I. Motions

Question 1

What is required for Defendant making Motion to Dismiss?*

Answer 1

1) Before responsive pleading served (pre-answer)
- Only allowed ONCE!!!
- Extends time to serve responsive pleading until 10 days after service of Order determining Motion to Dismiss

2a) Must raise waivable defences;
- Lack of PJ!!!
- Claimant has NO legal capacity to sue
- Pending action for same cause of action in other state
- Arbitration award/Collateral Estoppel/Res Judicata/Bankruptcy discharge/Infancy/Disability/SoL/SoF
- Counterclaim NOT properly interposable
- Claim fails to state cause of action (must be conclusively proven by affidavits)

2b) Must raise non-waivable defences;
- Lack of SMJ!!!
- Failure to state cause of action!!!
- Failure to join necessary party!!!

Question 2

What happens if Defendant fails to raise defence in Motion to Dismiss?*

Answer 2

Waivable defences
- Waived

NON-waivable defences
- May be raised anytime by motion/subsequent pleading

Question 3

When must Party move for Summary Judgment?*

Answer 3

Within 120 days after Joinder of Issue (service of D’s Answer)

Question 4

When may Court allow early/late Summary Judgment?*

Answer 4

Early SJ
- NOT earlier than 30 days after filing of Issue

Late SJ

• ‘Good cause’ required
• NOT that delay is non-prejudicial
• NOT that motion is meritorious

Question 5

What is required for applying for Summary Judgment?*

Answer 5

1) Entitlement to judgment as matter of law

2) Pleadings + Affidavits
- Knowledge of facts
- NOT allegations based on info + belief!!!

3) ALL available evidentiary proof
- NO defence to cause of action
- Cause of action/Defence has NO merit

4) NO material issue of fact

Question 6

When may Summary Judgment be granted?

Answer 6

1) Judgment is warranted for EITHER party
2) As matter of law
3) Based on ALL papers + proof submitted

Question 7

What is required for challenging motion for Summary Judgment?

Answer 7

Facts sufficient to require trial of any issue of fact

Question 8

What is required for vacating judgment/order (motion for relief from order)?*

Answer 8

Motion to be made within 1 year for;
- Excusable default

Motion to be made within reasonable time for;

• Newly-discovered evidence
• Fraud
• Misrepresentation
• Misconduct
• Lack of jurisdiction
• Reversal/Modification/Vacatur of prior judgment/order

Question 9

What is required for vacating Default Judgment?

Answer 9

1) Excuse for default

2) Affidavit of merits
- Demonstrating meritorious defence

Question 10

What is required for Notice of Motions for any motion?*

Answer 10

1) Time + Place of Motion
- Can ONLY be set after Movant has filed Request for Judicial Intervention + Judge assigned to action

2) Relevant papers
3) Relief sought
4) Ground upon which Movant believes is entitled to relief