Motions

Question 1

What are the Rule 12b Motions to Dismiss

Answer 1

Lack of subject matter jurisdiction;

Lack of personal jurisdiction;

Improper venue;

Insufficient process;

Insufficient service of process;

Failure to state a claim upon which relief can be granted;

AND

Failure to join an indispensable party under compulsory joinder.

Question 2

Timing. The defense of lack of subject matter jurisdiction may be raised

Answer 2

at any time, even on appeal.

Question 3

Timing. The defense of lack of personal jurisdiction must be raised

Answer 3

in a pre-answer motion or, if no pre-answer motion is made, in the answer, or the defense will be waived.

Question 4

Timing. The defense of improper venue must be raised

Answer 4

in a pre-answer motion or, if no pre-answer motion is made, in the answer, or the defense will be waived.

Question 5

Timing. The defense of insufficient process must be raised

Answer 5

in a pre- answer motion or, if no pre-answer motion is made, in the answer, or the defense will be waived.

Question 6

Timing. The defense of insufficient service of process must be raised

Answer 6

in a pre-answer motion or, if no pre-answer motion is made, in the answer, or the defense will be waived.

Question 7

Timing. The defense of failure to state a claim may be raised

Answer 7

in a pleading, in a motion for judgment on the pleadings, or at trial.

Question 8

What is the analysis for a dismissal on the grounds of failure to state a claim upon which relief can be granted?

Answer 8

2-Step Analysis.

Under Rule 12(b)(6), a claim for relief can be dismissed if it either fails to assert a legal theory of recovery that is cognizable or fails to allege facts sufficient to support a cognizable claim.

In making this determination courts apply a 2-step analysis:

First, the court must identify and reject legal conclusions unsupported by factual allegations;

THEN

Second, the court should assume that the well-pleaded factual allegations are true and, drawing on the court’s judicial experience and common sense, determine whether the allegations plausibly give rise to the entitlement of relief.

Question 9

Timing. The defense of failure to join an indispensable party may be raised

Answer 9

in a pleading, in a motion for judgment on the pleadings, or at trial.

Question 10

A MSJ may be filed

Answer 10

at any time until 30 days after the close of discovery.

Question 11

A MSJ must be granted if,

Answer 11

from the pleadings, affidavits, and discovery materials on file, when viewing the evidence in the light most favorable to the nonmoving party, it appears that:

No genuine dispute of material fact exists;

AND

The moving party is entitled to judgment as a matter of law.

Question 12

Summary judgment may be

Answer 12

partial (e.g., limited to certain issues rather than the entire case).

Question 13

Can you appeal a denial of MSJ?

Answer 13

NO.

Denial of a MSJ is NOT appealable.

Question 14

Another name for JMOL

Answer 14

Directed Verdict

Question 15

A JMOL (formerly known as a “directed verdict”) may be filed

Answer 15

by either party after the
close of the nonmoving party’s evidence

OR

at the close of all evidence.

BUT MUST BE BEFORE CASE SUBMITTED TO JURY

Question 16

The motion for JMOL will be granted if,

Answer 16

when viewing the evidence in the light most favorable to the nonmoving party, the court finds that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party.

Question 17

A JMOL is a prerequisite for

Answer 17

the making of a renewed motion for judgment as a matter of law after the trial.

If the judge denies the motion. Under Rule 50(b), the judge “is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion.” (In other words, the denial is treated as non-final, and subject to being reversed if the jury finds against the movant.)

Question 18

Former name for renewed motion for JMOL

Answer 18

Motion for judgment notwithstanding the verdict (JNOV)

Question 19

A renewed motion for judgment as a matter of law (formerly known as a “motion for judgment notwithstanding the verdict” or “JNOV”), may be filed

Answer 19

no later than 28 days after the entry of judgment.

It may ONLY be raised if a JMOL was previously filed.

Question 20

The renewed JMOL motion will be granted if,

Answer 20

when viewing the evidence in the light most favorable to the nonmoving party, the court finds that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party.

A party is generally limited to those issues raised in the JMOL.

Question 21

Is standard for JMOL same/different than standard for RENEWED JMOL?

Answer 21

SAME. LEGALLY SUFFICIENT EVIDENTIARY BASIS FOR REASONABLE JURY TO FIND FOR NONMOVING PARTY.

