Chapter 6 - Law and Motions - Concepts Flashcards
Motions are used for (1) and (2). A motion is an (3) to the court for an (4). A successful motion follows (5) and (6).Also jeeo
- routine “housekeeping” (rescheduling, etc.) 2. dispositive motions (dismiss, etc.) 3. application 4. order 5. format/service rules 6. substantive requirements
3 requirements of a motion, per rule 7FRCP
- In writing 2. “State with particularity the grounds therefor” 3. state the relief or order requests
Format requirements for motions are identical to those in (1)–including a (2), (3) and (4).
- pleadings 2. caption page 3. lawyer heading 4. lawyer’s signature
Rule 6 FRCP stipulates service of a motion (1) before the hearing date, along with the (2) and any (3). Mail service adds (4). Local rules usually require (5)
- five days 2. notice of motion 3. supporting affidavits 4. three days 5. more notice
Following service, the (1) of the motion and notice should be filed with the (2) along with a (3). ALso have a copy of each (4) and (5) for your own files.
- originals 2. clerk of court 3. proof of service 4. stamped 5. dated
Proof of service is a (1) issued by a (2) or (3) (depending on local rules) stating service has been made in the proper way.
- certificate 2. lawyer 3. non-lawyer (eg, notary)
Make sure to schedule the hearing on a day (1), clear it with the (2), and double-check (3) that it is on the docket.
- the judge hears hearings 2. lawyer 3. the day before
A memorandum of law can be attached to the motion and it sets forth the (1) and (2) to support the motion. It can include (3). Sometimes (4) is preferred where appropriate. Drafting a motion requires a (5) approach.
- facts 2. legal authorities 3. exhibits 4. brevity (eg., motion to reset a hearing v. motion for summary judgment) 5. flexible (tailored, not mechanical)
Two choices the respondent has to a motion
- oppose 2. not oppose
If the respondent does not oppose the motion, the (1) should be notified and a (2) should be filed. Alternatively, a (3) may be used, with both parties agreeing to dispose of the motion. If your party opposes the motion, (4) before the hearing which includes (5).
- opposing attorney 2. statement saying the def. did not oppose 3. consent order 4. file the response 5. case law research
For hearings, the judge usually dispenses with (1) first. For other cases, sometimes the judge will make a (2) and the party rules against will (3). If the judge does not make a tentative decision or a (4) and the motion is more significant, the judge may listen to arguments and take the case (5)–researching the issues further.
- uncontested matters 2. tentative decision 3. speaks first to persuade the judge to change his ruling 4. decision from the bench 5. under submission
How important oral or written arguments are in hearings is up to the (1).
- judge
When the motion is decided, the court enters an (1)–usually a (2) for routine motions. For more important rulings, the judge may prepare a (3). Some motions may be referred to a (4) who is empowered to hear routine civil pretrial matters and may also supervise the (5)
- order 2. minute order 3. written opinion 4. magistrate 5. discovery process
If a motion to extend is made (1), the court may grant it (2) or after for (3). Courts are generally (4) with the former, but not with the latter. Some (5) matters cannot be enlarged.
- before expiration of the applicable time period 2. for good cause 3. excusable neglect 4. permissive 5. post-trial
(1) can be required when a party dies, becomes incompetent or loses legal interest, such as a (2) where substitution is automatic.
- substitution 2. public official
Removal to federal court is a (1) and should only be done if it (2).
- statutory right 2. benefits of the defendant
6 possible advantages to removal
- quicker trial date 2. procedural differences 3. relaxed evidence rules 4. get a more favorable judge 5. wider-range jury pools 6. different substantive law
Notice for removal must be filed in (1) in the division in which action is pending within (2) of the initial pleading. It is filed with the (3).
- federal district court 2. 30 days 3. clerk of state court
Once the case is removed the DEF has (1) to respond to the initial pleading or (2) from the removal petition.
- 20 days 2. 5 days
an order drafted and agreed to by both parties that disposes of a pending motion
consent order
an officer of the court authorized to hear routine civil pretrial matters
magistrate
legal document submitted with a motion setting forth background facts and legal authorities to support a position
memorandum of law
form on which the clerk makes an entry reflecting the ruling by the judge
minute order
either a written or oral request made by a party to the court for some order or ruling by the court
motion
a notice that usually appears at the end of a pleading or motion stating that the pleading or motion was served on the other parties to the lawsuit, the date service was made, and the manner of service
proof of service
the procedure in which a defendant may transfer a case already filed in a state court to the federal district court for the same district in which the state action is pending
removal
a ruling by the judge based on the written briefs submitted by the parties and before oral argument is heard. Subject to change after oral argument
tentative ruling
refers to the judge delaying decision on a motion until the judge has an opportunity to further research or consider the issues presented by the parties during the course of oral argument.
under submission
