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

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. its corporate headquarters is in that state or where an individual is domiciled I – The state where a corporate defendant was INCORPORATED 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

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

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

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 retaliatory eviction

F – FALSE imprisonment or false arrest I – INTENTIONAL infliction of emotional harm B – Assault or BATTERY

4) If the applicable SOL has expired, then the P should consider New York’s tolling and extending provisions – LEAP DAD’S CAT: L – The parties LENGTHENED the SOL E – EQUITABLE estoppel A – Written ACKNOWLEDGEMENT of an old debt (Federal Rules also) P – PART-PAYMENT of an old debt

D – DISABILITY of the P A – AMENDING a pleading to add a time-barred claim D – DEATH of a party S – SOLDIERS and Sailors Civil Relief Act

C – Time-barred, related COUNTER-CLAIM (Federal Rules also) A – Claims ARISING outside New York where personal jurisdiction cannot be obtained in a New York court T – TERMINATION of a timely action and recommencing it after the SOL has expired

5) In New York, parties united in interest frequently involve the vicarious liability of POPE parties: P – PARTNERS who are jointly and severally liable for each other’s torts committed in the scope of the partnership

©2016 Pieper Bar Review 5 O – OWNER and driver of a motor vehicle used with the owner’s permission, except when the owner leases the motor vehicle to the driver, in which case vicarious liability is not imputed to the lessor. Vicarious liability is also imputed onto the joint owners of realty (TICs, JTs, and TEs). P – PRINCIPAL and agent E – EMPLOYER and employee, under the doctrine of respondeat superior

6) Amending a New York or federal pleading to add a time-barred related claim can be done with an ANT: A – It AROSE out of the same facts in the earlier pleading N – The original pleading gave NOTICE of the new claim T – The new claim was TIMELY when the original pleading was filed with the County Clerk

7) If the P’s action is timely commenced in any state or federal court, but is subsequently dismissed due to a technical defect which can be remedied in a new action, then even though the SOL has expired while the first action was pending, the P is given an additional 6 months from termination to re-file and re-serve the D. However, the 6 month rule does not apply if the P’s action was dismissed because of J.P. M.D.: J. – Lack of JURISDICTION P. – First claim was dismissed b/c of the P’s neglect to PROSECUTE M. – Dismissal was on the MERITS (b/c res judicata would bar the second action) D. – P voluntarily DISCONTINUED the first action

MOTION PRACTICE

1) There are 2 types of corrective motions – SS: S – A motion for a more definite STATEMENT in the pleading S – A motion to STRIKE irrelevant, prejudicial, or scandalous matter from a pleading Federal Rule 12(f) and (e)

2) CPLR 3211(a)(5) seeks dismissal based on 9 grounds, which can be asserted in a motion to dismiss and/or in the D’s answer as affirmative defenses. They are SPARE RIBS: S – STATUTE of limitations P – PAYMENT A – ARBITRATION and award R – RELEASE E – Collateral ESTOPPEL

R – RES JUDICATA I – INFANCY or incompetency of the D B – P’s claim against D was discharged in BANKRUPTCY S – STATUTE of Frauds

3) “IF” – collateral estoppel is available in a New York or federal court if issues are identical and the party against whom collateral estoppel is being asserted previously had a full and fair opportunity to litigate that issue: I – IDENTICAL ISSUES F – FULL AND FAIR OPPORTUNITY TO LITIGATE ISSUE

©2016 Pieper Bar Review 6 4) When thinking of summary judgment in a New York or federal court, think of LIPS: L – The motion can be decided as a matter of LAW I – There are no material ISSUES of fact to be litigated P – The court can grant PARTIAL summary judgment S – The court can SEARCH the record, but only on issues raised in the motion papers

PROVISIONAL REMEDIES With the exception of Preliminary Injunction and T.R.O.’s (Rule 65), Rule 64 advises federal courts to look at state law for obtaining provisional remedies.

