Pre-Motions

Question 1

Motion to Dismiss 12b

Answer 1

-

Question 2

Lack of smj

Answer 2

raised at ANYTIME even on appeal

Question 3

Lack of pj

Answer 3

must raise in answer or 12b

Question 4

Improper Venue

Answer 4

must raise in answer or 12b

Question 5

Insufficient Service

Answer 5

must raise in answer or 12b

Question 6

Failure to Join a Party

Answer 6

must raise before trial or after trial

Question 7

Failure to State a Claim

Answer 7

-must raise before or after trial

Question 8

Failure to State a Claim (what is it?)

Answer 8

1. No legal theory of recovery available by law; OR
2. Insufficient facts to support a claim

Question 9

Motion to Strike

Answer 9

21 days of service

Question 10

Motion to Strike (what is it)

Answer 10

For redundant, immaterial, or scandalous material

Question 11

Motion for More Definitive Statement

Answer 11

Before responding to pleading

Question 12

Motion for More Definitive Statement (what is it)

Answer 12

Pleading is vague and ambiguous

Question 13

Motion for Summary Judgment (R56)

Answer 13

Within 30 days once discovery closes

Question 14

Motion for Summary Judgment (Burden of Proof)

Answer 14

1. NO genuine dispute of material fact; AND
2. Movant is entitled to judgment as a matter of law (aka law supports my case)

-Denial NOT appealable
-Burden on moving party
-Partial judgment allowed

Question 15

Motion for Summary Judgment Evidence

Answer 15

NOTE: Pleadings Don’t Count!!!

The non-movant’s pleadings by themselves are NOT ADMISSIBLE evidence, and not enough to establish the existence of a genuine issue of fact.

What is admissible evidence for a summary judgment?

-Affidavits reciting expected trial testimony
-Deposition testimony
-Documents produced during discovery
-Admissions [or] interrogatory answers

Question 16

Motion for Summary Judgment Default?

Answer 16

The fact that the non-movant has not submitted a motion in opposition of the smj does NOT itself mean the movant gets their smj granted. Aka there is no such thing as “summary judgment by default”