Motions Flashcards
Pretrial motions, including motions addressed to face of pleadings, moti
Pre-Answer Motions to Dismiss
Only the defendant can file a pre-answer motion to dismiss. The court will look at the complaint only when deciding a motion to dismiss (it will always happen before discovery), and a motion to dismiss will be granted when no relief can be given because the complaint is improper from the outset. If you file a Rule 12 pre-answer motion to dismiss, it must inlcude one or more than of seven specific defenses: lack of subject matter jursidiction, lack of personal jurisdiciton, improper venue, insufficient process, insufficient service of process, failure to state a claim, or failure to join an indispensable party.
Pretrial motions, including motions addressed to face of pleadings, moti
Motions Addressed to the Face (Strike, Definitive Statements, Judgment on the Pleadings)
Some motions are addressed to the face, meaning that the court will not look at any outside evidence; only the paper filings. All of the following are motions to the face: motions to strike, motions for a more definitive statement, and motions for judgment on the pleadings. Both motions must be brought before your response. A motion for a more definitive statement must actually point out the deatils that a party wants included. A judgment on the pleadings is applied when the pleadings (complaint and answer) agree entirely on facts and only the law is in dispute. If there’s any element of factual dispute, you have a case for summary judgment.
Pretrial motions, including motions addressed to face of pleadings, moti
Motion for Summary Judgment
A motion for summary judgment should be granted if the pleadings, discovery, and disclosure materials on file, any affidavits show that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. The moving party must show there is no genuine issue of material fact. The burden then shifts to the nonmoving party, which must show that there is genuine issue of material fact. The motion is looked at in the light most favorable to the nonmoving party. The court will deny the motion if it involves something subjective like motive, intent, or credibility.
Motions for Judgment as a Matter of Law (Directed Verdict)
Judgment as a Matter of Law
If there is no susbtantial evidence to support a verdict for the nonmoving party, a JMOL will be given. The court will look at whether the plaintiff has met the burden of production. The defense may move for this motion after the plaintiff rests its case, and the plaintiff or either party may move for this after the defendant rests its case.
Posttrial motions, including motions for relief from judgment and for ne
Relief from Judgment
If there are circumstances like fraud, newly discovered evidence, or mistake, the court may grant relief from judgment. This must be filed within one year of the entry of the judgment.
Posttrial motions, including motions for relief from judgment and for ne
Motion for New Trial
A new trial is granted if there were errors in the trial that tainted the jury’s decision-making or if the jury’s decision was against the great weight of evidence. It may also be granted if the verdict is excessive or inadequate (additur is not recognized by federal courts). This must be filed within 28 days after the entry of the jury’s verdict. The court may even order a new trial on its own.
Posttrial motions, including motions for relief from judgment and for ne
RJMOL
Under federal law, the party must have already filed a motion for JMOL at one point. Here, the party is renewing that, and must show that the evidence is insufficient as a matter of law to support the jury’s verdict. This must be filed within 28 days after the entry of the jury’s verdict.
Posttrial motions, including motions for relief from judgment and for ne
Appeal
Final judgmens generally are appealable (exceptions: preliminary injunctions, interlocutory orders, collateral matters). Orders granting a JMOL or denying a new trial are appealable. An appeal must be filed generally within 30 days after the entry of the judgment.
