Chapter 7: Motion Practice

Question 1

If the attorneys cannot resolve the problems by themselves, a court order is required to settle the issue. The application for such a court order is a motion

Answer 1

Some motions relate to procedural problems with a case, such as motions for an extension of time in which to respond to a complaint. However, motions can also relate to more substantial evidentiary issues in the case, such as motions for summary judgment. The court orders resulting from these motions may actually dispose of the entire case. For example, if a motion for summary judgment is granted, judgment is entered in favor of one party without further court proceedings, and the action in the trial court will end

Question 2

Except for motions made during the trial, motions must be written, filed in court, and served on the opposing attorneys (or parties, if not represented). If the motion is contested, the opposing attorneys also file papers opposing the motion. Often the written documents are followed by a brief court hearing before the judge rules on the motion

Answer 2

Although they are not considered to be pleadings, motions do resemble pleadings in appearance. The documents filed in a motion follow the same formalities required of pleadings and contain the same caption as the pleadings. As a paralegal, you might be asked to research the law governing the particular motion involved or prepare the written documents that are filed in court. You also might be requested to contact the court to set the motion for a hearing

Question 3

Preparing, Serving, and Responding

Answer 3

Many different types of motions are possible. Some motions are specifically described by statutes, which explain the procedures and time limits for making such motions. Other motions may be only briefly described, if at all. Regardless of any special procedures that may apply to some motions, certain procedures are common to all motions

Question 4

Preparation of the Written Papers
The party making the motion, known as the movant or moving party, begins by preparing written papers for service and filing. These papers follow the same general format as pleadings. The written papers filed in making a motion usually include these documents:

Answer 4

• the motion,
• the notice of hearing on the motion,
• affidavits in support of the motion, and
• a memorandum of points and authorities in support of the motion

Question 5

In motion practice, the term “motion” is used in two different contexts. On one hand, it refers to the whole process of making a request for an order from the court. On the other hand, it also refers to one of the documents filed in support of that request

Answer 5

The document titled “motion” describes the nature of the specific motion, the grounds for the motion, and the relief requested

Question 6

The “notice of hearing on the motion” is a simple paper stating the place and location of the court hearing

Answer 6

Many courts allow the motion and the notice of hearing to be combined into one document. Motions are commonly supported by affidavits. An affidavit is a statement, under penalty of perjury, sworn to before a notary or other person authorized to administer an oath
textbook definition: the part of a written motion that describes the nature of the motion being made and tells when and where a hearing on the motion will occur

Question 7

An affidavit usually describes the factual basis for making the motion and is made by a person having personal knowledge of those facts

Answer 7

It can be the statement of the attorney, a party, or a third person. Even though it may be the statement of a party or a witness, the attorney or paralegal normally prepares the document based on what the individual tells them. An affidavit serves the same purpose as testimony from a party or witness and is used in lieu of that testimony. As such, an affidavit should be written in the first person and should contain detailed facts

Question 8

In some courts, a declaration is used in lieu of an affidavit. Like the affidavit, a declaration is a statement under penalty of perjury, but it is not sworn to before a notary. In drafting an affidavit or declaration, the following general format should be followed:

Answer 8

1. The affidavit or declaration is usually, although not always, written in the first person. Even though it may be signed by a party or a witness, it is written by the attorney or paralegal
2. The first paragraph should describe the affiant (person making the affidavit) or declarant and describe the person’s relationship to the case. For example, is the affiant the plaintiff, an employee of the plaintiff, an attorney for a party, or does the affiant have some other relationship to the case?
3. The affiant should state whether the affidavit is made in support of or in opposition to the motion and describe the general nature of the motion
4. The affiant then states the facts supporting of or opposing the motion. This may be done in several short paragraphs. If not obvious from the facts, the affiant should include a brief statement that he or she knows the facts to be true based on his or her own knowledge

Question 9

Along with a supporting affidavit, most attorneys also support a motion with a “memorandum of points and authorities.”

