Motions Flashcards
Is the denial of a motion to dismiss a final order?
No, and so, is not appealable. A final order is one that disposes of the whole case on its merits, by rendering final judgment not only as to all the parties but as to all causes of action involved.
In federal litigation, Federal Rule of Civil Procedure (FRCP) 54(b) may allow for an appeal when there is a final judgment on one claim but other claims in the same suit remain. The standard for this partial judgment rule is that the “court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.” If the court does not expressly determine that there is no just reason for delay, there can be no appeal. Fed. R. Civ. P. 54(b)
How long does a party have to respond to complaint?
A DF has 21 days to answer.
Ga 30 plus 15 extra days
What is summary judgement and the time limits?
Later in the lifecycle of a federal case, either party can make a number of motions to adjudicate the dispute in their favor without a trial. If one party can show there is no genuine dispute of as to any material fact in the lawsuit, and that he is entitled to judgment as a matter of law, he can be awarded judgment through an FRCP 56 motion for summary judgment. Final judgement here is based on the facts but if we are looking only at the pleadings then use a motion for judgement on the pleadings.
The party seeking summary judgment has the burden of producing information that clearly establishes there is no factual dispute for a jury to resolve.
The movant (the person seeking summary judgment) can show the lack of a genuine issue of fact by submitting affidavits. They must only contain matters as to which the affiant has personal knowledge, must state only matters which would be admissible at trial, and must show the affiant is competent to testify at trial. The movant may also submit the fruits of discovery no matter which side they were obtained from.
The court will go “behind the pleadings” in deciding a motion for summary judgment, meaning that even if it appears from the pleadings that the parties are in dispute on some material fact, the summary judgment motion should be granted if the movant can show that the disputed factual issues presented by the pleadings are illusory.
While a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.
What is judgment as a matter of law?
A motion for judgment as a matter of law is made at the time of JURY trial. If there is no trial then the motion cannot be made. The party must be fully heard on the issue. It must be made before the jury retires.
If the case reaches a jury, either party may move for a judgment as a matter of law, which has the effect of taking the case away from the jury and determining the outcome as a matter of law. FRCP 50(a)(1) states that if a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may resolve the issue against the party and grant a motion for judgment as a matter of law against the party, on a claim or defense that under the controlling law can be maintained or defeated only with a favorable finding on that issue.
What is default judgment and how long is the notice for the hearing?
A default judgment is a judgment, with the same effect as any other judgment, that is entered because the defendant did not oppose the case. If a party against whom a judgment for relief is sought has failed to plead or otherwise defend, and that fact is made to appear by affidavit or otherwise, the clerk must enter the default of that party. Once the default has been entered, the party may not proceed with the action until the default has been set aside by the court. Fed. R. Civ. P. 55.
FRCP 55(b)(2) states “if the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing.” If the party failed to appear. Thus, pursuant to the FRCP, the manufacturer is not entitled to any notice of the hearing on damages.
How long does a party have to amend their claim?
A party may amend its pleading once as a matter of course with 21 days of service it. A party may I’m the 21 days strike any immaterial, redundant, scandalous material, erroneous or insufficient defenses without leave of court.
What type of motions are appealable and what is the time frame?
Generally only final orders are appealable by filing a notice of appeal with 30 days of the final judgment. A final order is one that disposes all of the merits of the case including claims and parties.
What is the exception to the final order doctor in regarding appealing motions?
The collateral order doctrine is a Narrow exception to the final order rule. However the need must be an emergency and it is too important to wait. This doctrine and has only been applied in cases of immunity and double Jeopardy. The requirements include: The lower court must have conclusively decided the disputed question; The issue must be separate from and collateral to the Merits of the main issue in the case; the issue must be effective unreviewable on an appeal from the final judgement.
Which is a better motion, a motion to dismiss for lack of PJ, a motion to transfer for forum non coveins, or a motion to transfer?
A motion to transfer is more appropriate than a dismissal except in extraordinary circumstances.
What is the deadline to file a summary judgement motion?
While a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.
Is a summary judgement motion sufficient for disputing a Pl credibility?
Yes.
When may a court modify a pretrial order?
After a pretrial conference, the judge must enter a pretrial order reaction the action in the conference, under Federal Rule of Civil Procedure (FRCP) 16(c). This pretrial order is binding during the rest of litigation unless the court modifies it. A court will only modify a pretrial order only to “prevent manifest injustice.”
Discovery and Witness
Federal Rule of Civil Procedure (FRCP) 26(b)(1) allows the discovery of the identity and location of persons who know of any discoverable matter. Parties wishing to call an expert to testify during trial are required to automatically disclose the name, address, and phone number of the expert. These disclosures are mandatory. FRCP 26(b)(4) addresses how discovery works for expert witnesses. When a party wishes to call an expert witness to testify at trial, it must furnish a list identifying any of these witnesses automatically at least 90 days prior to trial. The party who intends to call an expert witness must have the expert prepare and sign a report containing (i) all of the expert’s opinions, and the basis for them, (ii) the facts or data considered by the expert in forming those opinions, (iii) any exhibits, (iv) relevant qualifications, (v) compensation received, and (vi) a listing of any other cases which the expert witness has testified for within the preceding 4 years. There is a significant duty to supplement one's prior disclosures. Any mandatory and automatic disclosure required under FRCP 26(a) must be supplemented or corrected in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has otherwise not been made known to the other parties during the discovery process or in writing.
What is the time frame for a relief of judgement?
The motion must be made One year after judgement when the reason for seeking judgement was mistake, surprise or excusable neglect.
What are the requirements for sanctions under Rule 11?
Lawyers in federal suits have the responsibility to ensure their client’s pleadings are not frivolous or issued to harass or delay an adversary. FRCP 11 imposes this requirement and provides that a lawyer who fails in this duty may be fined or otherwise sanctioned.
When the lawyer files a pleading, the lawyer is certifying that to the best of his knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
• The pleading is not presented for an improper purpose,
• The claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law,
• The factual contentions have evidentiary support, or if specifically so identified, are reasonably based on belief or a lack of information.
FRCP 11 sanctions may be invoked by a motion from an opposing party, or from the court on its own initiative. Under FRCP 11(c)(2), the party seeking sanctions serves a motion on the other party but is not allowed to file the motion with the court if the challenged paper, claim or defense is withdrawn or appropriately corrected within 21 days after the service.
Analysis
Pursuant to Federal Rule 11, a party wishing to file a motion for sanctions must first serve the motion for sanctions on the opposing party. If the opposing party does not withdraw or correct the matter within 21 days, then the moving party can file a motion for sanctions with the court. Here, the firefighter withdrew his complaint eighteen (18) days after being served with the motion for sanctions. Therefore, it was improper for the entertainer to file a motion with the court.