Question 22

How are motions for JMOL granted?

Answer 22

The court grants the motion by taking two steps:
○ Resolving the “issue” against the non-moving party; and
○ Granting the judgment as a matter of law against the non-
moving party as to any claim or defense “that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.” Rule 50(a)(1)(A) and (B).

Question 23

How are renewed JMOL’s granted?

Answer 23

The court may do any of several things:

(i) grant the motion (i.e., belatedly reverse the denial of the JML, and issue judgment for the movant despite the verdict in favor of the non-movant);
(ii) order a new trial; or
(iii) enter judgment on the jury’s verdict.

Question 24

The court may, on motion, grant a NEW TRIAL (on all issues or with respect to only certain issues or parties) for any of the reasons for which new trials have traditionally been granted, such as:

Answer 24

An error made at trial that renders the judgment unfair;

Newly discovered evidence that existed at the time of the trial, was excusably overlooked and would likely have altered the outcome of the trial;

Prejudicial misconduct of counsel, a party, the judge, or a juror;

A verdict that is against the clear weight of the evidence;

A verdict that is based on false evidence such that a new trial is necessary to prevent injustice;

OR

A verdict that is excessive or inadequate.

TIMING: MOTION FOR NEW TRIAL MUST BE MADE WITHIN 28 DAYS OF ENTRY OF JUDGMENT

Question 25

What else can court do on a motion for new trial after nonjury trial verdict entered?

Answer 25

After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.

Question 26

If a verdict that is excessive

Answer 26

the court may order a new trial

OR

offer the plaintiff remittitur, which allows the plaintiff to choose between a lesser award or a new trial.

Note: “Additurs” are not permitted in federal court; the only option is a new trial. But if state makes a strong policy decision to include additurs to the extent that the law can be considered substantive and feds are applying that state’s laws, then fed may allow additur

Question 27

Rule 60(b) lists a number of grounds on which the court may grant the losing party RELIEF from the adverse judgment or court order. Here are some of the more important ones:

Answer 27

1. Mistake;
2. “Excusable neglect”;
3. Newly-discovered evidence (but only if the evidence
   could not, even with reasonable diligence, have been discovered in time for the losing party to move for a new trial, a motion that under Rule 59(b) must be made no later than 28 days after the entry of judgment. So this is a saving grace, if you missed your opportunity for new trial under Rule 59 bc waited more than 28 days to motion, then can ask for relief within a year based on this reason);
4. The fact that the judgment is void (e.g., made without the
   court’s having personal jurisdiction over the loser, or due to improper service);
5. “Any other reason that justifies relief.”

NOTE: ABSOLUTE TIME LIMIT FOR 1, 2, AND 3 IS ONE YEAR AFTER JUDGMENT OR ORDER ENTERED.
Note: most likely to be tested on number 4, when D properly served with state law allowing mailing notice and there was a default judgment entered against D, then D files for relief because court did not have PJx over him. Note also, that in this scenario, THIS IS ALWAYS AN OPTION AS LONG AS MADE WITHIN A REASONABLE TIME AFTER BECOMING AWARE OF THE FACTS…CAN BE MORE THAN YEAR)

Question 28

What is the status of a judgment entered by a court that does not have PJx over D?

Answer 28

VOID

Question 29

On motion for summary judgment, what must movant show to win?

Answer 29

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,”

the substantive evidentiary standard is the same as the trial burden; therefore, court will look to see if there is sufficient evidence under the clear and convincing standard to see if there is a genuine dispute as to a material fact.

Scenario 1: that both sides agree as to all material facts, and given those undisputed facts, as a matter of law (after giving the non-movant all reasonable inferences) no jury could properly find for the non-movant; or

Scenario 2: that although the parties disagree about the existence of at least one material fact, the non-movant has not been able to show that she possesses admissible evidence sufficient to allow the jury to properly find for her as to that fact, so that no jury could as a matter of law properly render a verdict for her.

