Motions

Question 1

What is the Motion to Dismiss? Rule 12(b)

Answer 1

Applies to Defendants to get a claim tossed out early. Before responding, a party must file a motion to dismiss under the 7 options

Question 2

What are the Seven ways a Defendant can file a Motion to Dismiss under Rule 12(b)?

Answer 2

1. Lack of Subject Matter Jurisdiction
2. Lack of Personal Jurisdiction
3. Improper Venue
4. Insufficient Process (incomplete paperwork)
5. Insufficient Service of Process (court paperwork not delivered as required by law)
6. Failure to state a claim upon which relief can be granted
7. Failure to join a necessary party under Rule 19

Question 3

How does a party survive a Motion to Dismiss? TWIQBALL

Answer 3

1. Plaintiff must plead facts supporting plausible claims
2. Complaint must contain sufficient factual matter accepted as true and state a claim is plausible on its face

Question 4

What is Motion for Summary Judgement? Rule 56(a)

Answer 4

1. Request made by one party in a lawsuit asking the court to rule in favor without a trial based on the argument that there are no genuine issue of material fact in dispute
2. That a reasonable jury could return a verdict for non-moving party that there is no facts that could affect the outcome of the car based on legal claims or defenses asserted

Question 5

When Should Motion for Summary Judgement be Filed? Rule 56

Answer 5

Anytime 30 days after discovery closes

After disclosure and discovery

Question 6

What is Partial Summary Judgement? rule 56(g)

Answer 6

Court can grant Partial Summary Judgement on part of the case and not the other

Question 7

What is a Motion for a Judgement As a Matter of Law (JMOL)? Rule 50(a)

Answer 7

Legal motions made during a trial, requesting the judge to rule in favor of one party because the opposing party has failed to provide sufficient evidence to support their claim or defenses

Question 8

What is the timing to submit JMOL?

Answer 8

After opponent has presented their case but before submission of a case to a jury

Question 9

When is the Plaintiff entitled to JMOL?

Answer 9

IF the undisputed facts clearly establish a claim for relief

Question 10

When is the Defendant entitled to JMOL?

Answer 10

If law bars the claim: when the defendant establishes an affirmative defense

Question 11

When is JMOL granted?

Answer 11

1. If looking at all the evidence, no reasonable jury could find for the party opposing JMOL as a matter of law
2. Party can argue that the opposing sides case is based entirely on incredible evidence (evidence that is improbable or contradictory that no reasonable factfinder could believe it

Question 12

How does a party defeat JMOL?

Answer 12

1. When a party opposing JMOL show that jury would find for them, or that they did present evidence that supports their claim
2. Referring back to the evidence that they could still win
3. Maybe the other side didn’t consider all evidence that was brought up

Question 13

What does Verdict and Judgement Rule 48(a) state?

Answer 13

A jury verdict generally must be unanimous

Question 14

When can someone move for JMOL after trial? Rule 59(a)

Answer 14

Period of 28 days after trial to move for JMOL

Question 15

What about when party feels like they need JMOL or a new trial: what is the rule?

Answer 15

59(a): Motion for a new trial

When party feels like the jury got it wrong and feels like they need their case looked at again?

Question 16

Which Rule and Amendment Preserves the Right to a Jury Trial?

Answer 16

Rule 38(a): 7th Amendment

Question 17

What does a party need to do to preserve their right to a jury trial? Rule 38(b)

Answer 17

A party must serve a written demand no later than 14 days after the last pleading in the case

Question 18

When does a party waive their right to a jury trial? Rule 39(b)?

Answer 18

If the party fails to file a timely demand

Question 19

How can a party waive their right to a jury trial by Contract?

Answer 19

If the party signed a waiver that is Knowing and Voluntary

Question 20

How do the courts determine whether a contractual waiver is knowing and voluntary?

Answer 20

1. Whether both parties had an opportunity to negotiate the terms of an agreement (quality of the negotiations)
2. Whether the waiver provision was conspicuous: Waiver must be prominently displayed so party is aware
3. The parties relative bargaining power: if there is a significant imbalance in power between parties
4. The business knowledge or experience of the party opposing the party (sophistication of party opposing waiver)

Question 21

Application of the factors deciding contractual waiver to jury trial:

Answer 21

1. Thorough and detailed negotiations = weighs in favor of waiver being enforceable
2. Waiver not especially obvious = weighs against enforceable
3. Comparable bargaining power = weighs in favor of waiver being enforceable
4. Party opposing waiver being sophisticated = weighs in favor being enforceable