Don't dismiss because not in proper form. Can order to another court for proper adjudication.
Example of NY being a very liberal when it comes to civil lit
CPLR 105: DEFINITIONS (see rule)
Definitions – matrimonial action
Personal Jurisdiction:
Intro:
Why New York?
Every lawyer is at an advantage when he practices his art in his area. He is familiar with the local rules, customs and practices, opposing counsel, courts and clerks. He can remain in close contact with his office and staff; necessary resource persons are available at all times.
It has been said that the substantive law applied in NY tends to favor NY residents.
Do we have jurisdiction over the defendant (we are required to have this and subject matter jurisdiction)?
2 requirements:
A jurisdictional basis
Basis is defined as a relationship between the defendant and the state which is sufficient to justify the exercise of the states judicial power
This relationship must be substantial enough to satisfy the due process clauses of the federal and state constitutions, which mandate that it not be unfair to the defendant – considering “the relationship among the defendant and the forum and the litigation”
Must be shown that the state has, by statute, authorized its court to exercise power over the defendant. Article 3 of the CPLR is the primary source of authority for the NYSC
You need general jurisdiction or specific jurisdiction.
When served in the state this is considered general jurisdiction and you have jurisdictional basis for the matter for which he was served
This is provided by proper service of the summons.
CPLR 301: JURISDICTION
"Jurisdiction over persons, property or status. A court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore."
Presence of Natural Persons:
301 preserves the you can have jurisdiction exercised over you if you are in the state. Even if it’s fleeting.
Presence of corporations:
If the corporation is incorporated here or authorized to do business here then the secretary of state of New York is designated to be served on their behalf. But if they are not present or authorized to do work here in this way we have issues
Service is satisfied by the Sec of State if authorized or incorporated
There are a lot of people that fall out of this category
Bryant: trans world airlines person injured as a result of the negligence of finnish national airline, when she was stuck by a baggage cart blown against her by an excessive blast of air produced by one of defendant’s aircraft. Was the defendant doing business sin New York state in order to subject it to personal jurisdiction.
The test for doing business is and should be a simple and pragmatic one which leads us to the conclusion that the defendant should be sueable in new York. The new York office is one of many directly maintained by defendant in various parts of the world, it has a lease on a new York office, it employees several people and it has a bank account here, it does public relations and publicity work for defendant here including maintaining contacts with other airlines and travel agencies and, while it does not make reservations or sell tickets, it transmits requests for space to defendant in Europe and helps to generate business. These things should be enough.
Laufer: the volume of business generated may be relevant. The contacts with new York were regular, systematic, and continuous.
*parent corporation not subject in new York unless it exercised parent-subsidiary control
Plaintiff cannot normally rely on just his own activities in the suggested forum state to subject the corporation to jurisdiction there. There are here substantial activities by others to sustain jurisdiction. So we don’t consider whether the rule against basing jurisdiction on plaintiff’s activities alone applied in CPLR 301 cases as well.
Jurisdiction predicated upon corporate presence “does not fail because the cause of action sued upon has no relation in its origin to the business here transacted” and the supreme court has made several similar rulings (look at total business in forum state not just the one being sued upon).
Ostrow on his own had no connection when not acting in his corporate capacity with NY.
Does not hinge on whether the parent instructed or was responsible for the cause of action – just whether or not the parent is parenting at the time of the cause of action
Goodyear Dunlop Tires: are foreign subsidiaries of a united parent corporations amenable to suit in court on claims unrelated to any activity of the subsidiaries in the forum state. was a recent case in which theSupreme Court of the United Statesheld that the connection between Goodyear and its subsidiaries with the state of North Carolina was not strong enough to establish jurisdiction over the companies.[1]Two 13-year old boys fromNorth Carolinadied as a result of a bus accident outside of Paris.[2]The parents of the boys believed the accident was due to a defective tire manufactured by a foreign subsidiary ofGoodyear Tire and Rubber Companyand sued for damages in a North Carolina state court.[3]The foreign subsidiaries asserted that the North Carolina courts lacked jurisdiction over them and moved to dismiss. The North Carolina trial court denied the motion and theNorth Carolina Court of Appealsaffirmed.[4]The Supreme Court reversed, holding that the foreign subsidiaries lacked a significant connection to North Carolina to warrant jurisdiction.