Answer 9

In some courts this is required. A memorandum of points and authorities is a legal argument in the form of a discussion or analysis of the law (statutes, cases, or constitutional provisions) that applies to the case. If you are asked to help prepare a memorandum of points and authorities, you must research the law that governs the case. Some courts also require that the moving party submit a proposed order for the court to sign at the hearing
textbook definition: a legal argument in the form of an explanation and analysis of the law that applies to the case

Question 10

Although the general requirements for motion practice are found in the Federal Rules of Civil Procedure or appropriate state laws, the area of motion practice is often the subject of local rules of court, in both federal and state courts

Answer 10

Before preparing any motion, it is imperative that you review all of the laws regulating motion practice in the particular court in which the action is filed. Rule 7 of the Federal Rules of Civil Procedure governs motions in general. Many local courts have additional rules. Usually local rules related to general motion practice also have some variation of the number 7. Specific motions are governed by other Federal Rules as well as other local rules

Question 11

Service and Filing

The motion and supporting papers must be served on the other parties to the action and filed with the court

Answer 11

Service of motions is similar to service of an answer (by mail, by fax, electronically, or personally). Some courts also require that a separate copy of all papers be sent directly to the judge hearing the motion. This is referred to as a “chambers copy.”

Question 12

All jurisdictions impose a time requirement for the service of motions

Answer 12

Under the Federal Rules of Civil Procedure, unless changed by a specific statute or court order, the written motion and notice of hearing must be served not later than 14 days before the time set for the hearing. If service is by mail, fax, or electronic means, you must allow an additional three days. Service of motions is governed by Rule 6. Time requirements for filing motions can be changed by court order or by local court rule. You must be careful to check local rules of court regarding this time limit. State courts may have different time requirements, and even some federal courts have local rules that have substantially changed this notice requirement

Question 13

Should a situation arise making it impossible or impractical to comply with the time requirement imposed by statute or local rule, the courts allow the parties to request that the time be shortened

Answer 13

In a sense, this request is in itself a motion. Courts generally treat this as an “ex parte” motion, meaning that no prior notice need be given nor any court hearing scheduled. If the court grants this request, it is often referred to as an “order shortening time.” The order shortening time is then served on the opposing party with the notice of hearing on the motion and the other moving papers

Question 14

Service of a motion is usually accomplished by mailing, faxing, or electronically sending copies of the moving papers to the opposing attorneys

Answer 14

Proof of service of the moving papers is in the form of an affidavit or declaration by the person serving the papers and is sometimes known as a “proof of service” or “certificate of service.” The certificate should indicate how service was conducted. The certificate of service should be filed in court prior to the hearing

Question 15

Responding to Motions
To oppose a motion, an attorney commonly serves and files papers in opposition. These usually consist of affidavits in opposition to the motion and a memorandum of points and authorities in opposition to the motion. These affidavits and the memorandum have the same technical requirements as do the moving papers.

Answer 15

For most motions in federal court, opposing affidavits must be served not later than seven days before the hearing. You must also consult local rules to determine how many copies should be filed and whether a proposed order is required. The time limits vary depending on the state or local rules. In some courts, the moving party is given the opportunity to reply in writing to the opposing papers. As a litigation paralegal, you might be involved in drafting these documents for the attorney’s review

Question 16

Court Procedures Involving Motions
In addition to written documents, motions often involve court hearings. The attorneys for the moving and responding parties appear before a judge and present oral arguments in support of or in opposition to the motion. The judge considers the written documents and the oral arguments and then makes a decision

Answer 16

After the judge rules on the motion, a written order, reflecting that ruling, must be submitted to the judge for signature. Many courts today allow attorneys to make a “telephone” appearance for motions. This involves telephone conference calls between the judge and the various attorneys. This can save substantial time. Local rules of court control this procedure, although many courts use a service known as a CourtCall (), which facilitates the conference call

Question 17

Hearings
Because a hearing on the motion is a court appearance, it must be handled by the attorney. However, as a litigation paralegal, you might have some responsibilities in scheduling the hearing. Different courts have different methods of scheduling motion hearings

Answer 17

In some courts motions are heard at set times and in set departments (sometimes referred to as “law and motion”). In other courts you might have to specifically arrange a time with the judge hearing the motion. This is done through the judge’s clerk. Scheduling the motion may require that you call the court, talk to the clerk handling the motion calendar, and arrange for a convenient date

Question 18

Alternatively, a court might allow you to schedule a date through the court’s Web site without talking to a court clerk

Answer 18

Be sure to check your attorney’s calendar for conflicts. It is also advisable to call the opposing attorneys prior to doing this to schedule the hearing at a time that is convenient for all parties. This eliminates the need for continuing the hearing date. When setting a motion for hearing, be sure that you allow sufficient time for service of the moving papers. Also be sure to check state rules regarding service by mail, fax, or electronic means. State rules may change time limits

Question 19

Tentative Rulings
Because all moving and responding papers must be filed several days before the scheduled hearing, the judge has the opportunity to review the papers and consider the merits of the motion prior to the time for a hearing on the motion

