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Civil Procedure > Motions > Flashcards

Motions Flashcards

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Civil Procedure 1L flashcards
1
Q

Pre-Trial Motions

A

Include:

  • Rule 12(b)(6) Dismissal
  • Dismissal for Failure to Prosecute
  • Summary Judgment Motions
  • Motion for Judgment on the Pleadings
  • Motion for a More Definite Statement
  • Motion to Strike
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2
Q

Grounds for a Motion to Dismiss

A
  • Lack of SM jurisdiction (never waivable)
  • Lack of PJ (waivable if not raised in first motion)
  • Improper Venue (waivable if not raised in first motion)
  • Insufficient Process (waivable if not raised in first motion)
  • Insufficient Service of Process (waivable if not raised in first motion)
  • Failure to state a claim upon which relief can be granted (waivable if not raised before trial ends)
  • Failure to join an indispensable party (waivable if not raised before trial ends)
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3
Q

Timeline for Motion to Dismiss

A

Motion to dismiss must be filed before an answer is filed within 21 days or 60 days (where service of process was waived).

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4
Q

Dismissal for Failure to Prosecute

A
  • If a P fails to prosecute her action or comply with the Federal Rules or a court order, a D may move to dismiss
  • Dismissal is with prejudice unless the court says otherwise.
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5
Q

Summary Judgment Motions

A

Will be granted if the moving party shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law (facts will be reviewed in the light most favorable to the opposing party).

-Courts will assume that all of the non-moving party’s factual allegations are true (furthermore, it will assume that Ws and affidavits are truthful without looking at credibility).

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6
Q

Materials Used For SJ

A

Information offered to the court for consideration of a SJ motion needs to be admissible at trial.

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7
Q

When Can a SJ Motion Be Made?

A

A motion for SJ may be made any time before 30 days after the close of discovery

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8
Q

Burden Under Summary Judgment

A

The parties cannot rely on the pleadings and expect to prevail.

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9
Q

Improper SJ Arguments (Creating a Factual Dispute)

A

Keep in mind that a party cannot create a factual dispute in their SJ motion (e.g. SJ should be granted because witnesses aren’t credible). This undermines the whole purpose of SJ.

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10
Q

Motion for Judgment on the Pleadings

A

After the pleadings are closed, but early enough not to delay a trial, a party may move for judgment on the pleadings under Rule 12(c).

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11
Q

Motion for a More Definite Statement

A

A party may move for a more definite statement of a pleading which is so vague or ambiguous that the party cannot reasonably prepare a response.

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12
Q

Requirements for a Motion for a More Definite Statement

A
  • The motion must:
  • be made before filing a responsive pleading and
  • must point out the defects complained of and the details desired
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13
Q

What Happens When a Court Grants a Motion for a More Definitive Statement

A
  • The at-fault party has 14 days to provide a more definite statement.
  • Failure allows the court to strike the pleading or issue another order.
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14
Q

Motion to Strike

A

Motion to strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

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15
Q

Ways a Court Can Strike Something from a Pleading

A

A court may:

  • act on its own; or
  • on a motion to strike made by a party.
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16
Q

Time Req. for Motion to Strike

A
  • A party must make a motion to strike before responding to the pleading; or
  • If response is not allowed –> within 21 days after being served with the pleading.
17
Q

Judgment as a Matter of Law (JMOL)/ Motion for a Directed Verdict

A

Analysis is same as that of SJ motion (courts assumes the non-movants Ws are all truth tellers and does not weigh the evidence).

18
Q

When a JMOL Is Granted

A

If:

  • The party against whom judgment is entered has been fully heard on the issue, and
  • The party lacks sufficient evidence to prevail on an issue necessary to a claim or defense
19
Q

Post-Trial Motions

A
  • Renewed Motion for Judgment as a Matter of law (JNOV)
  • Motion for a New Trial
  • Remittitur and Additur
  • Relief from a Judgment or Order
20
Q

Standard of Review for JMOL

A

The evidence will be viewed in the light most favorable to the non-moving party to determine whether the movant is entitled to prevail as a matter of law.

21
Q

Renewed Motion for Judgment as a Matter of Law

A

Within 28 days after the return of a verdict (or discharge of jury) a party who has timely moved for JMOL may serve a motion to set aside the verdict and any judgment entered on the verdict

22
Q

RJMOL: Did a Party Make an Initial JMOL?

A

The court may not entertain a renewed motion for JMOL unless a motion for JMOL was made during trial.

23
Q

Standard of Review for RJMOL

A

If a judge finds that no reasonable jury could interpret the evidence presented as supporting the verdict, a judge may grant the RJMOL.

24
Q

Court’s Options Upon a RJMOL

A

A court can:

  • allow the verdict to stand;
  • enter the opposite verdict; or
  • order a new trial (even if a motion for a new trial was not made)
25
Q

Motion for a New Trial

A

Can be brought in the alternative with a RJMOL motion. Grounds include:

  • against the great weight of the evidence
  • excessive damages (verdict that is grossly excessive” or “shocks the concience”)
  • procedural error or misconduct
  • newly discovered evidence
26
Q

Motion for a New Trial: Excessive Damages

A

If the court agrees that the verdict is excessive they can choose an appropriate amount and let the P choose between accepting that amount or doing a new trial.

27
Q

Motion for a New Trial: Procedural Error or Misconduct

A

Allowed only if:

  • error or misconduct likely affected the result of trial, and
  • the party objected to the error when it had the opportunity to do so
  • Examples include: wrongful exclusion of evidence, incorrect jury instructions, communications between Ws, and ex parte communications, and juror misconduct.
28
Q

Motion for a New Trial: Newly Discovered Evidence

A

If a party discovers evidence after the verdict that could not, with reasonable diligence, have been found before the verdict, a new trial is warranted as long as the evidence is not solely for the purpose of impeachment and would likely change the result.

29
Q

Motion for Relief from Judgment

A

Asks the court to undo the judgment, and set it aside. Must be made within a reasonable time (promptly after learning of the grounds)

30
Q

Motion for Relief from Judgment: Grounds

A

Include:

  • Mistake, inadvertence, or excusable neglect
  • Newly discovered evidence (same analysis as motion for a new trial)
  • Fraud, misrepresentation, or misconduct by a party
  • Judgment is void
  • Judgment has been satisfied
  • Any other reason that justifies relief (catch-all)
31
Q

Motion for Relief from Judgment: Fraud, Misrepresentation, or Misconduct By a Party

A

If a party withholds key evidence during discovery, bribes a witness, or makes false statements to the court or other parties

32
Q

Motion for Relief from Judgment: Judgment Has Been Satisfied

A

If a party has satisfied the judgment entered against it, the party may seek to have the judgment discharged so that it is no longer under the supervision of the court. This type of relief is more often sought in suits involving equitable remedies

33
Q

Motion for Remittitur and Additur

A
  • Motion for remittitur –> asks the judge to reduce the award of damages that are excessive.
  • Motion for additur- request for an increase in the award of damages (unconstitutional in federal court)
34
Q

Relief from a Judgment or Order: Mistake

A

The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, or order, or other part of the record

Civil Procedure (9 decks)

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