CPLR 302(a): PERSONAL JURSIDICTION BY ACTS OF NON-DOMICILIARIES (special jurisdiction) .
Section a(1) is the main piece – if you transact business here or seek to supply goods to the state
Commit it in state
Commits a tort out of state + injury in state + contacts (regularly solicits or reasonable foreseeable)
CPLR 313: SERVICE WITHOUT THE STATE GIVING PERSONAL JURISDICTION
If being haled into a NY court even if served out of state, go by NY serving standards and not the standards of the state where you are served.
Fischbard v. Doucet BB: personal jurisdiction was allowed.
Plaintiff lawyer in NY which was retained by defendant a California corporation.
By reaching out to an attorney here and working with him on a consistent basis, they transacted business in this state
(1) jurisdiction is proper “even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” (Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71 [2006], quoting Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988]). Purposeful activities are those with which a defendant, through volitional acts, “avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws” (McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377, 382 [1967];see also Ford v Unity Hosp., 32 NY2d 464, 471 [1973] [holding that third-party defendant did not engage in “purposeful( ) availment)” because it “purposefully avoided any contacts with New York, limiting its agency agreement . . . to certain States, excluding New York”]).
In cases involving securities the court has been very liberal in granting long arm jurisdiction (Ehlrich-bober). In other cases it has become more difficult when people have not physically entering the state. O’brien: even though a new jersey medical center treated patients from NY and solicited them there was still no personal jurisdiction. And that's because NY is a securities trading center
Johnson v. Ward: is there NY personal jurisdiction over a non-resident holding a NY driver’s license and car registration for a tort claim arising from an out-of-state motor vehicle accident?
We conclude that personal jurisdiction does not lie under CPLR 302(a)(1) because there is an insufficient nexus between personal injury action and any New York transactions.
Transacting business means commercial or financial activities.
The NY license and registration were in no way linked to this transaction.
Under 302a1: you need two things, that the defendant transacted business within the state – and that the cause of action arose from that business transaction.
Notes: 302a1 ARISING OUT OF REQUIREMENT
Case 1: defamation suit by teacher against student. Just because student came to this state the defamation didn’t arise out of that.
Case 2: accident on a drive in las vegas by a bus company. Just because the bus company sold tickets to NY that business transaction didn’t result in the bus crash
Lamarca: Personal jurisdiction is granted over a Texas corporation which manufactured a loading truck thingy that malfunctioned and caused injury
They kept an NY agent 3.5 percent of sales were in NY.
Park-mor sold it to its New York distributor which then sold it to the plaintiff in Niagra.
5 elements to 302(a)(3)
Tortious act outside the state;
Cause of action arises from that
Act caused injury to a person or property in the state;
Defendant should expected that the act have consequences in the state;
Defendant derived substantial revenue
But we also need to check out federal due process.
2 reqs
Minimum contacts
“connection with the forum state” such that it “should reasonably anticipate being haled into court there”
Satisfied if you purposely avail yourself of the privileges of conducting activities within the state
Not offend notions of fair play and substantial justice
Boils down to reasonableness
“if you purposefully direct your activities at forum residents you must present a really compelling reason to claim nits unreasonable”
Jurisdiction based on the location of property:
CPLR 314 (2)(3): SERVICE WITHOUT THE STATE NOT GIVING PERSONAL JURISDICTION: Service may be made outside of the state by any person authorized by section 313 in the same manner as service is made within the state
Banco Ambrosiano: plaintiff is an Italian banking corporation. They used to maintain a representative office in NYC. Defendant artic bank, also a banking corp, is organized under the laws of the Bahamas. And engages in international trans. They use a correspondent US bank called brown brothers. Neither P nor D is authorized to engage in banking in the state.
Allegedly P loaded D 15 million that wasn’t repaid.
All negotiations were made outside new York. And all communications were elsewhere; only connection with NY is that the funds were deposited to the brown brothers NY account.
These funds, which are D property are the basis of quasi in rem because they are in the state still with Brown Brothers.
CPLR 302 does not go as far as is constitutionally permissible. Thus a situation can occur in which the necessary contacts to satisfy due process are present, but in personam jurisdiction will not be obtained within the state because the CPLR does not authorize it.
