Civil Procedure (Motions)

Question 1

What is the standard on a Motion to Dismiss?

Answer 1

When viewing the facts in the light most favorable to the non-moving party, whether there is any basis upon which relief can be granted for the non-moving party

Question 2

What are the Motion to Dismiss grounds?

Answer 2

1. Lack of subject matter jurisdiction;
   2.Lack of personal jurisdiction;
2. Improper venue;
3. Insufficient process;
4. Insufficient service of process;
5. Failure to state a claim upon which relief can be granted;
6. Failure to join a indispensable party.

Question 3

Which grounds for a Motion to Dismiss are waived if not raised in a defendant’s first responsive pleading?

Answer 3

1. Lack of personal jurisdiction;
2. Improper venue;
3. Insufficient process;
4. Insufficient service of process.

Question 4

What is the standard on a Motion for Summary Judgment?

Answer 4

When viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact AND the movement is entitled to judgment as a matter of law

Question 4

What is the standard on a Motion for Judgment as a Matter of Law?

Answer 4

When the non-moving party has been fully heard on an issue during a jury trial, the court finds that a reasonable jury would have no legally sufficient basis to rule in favor of the non-moving party on that issue.

Question 5

What are the grounds for a Motion for a New Trial?

Answer 5

1. An error at trial makes the judgment unfair;
2. New evidence surfaced that could not have been obtained (with due diligence) at the original trial;
3. Prejudicial misconduct of a party/attorney/ juror/third-party;
4. The judgment was against the weight of evidence; OR
5. The verdict was excessive or inadequate.

Question 6

When will a Default Judgment have a preclusive effect?

Answer 6

When the rendering court has personal jurisdiction over both parties and subject matter jurisdiction over the action.

Question 7

What are the grounds for a Motion to Remand?

Answer 7

That for any reason the case should not have been removed to federal court and should be remanded back to the original state court.

Question 8

What is the deadline for filing a Motion to Remand?

Answer 8

NO TIME LIMIT - If the motion is based on the federal court’s lack of subject matter jurisdiction

WITHIN 30 DAYS AFTER THE MOTION TO REMOVE IS FILED - If the motion is based on any reason other than lack of subject matter jurisdiction

Question 9

What is the effect of failing to timely file a Motion to Remand?

Answer 9

The right to have the case remanded to state court is waived and the case will stay in federal court

Question 10

What is the effect of pre-answer Motion to Dismiss that has been denied?

Answer 10

The defendant must serve an answer to the complaint within 14 days after receiving notice of the denial

Question 11

What is the deadline for filing a Motion to Dismiss on non-waiverable grounds?

Answer 11

1. Lack of SMJ - any time, even on appeal;
2. Failure to State a Claim - any time before or during trial;
3. Failure to Join an Indispensable Party - any time before or during trial.

Question 12

What information/evidence does a judge consider when ruling on a Motion to Dismiss?

Answer 12

The allegations on the face of the plaintiff’s complaint, but not the legal conclusion. NO OTHER EVIDENCE

Question 13

If a post-trial motion has been filed and the court denies the motion, when must the appellant file a notice of appeal?

Answer 13

30 days from the denial.