Motions Flashcards
motion to dismiss standard
requires the court to:
1. consider the facts in the light most favorable to the non-moving party, AND
2. determine if there is any basis upon which relief can be granted
NOTE: the court does NOT evaluate the merits of the case
motion to dismiss grounds
- Lack of SMJ
- Lack of PJ
- improper venue
- insufficent process
- insufficient service of process
- failure to state a claim upon which relief can be granted
- failure to join a necessary party
NOTE: Grounds (2) - (5) are deemed waived if NOT raised in the first responsive pleading or pre-answer motion to dismiss
NOTE: Ground (1) MAY be made at any time
motino for judgment on the pleadings
AFTER D answers, a motion on the motion to dismiss grounds is called a “motion for judgment on the pleadings”
- ET: remember some would be waived by time D answers
summary judgment (SJ) motion
a court will grant an SJ motion when:
1. there is no genuine issue of material fact, AND
2. movant is entitled to judgment as a matter of law
NOTE: the court MUST view the evidence in the light most favorable to the non-moving party
- an SJ motion may be sought on the entire case or for certain issues (partial summary judgment)
- If a motion to dismiss (or motion for judgment on the pleadings) presents matters outside the pleadings, the court may treat the motion as a SJ motion
motion for judgment as a matter of law (JMOL)
may be brought @ any time before the case is submitted to the jury
granting JMOL
JMOL will be granted if:
1. the non-moving party has been fully heard on the issue during a jury trial, AND
2. the court finds that a reasonable jury would NOT have a legally sufficient basis to rule in favor of the non-moving party on that issue
NOTE: the court MUST draw all reasonable inferences in the light most favorable to the opposing party
renewal of JMOL motion
a party may renew its JMOL motion ONLY IF it moved BEFORE the case was submitted to the jury
- a renewed JMOL motion must be filed w/in 28 days of the entry of judgment
motion for a new trial
court MAY grant a new trial for any reason for which a new trial has been granted in federal court
- must be filed no later than 28 days after the entry of judgment
grounds for a new trial
- error @ trial that makes judgment unfair
- new evidence surfaced that could not be obtained with due diligience for the OG trial
- prejudicial misconduct of a party, attorney, 3P, or juror, OR
- verdict was excessive or inadequate