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Civil Procedure Mnemonics

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Civil Procedure Mnemonics CIVIL PROCEDURE MNEMONICS FEDERAL JURISDICTION 1) “Arising under” jurisdiction, a.k.a. “Federal Question” jurisdiction is found in a CAT: C – The U.S. CONSTITUTION A – ACTS of Congress, or T – TREATIES 2) SCRAM if you don’t have a justiciable claim: S – STANDING C – CASE or controversy R – RIPENESS A – ABSTENTION M – MOOTNESS 3) Diversity and supplemental jurisdiction require federal courts to apply state law for PIPS: P – PRIVILEGES I – INCOMPETENCY of witnesses P – PRESUMPTIONS and inferences S – STATUTE of limitations 4) Look at VCR to see the exceptions for the mootness doctrine: V – A VOLUNTARY change in position, but not permanently C – CLASS action R – Capable of REPETITION doctrine 5) Apply MRS C rules when someone challenges a state law: M – MOOTNESS R – RIPENESS S – STANDING C – CASE or controversy JURISDICTION OVER PERSONS AND PROPERTY IN NEW YORK AND FEDERAL COURTS 1) To obtain valid procedural jurisdiction, the 14th Amendment Due Process Clause requires that the defendant must have MOP: M – Some MINIMUM contact with the forum state O – An OPPORTUNITY to be heard in the suit P – Been PROPERLY served with process ©2015 Pieper Bar Review 1 2) For the court to find sufficient minimum contacts over a defendant, the defendant must CHILI: C – D CONSENTS to jurisdiction in the forum state H – The state where a corporation or individual is at HOME, e.g. doing business or where an individual is domiciled I – INCORPORATED in the forum state L – D is a non-domiciliary but the court has LONG-ARM jurisdiction I – D is a non-domiciliary served IN-STATE 3) In determining whether a non-New Yorker’s business activities are subject to personal jurisdiction, courts look to PAN: Whether the non-New Yorker PURPOSELY AVAILED itself of NEW YORK business opportunities 4) There must also exist some other 3-S conduct involving a defective product: S – SOLICIATION of business in NY S – SERVICES performed in NY S – SALES consummated in NY 5) In a federal or New York (CPLR 327) forum non conveniens motion, the issue is whether the case should be tried HERE (in New York) or in another forum: H – HARDSHIP on D and the courts E – Location of EVIDENCE R – RESIDENCE of parties E – Location of EVENT 6) By statute, in a New York matrimonial action in the Supreme Court, or a Family Court proceeding where a New York plaintiff is seeking maintenance or support, personal jurisdiction exists over non domiciliary provided DADA: D – New York was the most recent marital DOMICILE of the parties A – ABANDONMENT took place in New York D – Claim for support accrued under a New York DECREE or under New York law A – Parties executed a separation AGREEMENT in New York 7) In New York, even if a defendant has no minimum contacts with the state or was not properly served with process, he may nevertheless consent to New York jurisdiction by A SCAM: A – Serving an ANSWER, but failing to include a MOP objection as an affirmative defense, unless the D corrects the omission and amends the answer within 20 days “as of right” S – STIPULATING to jurisdiction in open court in a signed writing, pleading, contract, or letter C – Asserting an UNRELATED COUNTERCLAIM in the D’s answer A – Asserting improper service of process in the ANSWER, but then failing to move for summary judgment on that issue within 60 days of when the answer was served (except when lack of minimum contacts is asserted in the answer) M – Making any 3211(a) MOTION to dismiss prior to service of the D’s answer and failing to include the MOP jurisdictional objection in that motion Under the federal rules, a defendant must raise VIP or they are waived: V – Improper VENUE I – INSUFFICIENT service or process P – Lack of PERSONAL jurisdiction ©2015 Pieper Bar Review 2 8) AN can serve inside New York State: An ADULT NONPARTY Federal rules also use “AN” for service inside or outside a state 9) AL RAN can serve a summons outside New York State: A – An ATTORNEY admitted in that jurisdiction L – Any individual allowed to do so under the LAWS of that jurisdiction – look to the laws of the jurisdiction RAN – A RESIDENT OF NEW YORK ADULT NON-PARTY 10) Regardless of where the summons is served, service in a New York action is proper only if it is made pursuant to SAD MIC: S – Delivering process to a person of SUITABLE age and discretion (a “SAD” person) at the D’s place of business or residence, and then mailing a copy to D and filing proof of service A – An AGENT designated by D to accept service D – DUE DILIGENCE (nail, mail, filing proof of service) M – MAILING process to the D, but only if D agrees to such service I – IN-HAND personal delivery to the D C – COURT-INVENTED service Federal Rule 4(e) requires that delivery to a person of suitable age and