Motion procedure

Question 1

How do I file a motion on notice?

Answer 1

Serve notice of motion, affidavits, and memo of law on other party

Provide at least 8 days before “return date” or hearing date

The court then decides

Question 2

Alternative to filing a motion on notice what can I go for?

Answer 2

An order to show cause

Question 3

What is an order to show cause?

Answer 3

Preliminary order, signed ex parte by judge, directing adversary to show cause, on date specified by judge, why motion should not be granted

Question 4

What are the three reasons I would go for an order to show cause instead of a motion on notice?

Answer 4

1. Can accelerate return date if 8 days too long due to exigent circumstances
2. Judge can grant immediate stay of proceedings or TRO
3. Statute which governs particular motion may require it

Question 5

Once the court has made a decision on an order what must you do?

Answer 5

Court’s decision signed by the court; prevailing party must serve it on losing party with notice of entry of the order

Question 6

What is the effect of serving the notice of entry on the order on the losing party?

Answer 6

1. Service required to give effect to order

2. Service starts time to appeal

Question 7

How can a party appeal orders from motions on notice?

Answer 7

Party must file and serve a notice of appeal within 30 days from service of order/judgment with notice of entry

You can also take issue with it in substantive trial.

Question 8

Can you make an ex-parte motion?

Answer 8

No advance notice is given to the adversary, this is rare though because you need express statutory authority to do so.

You cannot appeal this, you have to move to vacate the order before the judge who signed it and then you can appeal that.