Quasi-in-rem is legit, but it has been limited by Shaffer by SCOTUS.
The property serving as jurisdictional basis has to have a relationship to the cause of action.
This doesn’t matter in many places, but since NY doesn’t exercise the full power of due process, Quasi-in-rem can be useful here.
The property is the property in dispute. Sufficient connection.
Matrimonial and related jurisdiction:
CPLR302B: MATRIMONIAL
Defined in CPLR 105(p) Matrimonial action. The term "matrimonial action" includes actions for a separation, for an annulment or dissolution of a marriage, for a divorce, for a declaration of the nullity of a void marriage, for a declaration of the validity or nullity of a foreign judgment of divorce and for a declaration of the validity or nullity of a marriage.
Have jurisdiction over someone you're married to even if they're not here if they once lived here with you.
CPLR 314(1): SERVICE IN MATRIMONIAL ACTION
Carr Pg. 112: Anne Carr in NY is suing Barbara Carr in NY. Each claims to be the spouse of Paul Carr who died. Anne and Paul's divorce happened in Guatemala. in the absence of minimum contacts, new York courts have no jurisdiction over the nonresident second wife of a deceased husband, where the first wife seeks to obtain a declaration as to the validity of the first marriage.
Want to find the answer to whether or not Anne and Paul's Guatemalan divorce was sufficient but can't determine that until answer if Anne can sue Barbara in NY.
Husband is now dead. Old wife is a domiciliary, but the old wife isn’t married to the current wife, so even though it’s a status proceeding, it doesn’t matter. You need one of the spouses to be a resident of the forum.
*relevant restraints to 302b are discussed below
In a marital dispute only your spouse can hale you back into court. The matrimonial rule doesn't apply here because Ann wasn't married to Barbara so they look to minimum contacts which fails.
Child custody jurisdiction:
Kulko: The issue is whether in this action for child support, the California state courts may exercise in personal jurisdiction over a nonresident, parent of minor children domiciled within the state. We hold that it would violate the due process clause of the 14th amendment.
The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy contact with the forum state…It is essential in each case that there be some act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum state.
He agreed to let his kids go to school with mother there, but that certainly should not count.
****Even prior to Kulko, some NY courts had read restrictively the clause of CPLR 302b which allows jurisdiction when the state was the matrimonial domicile of the parties before their separation”. It was held to apply only when the state was the place where the parties “when last together made their home”
***statute will always allow for jurisdiction in NY when plaintiff is in NY and there is a child support issue.
Res judicata does not apply to child custody because circumstances might change in a child’s life. That’s why child snatching might happen. However in 1977 NY enacted UCCJA. Jurisdiction exists if it is the child’s “home state”, or was the child’s home state within six months before the commencement of the proceeding and the child is absent from the state but a parent or person acting as a parent continues to live in the state.
Home state = the state the child lived for at least six consecutive months immediately before the commencement of a child custody proceeding.
Discretionary limits on jurisdiction:
CPLR 327: Inconvenient forum
For reasons of "Substantial justice" you can dismiss for inconvenient forum
CANNOT dismiss when cause of action arises out of 5-1042.
Martin Pg. 123: Forum non conveniens should not have been denied
“Forum non conveniens is an equitable doctrine whereby a court in its discretion may decline to exercise jurisdiction of a transitory cause of action upon considerations of justice, fairness, and convenience…By traditional standards, the mere occurrence of an accident within our borders might suffice to insure a new York forum. However these rigid standards have been superseded by more flexible analysis…thus in silver, to counterbalance the expansion of long-arm jurisdiction, we relaxed the principle requiring new York courts to accept jurisdiction when one of the parties was a resident…a parity of reasoning dictates that forum non conveniens even though the accident occurs in the state.
Pretty much stands for just because action happened hear doesn’t mean it’s not convenient
Other cases show that it’s much harder to show a substantial nexus to another state when the accident occurred somewhere else.
There is a presumption in favor of new York plaintiffs, it is often, but not always determinative.
