Motion Procedure Flashcards
What papers must be served on the other party to make a motion on notice?
- The notice of motion
- Affidavit(s) attesting to why the motion should be granted
- memorandum of law (optional)
What is the return date?
the hearing date when the motion papers are presented in court.
When must the moving party serve the opponent?
At least 8 days before the return date.
When must all motion papers be filed (including papers from the opposing party)?
On or before the return date.
What is an order to show cause?
It’s a way of having the judge give the notice of motion. It’s a preliminary order, sought ex part that directs the opponent to “show cause” as to why the judge shouldn’t grant the motion.
How does an order to show cause affect the return date?
The judge can accelerate the return date to earlier than 8 days.
What is the procedure for an order to show cause?
The moving party drafts the order and submits it to the judge with supporting affidavits. The judge will set the return date and tell the moving party how to serve the opponent. The moving party must then serve the opponent, who has to file papers by the return date.
What are the service requirements once the judge had handed down a written order?
The winning party must serve a copy on the losing party, even if the judge has also served both parties.
What is the effect of serving an order on the losing party?
It gives effect to the order and starts the 30 day clock for the losing party to appeal the order.
How much time does a party have to appeal an interlocutory decision?
30 days from the date they’re served with the order.
Must a party immediately appeal an interlocutory decision, or can they wait to appeal everything after the final judgment?
They can wait and appeal at the end.
When are ex parte motions permitted?
Only when a statute authorizes an ex parte motion.
What is the remedy to the party who is not part of the ex parte motion?
Motion on notice to vacate the ex parte motion, and if that is denied, they can appeal.
