Motions

Question 1

12(b) motion

Answer 1

*Defendant is attacking the complaint quia something is wrong (there are a lot of subsections to a 12b motion)

Question 2

For what/why is a 12b motion to dismiss raised?

Answer 2

lack of subject matter jurisdiction

Question 3

when can a 12b motion be raised?

Answer 3

anytime

Question 4

What 3 things are waived if they are not included in either an Answer or a 12b motion?

Answer 4

*Lack of Personal Jurisdiction
*Improper Venue
*Insufficient Service of Process
(these have to be raised in the answer or in another 12b motion)

Question 5

When can a party bring a motion for failure to join a party?

Answer 5

May be raised before or at trial

Question 6

what is a Failure to state a claim (12b6) motion saying?

Answer 6

• that even if the facts are true there is no recovery available
  OR
• there are insufficient facts to make a claim

Question 7

What is the result of a successful 12b6 motion?

Answer 7

dismissal of the case with prejudice

Question 8

when can a party raise a 12b6 motion?

Answer 8

before or at trial

Question 9

Motion to Strike: what to know

Answer 9

*Before responding to a pleading
*Within 21 days of service
*For redundant, immaterial, or scandalous
material`

Question 10

Motion for a More Definitive Statement: what to know

Answer 10

*Before responding to a pleading
*Pleading is vague or ambiguous

Question 11

Motion for Summary Judgment: what to know

Answer 11

*No genuine dispute of material fact
*Filed until 30 days after discovery close
*Denial of motion is not appealable
*Burden on moving party (ie; affidavits that moving party used have to be based on personal knowledge
*Partial judgment allowed (ie: can pass summ jugmt on one issue but not another)

Question 12

affidavits must be….

Answer 12

based on personal knowledge

Question 13

Judgment as a Matter of Law – Directed Verdict

Answer 13

*can be Raised by defendant after plaintiff’s case
OR
*Raised by either party at the close of
evidence

Question 14

When does JMOL occur?

Answer 14

before the case goes to a jury

Question 15

JMOL standard:

Answer 15

• A reasonable jury would not have a legally sufficient evidentiary basis to find for non-moving party
• Evidence viewed in light most favorable to non-moving party

Question 16

Renewed Motion for Judgment as a Matter of Law: what to know

Answer 16

• Must have filed a prior JMOL
• Filed within 28 days after verdict
• Judge may overturn verdict if he agrees that the jury was wrong

Question 17

Motion for Relief from Judgment: what to know

Answer 17

file if:
* Clerical error, oversight, or mistake
* Fraud or misconduct by the other party

Question 18

Motion for a New Trial: reqs

Answer 18

• Error would have caused different outcome, or
• Judge erroneously admitted or excluded evidence, or
• Improper conduct by party, witness, lawyer, or jury, or
  *Verdict is against clear weight of the
  evidence

Question 19

Remittur: what to know

Answer 19

• A new trial is ordered in the event of the award of excessive damages
• UNLESS the party agreed to reduction of award

Question 20

Additur: what to know

Answer 20

there is no additur in fed ct

Question 21

Newly discovered Evidence

Answer 21

can be admitted/cause a new trial if:
1) Evidence was discovered after trial;
2) Party was reasonably diligent in searching before/during trial; AND
3) Evidence was material