Civ Pro Motions

Question 1

MTD for lack of SMJ

Answer 1

Lack of SMJ

Can be raised anytime

Question 2

MTD for lack of PJ

Answer 2

Lack of PJ

Waived if not included in 12(b) motion or answer

Question 3

MTD for improper venue

Answer 3

improper venue

waived if not included in 12(b) motion or answer

Question 4

MTD for insufficient service of process

Answer 4

insufficient service of process

waived if not included in 12(b) motion or answer

Question 5

which motions are waived if not included in 12(b) motion or answer?

Answer 5

1. lack of PJ
2. improper venue
3. insufficient service of process

Question 6

MTD for failure to join a party

Answer 6

may be raised before OR at trial

Question 7

MTD for failure to state a claim

Answer 7

even if every fact is true, no recovery is plausible; insufficient facts

may be raised before OR at trial
if dismissed, it’s WITH prejudice unless court says otherwise

Question 8

Motion to strike

Answer 8

for redundant, immaterial, or scandalous material

must be made w/i 21 days of service

Question 9

Motion for more definitive statement

Answer 9

pleading is too vague or ambiguous

must be made before responding to the pleading

Question 10

MSJ

Answer 10

no genuine issue of material fact
moving party: (1) has the burden, (2) can use discovery, (3) can use an affidavit (must be based on their personal knowledge)
partial SJ allowed
can be made until 30 days after discovery ends

Question 11

JMOL

Answer 11

a reasonable jury couldn’t find otherwise
viewed in light most favorable to the nonmoving party
can be made before the case goes to the jury
D can move after P’s case
both parties can move after both sides rest

Question 12

Renewed JMOL

Answer 12

Regular JMOL must come first

filed w/i 28 days of verdict

Question 13

Motion for relief from judgment

Answer 13

either for clerical error in judgment or for fraud or misconduct by other party

Question 14

motion for new trial

Answer 14

if outcome would’ve been different but for the error (not harmless):
1. judge erroneously admitted/excluded evidence
2. improper conduct by a party/witness/lawyer/juror
3. verdict against the great weight of the evidence
4. newly discovered evidence, moving party must show (1) evidence discovered after the end of trial, (2) party was reasonably diligent in searching for evidence before or during trial and couldn’t find it, (3) evidence was material
Remittitur: new trial ordered unless party agrees to reduction w/c award was excessive
Additur: never in federal court

Question 15

motions that must be raised before or at trial

Answer 15

failure to join a party

failure to state a claim

Question 16

must be made BEFORE responding to a pleading

Answer 16

motion to strike (w/i 21 days of service)

motion for a more definitive statement

Question 17

motion that must be made before 30 days after discovery

Answer 17

MSJ