Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

MBE Civ Pro > 5. Motions > Flashcards

5. Motions Flashcards

1
Q

What is a motion to dismiss?

A

A motion filed by the defending party seeking dismissal of a claim against them.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What is the timing requirement for filing a motion to dismiss?

A

It Must be filed BEFORE an answer is filed:
1. within 21 days (where process was served);
or
2. 60 days (where service of process was waived)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What are the grounds for a motion to dismiss?

A
  1. Lack of SMJ
  2. Lack of PJ
  3. Improper venue
  4. Insufficient process
  5. Insufficient service of process
  6. Failure to state a claim upon which relief can be granted
  7. Failure to join a party under Rule 19
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Which defenses must be included in the first response to avoid waiver?

A
  1. Lack of PJ
  2. Improper venue
  3. Insufficient process
  4. Insufficient service of process

These defenses must be raised in either a pre-answer motion to dismiss or an answer.

Can be Amended in the answer within 21 days.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What happens if no pre-answer motion to dismiss is made?

A

The defense MUST be included in the ANSWER or else it is WAIVED.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Which defenses can be raised at any time before trial ends?

A
  1. Failure to state a claim upon which relief can be granted
  2. Failure to join a necessary party
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What is the one ground that can NEVER be waived?

A

Lack of SMJ is NEVER waived, it can be raised at ANY TIME, even on appeal.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Which grounds can be refiled if a motion to dismiss is granted?

A
  1. Lack of PJ
  2. Improper venue
  3. Failure to join a party under Rule 19 .

These issues can be revisited after dismissal.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What is Rule 12(b)(6) dismissal?

A

A court will dismiss a complaint for failure to state a claim if:
1. Fails to state a cognizable claim
2. Provides insufficient facts
3. Contains an allegation that negates one or more elements of the cause of action

Even if every fact in the complaint were true, recovery is still not plausible under any legal theory.

Dismissal is with prejudice unless stated otherwise.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What if a defendant has a factual defense that does not meet the defenses that may be asserted in a pre-answer Rule 12 motion to dismiss?

A

the defendant must first file an answer and them move for summary judgment.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What may a court do if there is a defect in the pleading?

A

The court may:
1. Dismiss the complaint without prejudice
2. Grant the plaintiff leave to amend the complaint

This allows for rectification of minor issues in pleadings.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What is a motion for judgment on the pleadings?

A

A motion arguing that there are NO genuine issues of material fact and the case should be resolved based on the pleadings alone.

Typically filed after an answer has been submitted.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

When must a motion for judgment on the pleadings be filed?

A

AFTER the pleadings are closed but BEFORE trial.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What happens if a motion under 12(b)(6) or 12(c) includes facts beyond the initial pleadings?

A

The court will treat it like a motion for summary judgment (MSJ), allowing both parties to present evidence.

This ensures that all relevant information is considered.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What is the rule for a motion for a more definite statement?

A

A party may move for a definite statement if the pleading is too vague or ambiguous to prepare a response.

This aims to clarify issues before responses are prepared.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What is the timing requirement to file a motion for a more definite statement?

A

The motion must be made BEFORE filing a responsive pleading and MUST point out the defects complained of and the details desired.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What is the consequence of disobedience of a court order for a more definite statement?

A

The court may strike the pleading or issue any other appropriate order.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What is a motion to strike?

A

The court may strike a pleading for an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:
i.) On its own; or
ii.) On motion made by a party either BEFORE responding to the pleading OR if a response is not allowed, within 21 days after being served with the pleading.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What is a motion for summary judgment?

A

A motion that challenges the merits of a claim or defense, aiming to determine if there is credible evidence supporting it.

This is a key tool for resolving cases without trial.

20
Q

What must a moving party show to grant summary judgment?

A
  1. NO genuine dispute as to ANY material fact
    AND
  2. Movant is entitled to judgment as a matter of law
21
Q

Who can move for summary judgment?

A

Any party may move for summary judgment as to any individual issue or the cause of action as a whole.

22
Q

When can a party move for summary judgment?

Time to Respond to MSJ

Reply to Response to MSJ

A

At any time BEFORE 30 days AFTER the close of discovery.

Responding to MSJ: MUST file a response within 21 days after the motion is served or a responsive pleading is due, whichever is later; and

Reply to Response MSJ: A reply may be filed within 14 days after the response is served.

23
Q

What happens If a defendant responds to a complaint with a summary judgment motion rather than an FRCP 12 motion or an answer?

A

the court may consider the defendant to have failed to timely answer and therefore to have admitted all of the complaint’s allegation.

24
Q

What must a non-moving party do to survive summary judgment?

A
  1. Adduce evidence sufficient for a reasonable jury to find in their favor
  2. Show reasons for unavailability of certain facts.

The court may then order a continuance to permit further discovery or make other orders as it sees just.

25
Q

What is NOT allowed by a non-moving party in opposing a motion for summary judgment?

A
  1. Mere allegations from the complaint without proper support backed by evidence;
  2. Repeating pleadings to raise a material fact;
  3. Denials of allegations in movant’s affidavits;
  4. Inadmissible evidence;
  5. Evidence that no rational fact finder would believe or would find sufficient to establish the element.
26
Q

What must a plaintiff moving party do to prevail on their motion for summary judgment?

A

Produce evidence for every element of their claim and the defendant must not respond with evidence of any element.