1) There are 4 types of provisional remedies in New York – LIAR: L – LIS PENDENS (warns others not to buy property) I – Preliminary INJUNCTION A – ATTACHMENT (as security for payment) R – RECEIVER (who protects the property)

2) The lis pendens is the only provisional remedy where the P is not a SLOB: S – SHERIFF is not involved L – No court review of the P’s LIKELIHOOD of success on the merits O – No court ORDER is required B – No BOND has to be posted by the P

3) A New York or federal court preliminary injunction will not be granted unless the P demonstrates by clear and convincing evidence LIE: L – LIKELIHOOD (a probability not certainty) of the P’s success I – IRREPARABLE injury is occurring or will occur to the P unless the preliminary injunction is granted E – EQUITIES, when balanced by the court, clearly tip in the P’s favor

4) Notice on a T.R.O. does not have to be given if you can SIP, i.e., show: S – SIGNIFICANT and I – IMMEDIATE P – PREJUDICE would result if notice of the motion is given Federal Rule 65(b) limits a T.R.O. not to exceed 14 days. To get it ex parte, show “immediate and irreparable injury”

5) To issue an order of attachment, a New York court must find FIND CJ “extraordinary circumstances”: F – D is a FOREIGN corporation not qualified to do business in New York I – With the INTENT to defraud creditors or frustrate the enforcement of a money judgment, D has concealed or transferred assets or is about to do so (a.k.a. constructive fraud) N – D is a NON-DOMICILE, with no New York residence D – D is a New York DOMICILE or resident who cannot be personally served, despite DILIGENT efforts to do so

C – CRIME victims suing a convicted felon can obtain an order of attachment J – P’s cause of action is based on either a default JUDGMENT from a federal or sister state ct, which is entitled to full faith and credit, or based on a foreign country’s judgment, entitled to comity. In the P’s 3213 motion for summary judgment in lieu of complaint, the P can also seek an order of attachment

©2016 Pieper Bar Review 7 6) Before a New York or federal court permits the use of any provisional remedy, it must ensure that due process is satisfied by a COP: C – Showing by CLEAR AND CONVINCING evidence that P is likely to succeed and is entitled to the provisional remedy requested because of extraordinary circumstances O – OPPORTUNITY to be heard P – An immediate POST-SEIZURE hearing must be held if LIAR was obtained ex parte (and 5 or 10 days is considered “immediate”) VENUE

1) Choosing the proper venue in New York depends on the type of TLC action involved: T – A TRANSITORY action L – A LOCAL action C – An action to recover a CHATTEL 28 U.S.C. § 1391 has abolished the distinctions between local, transitory and local actions for venue. It allows venue to be placed in a federal district where all defendants, reside or, in a federal district where a substantial part of the real or personal property is located. These venue rules apply to both diversity jurisdiction and arising under claims

2) A local action involves disputes of ownership, use, or possession of real property. Venue is proper in the county in which the real property is located for WASP MEN: W – The tort of WASTE A – A tenant’s ACTION* seeking to regain possession of a leasehold S – SPECIFIC performance of a real property contract P – PARTITION actions between concurrent tenants

M – MORTGAGE foreclosures E – EJECTMENT actions against a trespasser N – NUISANCE* action to prevent the D from using her land in a manner creating a nuisance to the plaintiff *A lis pendens cannot be filed in these two actions

3) Once the P has chosen venue, there are 3 grounds to change that venue, which are found in a BIN: B – BAD venue was chosen by the P I – IMPARTIAL and fair trial cannot be had in the chosen county N – The proper venue chosen is inconvenient for NECESSARY witnesses

PLEADINGS

1) In New York, common law joint and several liability continues for ARM WIN claims: A – Where the P’s injuries were caused by a co-defendant’s ownership, operation, or use of an AUTOMOBILE, motorcycle, or other motor vehicle* *Municipal fire trucks and police cars continue to receive the benefits of Article 16’s limits on J&S liability, but not other municipal vehicles R – A co-defendant found to be RECKLESS M – A co-defendant found to be MORE than 50% responsible for P’s injury

W – WORKER’S COMP where the injured employee sues a defendant, who then impleads the injured worker’s employer to share in the worker’s grave injury I – A co-defendant found to be INTENTIONALLY tortious in causing P’s injuries N – Defendant owes a NONDELEGABLE duty

