Lack of Personal Jurisdiction- motion or affirmative defense?

I live in CA but have been sued in NY State court. I’m pretty sure the court does not have personal jurisdiction over me. The answer must be served tomorrow. I spoke to opposing counsel and he said that the answer only needs to be served on him, and not filed with the court (by that due date). I have never heard of this– any insight?

Also, should I bring a motion to dismiss or just answer? I’m being sued for failure to pay on a business line of credit and i’m a little worried about answering because I plan to “deny” allegations in my answer (because I don’t want to just set myself up for default), but I’m also worried about that being a “frivolous” answer. If I simply serve the opposing attorney with my motion to dismiss, how long do I have to answer?


Joseph Jonathan Brophy

You seem pretty knowledgeable about legal concepts but I strongly caution you against trying to defend yourself without a lawyer. Lack of personal jurisdiction means that the papers were not properly served. If that is what you mean (and not something else- eg, the NY court lacks jurisdiction over the dispute), this defense may be raised by pre-answer motion or in an answer under NY procedure. However, if you don’t move to dismiss the complaint for lack of personal jurisdiction within a relatively short time after answering, you waive the objection and the case goes forward. If you make a pre-answer motion to dismiss that stays the time to serve an answer until it is decided. There are lots of procedural wrinkles along the way that could cause you to lose whatever rights you have. For example, are you being sued in Civil Court or Supreme Court? or even Federal Court? Do you know that answers don’t need to be filed in Supreme Court, but motions do? Do you know how to serve a motion, file a motion, where the papers go, what papers to file, when to file, what the fees are, how to pay the fees? Do you know that all these procedures may vary not only by court, but also by county? I can’t answer your question any more specifically because there are too many possible variables. Nor would I try to give specific legal advice in this forum. I am only pointing out that there are an awful lot of ways you can set yourself up for a default. To make matters worse, you have waited until the very last day to do anything. I have no idea how you could get a motion together and serve it today. Maybe a lawyer could if you paid a lot of money for a rush job. Most likely you will have to answer and then move. Possibly you could get an extension of time to answer or move, but lawyers who handle collections are hard to get hold of and are not necessarily very cooperative. I urge you to either settle the case with the creditor or get a lawyer in New York to defend you – immediately. Don’t try to do this yourself.