintiffs nor defendant reside in NY?

Back 38

A defendant's FNC motion generally will be granted.

Front 39

T OR F: A defendant's delay in making an FNC motion may be a basis for the court to deny it?

Back 39

True.

Front 40

Under the CPLR, if a defendant improperly places venue, can the defendant timely move to dismiss the plaintiff's claim?

Back 40

No, because in NY practice, venue is not jurisdictional as it is in federal practice.

Front 41

In NY what does venue refer to?

Back 41

The county inside New York where a plaintiff can choose to commence the action.

Front 42

NY venue is chosen according to the type of TLC action involved. What's TLC stand for?

Back 42

T - a transitory action

L - a local action,

OR

C - an action to recover a chattel (replevin)

Front 43

In TLC, what does L more specifically refer to?

Back 43

Local actions involve disputed of ownership, use, or possession of real property. Venue is proper in any county where the real property is located. The residence of the plaintiff or the defendant is not considered.

Front 44

In TLC, what does C more specially refer to?

Back 44

C - In a replevin action, NY venue is proper in the county where

1. any of the parties reside

OR

2. where the chattel is located

Front 45

In TLC, what does T more specifically refer to?

Back 45

T- A transitory action is any action that is not local or replevin.

Front 46

In a transitory action, a venue is what?

Back 46

Venue is proper where any plaintiff or defendant resides.

Front 47

If no NY resident is involved in a transitory action, then venue is what?

Back 47

Venue is proper in any county in the state. However, where plaintiff and defendant are both non-NY residents, then the defendant should consider making a motion to dismiss the plaintiff's claim on forum non conveniens.

Front 48

Under NY practice, the sole residence of NY corporation is what county?

Back 48

The sole residence of NY corporation is the county designated in its certificate of incorporation filed with the Secretary of State designating its principal place of business.

Front 49

If both sides agree to a bad venue and the defendant does not make a motion, then what?

Back 49

Then the bad venue will remain as the place of trial under both federal practice and NY practice.

Front 50

Where a NY plaintiff has chosen a bad venue, then the defendant can change venue to a proper county "as of right" (the court has no discretion), but only when?

Back 50

But only if the defendant first makes a written demand on the plaintiff to change venue to a proper county and the demand must be served either with or before the defendant's answer.

Front 51

If the plaintiff does not consent within 5 days of the written demand to change venue, then what must the defendant do?

Back 51

The defendant then must make a motion within 15 days from the demand, and the court shall change the venue to the proper county designated in the defendant's demand.

Front 52

What are the 3 types of procedural jurisdiction?

Back 52

1. Personal jurisdiction where the minimum contacts of the defendant with a state are DIAL C. If a defendant lacks minimum contacts with NY, usually it involves a transaction that occurred in state X.

2. In rem jurisdiction where the minimum contact with the state is that the disputed property is located in that state.

AND

3. Quasi in rem jurisdiction where the minimum contact with the state is the court ordered attachment of the defendant's assets located in that state and which asset has a connection with the plaintiff's claim.

Front 53

What is "state action" involved? And why?

Back 53

Whenever a party starts a lawsuit and enlists a state or federal court to recover money or property from a defendant, then "state action" is involved requiring the due process clause of the constitution to be satisfied.

Front 54

When do federal courts apply the state rules for procedural jurisdiction?

Back 54

In the state where the federal court is sitting.

Front 55

What must occur to the defendant before a state or federal court can assist a plaintiff in taking away a defendant's money or property?

Back 55

That defendant must be afforded due process of law.

Front 56

The process is "due" (fair) if it satisfies MOP. What is MOP?

Back 56

M - minimum contacts with NY

O - opportunity to be heard
P - properly served with process

Front 57

Can you define what is meant by "m - minimum contacts with NY"?

Back 57

Valid out of state service of process on a defendant cannot by itself vest a NY start or federal court with procedural jurisdiction over a non-domicile. The question of valid procedural jurisdiction is whether the quality and nature of the defendant's contacts with NY are sufficient so that the exercise of jurisdiction by a NY state or federal court "does not offend traditional notions of fair play and substantial justice". The court will consider whether it is "fair" to subject a non-domicile to a lawsuit in NY. The Supreme Court has held that MOP minimum contacts impose a limitation n a court's ability to hear a case involving a non-domicile.

Front 58

Can you define what is meant by "o - opportunity to be heard"

Back 58

The defendant must be given an opportunity to be heard. The Supreme Court has held that a hearing where both parties appear is always fairer than a one-sided hearing. Under NY practice, a defendant has 30 days from when service is "complete" to appear in an action to avoid a default judgement. A NY defendant has only 20 days to appear where the defendant is 1. served personally within the state of NY, or 2. consents to service by mail.

Front 59

What does MOP apply to?

