Motions Flashcards
What is a motion to dismiss?
This is a motion that must be served before a responsive pleading (such as an answer). That seeks to dismiss the case based on things like:
Lack of SMJ, (which is never waived) LACK of PJ, (which is waived if not brought up) Improper VENUE, Insufficiency of process and service of process, failure to state a cause of action.
What is amotion for a more definite statement?
Allegations that the pleading is unclear and you need it not to be so vague or ambiguous. I can’t respond because I don’t understand.
What is a Motion to strike?
This is when I want you to strike redundant, immaterial, impertinent, or scandalous matter from a pleading.
What is a Motion for judgment on the pleadings? (JOP)
This is a motion that may be filed after pleadings are closed. It says based on all the pleadings I am entitled to a judgment right now, we don’t need to go further, because even if all I have said is false and all the opponent has said is true, I still win.
What is a motion for summary judgment?
When no “material issue of material fact exists and the movant is entitled to judgment as a matter of law”
What is a motion for a directed verdict?
After the close of the adverse party evidence, the other party can move for a DV claiming that “ there is no evidence on which a jury could properly render a verdict for the plaintiff.” It also lets you bring up a renewed motion later. But you have to make this first motion to do the renewed one.
What is a renewed motion for a DV?
This is the same motion where you said that there is no evidence that the jury could properly render a verdict for the plaintiff. Except now the question has been submitted to the jury. So it is a way to go back to your initial claim and ask that the judge decides in your favor.
How long do you have to file a renewed motion for the Directed verdict?
15 days after the jury is discharged. YOu can also ask for a new trial at the renewed motion for Directed Verdict (DV)
What is a Motion for Default Judgement?
This is when the D failed to plead, or defend, and you are asking the clerk file a default against them.
What is a voluntary dismissal and what is its effect on the P claim?
This occurs when the P withdraws their complaint and can generally occur without a court order. It is w/o prejudice unless stipulation provides otherwise.
What is involuntary dismissal?
This is when the court renders the dismissal, a notice of hearing on the motion must be served, and the party pursuing an action here says that the rules 1420b FRCP were not followed.
What is Failure to prosecute?
There has been no action on the case for at least 10 months and no stay of action. After 60 days of notice of inactivity then it must be dismissed.
What is dismissal with prejudice?
If this happens then the P can not refile the lawsuit.
How long does the judge have to rule on a motion?
30 days from service.
What is the compulsory joinder of claims? (Res Judicata)
Party must present the entire claim before the court. If you leave some parts out, then you are barred from bringing them in later. They use a transaction test to see if the claims arise from the same occurrence.