Answer 19

Many judges feel that the brief oral arguments that take place at the hearing are no more than a repetition of information already in the documents. In an effort to save court time and avoid unnecessary hearings, some courts have adopted the practice of making a tentative ruling prior to the date of the hearing, usually a day or two prior to the hearing. Attorneys (or their paralegals) can then call the court and discover how the judge intends to rule on the motion. In some cases, this information is posted on the Internet. If the attorneys insist, they are still entitled to appear at the scheduled hearing

Question 20

Orders after Motions

Answer 20

After the motion is heard, the judge makes a ruling, called an “order.” Most courts require that the prevailing party prepare a written order for the judge’s signature. As a litigation paralegal, you might be asked to do this. (Some courts have local rules that require the moving party to submit a proposed order with the moving papers). Sometimes a judge’s ruling on a case is not a simple grant or denial of the motion. Orders can be very involved. If you are asked to prepare an order after a hearing, be sure you know exactly what must be included in the order. The attorney may give you her notes from the hearing, or may simply tell you what to include in the order. In either case, be sure you understand the notes or directions before drafting the order

Question 21

Sanctions

Answer 21

All courts demand that motions be made or opposed in good faith. To prevent unnecessary or frivolous motions, courts have the power to punish an attorney who abuses the motion process. This punishment often is an award of attorney fees to the opposing side. In some cases, if the court finds the behavior particularly unreasonable or unjustified, the court may find a party or attorney in contempt of court. If a party fails to comply with an order issued after a motion, the court may impose additional sanctions. In some extreme cases the court may even strike the pleadings of one who fails to comply with a court order, making it possible for the other side to win without trial. Should the court grant an order disposing of the case, that order would be immediately appealable

Question 22

Pretrial Motions

Answer 22

Motions can be made at any time during the litigation process. Consequently, they deal with all aspects of litigation. Pretrial motions deal with issues or problems that arise before the trial occurs. Most often, these motions deal with requests that are ancillary to the primary relief requested in the complaint. These requests or motions often relate to the pleadings, the jurisdiction and venue of the court, and the discovery process. However, some pretrial motions deal with substantive issues that may affect the very right to trial

Question 23

Motion to Dismiss

Answer 23

A motion to dismiss the action is a request that the court terminate the lawsuit immediately, without a hearing on the merits of the plaintiff’s claim. A motion to dismiss is often made in lieu of an answer, and if granted eliminates the need for an answer. Such a motion can be made for several reasons. In federal proceedings, a motion to dismiss the case is proper when the court lacks subject matter or personal jurisdiction, when venue is improper, when process (the summons) or service of process is insufficient, when the complaint fails to state a claim upon which relief can be granted, or when a necessary party has not been joined (Rule 12 of the Federal Rules)

Question 24

Motion for a More Definite Statement

Answer 24

If a complaint (or other claim for relief) is so vague and ambiguous that it cannot be understood and responded to, the party required to respond may make a “motion for a more definite statement.” Such a motion is intended to require the claimant to clarify the allegations and make them more intelligible. The moving party is expected to point out the defects in the complaint and explain what details must be added to the claim (Rule 12[e] of the Federal Rules)
textbook definition: a motion made in response to a complaint in which the defendant challenges the clarity or specificity of the complaint

Question 25

Motion to Strike

Answer 25

A “motion to strike” is a request that the court delete portions of a pleading that are insufficient, redundant, immaterial, or scandalous (Rule 12[f] of the Federal Rules)
textbook definition: a request made to the court to delete part or all of a pleading; can also refer to a request made during trial to delete testimony

Question 26

Motion to Amend

Answer 26

All pleadings can be amended. Under some circumstances, pleadings can be amended as a matter of right without the necessity of a court order. If a court order is required, the party wishing to amend a pleading must make a “motion to amend.” The courts are very liberal in allowing parties to amend pleadings and grant such motions unless the amended pleading would unfairly prejudice the other party (Rule 15 of the Federal Rules)
textbook definition: a request by one party to the court to allow a change in a pleading

Question 27

Motion for Judgment on the Pleadings

Answer 27

After all pleadings have been filed in an action, any party may make a “motion for judgment on the pleadings.” The moving party in such a motion claims that the allegations in the pleadings are such that no contested issues remain and judgment can be entered for only one party. For example, if the defendant were to admit all of the allegations in the complaint, no disputed issue would remain. The pleadings themselves indicate that the plaintiff is entitled to judgment (Rule 12[c] of the Federal Rules)
textbook definition: A motion claiming that the allegations in the pleadings are such that no controversial issues remain and that judgment can be entered for only one party