Back 59

MOP applies to in rem jurisdiction, quasi in rem jurisdiction, and to personal jurisdiction over the defendant.

Front 60

If any one of the MOP elements is lacking, then what?

Back 60

Then the court lacks valid procedural jurisdiction and if the defendant timely raises the defense, the NY court shall dismiss the plaintiff's claim. In federal court, the court may dismiss the action, but if after the action was improperly commenced, the s/l expired on the plaintiff's claim, then the court may transfer the action to a federal court that is a proper venue and that has a MOP jurisdiction over the defendant.

Front 61

What is the judgement is the defendant does not appear in the action and a NY state or federal court default judgement is taken, but there was a MOP defect?

Back 61

The default judgement is a nullity because without MOP, that judgement violates the due process clause.

Front 62

What occurs whenever a court dismisses an action for lack of procedural jurisdiction?

Back 62

This dismissal is not on the merits (it is nor res judicata) and the same action can be recommenced by the plaintiff provided the s/l has not expired in the interim.

Front 63

What does the full faith and credit clause of the US Constitution provide?

Back 63

That the judgement of one state or a federal court must be given the same credit, validity, and effect in every other US court that it would be given in the state that rendered the judgement. Thus, a review of an out of state by a NY court is limited to determining whether the rendering court had MOP jurisdiction over the defendant or whether fraud was used to procure the default judgement in the state where the judgement was obtained.

Front 64

Define FF&C.

Back 64

The Constitution requires that all US courts give full faith and credit to another US court's judgement prohibiting a collateral inquiry into the merits of the claim that supported that judgement. FF&C gives the judgement res judicata effect, thus avoiding relitigation of issues or claims that judgement in another state or federal court.

Front 65

What happens if another state's judgement was a default judgement and it is brought into NY?

Back 65

Then NY will hear a defendant's argument on whether MOP was violated. However, if the defendant litigated the MOP issue in the other state and lost, then even if that determination was wrong. The defendant could have appealed that order, but when that judgement is brought to NY that defendant cannot raise MOP because the judgement is entitled to full faith and credit.

Front 66

The US Supreme Court has divided personal jurisdiction into 2 general types, what are they?

Back 66

1. General, "all purpose jurisdiction"
2. Specific jurisdiction, aka case-linked jurisdiction

Front 67

What is general, "all purpose jurisdiction"?

Back 67

General "all purpose jurisdiction", which arises from a defendant's continuous and systematic activity within the state.

General jurisdiction allows the court to hear any claim arising anywhere in the world against such a defendant.

Front 68

What is specific jurisdiction, aka case-linked jurisdiction?

Back 68

Specific jurisdiction, which arises when a non-domicile has engaged in a single act or occasional acts connected to a state and the plaintiff's claim against the defendant must arise out of that activity.

Front 69

For both general and specific personal jurisdiction, the defendant must have sufficient minimum contacts with NY state to allow a NY or federal court to hear that claim. Sufficient minimum contacts are DIIAL C. Define DIIAL C.

Back 69

D - the defendant is a NY domicile.

I - a defendant corporation's state of incorporation or its principal place of business is an automatic minimum contact in that state.

I - in-state service

A - serving the defendant's agent who has been expressly or impliedly designated to accept service on the defendant's behalf.

L - long-arm jurisdiction, aka specific case-linked jurisdiction and not general jurisdiction.

C - Consenting to jurisdiction

Front 70

Explain D from DIIAL C.

Back 70

The defendant is a NY domicile. Because a domicile receives the benefits and protections of that state, the domicile subjects herself to personal jurisdiction on any claim arising anywhere in the world commenced in a NY state or federal court. Whenever a non-NY domicile sued in a NY state court, then that defendant should immediately consider (within 30 days) removing the state claim from the NY state court into the federal court on the ground of diversity jurisdiction provided the amount demanded exceeds $75,000.

Front 71

Define I - in-state service from DIIAL C.

Back 71

Serving a non-domicile inside NY with a summons or a subpoena is a sufficient minimum contact for general jurisdiction int hat state even if the defendant was there only briefly. This does not offend traditional notions of fair play. When a defendant is an out of state corporation, the plaintiff must rely on some other DIIAL C minimum contact other than in-state service on corporate personnel. However, service on a partnership is sufficient if a partner is served in NY giving NY jurisdiction over the partner served and the partnership. If a non-resident is tricked or is fraudulently induced in NY, then in-state service is defective and will not give rise to jurisdiction over that non-resident. If a defendant is voluntarily within the state, then trick may be used to effect service.

Front 72

When is immunity from in-state service given?