discretion only be done at the individual’s dwelling or usual place of abode, and that the person served “resides there.” There are no provisions under Rule 4(e) for service by mail, or nail mail and file. 11) Service on a corporation must be made on an A MAC DOG person: A – ASSISTANT CASHIER M – MANAGING AGENT A – AUTHORIZED AGENT, expressly, impliedly or by estoppel C – CASHIER (CFO) D – DIRECTOR O – OFFICER (President, VP, etc.) G – GENERAL AGENT Federal Rules Similar – Rule 4(h) 12) There are just three ways for a D to formally appear in New York or federal court an action (MAN): M – By making any pre-answer MOTION, which extends the D’s time to answer A – By serving an ANSWER to P’s complaint N – By serving a NOTICE of appearance when the summons is served without a complaint 13) A New York or federal court default judgment can be vacated by way of order to show cause within one year of when the D is served with a copy of that judgment, but that requires the D to submit a REAM P of papers: RE – REASONABLE EXCUSE why the D defaulted AM – AFFADAVIT OF MERIT on the D’s defense P – Lack of PREJUDICE to the plaintiff ©2015 Pieper Bar Review 3 NEW YORK STATUTE OF LIMITATIONS 1) SCARF CRIME has a 6 year statute of limitations: S – SPECIFIC performance of a contract C – Breach of CONTRACT actions seeking money damages, except UCC Sale of Goods contracts A – ACTIONS recognized at common law for which the legislature has not provided an SOL R – REFORMATION of a K (running from when the K was executed) F – FRAUD, deceit, or negligent misrepresentation. Here, the SOL is either 6 years from the fraud or 2 years from when the fraud was discovered or reasonably should have been discovered, whichever is longer (but the extra 2 years does NOT apply to constructive fraud) . There are certain “badges of fraud” that are so commonly associated with fraudulent transfers that their presence gives rise to an inference of an intent to commit fraud. SHIFTS: • S – SECRETLY done • H – HASTILY done • I – INADEQUATE consideration for the asset transferred • F – Made to a FAMILY member or close FRIEND • T – TRANSFEROR continues to control the property • S – SCIENTER, and inability to pay the claim after the transfer C – CORPORATE derivative actions R – RECISSION of contract (running from when the K was executed) I – INDEMNIFICATION and contribution (but the SOL doesn’t start to run until one party has paid more than he/she should have) M – MORTGAGE foreclosures E – Other EQUITABLE claims (e.g., unjust enrichment, constructive trust, etc.) 2) A SOFT RAIN has a 3 year SOL: A – ACTIONS that did not otherwise exist at common law, but were created solely by statute, and the statute did not provide an SOL (e.g., dram shop act claim, a state discrimination claim, UCC Art. 9 breach of the peace, etc.) S – STRICT PRODUCTS liability (SOL runs from the date of P’s injury) O – Misappropriation of a corporate or partnership OPPORTUNITY F – Breach of a FIDUCIARY DUTY in which P seeks solely money damages (6 yrs if seeking money damages plus equitable relief, or just equitable relief) T – Claim for damages for TRESPASS R – REPLEVIN or conversion If the claim is against the thief, the 3 years runs from when the chattel was stolen. If the chattel was acquired in good faith, then the SOL doesn’t begin to run until P demands the return of the chattel A – ANNULMENT of a marriage for fraud. The 3 years does not begin to run until the fraud was discovered I – Tortious INTERFERENCE with another person’s contractual rights To establish a prima facie case, P must prove that D was a KID • K – D KNEW of the contract • I – INTENTIONALLY procured its breach ©2015 Pieper Bar Review 4 • D – Proximately caused DAMAGE to the P N – NEGLIGENT or professional malpractice, except for medical malpractice (med mal is 2.5 yrs). The SOL runs from the date the malpractice was actually committed, except where there is a hidden/latent injury . There is no duty to obtain informed consent of the patient who was a BEAR: • B – It was in the BEST interest of the patient not to disclose the risks • E – EMERGENCY treatment was required b/c of imminent danger or threat of death • A – Patient ASKS the doctor to proceed regardless of any risk • R – RISKS were so commonly known 3) A DIMPLE FIB has a 1 year SOL: A – ARBITRATION award must be confirmed by the Supreme Court within 1 year D – There is 1 year for the defendant to open a DEFAULT judgment or 1 year for the plaintiff to enter a default judgment I – To recover excess INTEREST paid on a usurious loan M – MALICIOUS prosecution P – Right to PUBLICITY claim, based on a D’s unauthorized commercial use of a living person’s name, picture, or voice for advertising purposes without the P’s written consent L – LIBEL and slander E – Wrongful EVICTION of a tenant, including constructive eviction or
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