Civ Pro-Motions

Question 1

12b Motions (D attacking the complaint/P’s case)

Answer 1

1. Lack of SMJ (can be raised ANYTIME)
2. Lack of PJ (waived if not in first answer/12b motion)
3. Improper Venue (waived if not in first answer/12b motion)
4. Insufficient Service of Process (waived if not in first answer/12b motion)
5. Failure to Join a Party (can be raised anytime before or at trial)
6. Motion to Dismiss for Failure to State a Claim: (1) even if every fact is true, no recovery is plausible; (2) insufficient facts. Dismissal is usually w/ prejudice (can be raised anytime before or at trial)

Question 2

Motion to Strike (12f)

Answer 2

Before responding to a pleading OR if response not allowed w/in 21 days of service, you can make a motion to strike for redundant, immaterial or scandalous material

Question 3

Motion for a More Definite Statement (12e)

Answer 3

Before responding to a pleading, you can make a motion for a more definitive statement if the pleading was vague or ambiguous

Question 4

Motion for Summary Judgment (MSJ)

Answer 4

Std: No genuine dispute of material fact
Timing: until 30 days after discovery
Not appealable if denied
Burden on Moving party, which can use discovery, affidavits, etc. to show there’s no genuine dispute
Partial SJ is allowed (e.g., for one issue only)

Question 5

Judgment as a Matter of Law (JMOL) [used to be called Directed Verdict]

Answer 5

Std: viewing the evidence in the light most favorable to the non-moving party, a reasonable jury would not have a legally sufficient evidentiary basis to find for the non-moving party
Timing: D can raise JMOL after P’s case; OR either party can raise JMOL at the close of evidence (i.e., before the case goes to the jury)

Question 6

Renewed Motion for JMOL (RJMOL)

Answer 6

You need to have raised a JMOL motion first
Timing: w/in 28 days of the verdict
Same std as JMOL: viewing the evidence in the light most favorable to the non-moving party, a reasonable jury would not have a legally sufficient evidentiary basis to find for non-moving party

Question 7

Motion for Relief from Judgment

Answer 7

1. When there’s a clerical error, oversight, or a mistake in the judgment
2. If there was fraud or misconduct by the opposing party

Question 8

Motion for a New Trial

Answer 8

2 types of trial errors: harmless vs prejudicial (i.e., outcome would’ve been different)
New trial is only appropriate when the error was prejudicial
E.g., judge erroneously admitted or excluded evidence; improper conduct by a party, witness, lawyer, or the jury; verdict is against the clear weight of the evidence

Question 9

Remittitur and Additur

Answer 9

Remittitur: a new trial could be ordered unless the party agrees to a reduction of the award b/c it was excessive
Additur (NO Additur in federal ct’s)

Question 10

New Trial b/c of Newly Discovered Evidence

Answer 10

When all of the following are met:
1. The evidence was discovered after the end of the trial,
2. The party was reasonably diligent in searching for the evidence before or during the trial (but was unsuccessful), AND
3. The evidence was material.