motions Flashcards
5 pre-trail motions
1) motion to substitute judge
2) P’s motion for voluntary dismissal WITHOUT prejudice
3) D’s 2-615 motions ATTACKING the complaint
4) D’s 2-619 motion to DISMISS the complaint
5) motion for summary judgment
pre-trial motion: motion to substitute judge
each side has the RIGHT to change judge 1 time. Must file motion before judge resolves any substantial merit based issue
pre-trial motion: motion to substitute judge timing
must file motion BEFORE judge resolves any substantial merit based issue
pre-trial motion: P’s motion for voluntary dismissal WITHOUT prejudice
P has 1 time right to voluntary dismiss lawsuit w/o prejudice B4 TRAIL or counterclaim has been served against it.
- If do take, may refile suit up to 1 year after dismissal or up to running of SOL. w/e is longer out in time
pre-trial motion: what if P’s motion for voluntary dismissal WITHOUT prejudice is granted, what is time frame to refile
may refile up to 1 year after dismissal or up to running of SOL. W/E is longer out in time
pre-trial motion: when must P file a voluntary dismissal (time frame)
BEFORE trial OR counter-claim has been served against it
pre-trial motion: 2-615 defendant’s motion ATTACKING the complaint
pre-answer motion which attacks allegations or claims on FACE of complaint therefore, court may NOT CONSIDER any material outside complaint in solving motion.
- Must be filed BEFORE answer or WAIVED if answer filed
pre-trial motion: 2-615 D’s motion ATTACKING the complaint when to file it
must be filed BEFORE answer or waived if answer is filed
pre-trial motion: 2-615 D’s motion attacking the complaint can the court look to outside material
on FACE of complaint, therefore, court MAY NOT consider any material outside complaint in solving motion
pre-trial motion: 2–619 D’s motion to DISMISS complaint
motion to dismiss is based upon affirmative matter OUTSIDE complaint that defeats claim court may consider outside complaint in resolving motion
pre-trial motion: 2–619 D’s motion to DISMISS complaint can court consider OUTSIDE material in deciding
YES. based upon affirmative matter OUTSIDE complaint that defeats the claim.
- court may consider outside complaint in resolving matter
pre-trial motion: motion for summary judgment
will be granted if no genuine issue of MATERIAL fact such that judgment becomes proper as a matter of law
5 motions during and after trial
1) motion for directed verdict (Judgment as a Matter of Law JMOV)
2) motion for J.N.O.V (renewed judgment as a matter of law, Judgment not withstanding verdict)
3) motion for new trial
4) motion to vacate default judgment
5) petition for relief from judgment
motions during and after trial: motion for directed verdict (judgement as a matter of law)
after advisory has rested its case, this motion can be filed and will be granted if
1) evidence is SO OVERWHELMINGLY FAVORS THE MOVING PARTY
motions during and after trial: motion for J.N.O.V. (renewed judgment as a matter of law)
after verdict of J.N.O.V. can be filed and will be granted IF
1) EVIDENCE SO OVERWHELMINGLY FAVORS the moving party
- can make J.N.O.V even if not make BEFORE jury leaves
motions during and after trial: motion for new trial
IL ST court judge has discretion to new trail for EITHER
1) errors at trial (SUBSTANTIAL TRIAL RIGHTS) big fuck ups
2) if verdict was against manifest weight of evidence
motions during and after trial: motion to vacate default judgment
will be entered if D fails to respond to complaint in timely manner but if motion to vacate is filed w/i 30 days of judgment, it will be liberally granted for good cause
motions during and after trial: motion to vacate default judgment time
if filed w.i 30 days of judgment, it will be liberally granted for good cause
motions during and after trial: petition from a judgment
when there is a full blown judgment on the merits
- extra ordinary remedy for judgments tainted by fraud or perjury
differences b/w default judgment and petition from a judgment
default judgment was never decided on merits
- petition from a judgment was fully litigated and trial but judgment tainted by fraud or perjury
time requirement for petition for relief from a judgment
must be filed b/w 30 days and 2 years after judgment
showing required for petition from a judgment
MEND
1) merit: merit to claim or defense
2) Equity: demands relief in fraud or perjury
3) New facts: have come to light since judgment which cast out on that judgment
4) Due diligence: despite due diligence could not discover new facts until AFTER judgment it self
acronym for petition from a judgment
MEND
1) Merit
2) Equity
3) New facts:
4) Due Diligence
3 finality issues (rules)
1) claim preclusion (res judicita): a CLAIM which has been fully and fairly litigated to FINAL judgment on MERITS cannot be re litigated by parties
2) issue preclusion (collateral estoppel): an ISSUE which has been fully and fairly litigated as final judgment on merits cannot be re-litigated by parties
3) finality rule: therefore parties are bared from re-litigating claims or issues which they (parties) FULLY AND FAIRLY LITIGATED ON FINAL JUDGMENT ON THE MERIT
claim preclusion (res judicita)
1) a CLAIM which has been
2) FULLY and fairly litigated
3) to FINAL JUDGMENT on
4) MERITS cannot be re-litigated by parties
- must be same parties
issue preclusion (collateral estoppel)
1) an ISSUE which as been
2) FULLY and fairly LITIGATED
3) as FINAL JUDGMENT
4) on the MERITS cannot be re-litigated by parties
- can be offensive (not exact same parties, but similarly situated)
offensive collateral estoppel
parties can not re-litigate an issue in previous case.
- Does not have to be exact similar parties, can be similar situated
finality rule
therefore PARTIES are bared from re-litigating claims or issues which they (parties) FULLY AND FAIRLY litigated on FINAL JUDGMENT on the MERITS
what is SOL for personal injury in IL
2 years date of discovery
what is SOL for property damage in IL
5 years
when does a party have an absolute right to voluntary dismiss claim w/o prejudiced
In IL, BEFORE TRIAL OR HEARING, a party has an absolute right to voluntary dismiss claim w/o prejudice if he notifies every party who has appeared and pays costs.
- after trial or hearing on the merits has begun, a party may voluntary dismiss, upon payment of costs, only with the stipulation of the adverse party, or motion supported by an affidavit.
