motions

Question 1

5 pre-trail motions

Answer 1

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

Question 2

pre-trial motion: motion to substitute judge

Answer 2

each side has the RIGHT to change judge 1 time. Must file motion before judge resolves any substantial merit based issue

Question 3

pre-trial motion: motion to substitute judge timing

Answer 3

must file motion BEFORE judge resolves any substantial merit based issue

Question 4

pre-trial motion: P’s motion for voluntary dismissal WITHOUT prejudice

Answer 4

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

Question 5

pre-trial motion: what if P’s motion for voluntary dismissal WITHOUT prejudice is granted, what is time frame to refile

Answer 5

may refile up to 1 year after dismissal or up to running of SOL. W/E is longer out in time

Question 6

pre-trial motion: when must P file a voluntary dismissal (time frame)

Answer 6

BEFORE trial OR counter-claim has been served against it

Question 7

pre-trial motion: 2-615 defendant’s motion ATTACKING the complaint

Answer 7

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

Question 8

pre-trial motion: 2-615 D’s motion ATTACKING the complaint when to file it

Answer 8

must be filed BEFORE answer or waived if answer is filed

Question 9

pre-trial motion: 2-615 D’s motion attacking the complaint can the court look to outside material

Answer 9

on FACE of complaint, therefore, court MAY NOT consider any material outside complaint in solving motion

Question 10

pre-trial motion: 2–619 D’s motion to DISMISS complaint

Answer 10

motion to dismiss is based upon affirmative matter OUTSIDE complaint that defeats claim court may consider outside complaint in resolving motion

Question 11

pre-trial motion: 2–619 D’s motion to DISMISS complaint can court consider OUTSIDE material in deciding

Answer 11

YES. based upon affirmative matter OUTSIDE complaint that defeats the claim.
- court may consider outside complaint in resolving matter

Question 12

pre-trial motion: motion for summary judgment

Answer 12

will be granted if no genuine issue of MATERIAL fact such that judgment becomes proper as a matter of law

Question 13

5 motions during and after trial

Answer 13

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

Question 14

motions during and after trial: motion for directed verdict (judgement as a matter of law)

Answer 14

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

Question 15

motions during and after trial: motion for J.N.O.V. (renewed judgment as a matter of law)

Answer 15

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

Question 16

motions during and after trial: motion for new trial

Answer 16

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

Question 17

motions during and after trial: motion to vacate default judgment

Answer 17

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

Question 18

motions during and after trial: motion to vacate default judgment time

Answer 18

if filed w.i 30 days of judgment, it will be liberally granted for good cause

Question 19

motions during and after trial: petition from a judgment

Answer 19

when there is a full blown judgment on the merits

- extra ordinary remedy for judgments tainted by fraud or perjury

Question 20

differences b/w default judgment and petition from a judgment

Answer 20

default judgment was never decided on merits

- petition from a judgment was fully litigated and trial but judgment tainted by fraud or perjury

Question 21

time requirement for petition for relief from a judgment

Answer 21

must be filed b/w 30 days and 2 years after judgment

Question 22

showing required for petition from a judgment

Answer 22

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

Question 23

acronym for petition from a judgment

Answer 23

MEND

1) Merit
2) Equity
3) New facts:
4) Due Diligence

Question 24

3 finality issues (rules)

Answer 24

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

Question 25

claim preclusion (res judicita)

Answer 25

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

Question 26

issue preclusion (collateral estoppel)

Answer 26

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)

Question 27

offensive collateral estoppel

Answer 27

parties can not re-litigate an issue in previous case.

- Does not have to be exact similar parties, can be similar situated

Question 28

finality rule

Answer 28

therefore PARTIES are bared from re-litigating claims or issues which they (parties) FULLY AND FAIRLY litigated on FINAL JUDGMENT on the MERITS

Question 29

what is SOL for personal injury in IL

Answer 29

2 years date of discovery

Question 30

what is SOL for property damage in IL

Answer 30

5 years

Question 31

when does a party have an absolute right to voluntary dismiss claim w/o prejudiced

Answer 31

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.