Back 72

Immunity from in-state service is given to a non-NYer who voluntarily comes into NY to attend a federal or state judicial or quasi-judicial proceeding, but that immunity is given only if the defendant has stayed at home and would not be subject to personal jurisdiction if served in her home state. This immunity applies to a plaintiff, a defendant, or a witness who was voluntarily in NY to prepare for trial, or to attend a trial, or any other quasi judicial proceeding. NYAA. The scope of the immunity gives the non-resident a reasonable time to arrive, to participate, and then to depart the state.

Front 73

What is covered under CPLR 303? (Think A in DIIAL C)

Back 73

Whenever a plaintiff commences a NY action, he impliedly appoints his attorney to accept service or process, but only from another part in that lawsuit.

Front 74

What is covered under BCL 306? (Think A in DIIAL C)

Back 74

Whenever a NY corporation is formed, its certificate of incorporation must expressly designate the NY Secretary of State to accept service of process on the corporation's behalf. The courts are in disagreement whether this is a sufficient minimum contact to subject a corporation to personal jurisdiction where the corporation is operating outside of NY.

Front 75

What is covered under NY's VTL? (Think A in DIIAL C)

Back 75

If a non-reside owner or driver is involved in a NY accident, then that law expressly appoints the NY Secretary of State to accept service on behalf of that non-resident. This statute has been upheld by the US Supreme Court.

Front 76

Define the L in DIIAL C.

Back 76

Long-arm jurisdiction, aka specific case-linked jurisdiction and not general jurisdiction. A plaintiff uses long arm jurisdiction to sue a non-domicile whose conduct has caused some tortious or economic injury in NY. It allows a NY court to obtain personal jurisdiction over a non-domicile, but only on claims arising from the defendant's long-arm activity.

Front 77

What does 302(a)(1) cover? (Think L in DIIAL C)

Back 77

302(a)(1) allows personal jurisdiction over a non-domicile who
a) "transacted business in NY" OR
b) entered a contract anywhere to ship goods into NY or to perform services in NY. That is, the defendant has "targeted" NY.

For long-arm jurisdiction to apply, the defendant does not have to have entered NY and the court looks at whether the defendant purposely availed herself of a NY business opportunity (PAN).

For long-arm jurisdiction to apply, the plaintiff's claim against the non-domicile must actually arise out of the defendant's transaction of business or out of the breached contract. A sinlge act may be sufficient.

Front 78

What does 302(a)(2) cover? (Think L in DIIAL C)

Back 78

302(a)(2) confers specific jurisdiction over a non-domicile who commits a tortious act within NY except NY exempts the tort of defamation from long-arm jurisdiction.

Front 79

What does 302(a)(3) cover? (Think L in DIIAL C)

Back 79

302(a)(3) is a tortious act outside the state causing injury within NY.

In strict products liability cases, the Supreme Court has held that by simply placing a defective product in the stream of interstate commerce and foreseeing that it could enter NY is not a sufficient minimum contact for 302(a)(3). Under the "stream of commerce plus" theory, there must also exists some other SSS conduct purposely directed at NY such as solicitation (advertising), sales consummated in NY, or performing services in NY such as marketing or repairing of the product. It must be shown that the defendant "targeted" the NY market and PAN (purposefully availed itself of business activities within NY).

Front 80

What does 302(a)(4) cover? (Think L in DIIAL C)

Back 80

302(a)(4) gives NY specific jurisdiction where a non-domicile owns, uses, or possesses NY real estate and the plaintiff's claim arose out of that ownership, use, or possession.

Front 81

What does 302(b) cover? (Think L in DIIAL C)

Back 81

302(b) is used in a NY matrimonial action or in a family court proceeding where the plaintiff is seeking maintenance or child support. Personal jurisdiction over the non-domicile exists provided DADA (disjunctive).

Front 82

What does DADA stand for. (Think 302(b) from L in DIIAL C)

Back 82

D - NY was the parties' recent marital domicile

A - The abandonment took place in NY

D - The claim for support accrued under a NY decree. The claim arose under NY law. This permits a NY paternity proceeding to be commenced against a non-domicile where the non-marital child was conceived in NY

A - the parties executed a separation agreement in NY

Front 83

Define the C in DIIAL C.

Back 83

C- consenting to jurisdiction

Even though a defendant has no minimum contacts with NY or even if she was not properly served with process she may nevertheless consent to jurisdiction in a NY court by A SCAM. In federal practice, a defendant consents to jurisdiction only by SAM.

Front 84

What does A SCAM stand for? (Think the C in DIIAL C).

Back 84

A - serving an answer and failing to include the MOP jurisidictional objection, but the defendant can correct this omission and amend the answer, but only "as of course" without court permission within 20 days in NY practice or 21 days in federal practice. (A in SAM)

S - stipulating to jurisdiction either in open court where a court stenographer memorializes the stipulation or in a signed writing. Under state and federal law, an electronic signature has the same validity and effect as a signature affixed by hand. (S in SAM)

C - (NY but not federal practice) Any defendant who serves an answer raising a MOP objection, but also asserts an unrelated counterclaim in that answer consents to jurisdiction. However, asserting a related counterclaim that arose out of the same transactions on which the plaintiff is suing is not a consent to jurisdiction unless the defendant moves for summary judgement on the related counterclaim.

