Civ Pro - Motions

Question 1

12b Motions

Answer 1

D attacking complaint
○ Lack of subject matter jur: can be raised ANYTIME
○ Waived if not included in 12b motion:
§ Lack of PJ
§ Improper venue
§ Insufficient service of process
§ Insufficient process
○ Failure to join a party: raised before or after trial
○ 12b6 failure to state a claim:
- Even if facts true, there is no recovery
- Insufficient facts
- Dismissal with prejudice
- Before or at trial

Question 2

Motion to strike

Answer 2

Before responding to a pleading
within 21 days of service
For redundant, immaterial, or scandalous material

Question 3

Motion for more definitive statement

Answer 3

Before responding to a pleading
Pleading is vague or ambiguous

Question 4

Motion for summary judgment

Answer 4

1. No genuine dispute of material fact
2. Entitled to judgment as a matter of law
   - Within 30 days after discovery
   - Denied, not appealable
   - Movant can use discovery, affidavits (must be personal knowledge), or other evidence
   - Burden on movant
   Partial SJ allowed

Question 5

Judgment as a matter of law JMOL directed verdict

Answer 5

• D can move after P’s case or
  - Raised by either party at the close of evidence
  - BEFORE goes to jury
  - Reasonable jury would not have a legally sufficient evidentiary basis to find for non-moving party.
  Evidence viewed in light most favorable to non-movant

Question 6

RJMOL

Answer 6

• Must have filed a prior JMOL
• After case goes to jury, within 28 days of verdict.
• Reasonable jury would not have a legally sufficient evidentiary basis to find for non-moving party.
  Judge may overturn verdict

Question 7

Motion for relief from judgment

Answer 7

Clerical error, oversight, mistake
Fraud or misconduct by other party

Question 8

Motion for new trial

Answer 8

• Error in the trial would have caused different outcome (cannot be harmless error)
• Judge erroneously admitted or excluded evidence
• Improper conduct by party, lawyer, witness, jury
  Verdict is against the clear weight of evidence

Question 9

Remittur

Answer 9

• Award too high
  New trial unless P accepts reduction

Question 10

Additur

Answer 10

(no additur in federal court)
Award too low
New trial unless adds damage

Question 11

Newly discovered evidence - new tria

Answer 11

• Moving party must show:
  - Evidence was discovered after trial
  - Party was diligent in finding evidence before/during trial
  - Evidence was material