2) A New York defendant can implead the plaintiff’s employer for a “grave injury” if DEBTS [are] PAID D – Employee’s DEATH E – Loss of one EAR or nose B – BRAIN damage (permanent) T – Multiple TOES or fingers S – Severe facial SCARRING

P – PARALYSIS (paraplegia or quadriplegia) A – AMPUTATION of a limb I – Loss of an INDEX finger D – Permanent DEAFNESS or blindness

DISCOVERY

1) In New York and in Federal Practice, use AID MD for pre-trial discovery: A – ADMISSIONS demand I – Written INTERROGATORIES D – DEPOSITIONS (a.k.a. EBTs – “examinations before trial”)

M – MENTAL and Physical Exam D – DISCOVERY & Inspection of evidence

2) A New York expert witness must only disclose I.Q. S.O.S.: I – Expert’s IDENITITY (except doctor’s identity in med mal case doesn’t have to be disclosed – to prevent retaliation by other doctors (peers)). Q – Expert’s QUALIFICATIONS S – SUBJECT matter on which expert will testify O – Substance of expert’s OPINION; AND S – Basic overall SUMMARY of grounds that form basis of expert’s opinion Federal Rules much broader for expert depositions and discovery

3) In a personal injury action, P should always demand to see if there are any WAIFS: W – Disclosure of identities of WITNESSES (but not their statements), or the disclosure of expert witnesses (I.Q. S.O.S.) A – Disclosure of ACCIDENT reports prepared in the regular cause of business I – Disclosure of liability INSURANCE policies F – Disclosure of FILMS, videos, or audio tapes taken of the P S – Disclosure of any STATEMENTS made by the P Waifs also applies in Federal Practice

4) Protective orders seek to prevent unreasonable DEEP abuses of discovery procedure: D – DISADVANTAGE E – EMBARASSMENT E – EXPENSE (especially where there is economic disparity between the parties) P – PREJUDICE Rule 26(c) in accord

C – COMPOUND Q (asking 2 things at once) L – LEADING Q on direct exam A – ARGUMENTATIVE & badgering Q M – MISQUOTING an earlier statement S – Ask the witness to SPECULATE

B – An overly BROAD Q A – ASSUMING a fact not in evidence when asking Q R – REDUNDANT Q on direct exam (previously asked & answered by witness)

2 6) BAR SAP S needs a New York court order for EBTs: B – BEFORE an action has been commenced, to assist in bringing an action, or to preserve evidence A – AFTER a case is placed on the trial calendar, and the other party makes no objection w/in 20 days that the case is not ready for trial, no further discovery is allowed unless the moving party can show the ct that “unusual or unanticipated” circumstances occurred subsequent to filing the notice of issue and that prejudice would result if further discovery is not permitted R – REFUSAL to comply w/ EBT Demand S – SPECIAL Proceedings – Art. 78 (except notices to admit are permitted in special proceedings) A – ARBITRATION requires extraordinary circumstances for ct to order pre-trial discovery P – PRISONERS P – A PREVISOUSLY deposed witness S – STATE of New York when it is not a party

7) There’s a BAN on interrogatories in New York: (Does not apply to Federal Rules) B – BILL of Particulars & Interrogatories can’t both be demanded (except in matrimonial actions) A – P can’t demand interrogatories from D until after D’s time to ANSWER has expired N – Where NEGLIGENCE is sole basis of P’s claim, interrogatories or EBT’s can be demanded but not both

2 8) DRI PS are a discovery punishment: (Rule 26(g) in accord) D – DISMISSING an action against DRI2PS P or ordering a DEFAULT judgment against DRI2PS D R – RESOLVING issues against a non-disclosing party I – IMPOSING attorney’s fees & punitive sanctions against non-disclosing party I – An adverse INFERENCE jury charge P – PRECLUDING that party from offering evidence on certain issues S – STRIKING that party’s pleading or any part thereof

9) A New York party should demand a bill of particulars for PAL: (Bills of Particulars are not used in Federal Practice) P – PREVENTS surprise at trial A – AMPLIFIES pleading L – LIMITS proof that can be offered at trial