Question 30

What types of issues will generally be unsuitable to get a MSJ

Answer 30

Negligence and when there is an issue as to an actor’s state of mind and/or a party’s credibility is at issue (ie, he said, she said)

Example:

P claims that D, her employer, fired her on account of her race. She quotes at length in the complaint certain racially-biased statements that, she says, D made to her in front of others before the firing. D in his answer claims that P is a pathological liar who has invented the alleged statements. D moves for S.J. on the grounds (and let’s assume these grounds to be factually accurate) that during the course of discovery, P has not pointed to any evidence other than her own prospective trial testimony to demonstrate that D really made the remarks. Through P’s lawyer’s negligence, P fails to submit any opposition papers containing an affidavit or other evidence demonstrating that D r e a lly m a d e t h e r e m a r k s . D e s p it e P ‘ s la c k o f a d m is s ib le evidence furnished in opposition to D’s motion, the court should deny D’s motion. That’s because D’s own answer suggests that P’s credibility as a witness will be critical to a determination of whether D made the claimed remarks. (And as a purely legal matter, it’s clear that if P’s anticipated trial testimony were believed, a jury could properly find for her on the claim.) Since P’s credibility is genuinely in issue on this material point, the case is not suitable for S.J., despite the absence of opposition papers from P.

Question 31

Example when although the parties disagree about the existence of at least one material fact, the non-movant has not been able to show that she possesses admissible evidence sufficient to allow the jury to properly find for her as to that fact, so that no jury could as a matter of law properly render a verdict for her.

Answer 31

Diversity suit based on product liability, in which P claims to have been injured on Jan. 1, 2012, when a toaster made by D suddenly exploded while not even plugged in. P files suit on April 1, 2014. Both parties agree that the relevant statute of limitations for such product- defect suits is two years from the later of (i) the date of the injury, or (ii) the “defect discovery date,” i.e., the date on which plaintiff first either actually learned, or should reasonably have learned, of the alleged product defect. D raises the statute of limitations as a defense. P claims that the “defect discovery date” did not come until May 1, 2012. Assume that after discovery, and in response to D’s motion for S.J., P cannot point to any admissible evidence in her possession that would be sufficient for a jury to find that the defect discovery date occurred later than Jan. 1, 2012 (the explosion date).
Even though P is claiming that there is a genuine issue of material fact about when the defect discovery date occurred, the fact that P cannot point to any admissible evidence available for trial that would justify a reasonable jury in finding a discovery date later than the explosion date means that the c o u r t s h o u ld c o n c lu d e t h a t P o s s ib ilit y 2 a b o v e a p p lie s . Therefore, the court should grant S.J. to D and enter final judgment without the need for a trial.

Question 32

When is motion for summary judgment made?

Answer 32

Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.

Question 33

What is standard on motions to dismiss for failure to state a claim

Answer 33

whether the allegations of the complaint plausibly state a claim for relief, accepting the truth more or less of allegations of the complaint.

Note: the nonmoving party normally cannot rely on the pleadings alone, and must point to the likely existence of admissible evidence (e.g., affidavits reciting expected trial testimony, or deposition testimony, or documents produced during discovery) that, if believed, would be enough to create a genuine issue.
Lack of opposing papers is NOT fatal, but must be something, anything, in the record, including statements in the MSJ movant’s own papers, that etablishes a genuine issue of material fact.

Question 34

How does moving party support MSJ?

Answer 34

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Note: party may object that evidence offered is not admissible.
Note: Court can consider other materials already in the record
Note: if the court does not grant all the relief requested by the motion, it may enter an order stating any material fact — including an item of damages or other relief — that is not genuinely in dispute and treating the fact as established in the case.

Question 35

Rules for affidavits and delcarations in support or opposition to MSJ

Answer 35

Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on PERSONAL KNOWLEDGE, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Question 36

When Facts Are Unavailable to the Nonmovant IN MSJ. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:

Answer 36

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to take discovery; or

(3) issue any other appropriate order.

Question 37

After giving notice and a reasonable time to respond, the court may:

Answer 37

(1) grant summary judgment for a nonmovant;

(2) grant the motion on grounds not raised by a party;or

(3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.

Question 38

unless a defense is one of the seven special ones listed in 12(b)(1)- (7), the defense may only be asserted as

Answer 38

part of the responsive pleading (eg, the answer), not by motion.

Note: the seven special that can be made by motion or answer are:

(1) lack of subject-matter jurisdiction;

(2) lack of personal jurisdiction;

(3) improper venue;

(4) insufficient process;

(5) insufficient service of process;

(6) failure to state a claim upon which relief can be granted; and

(7) failure to join a party under Rule 19.