Question 28

Motion for Change of Venue

Answer 28

If an action is commenced in the wrong judicial district, a party can request that the court transfer the case to a proper court by making a “motion for change of venue.” Also, in cases where venue is proper in more than one district, a party can request a change of venue to another proper district for the convenience of parties and witnesses or in the interest of justice (28 U.S.C. Section 1404)
textbook definition: a request from a party that the court transfer the case to another geographical location

Question 29

Motion to Quash Return of Service

Answer 29

If the defendant claims that he was improperly served with the summons and complaint, he can make a “motion to quash the return of the service” (or motion to quash service of summons). A defendant is improperly served if the manner of service is not in accordance with the appropriate statute or if the defendant is not subject to the personal jurisdiction of the court. When such a motion is granted, service is negated. If the defect in service was in the manner of service, the defendant can be served again. However, if the court does not have personal jurisdiction over the defendant, the action cannot proceed in that court. If the plaintiff wants to pursue the case, he will have to begin the process again, this time in a court that does have personal jurisdiction over the defendant (Rules 4 and 12 of the Federal Rules)
textbook definition: motion made by a defendant who claims that he was improperly served with the summons and complaint

Question 30

Discovery Motions

Answer 30

An essential part of the litigation process is discovery, a legal process by which parties of the lawsuit are able to discover facts relevant to the case. Much of discovery involves requiring the opposing side to reveal relevant facts or provide pertinent documents. Problems often arise regarding exactly what has to be revealed or provided. If one party refuses to provide information to another, the party requesting the information can make a “motion to compel”
textbook definition: A request by one party to the court for an order requiring the other side to comply with a discovery request
the requested discovery. If the motion is granted, the court will order the party to comply with the discovery request and impose some sort of penalty or sanctions if the party refuses. If the court finds that the initial refusal to comply with discovery request was unreasonable, it can also impose sanctions for that initial refusal. Sanctions are usually in the form of attorney fees awarded to the moving party. Likewise, if the court finds that the motion to compel was not made in good faith, it can impose sanctions on the moving party. A second type of discovery motion is a “motion for a protective order,”
textbook definition: a motion made during discovery asking the court to limit a discovery request
which is a request that the court limit the other party’s right to discovery (Rule 37 of the Federal Rules)

Question 31

Motion for Summary Judgment

Answer 31

In a motion for summary judgment, one party asks the court to order that judgment be entered as a matter of law, without the necessity of trial, because there are no real disputes regarding material facts. When parties file pleadings, they sometimes make allegations hoping, and even believing, that they will be able to prove them. However, as the parties prepare for trial, it sometimes becomes evident that problems exist. Before a case goes to trial, parties have the opportunity, either through investigation or formal discovery, to uncover and evaluate the evidence that will be introduced by both sides during trial. At this point, one side may determine that the opposition really has no valid admissible evidence to support their contentions. In other words, in spite of what the parties claimed in their pleadings, no evidence supports their facts. Because the purpose of trial is to resolve factual disputes, there is no need for trial
textbook definition: a motion requesting that judgment be entered immediately because there is no genuine dispute as to any material fact in the case and the movant is entitled to judgment as a matter of law

Question 32

Motions for summary judgment can be made either by plaintiffs or by defendants

Answer 32

For plaintiffs to prevail in such a motion, they must show that the facts supporting each element of their cause of action are undisputed. For defendants to defeat plaintiffs’ motions, they must show the court that either there is a dispute regarding a material fact related to the cause of action, or that there are facts that support an affirmative defense. For defendants to make a successful motion for summary judgment, they need to show only that the plaintiff cannot prove any one of the elements of the cause of action, or that the existence of an affirmative defense is undisputed

Question 33

For example, suppose that in the situation described in the case Commentary, Jones is a manufacturer and distributor of video processors for tablet computers and that Pyramid Computer manufactures the computers. Assume that Jones has sued Pyramid Computer for $100,000 for video processors that were shipped to Pyramid Computer. Jones claims that no part of the $100,000 was paid. Jones makes a motion for summary judgment, supported by an affidavit and documents, establishing the following:

Answer 33

1. Jones and Pyramid Computer entered into a written contract whereby Pyramid Computer was to purchase video processors from Jones at agreed prices
2. Pursuant to a written purchase order, Jones delivered the video processors to Pyramid Computer at an agreed price of $100,000
3. Pyramid Computer received the video processors and signed a receipt for the goods
4. Pyramid Computer failed to make any payment toward the $100,000 even though repeated requests have been made