ARBITRATION 1) A New York or federal court will not interfere with an arbitration award unless it finds FABLES: F – FRAUD, misconduct, or corruption A – ARTICLE 75 procedures were not followed B – BIAS of the arbitrator L – The award LACKED rationality E – The arbitrator EXCEEDED her authority S – SERVICE of the notice to arbitrate was improper Federal Arbitration Act § 10 in accord in limiting court review of arbitrator’s award

CLASS ACTIONS 1) To certify a class action in New York (CPLR Article 9) and federal court (Rule 23(a)) think CAN’T 9 U.S.S. §§ 1 to16 C – COMMON QUESTIONS of law or fact A – ADEQUATE representation by the class rep. N – Class size so NUMEROUS ordinary joinder is impracticable T – Class rep’s claim is TYPICAL of all other claims

DIVERSITY JURISDICTION PROBLEM: #1

N, a New York citizen, and C, a Connecticut citizen, sued M, a Massachusetts citizen, and P, a Pennsylvania citizen, for $400,000 based on breach of a real property contract on New York reality.

QUERY: Is there diversity jurisdiction to enter a federal court?

ANSWER: YES, because the citizenship of every plaintiff differs from that of every defendant.

If the defendants are served outside New York, is there procedural jurisdiction in the New York federal district court? Yes, (CPLR 302(a)(4)).

PROBLEM: #2

N, a New York citizen and C, a Connecticut citizen, sue M, a Massachusetts citizen, and X, a Connecticut citizen for tortuous interference with a contract alleging $500,000 in resulting damages.

QUERY: Is there “complete diversity”?

ANSWER: NO - because a plaintiff (C) and defendant (X) share the same citizenship.

If diversity jurisdiction did not initially exist, but within one year, all defendants (X) with the same citizenship as the plaintiff settle with the plaintiff, or the plaintiff (C) voluntarily withdraws the complaint against X, then the remaining diverse defendant (M) can immediately remove the action to the federal court (within 30 days). This one year statute of limitations for such removal eliminates removal from the state court on the eve of trial. 28 U.S.C. § 1446(b).

A diversity case may not be removed more than one year after its commencement in state court.

PROBLEM: #3

Two New York citizens sue a Connecticut citizen and a Pennsylvania citizen.

QUERY: Is there complete diversity?

ANSWER: YES - because parties on one side of a lawsuit can share identical citizenships.

PROBLEM: #4

Can X, a citizen of New Jersey, sue N, a New York citizen, in the federal court on N’s $67,000 bounced check that was dishonored by N’s bank last month.

ANSWER: NO - although complete diversity exists between the parties, it appears to a “legal certainty” that the claim is for less than the jurisdictional amount required for diversity jurisdiction. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938).

PROBLEM: #5

Can a New York citizen who is suing a Vermont citizen commence a diversity action in a New York federal district court?

ANSWER: YES, even though the underlining rationale of diversity is to avoid local prejudice in state courts against citizens from other states. Diversity exists even if the plaintiff brings the suit in a federal court in her home state, assuming there is MOP procedural jurisdiction over the Vermont defendant in New York.

PROBLEM: #6

If sued by a Vermont citizen in New York state court on a tort claim for $285,000, can a New York citizen remove the suit to the federal district court?

ANSWER: NO - because when the defendant in a case is the local citizen, being sued in her home state, then she is barred from removing it from the state court on the ground of diversity even though not barred from commencing a diversity action as a plaintiff in his home state. (Problem #5).

A non- New York plaintiff commencing an action in a New York state court against a New York defendant guarantees the plaintiff that none of the defendants can remove it to the federal court on the ground of diversity jurisdiction.

PROBLEM: #7

P, an Albany domicile, was “seriously” injured (“FUN DDD”), in Albany, New York, when hit by C Corp.’s van. C Corp. is a New Jersey corporation with its principal place of business in New York City. Can P sue C Corp. for $400,000 in the federal district court of either New Jersey or New York?

ANSWER: NO A corporation is deemed a citizen of both its state of incorporation (New Jersey) and the state of its principal place of business (New York). Therefore, P cannot establish “complete diversity” in either New York or New Jersey, and thus may not use the federal court for his state claim.