27
Q

What must affidavits used to support summary judgment state?

A
  1. Matters that affiant has personal knowledge of
  2. Would be admissible at trial
  3. Affiant is competent to testify at trial
28
Q

What is the rule regarding failure to respond to a summary judgment?

A

Failure to respond does not act as a default for automatic summary judgment.

29
Q

The judge may grant or deny summary judgment in favor of or against the person asking for it.

Under Rule 56(f), After giving notice to all parties and a reasonable time to respond, the judge can:

A
  1. Grant summary judgment even when nobody asks for it;
  2. Grant summary judgment on grounds that neither party has asked for; or
  3. Grant summary judgment not just for the moving party, but against the moving party and in favor of the non-moving party.
30
Q

Motion for Judgment as a Matter of Law

A

Under Rule 50(a), the plaintiff or defendant may move for a judgment as a matter of law DURING TRIAL and will be granted IF the court finds:
i.) that a reasonable jury would NOT have a legally sufficient evidentiary basis to find for the non-moving party on the issue at hand.

31
Q

What is the timing requirement for a Motion for Judgment as a Matter of Law?

IT IS TOO LATE WHEN…..

A

Motions for judgment as a matter of law can be made:
i.) at the close of the non-moving party’s case; or
ii.) at any time after all of the non-moving party’s evidence has been submitted.

TOO LATE WHEN the case is submitted to the jury.

32
Q

Renewed Motion for Judgment as a Matter of Law

A

Under Rule 50(b), IF a party filed a Judgment as a matter of law DURING TRIAL which is DENIED, and then loses at trial, it can renew the motion.

The motion argues that the prevailing party did NOT have sufficient evidence as a matter of law.

the court MUST review the evidence in FAVOR of the non-moving party.

33
Q

What is the timing requirement for a Renewed Motion for Judgment as a Matter of Law?

A

The motion must be filed within 28 days of entry of judgment (or discharge of the jury if the motion addresses a jury issue not decided by the verdict).

28 days CANNOT be extended for any reason!

34
Q

What can a judge do regarding a renewed motion for judgment as a matter of law?

A
  1. Allow the verdict to stand
  2. Enter the opposite verdict
  3. Deny the motion and order a new trial
35
Q

Joint Motion/Alternative Motion for a New Trial

A

When making a renewed motion for JMOL, the moving party may also move jointly or in the alternative for a new trial under Rule 59.

If the court grants the renewed motion for JMOL, it must ALSO issue a CONDITIONAL RULING on any motion for a new trial.

Later, if the JMOL is reversed on appeal, the new trial will then occur automatically unless the appeals court specifies otherwise.

36
Q

What are some grounds for a motion for a new trial?

A
  1. Errors concerning evidence admissibility during trial;
  2. Jury instructions;
  3. Juror misconduct;
  4. Excessive or inadequate verdicts;
  5. Verdict against the great weight of the evidence
  6. newly discovered evidence that couldn’t have been found with reasonable diligence and which would have likely changed the result.
37
Q

What is the timing requirement to file a motion for a new trial?

A

Must be filed within 28 days of the entry of judgment.

38
Q

What does a motion for remittitur request?

A

Asks the judge to reduce an excessive award of damages.

Federal courts will routinely GRANT motions for remittitur.

If a federal judge believes the jury’s damages award is too high (excessive) such that it “shocks the conscience,”

or,

in a diversity case, if the award meets the applicable state standard for excessiveness, the judge may order a new trial or offer the alternative of a reduction in damages.

39
Q

What is additur?

A

A motion asking the judge for an increase in the award of damages, which is UNCONSTITUTIONAL in federal court.

In federal court, if the judge believes damages are too low, the court may grant a new trial.

additur is permissible in many state cases because the Seventh Amendment does not apply

40
Q

Under what grounds may the court grant relief from a judgment or order?

A
  1. Mistake, inadvertence, or excusable neglect
  2. Newly discovered evidence that with reasonable diligence, could not have been discovered in time to move for a new trial under FRCP 59(b)
  3. Fraud or misconduct by an opposing party
  4. Judgment is void
  5. Judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated, or applying git prospectively is no longer equitable;
  6. Any other reasons justifying relief

Evidence that jurors disregarded the judge’s instructions may be a basis for the teacher’s motion for relief from a judgment.

41
Q

What is the timing requirement to file a motion for relief from a judgment or order?

A

Must be made within a reasonable time

The reasonable time is context-dependent and varies based on the specific circumstances of each case.

42
Q

What is the exception for filing a motion for relief under Rule 60(b)?

A

mistake, new evidence, or fraud must be made within a reasonable time NOT TO EXCEED ONE YEAR.

43
Q

Does a motion for relief from judgment affect the finality of the judgment?

A

No, it does not affect the finality

The motion does not suspend the operation of the judgment.

44
Q

What is a fundamental infirmity that can make a judgment void?

A

A clear lack of subject matter jurisdiction (SMJ)

Such infirmities can be raised even after the judgment becomes final.

45
Q

True or False: A court’s power to entertain an independent action to relieve a party from a judgment is limited.

A

False

46
Q

Fill in the blank: Evidence that jurors disregarded the judge’s instructions may be a basis for the teacher’s motion for _______.

A

[relief from a judgment]

This indicates potential misconduct that could warrant reconsideration of the judgment.

MBE Civ Pro (7 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions