Motion Procedure Flashcards
What is a motion?
An application for an order of the court, requesting so kind of relief in a pending action (e.g., motion to dimiss, motion for change of venue, to amend pleadings, etc.)
What is a motion on notice?
A motion on notice gives the opponent an opportunity in advance to be heard in opposition
For a motion on notice, what papers must the moving party serve on the other party? (2)
- A notice of motion (nature of motion and return date)
- Affidavits of facts (showing why motion should be granted)
When is a motion “made”?
When the motion papers are served on the other party
(If mailed, when they are dropped in the mail)
How much advance notice must an opponent receive?
At least eight days before the “return date”
What is the return date?
The “return date” is the hearing date when the motion will be heard by the court
(Moving party chooses the date)
What is an order to show cause?
Alternative way to make a motion on notice.
The order to show cause is a preliminary order by the judge directing the opponent to “show cause” why a motion should not be granted
(i.e., the judge, not the moving party, is giving the motion on notice)
(N.B. In this case, the judge specifies the date by which the opponent must show cause)
When are the three common reasons to move for an order to show cause?
- Means of accelerating the return date;
- Judge can grant stay of proceeding or a temporary restraining order (TRO); AND
- Statute might require it
What is a deciding order?
The court’s written decision on a motion on notice
Prevailing party must serve it to the other side
What are the two effects of service of a copy of the deciding order on the opponent?
- Gives effect to the order, AND
- Starts the running of the time to appeal (30 days) (if it was a motion on notice!)
What is the NY RULE on deciding orders?
Immediate appeal allowed on most interlocutory orders resulting from motions on notice
What is an ex parte motion?
A motion in which no advance notice is given to the adversary (i.e., opponent is not given an opportunity to be heard in opposition)
i.e., The moving party goes straight to court with the motion papers and requests an order granting the relief sought
When can an ex parte motion be made?
RARELY!
Ex parte motions may only be made with express statutory authorization (e.g., P’s extension of time to serve process, P asking for expedient service)
(N.B. Assume a motion MUST be made on notice, unless told otherwise)
What is the remedy of an ex parte order?
(No appeal may be taken from an ex parte order!)
The remedy is to: make a motion on notice to vacate the ex parte order (and then the party may make an appeal if the motion is denied)
