Motions Flashcards
12(b) Motion
Defendant is attacking the Complaint
Lack of Subject Matter Jurisdiction
can be raised ANYTIME
Waived if not included in Answer/ 12(b) Motion
- Lack of Personal Jurisdiction
- Improper Venue
- Insufficient Service of Process
Failure to Join a Party
May be raised before or at trial
Failture to State a Claim
- Even if the facts are true, there is no recovery
- Insufficient facts
- Dismissal with prejudice (if there is a dismissal, it is with prejudice unless the court says otherwise)
- May be raised before or at trial
Motion to Strike
- Before responding to a pleading
- Within 21 days of service
- For redundant, immaterial, or scandalous material
Motion for a More Definitive Statement
- Before responding to a pleading
- Pleading is vague or ambiguous
Motion for Summary Judgment
Standard: there is no genuine dispute of a material fact
- Filed under 30 days after discovery
- Denial not appealable
- Burden on moving party
- Partial judgment allowed
Affidavits
- used to prove what Im saying
- Must be based on personal knowledge
Is Partial Summary Judgement allowed?
Yes
Judgment as a Matter of Law (Directed Verdict)
- raised by defendant after plaintiff’s case
- raised by either party at the CLOSE of evidence
Judgment as a Matter of Law Standard
- A reasonable jury would not have a legally sufficient evidentiary basis to find for non-moving party
- Evidence in light most favorable to NON-MOVING PARTY
Renewed Motion for Judgment as a Matter of Law
Opportunity to bring a renewed motion for JMOL
- must have filed a prior MOL
- Filed within 28 days AFTER verdict
- Judge may overturn verdict
Motion for Relief from Judgment
- clerical error, oversight, or mistake
- fraud of misconduct by the other party
Motions for a New Trial
- error would have caused different outcome (not a harmless error)
- judge erroneously admitted or excluded evidence
- improper conduct by party, witness, lawyer, or jury
- verdict is against clear weight of the evidence
