Motions

Question 1

Which seven pre-answer defenses are available under FRCP 12(b)?

Answer 1

The seven pre-answer defenses available under FRCP 12(b) 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
7. failure to join necessary parties

Question 2

Which four defenses are waived if they are not raised in the first response to the complaint?

Answer 2

If the ∆ fails to raise any of these defenses in their FIRST response to the complaint, they are considered waived:

1. lack of PJ
2. insufficient process;
3. insufficient services of process;
4. improper venue

Question 3

Which pre-answer motion does NOT count as a first response to the complaint?

Answer 3

A motion for a more definite complaint does not constitute a first response to the complaint.

TIP: this motion is available when the complaint is so vague or ambiguous that a responsive pleading cannot reasonably be framed.

Question 4

When may a motion for summary judgment be filed?

Answer 4

A party may file a motion for summary judgment at ANY TIME until 30 days after the close of all discovery

TIP: Sum judgment will be granted if there is “no genuine dispute as to any material fact”

Question 5

What are the requirements for granting a motion for judgment as a matter of law (JMOL)?

Answer 5

The court will grant a JMOL IF:

1. during a jury trial, the “party has been fully heard on an issue”; AND
2. “a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue”

TIP: pre-judgment motions for JMOL are made BEFORE the case is submitted to the jury

Question 6

What are the requirements for filing a renewed JMOL?

Answer 6

After having previously moved for JMOL and being denied, the losing party may make a post-verdict “renewed” JMOL to overturn the jury verdict based on insufficiency of the evidence, typically following entry of judgment

Question 7

What are the 6 primary grounds for a motion for a new trial?

Answer 7

The primary grounds for motion for new trial include:

1. prejudicial error affecting a party’s substantial rights
2. the verdict was against the “manifest weight of the evidence” (including inadequate or excessive damages)
3. prejudicial misconduct by the court, a juror, or an adversary
4. newly-discovered evidence
5. unfair surprise from the evidence at trial; AND/OR
6. insufficiency of the evidence (not enough to support the jury’s final verdict)

TIP: a motion for a new trial MUST be filed w/in 28 days after judgment

Question 8

Which grounds may be included in a renewed motion for judgment as a matter of law?

Answer 8

A renewed JMOL is limited to the grounds that were raised by JMOL, as the moving party is renewing a previous JMOL

TIP: a renewed JMOL is normally paired w/ a motion for a new trial

Question 9

What is the timing of a renewed JMOL or post-judgment JMOL?

Answer 9

A party that raised a JMOL may then make a post-judgment JMOL (or renewed) w/in 28 days of entry of judgment

Question 10

What is the timing for bringing a motion for relief from judgment (motion to set aside a judgment)?

Answer 10

generally, a motion to set aside judgment may not be brought more than one year after judgment

Question 11

What is the difference between a voluntary and an involuntary dismissal?

Answer 11

A dismissal (the order or judgment that discharges or disposes of a suit, action or motion) may be VOLUNTARY (which is by the PLAINTIFF’s MOTION) or INVOLUNTARY (on motion of the court or defendant, irrespective of the desires of the plaintiff)

TIP: a dismissal may be “WITH PREJUDICE” (based on the merits of the case and barring further action on same)
–> OR may be WITHOUT prejudice (not based on the merits and not barring subsequent action)

Question 12

Which Rule 12(b) defense may be raised at any time?

Answer 12

lack of SMJ

Question 13

What is a motion for judgment on the pleadings?

Answer 13

After ∆ files an answer and BEFORE discovery has begun, a party may request that the court make a determination based on a review of all pleadings filed

Question 14

What is a motion to dismiss for failure to state a claim?

Answer 14

an assertion that, even if the court takes the π’s claims as true, relief should not be granted

TIP: this motion is filed BEFORE a defendant files an answer, and the court reviews this motion solely based on a π’s complaint

Question 15

When will a court grant a motion for summary judgment?

Answer 15

will grant a motion for sum judgment if, based on the pleadings, affidavits, and discovery, there is no genuine issue as to any material fact and the moving party is entitled to a JMOL

TIP: In determining whether there are any genuine issues of material fact, the court should construe all factual matters in the light most favourable to the non-moving party

Question 16

What is a “pretrial scheduling order” and when is it used?

Answer 16

following the pretrial conference, a “pretrial scheduling order” is given to control the subsequent course of events in the case, including placing limitations on “the time to join other parties, amend the pleadings, complete discovery, and file motions”