A - (NY only, not federal practice) A defendant asserting improper service of process (just the P in MOP) in the defendant's answer must move for summary judgement on that issue within 60 days after serving the answer. Otherwise, the defendant waves that objection.

M - By making a pre-answer motion to dismiss, but failing to include the MOP jurisdictional objection in that motion, waves it and the defendant consents to jurisdiction (the M in SAM).

Front 85

In a Federal Rule 12 motion to dismiss, unlike NY, the defendant must specifically raise the MOP objection specifically. More specifically, that is what 3 things?

Back 85

1. lack of personal jurisdiction (No DIIAL C minimum contact)

2. insufficient process
OR

3. insufficient service or process

Front 86

Under federal practice, if a defendant makes a pre-answer motion to dismiss and fails to include VIP or the defendant does not make a pre-answer motion, but fails to include VIP in the answer, they are waived. What does VIP stand for?

Back 86

2.-V - improper venue was chosen
I - insufficient process or insufficient service of process
P - lack of personal jurisdiction where the defendant has no minimum contacts with the state

Front 87

What 2 things is in rem jurisdiction used to do?

Back 87

1. to determine title or the right to possess personal property located in NY

OR

2. to terminate marital status where there is no personal jurisdiction (no DIIAL C minimum contacts by the defendant spouse)

Front 88

When can an ex parte in rem divorce judgment be granted?

Back 88

Where the court lacks personal jurisdiction over the defendant spouse. However, where only in rem jurisdiction exists, the court cannot order the defendant to pay money or to equitably distribute the parties' marital property located outside the state, which requires personal jurisdiction over the defendant. In rem jurisdiction allows the court to simply grant the plaintiff a divorce.

Front 89

In rem jurisdiction, the location of the marital status is where?

Back 89

The location of the marital status is the state where either spouse is validly domiciled.

Front 90

An in rem divorce judgement terminates only the marital status of divorce but with what decree?

Back 90

That decree is referred to as a "divisible divorce" because it has no affect on the vested marital property rights held by a spouse in another state

Front 91

What is quasi-in rem jurisdiction (QIR)?

Back 91

Quasi-in rem jurisdiction (QIR) is sometimes referred to as attachment jurisdiction. It is used when a plaintiff is suing for money damages, but where a plaintiff cannot obtain personal jurisdiction over the defendant (no DIIAL C minimum contact with that state).

Front 92

When can a money judgement based on QIR be satisfied?

Back 92

A money judgement based on QIR can only be satisfied from the attached asset. That judgement cannot impose any personal liability against a defendant since that would require personal jurisdiction.

Front 93

100 years ago QIR could be used if a defendant possessed any attachable asset within the state, how has that changed today?

Back 93

Today, in order to obtain QIR, the attached asset must have a nexus to the plaintiff's claim.

Front 94

What is the procedure for obtaining QIR?

Back 94

To obtain a court order of attachment and have the NY sheriff attach that asset and only after it is attached, is the defendant served with process.

Front 95

Is a QIR judgement in the plaintiff's favor subject to res judicata or collateral estoppel?

Back 95

A QIR judgement in the plaintiff's favor is not subject to res judicata or collateral estoppel if the property attached is insufficient to satisfy 100% of the plaintiff's claim. Thereafter, when the plaintiff sues the defendant in another state, the plaintiff must establish his claim and his damages all over again. However, if the plaintiff loses in the QIR claim, the defendant may invoke the doctrine of collateral estoppel to defeat the plaintiff's claim in another forum.

Front 96

What happens in a QIR action?

Back 96

In a QIR action, the defendant has a qualified appearance and can fully contest the action on the merits without being subjected to personal jurisdiction, a resulting QIR judgement will not subject the defendant to any personal liability because QUR jurisdiction acts only upon the property that was attached.

Front 97

What is the NY summons?

Back 97

The NY summons is drafted and signed by the plaintiff's attorney. In federal practice, it is signed by the clerk of the district court who affixes the court seal to the summons. The summons must give the defendant notice that failure to appear (in NY within 20 or 30 days or in federal practice within 21, 60, or 90 days) will result in a default judgement being taken against the defendant.

Front 98

In NY practice only, a summons can be filed and served without a complaint, but what?

Back 98

But it must briefly state the nature of the plaintiff's claim and the relief being sought.

Front 99

When can the summons be served?

Back 99

The summons can be served day or night, inside or outside the state.