Bewers Pg. 127: some birth control as causing seizures. Produced marketed distributed regulated in the UK. Plaintiffs got them from there took them here, get hurt. Sue in NY. Forum non conveins is valid, just because the law is less favorable to plaintiffs in this case doesn’t make it in convenient. All of the things are in UK so this is an inconvenient forum
Credit Francais Pg. 136: neither plaintiff nor defendant contains any offices in new York. French bank to Venezuelan. And it arguably requires interpretation and application of Venezuelan currency decrees.
It is clear that the residence of the parties is no longer controlling consideration in determining forum cplr 327
The agreement was negotiated in NY that text of the deposit agreement was drafted in NY, the payments under that agreement were to be made to marine midland in NY and that meetings between the parties to agreement were in NY.
*There was a choice of forum clause that said NY is appropriate. Since they have already agreed it should be prima facie valid unless unless unreasonable under the circumstances.
In fact if in a contract over 250,000 against person anywhere and anyone can agree that NY law is the rule.
CPLR 327 has been amended by subsection B which states that anything under 5-1402 will not be dismissed for forum non conveniens.
5-1402ny person may maintain an action or proceeding against a corporation in a contract when a choice of forum of NY has been made if it’s worth over 1,000,000
Subject matter jurisdiction:
Lacks Pg. 141: The NY SC only has smj over matrimonial actions of statutory nature. This divorce was about the residence requirements. If they made the decision on that and that is considered statutory then they are fine
In sum, the overly stated principle that lack of SMJ makes a final judgment absolutely void is not applicable to cases which, upon analysis do not involve jurisdiction, but merely substantive elements of a cause for relief.
In this case jurisdiction was just an element in the cause of a cause for relief and didn’t really involve jurisdiction.
Supreme Court is not the wrong forum because it's not proscribed, and the fact that husband hadn't met residency requirements has nothing to do with the competence of the court.
Kagen Pg. 150: the new constitutional amendment removes all SMJ restrictions (except for sovereign immunity cases)
There is a discussion whether all new causes of action means, new as in brought anew (post 1962) or newly created causes of action (Like trespass on my butt which didn't exist in 1962).
Dissent: “new class of action or proceeding” means an action created by statute post the passage of the amendment in 1962. (like trespass on my butt)
Majority says "Chuck Testa" it means post-1962
COMMENCING THE ACTION – the surprisingly troublesome formalities of acquiring jurisdiction
Introduction; conditions precedent:
You need to file with the county clerk and pay your 210 dollar fee then in a case where the statute of limitation on a relevant cause of action is less than four months you need to serve the other party within 15 days. If the statute of limitations is greater or non-existent than you have 120 days to serve notice. [306b]
In some situations there are legal steps which must be taken prior to commencing the action, on pain of dismissal. Such a requirement, called a condition precedent, can be imposed by statute or contract.
Usually the condition imposed is that notice of claim, a brief but formal description of the claim, be served upon the defendant upon accrual of the cause of action
Notice of summons and complaint, must be in bold, fourteen-point type and shall be printed in a color other than the summons and complaint
Serving Natural Persons:
CPLR 308: Personal service upon a natural person shall be made by any of the following methods:
In person
Giving to a person of suitable age and discretion AND mail to either home or business
CPLR 312: Service.
More nitty gritty, for when you are serving by mail instead of in person. Has slightly hire requirements for what must go in the mailing
312-a allows, as an alternative, service by first class mail. An additional alternative is available in certain tort cases pursuant to statutes. Defendants can also agree to be served in order manners. Service on infant must be made on parent. Service must be done by someone not party to the action who has reached the age of 18.
Macchia Pg. 205: delivery of a summons to defendant’s son outside his house, after which son goes into the house and gives the summons to his father is not valid service on defendant because there was no mailing pursuant to CPLR 308(1).
308(a) says it has to be in the state to the person who is to be served:
And although sometimes the court has made exceptions to improper delivery it sees no reason to do such here
Bossuk Pg. 207: leaving with kid of suitable age is ok. This is constitutionally acceptable as well because the constitution only requires that reasonably calculated, under all the circumstances, to apprise the interested party of the pendency of the action.
308(2) pretty much says that you can leave it with a person of suitable age if you mail it as well.
In the instant case age 14 and 15 were considered of suitable age and discretion.
You can also leave it behind the door if the person tries to place one between you and them
If you're going to claim defective notice you must do so affirmatively at he beginning
