Motions Flashcards
What can a non-movant defeat a summary judgement motion with?
Can defeat a SMJ motion by showing specific disputed facts through affidavits, declarations, discovery, or other materials containing admissible evidence.
The non-movant cannot defeat the motion by relying on allegations in the pleadings.
What defenses are waived if they are not asserted in a SINGLE pre-answer motion or in an answer, whichever occurs first?
The defenses of:
1. lack of PJ
2. improper venue
and
3. insufficient process or service of process
A party can move to alter or amend a final judgement, including SMJ, within how many days?
Within 28 days after entry of the judgement.
For example if there has been an intervening change in the controlling law, the SMJ could be altered or amended after final judgement.
A party should move for a more definite statement when a pleading:
is so vague or ambiguous that the party cannot reasonably draft a responsive pleading.
When can a party move for a judgement on the pleadings? And what is considered by the court?
Once the pleadings are closed.
In considering such a motion, the court is limited to the contents of the pleadings (including exhibits) and matters of public record.
What is the legal standard applied by a court in deciding a motion for JMOL or renewed JMOL?
Whether there is legally sufficient (ie. substantial) evidence in the record to support a verdict for the non-movant. The court must view the evidence and draw all reasonable inferences in the non-movants favor.
When can a JMOL motion be filed?
The motion may be filed before the case is submitted to the jury BUT only after the non-movant has had an opportunity to present its case.
Can a district court correct a mistake in a judgment after an appeal has been docketed?
After the judgement is docketed for appel. The district court can only correct the mistake with the appellate court’s leave.
When can lack of SMJ be raised, by who?
Lack of SMJ cannot be waived, it can be raised by any party at any time, including for the first time on appeal or by the court itself.
Most claims including PJ and venue are waived if NOT raised…
by D before substantial participation on the merits. IE filing a motion to dismiss, or the answer.
What is a motion to strike?
cane be used to delete from a pleading scandalous or prejudicial matters that are not relevant to the case at hand.
Can also be used by the P to strike a legally INVALID Defense
When must an Answer be served ?
Within 21 days of service of the pleading to which it responds.
Timing if D agrees to waive service of process:
The Answer is then due within 60 days of when the request for waiver was sent out.
OR
90 days if the request for waiver was sent to the D outside the US
If the D files a motion to dismiss and the court denies it, when must the answer now be filed?
The answer is due 14 days after notice of the court’s action denying the motion.
