Motions

Question 1

12(b) Motion

Answer 1

d attacking complaint

Question 2

12(b) motion for lack of SMJ can be raised

Answer 2

at any time

Question 3

12(b) motion for lack of pj, insufficient service of process venue must be brought up in 12(b) or answer or..

Answer 3

it is waived

Question 4

failure to join a party motion

Answer 4

raised before or at trial

Question 5

motion to dismiss for failure to state a claim

Answer 5

1) even if every fact is true, no recovery is plausible

2) insufficient facts– cannot prove your case

Question 6

dismissal for failure to state a claim is dismissed with

when can it be brought up?

Answer 6

prejudice unless court says otherwise

before or at trial

Question 7

Motion to strike

Answer 7

Before responding to pleading or no response, you can make a motion within 21 days of service if it is imaterial or redundant information

Question 8

motion for definitive statement

Answer 8

before responding pleading you make a motion for more definitive statement

Question 9

motion for Summary Judgment

Answer 9

1) no genuine dispute of material fact– no dispute and nothing is denied

can make motion within 30 days after discovery

moving party bears the burden and can use discovery and affidavit based on personal knowledge

if denied, cannot appeal

Question 10

Can you have partial sj?

Answer 10

yes

Question 11

JMOL

Answer 11

directed verdict

defendant can bring up JMOL after plaintiff’s case, or either party can after presenting evidence.

could a reasonable jury have a legal sufficient evidentiary basis to find for a party

light viewed most favorable to nonmoving party

Question 12

renewed jmol

Answer 12

make a motion for JMOL first before case goes to the jury

after case goes to jury or within 28 days of verdict, make a renewed motion for JMOL

if judge agrees, he can overturn the verdict

Question 13

Motion for relief from judgment

Answer 13

clerical error or oversight, fraud or misconduct

Question 14

motion for new trial

Answer 14

1) error would have caused the case to come out differently, then new trial

2) if judge erroneously admitted or excluded evidence

3) lawyer, party judge, misconduct

4) verdict is against the clear weight of the evidence

Question 15

remitter

Answer 15

new trial can be ordered unless party agrees to reduction in award

Question 16

additur

Answer 16

no additur in federal court

Question 17

newly discovered evidence

Answer 17

new trial if
1) evidence was discovered after the end of trial;
2) was reasonably diligent in seeking evidence
3) evidence was material