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Civ Pro > Motions > Flashcards

Motions Flashcards

1
Q

What is the timeline for involuntary dismissal?

A

1) 10 months of no record act
2) D certifies this act to all parties
3) D waits 60 days further
4) If no filing for 60 days, D can make a motion is dismiss.

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2
Q

What is required in order for P to set aside D’s motion for involuntary dismissal?

A

P must show good cause for the delay 5 days before the hearing.

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3
Q

When can the P file motion for summary judgment?

A

P must wait 20 days after filing the action

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4
Q

When can D file motion for summary judgment?

A

Anytime.

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5
Q

When must the motion be served?

A

20 days before hearing on the motion

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6
Q

When must a motion in opposition to summary judgment be filed?

A

Either
5 DAYS before hearing if by mail
OR
By 5:00 pm 2 days before hearing if emailed or filed by Court Portal

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7
Q

When can case management conference be served?

A

Anytime after responsive pleading/motion is filed.

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8
Q

How much notice is required for a pretrial conference?

A

20 days of notice.

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9
Q

What is the timeline to respond to a magistrate’s finding?

A

10 days after the report is filed.

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10
Q

When is voluntary dismissal not available?

A

1) Case submitted to trier of fact
2) Summary judgment is pending
3) Property seized by Court
4) Counterclaim which can’t stand alone

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11
Q

When can you file voluntary disissal?

A

Once SMJ issue is gone

You can dismiss at trial on the record

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12
Q

How do you obtain voluntary dismissal?

A

1) File Notice of Dismissal
2) By written stipulation
3) By Court Order

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13
Q

When you dismiss for the first time, is it with prejudice?

A

No

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14
Q

When you dismiss for the second time is it with prejudice?

A

Yes

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15
Q

True or False: Dismissal cancels Lis Pendens.

A

True

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16
Q

What is the effect of voluntary dismissal?

A

Termination of case without trial

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17
Q

What is Default Judgment?

A

When a party against whom a claim is filed fails to plead or otherwise defend an action in the time allowed by the law.

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18
Q

What are the steps for Default Judgment?

A

1) Entry of Default
If D made a filing - Ct does it / D gets notice

If D not made filing - Clerk does it / D get no notice

2) Default Judgment after Entry of Default
- Allows recovery and relief
- Judge enters and gives D notice of hearing on demages.
- Well pleaded allegations are deemed admitted at that point.

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19
Q

True or False: Once default is entered, D can’t make filing.

A

True

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20
Q

True or False: Once default is entered, recovery is limited to pleadings.

A

True

21
Q

Can Defendant try to set default judgment aside?

A

Yes by making a motinal after default and before judgment showing:

1) Good cause or excusable neglect
2) A meritorious defense
3) Due diligence after learning of default

22
Q

When can P move for directed verdict?

A

At the close of all the evidence?

23
Q

When can D move for directed verdict?

A

At the end of P’s case.

24
Q

Motion for attorney fees after judgment?

A

Must be made 30 days after filing judgment

25
Q

Motion for New Trial

A

15 days after return of verdict

26
Q

Motion for Belated Directed Verdict

A

15 days after return of verdict

27
Q

When can you seek a motion for relief from clerical error?

A

Anytime

28
Q

When can you seek a motion for relief for mistake/excuse/surprise?

A

Reasonable time period - less than 1 year

29
Q

When can you seek motion for relief from fraud by opposing party?

A

Reasonable time period - less than 1 year

30
Q

When can you seek a motion for relief due to new evidence?

A

Reasonable time period - less than 1 year

31
Q

When must you file motion for relief from void judgment?

A

Reasonable time - no max

32
Q

What is the stay period for execution of judgment?

A

15 days from judgment entry

33
Q

How do you request staY period for Motion?

A

Automatically enacted

34
Q

How do you request stay period for appeal?

A

Requires a bond of judgment + 15% being a supersedeas bond

35
Q

What is a supersedeas bond?

A

Bond that must be posted for appeal = bond of judgment + 15%

36
Q

When must you file notice of appeal?

A

30 days from final judgment

37
Q

Does a motion to strike toll the time to answer?

A

No - not if it was granted due to redundant, immaterial or scandalous information provided

38
Q

If motion for more defendant statement is granted, what occurs to the time to respond?

A

It is extended to 10 days after the more definite statement is served.

39
Q

Can a judge consider oral testimony when awarded summary judgment?

A

No

40
Q

What is a motion for directed verdict?

A

Theory - there is nothing for jury to decide.

After considering evidence in favor of the nonmoving party and drawing all reasonable inferences in their favor, Judge concludes no reasonable jury could return a verdict for non-moving party.

41
Q

What is motion for summary judgment?

A

Granted when there is no issue of material fact and the moving party is entitled to judgment as a matter of law.

42
Q

What is motion for belated directed verdict?

A

Same as directed verdict but must be filed 15 days after the verdict and must have moved for DV during trial.

43
Q

What are grounds for involuntary dismissal?

A

1) Nothing filed for 1 year
2) Willful failure to appear at pretrail conference
3) Willful failure to appear at depo
4) Failure to state a claim

44
Q

When will involuntary dismissal be granted without prejudice?

A

When it is based on jurisdiction, venue, lack of indispensable party, or failure of prosection.

45
Q

What are grounds for a new trial?

A

Prejudicial error
New Evidence not previously discoverable
Prejudicial misconduct by juror
Judgment is against weight of evidence (need to object at trial)
Improper closing (even if not objected at trial)

46
Q

What is Motion for Failure to State a cause of action?

A

D can move for this before D answers

Standard: If facts are true would P win?

Court only looks at complaint not the evidence
If answer is no = dismiss

47
Q

What is Motion for Failure to State a clause of action called if D has answered?

A

It is called a Motion for Judgment on the pleadings.

48
Q

Party filing a motion to amend a pleading must do what?

A

Attach the proposed pleading to the motion.

Civ Pro (6 decks)

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