Chapter 7 -- Motion Practice -- Concepts

Question 1

4 motions that may be brought after pleadings but before trial

Answer 1

1. judgment on the pleadings
2. summary judgment
3. voluntary/involuntary dismissal
4. default judgment

Question 2

Judgments on pleadings are made in the light most (1) to the (2). This motion is usually only made for (3), (4) facts. It is closely related to a (5) and is made after (6).

Answer 2

1. favorable
2. opposition
3. undisputed
4. legal
5. motion to dismiss
6. pleadings are closed

Question 3

Motions to amend (1) are given freely. They are attached to the (2). It can be made even if (3) is pending.

Answer 3

1. pleadings
2. proposed amended pleading
3. judgment on pleadings

Question 14

*Summary judgment is made (1) and when there is no (2). It can be made on (3). (4) can be made on one of several issues within a count.

Answer 14

1. before trial 2. genuine dispute of material fact 3. any claim 4. partial summary

Question 15

*A complaining party can move for summary judgment (1) after commencement of action or after (2). A defending party moves (3). The motion is usually made after (4).

Answer 15

1. 20 days 2. adverse party files for summary judgment 3. at any time 4. facts are known (discovery, etc.)

Question 16

*In deciding whether to grant summary judgment, the court does not decide (1) of facts–only whether they are (2). The (3) do not determine this. An opposing party responds to this motion in an (4).

Answer 16

1. truth 2. material (undisputed) 3. pleadings 4. affidavit proving material issues remain

Question 17

At the hearing on the motion for summary judgment, the judge will usually allow (1) and then take the case (2) and enter a (3) at a later time. This latter sets out (4) motion is granted or denied and (5) and (6).

Answer 17

1. oral argument
2. under advisement
3. written order
4. what issues
5. findings
6. reasonings

Question 18

When an order disposes of the entire case, it is (1) and (2). It may not be appealable for (3) under Rule 54, which leaves it up to the (4). Denial of motion for summary judgment is (5).

Answer 18

1. final
2. appealable
3. partial summary judgment
4. judge
5. not final/not appealable

Question 19

Be (1) with motions for summary judgment/dismissal and prepare them in an (2), (3) manner, leaving the (4) that includes and refers to (5) to go into detail.

Answer 19

1. timely
2. orgainized
3. progressive
4. memorandum
5. exhibits

Question 20

Affidavits are (1) by witnesses who are (2) and have (3). They are signed by a (4). (5) are similar but the witness signs under penalty of perjury.

Answer 20

1. sworn testimony
2. competent
3. first-hand knowledge
4. notary public
5. Declarations

Question 21

A person opposing a motion for summary judgment should offer a (1) with supporting (2) to demonstrate (3), although they are not required to do anything at all. The affidavits should present testimony that (4) to present credibility issues that can only be decided in trial. It should also raise (5) of the movant’s affidavits.

Answer 21

1. memorandum
2. affidavits
3. issues of material fact remain
4. contradicts the movant’s affidavits
5. defects (improperly notarized, eg)

Question 22

Two types of dismissals

Answer 22

1. voluntary
2. involuntary

Question 23

3 ways to obtain voluntary dismissal

Answer 23

1. PLT files a notice of dismissal with clerk of court (no court order required)
2. All parties agree, and PLT files with court a stipulation of dismissal signed by parties (settlement) (no court order required)
3. by court order

Question 25

Unless otherwise stated, a voluntary dismissal is (1), meaning it can be refiled later. A second notice of dismissal is (2), however, to avoid abuse. In voluntary dismissals, the only issue the courts usually look at are (3) and (4) to the defendant. Voluntary dismissals will not be granted if there is a (5) or if the defendant (6).

Answer 25

1. without prejudice
2. with prejudice
3. legal prejudce
4. costs/expenses
5. counterclaim against PLT
6. objects to the dismissal

Question 26

Involuntary dismissal allows a claim to be terminated if a PLT is guilty of (1). This can be done by the (2) or (3). An involuntary dismissal is (4), so it is (5).

Answer 26

1. misconduct
2. DEF
3. court
4. with prejudice
5. final/appealable

Question 27

3 ways involuntary dismissal may be granted

Answer 27

1. PLT fails to prosecute a claim (respond to motions, etc)
2. PLT fails to comply with rules of procedure or court orders
3. judgment on partial findings - evidence fails to demonstrate cause of action (bench trial only)

Question 28

Defaults are similar to (1) and usually involve the (2). They are allowed only when the claim seeks (3). The PLT presents an (4) setting out facts showing default and (5).

Answer 28

1. dismissals
2. defendant
3. affirmative relief (specific or computable sum)
4. affidavit
5. amount due

Question 29

It is good practice and sometimes required to serve a notice of default (1) before the (2).

Answer 29

1. 3 days
2. hearing

Question 30

At the hearing on the motion,commonly called the (1), the PLT must be prepared to show that (2), that the (3), and what the (4) are. Supporting (5) and (6) should be present.

Answer 30

1. prove up
2. service on the defaulting party was proper
3. allegations of the complaint are true
4. proper damages
5. documentation
6. witnesses

Question 31

4 tips to avoid a default being vacated

Answer 31

1. serve DEF as directly as possible
2. wait long enough, usually 60-90 days, before seeking default
3. Send letters regularly to DEF requesting response
4. send DEF notice of motion

Question 32

3 elements of consolidation

Answer 32

1. actions can be consolidated only when all actions are pending before court
2. actions must have common facts or law
3. court may use discretion to consolidate only certain issues

Question 33

The court may order separate trials where doing so will create (1), avoid (2) or permit a case to be tried more (3) and (4). Typically (5) will be separated. Typically, a decision to sever will be made at the (6) and can be dicey with deciding where to separate (7).

Answer 33

1. convenience
2. prejudice
3. efficiently
4. economically
5. unrelated permissive counterclaims
6. pretrial conference
7. jury trials