Motions

Question 1

When can you motion to substitute a judge? How many times can you use this motion?

Answer 1

Each side can only use this motion ONCE before the judge resolves any merit based issues

Question 2

Plaintiff’s Motion for voluntary dismissal without prejudice

Answer 2

P can use this ONCE as a right before trial or counterclaim has been served. P goes away and can come back and re-sue without prejudice up to one year after dismissal or SoL, whichever is longer.

Question 3

Defendant’s §2-615 Motion attacking the complaint

Answer 3

Motion must be filed BEFORE answer is sent to strike allegations that are improper OR to dismiss a claim for failure to state factual allegations that make up a cause of action. Judges must only consider facts at hand.
***This motion is WAIVED if you send an answer to the process.

Question 4

Defendant’s §2-619 Motion to Dismiss the Complaint

Answer 4

This may be raised in the answer based upon an affirmative matter outside the claim. Judge may (usually must) use material outside complaint that defeats complaint.

Question 5

Motion for summary judgment

Answer 5

Will be granted if there is no genuine issue of material fact for trial such that judgment becomes proper as a matter of law

Question 6

Motion for Directed verdict (Judgment as a matter of law)

Answer 6

Occurs after adversary has rested its case, this motion can be made & will be granted if evidence so overwhelmingly favors the moving party

Question 7

Motion for JNOV (Renewed judgment as a matter of law)

Answer 7

Moving party must file this within 30 days of judgment, this motion will be granted if the evidence so overwhelmingly favored the moving party. Same as motion for directed verdict, just AFTER trial.

Question 8

Motion for a new Trial

Answer 8

Must be filed within 30 days of judgment, motion for a new trial can be made and will be granted at court’s discretion for either:

1. Errors at trial affecting parties substantial rights OR
2. Verdict was merely against the manifest weight of evidence

Question 9

When will D suffer a default judgment?

Answer 9

If they fail to respond to a complaint in a timely manner

Question 10

When is a motion to vacate a default judgment filed? When is it granted?

Answer 10

D must file within 30 days of judgment, and it will be liberally granted for good cause shown.

Question 11

What is a Petition for Relief from a judgment?

Answer 11

This is an extraordinary remedy for judgments tainted by fraud or perjury

Question 12

When must Petition for Relief from a judgment be filed?

Answer 12

Must file between 30 days and 2 years after judgment is rendered. NOT before, NOT after.

Question 13

What must you show for Petition for Relief from a judgment?

Answer 13

MEND

Merit to your claim/defense
Equity-demand relief b/c of fraud/perjury
New facts that cast doubt on judgment
Due diligence that you couldn’t have found these facts until after judgment.