Motions Flashcards
12(b) Motion
= when D is attacking something about the P’s Complaint – e.g., …
- lack of SMJ
- lack of PJ
- improper Venue
- insufficient service of process
When can D motion to dismiss for Lack of SMJ?
D can motion to dismiss for Lack of SMJ → at ANY TIME
When can D motion to dismiss for Lack of PJ?
= D must include this in his Answer / 12(b) Motion – OTHERWISE, he waives it
When can D motion to dismiss for Improper Venue?
= D must include this in his Answer / 12(b) Motion – OTHERWISE, he waives it
When can D motion to dismiss for Insufficient Service of Process?
= D must include this in his Answer / 12(b) Motion – OTHERWISE, he waives it
When can someone raise motion for Failure to Join a Party?
= before or during trial
What is a 12(b)(6) motion for Failure to State a Claim, when can it be raised?
12(b)(6) motion for Failure to State a Claim
- = even if the facts are true, there’s no plausible recovery
- = there are insufficient facts to litigate the case
- *if Court grants, then dismissal is WITH PREJUDICE – UNLESS the Court says otherwise
- *may be raised before OR during Trial
Motion to Strike
= may make Motion to Strike for any redundant, immaterial, OR scandalous material
**must be raised WITHIN 21 Days of service AND BEFORE responding to the Pleading
Motion for a More Definitive Statement
= may make this Motion IF
- Pleading is vague OR ambiguous, AND
- you have not yet responded to the Pleading
Motion for Summary Judgment
= to prevail on a Motion for SJ, you must show that there’s NO genuine dispute of material fact
“genuine issue of material fact” = exists when a reasonable jury could return a verdict in favor of the Non-Moving Party
**may be filed UNTIL 30 days after end of Discovery
**Court may grant partial SJ
**if Motion for SJ is denied → denial CANNOT be appealed
**Burden of Proof is on the Moving Party (can use Depositions and use Affidavits that are based on Movant’s personal knowledge)
Affidavits
= a written statement confirmed by oath or affirmation, for use as evidence in court
**Affidavit must be based on personal knowledge
Judgment as a Matter of Law
(and Aka?)
Aka. “Directed Verdict”
- Standard for JMOL = that a reasonable jury would not have a legally sufficient evidentiary basis to find in favor of the Non-Moving Party
- **Evidence is viewed in _light most favorable_ to Non-Moving Party
When can a party make a motion for JMOL?
- after Plaintiff’s case → DEFENDANT can make motion for JMOL
- after Defendant’s case → EITHER PARTY can make motion for JMOL
Renewed JMOL
- if a Party made a motion for JMOL, and the Judge denied that motion, then the case goes to the Jury – after the Jury returns its Verdict, the Moving Party who made that motion for JMOL has 21 DAYS to motion for Renewed JMOL
- → then, the Judge MAY grant the Renewed JMOL and and overturn the Verdict (based on same JMOL Standard)
Motion for Relief from Judgment
can make Motion for Relief from Judgment WHEN…
- there was a clerical error, oversight, or mistake; OR
- fraud or misconduct by other Party
Motion for a New Trial
can make Motion for a New Trial WHEN…
- if, but for an error, the outcome would have been different (but NO New Trial if it was a harmless error that wouldn’t have changed the outcome)
- Judge erroneously admitted / excluded evidence
- improper conduct by Party, Witness, Lawyer, or Jury; OR
- verdict is against clear weight of the evidence
Remittitur
= when jury awards excessively HIGH damages → if Party will not agree to a reduction of the award, then Judge will order New Trial
*generally, shouldn’t be more than 9 to 1 ratio of Punitive Damages TO Compensatory Damages
Additur
→ in Federal Court, THERE IS _NO ADDITUR_
Newly Discovered Evidence
= can get a NEW TRIAL due to Newly Discovered Evidence IF…
- Evidence was discovered AFTER Trial
- Party was reasonably diligent in searching BEFORE / DURING Trial; AND
- Evidence was material
