Pretrial Motions

Question 1

What must be raised in a pre-answer motion?

Answer 1

1. Motion for a more definite statement: when a pleading is vague or ambiguous that the D cannot reasonably form a responsive pleading
2. Motion to Strike: strike any insufficient defense or (redundant, immaterial, or scandalous) matter

Question 2

What must be raised in the first responsive action?

Answer 2

1. Lack of personal jurisdiction
2. Insufficient process or service of process
   
   1. Objecting to Process means that the proper documents were not served
   2. Objecting to service of process means that the summons and complaint were not served in a permissive manner
3. Improper Venue

Note: if not raised at this stage, they are waived unless D amends within permissible time (pre-answer motions cannot be amended)

Question 3

Must affirmative defenses be raised in the first answer?

Answer 3

Yes, these include:

1. res judicata
2. Statute of Limitations
3. contributory negligence, governmental immunity, assumption of risk, fraud, duress, etc.

Question 4

What can be raised at any time from pre-answer motion through trial?

Answer 4

1. failure to join a necessary party
2. judgment on the pleadings (usually when answer filed)
3. failure to state a valid claim or defense

Question 5

What can be raised at any time at all - even for the first time on appeal?

Answer 5

Lack of subject matter jurisdiction

Note: MI rule- a motion for summary disposition based on gov. immunity (or SMJ) may be filed even if the time set for dispositive motions in a scheduling order has expired

Question 6

Define: Dispositive Motions

Answer 6

Motions aimed at disposing of claims

Question 7

Failure to state a claim upon which relief can be granted (Rule 12(b)(6))

Answer 7

• Even if everything Plaintiff is saying in complaint is true, there is no recognized violation of any legal rights
• Only question for the court is: if the P proves the allegations in their complaint, do they have some cause of action that entitles them to relief?

Note: D brings this motion and can at any time - judge may rule by allowing P to amend complaint

Question 8

Motion for Summary Judgment (Rule 56)

Answer 8

When a case is decided in favor or P or D without a trial.

Asks whether there is a genuine issue of material fact:

1. the moving party must produce evidence to show there is no genuine issue of material fact
2. the burden shifts to the nonmoving party to produce evidence to show there is a genuine issue of material fact

Question 9

When can a motion for Summary Judgment be filed?

Answer 9

Any time until 30 days after the close of all discovery unless the court says otherwise.

Michigan - can be filed at any time, subject to scheduling order

Question 10

When will court deny a motion for SJ and let case proceed?

Answer 10

If the case involves something subjective like motive, intent, or credibility or if there is conflicting testimony