Motions

Question 1

Pre-answer motions?

Answer 1

12B motion to dismiss

12B6 Motion Failure to state a claim

Question 2

12B Motion To Dismiss?

Answer 2

1. Lack of SMJ

a.) Key is it can be raised at any point before during and after trial

2. Lack of PJ, venue, inefficiency of process

a.) All gonna be waived unless you make them in the motion or your answer or you waive them. must bring them all up at the SAME TIME.

3. Failure to join a party

a.) Can be raised before or at trial

Question 3

12B6 motion failure to state a claim?

Answer 3

1. Even if every fact is true, no recovery is possible
   1. Insufficient facts to make a claim
2. can raise before or at trial

Question 4

Motion to strike?

Answer 4

1. Strikes redundant or material substance
2. Must be made within 21 days of service

Question 5

Motion for more definitive statement?

Answer 5

1. You are responding if the pleading is vague or ambiguous, you make motion for more definitive statement so they can clear it up

Question 6

Summary Judgement?

Answer 6

1. Occurs when there is no genuine dispute of fact. Motion for SJ can be made up to 30 days after discovery.
2. If accepted, the case is closed.

Question 7

Which party has the burden to prove SJ?

Answer 7

The party making the motion has the burden to prove there is no dispute of material facts, usually use affidavits based on person knowledge

Question 8

Can you have sJ on sub issues?

Answer 8

Yes.

Question 9

What is level of factual debate needed to defeat SJ?

Answer 9

IF there is any dispute, even a small little tiny dispute then SJ will be defeated.

Question 10

When can you move for Judgement as a matter of law?

Answer 10

Made by defense after the plaintiffs case, or by either side after both sides have rested their case.

Question 11

Standard for Judgement as a matter of law?

Answer 11

Whether a reasonable jury would not have legally sufficient bases to find for the other party

Question 12

Renewed motion for judgement of law?

Answer 12

Need to make a JMOL in order to reserve the right for renewed JMOL.

Happens after the case goes to a jury and within 28 days of the verdict. Judge believes the jurys verdict was absurd so they over turn it.

Same standard as JMOL, just later

Question 13

Motion for relief from a judgement?

Answer 13

Where there is a clerical error or oversight and the judge is allowed to correct the mistake

Question 14

Motion for a new trial?

Answer 14

The error cannot be harmless.

1. will be granted if:
   1. judge erroneously admitted or excluded any evidence
   2. jury, party, witness, lawyer, etc improper conduct
   3. if the verdict is against the clear weight of the evidence
   4. Amount of award is so high it shocks the conscious
      
      1. unless winning party accepts a reduction in the amount
         
         1. Cannot appeal reduction if you accept it
      2. Cannot get new trial if it is too low

Question 15

Can you get a partial new trial on a sub issue?

Answer 15

Yes, it is possible

Question 16

Can you get a trial on newly discovered ecvidence?

Answer 16

Yes, when:

1. evidence was discovered after end of trial
2. was dweligent in looking for it
3. evidence is material

Question 17

Right to a Jury trial in civil case?

Answer 17

Civil litigants in federal court may demand a jury trial for any legal claim in which the amount in controversy exceeds $20. The demand must be (1) served within 14 days after the last pleading directed to that issue is served, and (2) filed with the court within a reasonable time thereafter.