Motion Procedure Flashcards
MOTION
What is a motion?
Motion = an application for an ORDER of the Ct. that is a request for some type of preliminary or incidental relief in a pending action
Ex:
(i) motion to dismiss;
(ii) motion to change of venue
(iii) motion to amend pleadings; etc
Motion on Notice
What is a motion on notice & the mechanics of making it?
Motion on notice = provides the adversary an opportunity to be heard in opposition
1) Papers that moving party must serve on the other party are:
(i) A NOTICE of motion → A paper advising the opposing party of the nature of the motion and the moving party specifies the RETURN DATE [aka hearing date])
(ii) AFFIDAVITS of facts (stmts made under oath setting forth facts)
(iii) Optional: MEMORANDUM of law (setting off the legal arguments)
2) Opposing parties must get motion papers at least 8 DAYS prior to the return date
A Motion is considered “MADE” when served on other side
→ Note: If motion is by mail then it is MADE when the motion papers are mailed —mailbox rule
3) Both sides MUST file the motion and opposing papers w/ court by return date
4) Ct begins the decision making process on the return date and will make a decision & issues an ORDER either granting or denying the motion
ORDER TO SHOW CAUSE
Why is an Order to Show Cause used instead of a Notice of Motion?
An Order to Show Cause = an accelerated Motion on Notice signed ex parte by judge, directing other side to “show cause” by a ct-chosen date why the motion should NOT be granted; judge specifies method of service (often personal delivery)
Benefits:
1) accelerates the return date (used in exigent circumstances)
2) judge can grant an immediate stay of the proceedings OR a temporary restraining order
BUT the judge’s signing of the order to show cause is not deciding anything in the underlying case
3) the statute which governs the particular motion may REQUIRE it
Ex: Proposed order to show cause is signed by the judge on May 1, 2008, and it states, “Let ∆ show cause on May 5, 2008 why an order should not be granted requiring D to produce docs x, y, & z.” After the order is signed, the order & the underlying motion papers are then served on the opponent. The opponent may then submit opposition papers on the return date.
DECIDING ORDER
What is the procedure behind the deciding order?
NOTE: NY and MBE distinction on appealing interlocutory motions/orders
Ct’s decision re: a motion on notice is embodied in a written ORDER
The DECIDING ORDER is signed by the ct and entered w/ the clerk)
1) The winning party serves a copy of the order on the losing party
2) Effect of serving copies…
(i) Gives effect to the order; AND
(ii) Starts the running of a 30-DAY time limit to appeal from the order
3) Appealing an order
Interlocutory Appeals: NY allowsif filed w/in 30 DAYS of being served with the order
Note:although a moving party can wait, an immediate appeal of an order from the Supreme Court to the Appellate Division as a matter of right, IF appeal is filed/servedw/in 30 DAYS of service of any order determining a motion on notice
**NOTE: On MBE, CANNOT appeal immediate orders until final judgment entered
EX PARTE MOTION
What is an ex parte motion and its mechanics?
1) Ex Parte Motion = Where moving party goes straight to court & requests an order granting the relief sought (i.e., no advance notice is given to adversary)
2) Ex parte motions are ONLY allowed if expressly authorized by specific statutory authorization
→ so ASSUME a motion must be made on notice, unless a statute provides otherwise
→ e.gs: order for expedient service of process; π seeks extension of time to serve process
3) APPEALING AN EX PARTE MOTION:
(i) No (direct) appeal may be taken from an ex parte order (ii) PROCESS =
Step 1: Make a motion on notice to vacate the ex parte order
Step 2: if this motion is denied the aggrieved party can THEN appeal from the denial
Purpose → this is done to “develop a record” that the court can look to during the appeal process b/c the court would not have this by just looking at the one sided ex parte motion
Motion for Summary Judgment
What are the mechanics of a motion for TRADITIONAL summary judgment (MSJ)?
Purpose = to enable a party to show, before trial that, that even though the pleading is sufficient on its face, there is no issue of material fact requiring a trial
→ The moving party is contending that reasonable people cannot differ and therefore she is entitled to a JUDGMENT AS A MATTER OF LAW
Granting MSJ means that the matter can be decided as a matter of LAW
NOTE: Very popular on BAR EXAM b/c allows for a mix of procedure and law so if discussing MSJ (in an essay), ALWAYS discuss the underlying c/a!
2) Timing:
Motion for Summary Judgement MUST be made AFTER answer is served; EITHER party can move for SJ w/ respect to any claim or defense asserted in the pleadings
Time limit = moving party has 120 DAYS from the notice of issue (i.e. case is marked on trial calendar)
UNLESS moving party shows “good cause”
NOTE: the strength of motion on the merits does NOT qualify as good cause
3) Evidence used in MSJ:
The moving party must submit evidence in the form of affidavits, relevant docs or discovery materials
Affidavits must come from party w/ personal knowledge of the facts
Opponent can defeat motion using same type of evidence to show that a MATERIAL ISSUE OF TRIABLE FACT EXISTS
Opponent can also submit affidavit est. that he is not yet able (through no fault of his own) to produce opposing evidence → Ct can grant a continuance (adjournment)
4) Decision of Ct
The Ct. will “SEARCH THE RECORD” (i.e. the ct. looks at all the evidence in the record)
The Ct’s search can lead to a “Boomerang Effect” – ct can grant OPPOSING party SJ even w/o a cross-claim
5) Denial of SJ and Effect of a denial
If the motion is denied it means that a triable issue of material fact exists
6) Granting of PARTIAL SJ:
If the ONLY issue is as to DAMAGES, THEN ct. can grant MSJ on liability & then order an immediate trial on the issue of damages
2 EXCEPTIONS TO RQMT TO SUBMIT MSJ ONLY AFTER THE ANSWER
What are the EXCEPTIONS to serving the Motion for SJ after the Answer?
MSJ is permitted BEFORE answer when…
1) Ct (sua sponte) converts ∆’s Motion to Dismiss for Failure to State a CoA into a Motion for Summary Judgment action (this allows a decision on basis of evidence instead of just on pleadings)
2 PREREQUISITES for this:
(i) at LEAST 1 party submitted factual affidavits; AND
(ii) theCt. gives notice to parties so they can submit add’l evidence
MSJ is permitted BEFORE answer when…
2) MSJ in Lieu of Complaint:
π MAY (at her option) move for summary judgment at the same time that she serves process in TWO SITUATIONS:
(i) Action on an instrument for the payment of money (instrument must contain unconditional promise to pay $$)
→ Very few docs count – e.g. promissory note
→ CANNOT use this for ordinary breach of K
(ii) Action on an out-of-state jdmt (i.e. suing to enforce an out-of-state jdmt)
PROCEDURE for MSJ in Lieu of Complaint:
(i) When serving process, P accompanies the summons with the motion papers for summary judgement in lieu of accompanying the summons with the complaint;
(ii) the NOTICE OF MOTION must be accompanied w/supporting documentation and affidavits
(iii) In the motion, a RETURN DATE must be specified
→ The minimum advance notice to ∆ must be at least the advance notice that would have been mandated for ∆ ‘s appearance in the underlying action which is…
(a) AT LEAST 20 DAYSbefore return date, if ∆ was served by PERSONAL DELIVERY
(b) AT LEAST 30 DAYSbefore return date, if ∆ was served by ANY OTHER METHOD
RATIONALE: both of these actions are based on docs that are PRIMA FACIE valid when supported by an affidavit of noncompliance
