Motion to dismiss and summary judgment

Question 1

What are the affirmative defenses that can be used in the Defendant’s pre-answer motion to dismiss?

Answer 1

DOWNFALL

1. Documentary evidence
2. Other action pending
3. Want of capacity
4. Non-joinder of necessary party
5. Failure to state a cause of action
6. Additional spareribs
7. Lack of PJ
8. Lack of subject matter jurisdiction

Question 2

What are the additional spareribs defenses?

Answer 2

SPARERIBS

1. Statute of limitations
2. Payment
3. Arbitration & award
4. Res judicata
5. Estoppel (collateral)
6. Release
7. Infancy of D
8. Bankruptcy discharge
9. Statute of Frauds

Question 3

When should the pre-answer motion to dismiss be made by?

Answer 3

Within time limit for service of answer

If denied, must serve answer within 10 days

Question 4

What defenses can be waived in pre-answer motion to dismiss?

Answer 4

Only PJ affirmative defense can be waived by not being raised in pre-answer motion to dismiss

Question 5

When must PJ defenses be raised?

Answer 5

In first filing with court (either pre-answer motion to dismiss or answer)

Question 6

What defenses are never waived?

Answer 6

1. Non-joinder of a necessary party
2. Failure to state a cause of action
3. Lack of subject matter jurisdiction

Question 7

What do I need to do if I am going to plead improper service in my answer?

Answer 7

Its going to be waived unless you make a follow up motion for summary judgment no later than 60 days after serving the answer.

Question 8

How D can respond to summons with notice?

Answer 8

1. Notice of appearance (announcing counsel)
2. Demand for complaint

No waiver

Both avoid default and force P to serve complaint within 20 days; then 20 days for D to pre-answer or answer

Question 9

How do you amend pleadings?

Answer 9

Each party entitled to amend once as matter of right within 20 days service of D’s answer

Anything that could have been in original pleading can be in amended, and nothing can be waived between original and amended pleading

Question 10

What if they want to amend after 20 days of service of D’s answer?

Answer 10

It is going to be generally allowed if opponent suffers no incurable prejudice.

If you are going to oppose you need to show detrimental change in position from delay and show that the amendment has no merit.

Question 11

What does the summary judgment do?

Answer 11

Enables a party to show, before trial, that even though pleadings may be sufficient on their face, there is no genuine issue of material fact requiring trial

Question 12

When can you make a motion for summary judgment?

Answer 12

After service of answer, any party can move for SJ with respect to any claim/defense asserted in pleadings

Last chance: 120 days from filing of note of issue (unless good cause)

Question 13

What evidence used to satisfy SJ burden?

Answer 13

Must submit evidence in form of affidavits (by persons with personal knowledge of facts), documentary evidence, or discovery materials

Question 14

How does opponent defeat SJ motion?

Answer 14

Produce evidentiary showing there is a triable issue of fact; cannot rely solely on allegations in pleading or on denial in answer

Question 15

What does the court review when consideration SJ motion?

Answer 15

Searches the record: court reviews all evidence in record, regardless of which side submitted it

Court can find non-moving party entitled to SJ

Question 16

When can pre-answer motion to dismiss be converted into SJ?

Answer 16

By court if: (a) parties submitted factual affidavits in connection with motion, and (b) court gives advance notice to parties to give opportunity to submit additional evidence

Question 17

When can P move for SJ at same time as service of process?

Answer 17

1. Action based on instrument for payment of money only (eg, promissory note, check)
2. Action on out-of-state judgment

SJ motion served “in lieu of complaint”