Motions

Question 1

What is the form of motions?

Answer 1

Any applications to the court for an order shall be made by motion. A motion must:

1. be in writing, unless made during a hearing or trial; and
2. state with particularity the grounds for the request and a request for relief.

Question 2

What is a motion to dismiss?

Answer 2

It is a motion filed by defending party seeking the dismissal of a claim filed against him.

A motion to dismiss may be made on any of the following grounds: lack of SMJ, PJ, improper venue, insufficient process, insufficient service of process, failure to state a claim, and failure to joint a party.

PJ, improper venue, insufficient process, insufficient service of process must be made in the first response.

Failure to state a claim and failure to join a party must be made any time before the trial ends.

SMJ is never waived.

Question 3

What is a motion for summary judgment?

Answer 3

It is a motion challenging a claim or defense on the merits.

It will be granted if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

Generally, the motion must be made before 30 days after the close of discovery, a party must file a reply within 21 days after the motion is served, and the reply must be filed within 14 days.

The court must consider whether the moving party has shown that the non-movant party lacks sufficient facts and/or law to prevail on the claim or defense in question. The moving party can make this argument by either:

1. pointing out holes in the opposing party’s claims or defenses; or
2. adducing new evidence demonstrating that the claim or defense cannot be true.

Question 4

What is a motion for judgment as a matter of law?

Answer 4

This was formerly known as a motion for directed verdict.

It is a motion made by either the P or D after the other party loses the case. If the motion is granted, judgment will be given to the movant.

It will be granted if the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the non-moving party on the issue at hand.

This motion can be made at the close of the non-moving party’s case, but may be made at any time after all of the non-moving party’s evidence has been submitted but fore the case is submitted to the jury.

Question 5

What is a renewed motion for judgment as a matter of law?

Answer 5

This was formerly called a motion for judgment notwithstanding the verdict.

Within 28 days after the entry of judgment, a party who has timely moved for this may serve a motion to set aside the verdict and any judgment entered on the verdict. A party must have moved for a judgment as a matter of law.

It uses the same standard: If a court finds that no reasonable jury could interpret the evidence presented as supporting the verdict, a judge may grant to the party against whom the judgment was rendered.

The judge may:

1. allow the judgment on the verdict to stand;
2. order a new trial; or
3. direct the entry of judgment as a matter of law.

A motion for a new trial may be made jointly or in the alternative.

Question 6

What is a motion for a new trial?

Answer 6

This may be granted to all or any of the parties on all or some of the issues litigated at trial.

It must be filed within 28 days of the entry of judgment.

This motion is appropriate in the following circumstances:

1. in order to avoid an inevitable appeal and reversal if the trial judge has committed reversible error;
2. when a jury verdict is os excessive as to demonstrate that the jury has misunderstood its duty or has acted with extreme prejudice;
3. if evidence of jury misconduct exists, and FRE 606(b) limits judicial inquiry to external influences on the deliberation process; or
4. when the verdict is against the clear weight of the evidence.

The new trial may be conditioned on certain circumstances.

Question 7

What is remittitur and additur?

Answer 7

A motion for remittitur asks the judge to reduce the award of damages that are excessive.

A motion of additur asks the judge to increase the award of damages. This is unconstitutional in federal courts.

Question 8

What is a motion for relief from judgment or order?

Answer 8

The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record.

The court may act sua sponte. However, if an appeal has been docketed, then only the appellate court may correct the mistake.

A motion for relief may be granted for the following reasons:

1. mistake, inadvertence, surprise, or excusable neglect;
2. newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial;
3. fraud, misrepresentation, or misconduct by an opposing party;
4. the judgment is void (this is where there is a jurisdictional error or a violation of due process notice or opportunity to be heard);
5. the judgment has been satisfied, released, or discharged, based on an earlier judgment that has been reversed or vacated, or applying it prospectively is no longer equitable; or
6. any other reason that justifies relief.

This motion must be made within a reasonable time. Generally, it must be made no longer than one year after entry.