Motions

Question 1

motion to dismiss standard

Answer 1

requires the court to:
1. consider the facts in the light most favorable to the non-moving party, AND
2. determine if there is any basis upon which relief can be granted

NOTE: the court does NOT evaluate the merits of the case

Question 2

motion to dismiss grounds

Answer 2

1. Lack of SMJ
2. Lack of PJ
3. improper venue
4. insufficent process
5. insufficient service of process
6. failure to state a claim upon which relief can be granted
7. failure to join a necessary party

NOTE: Grounds (2) - (5) are deemed waived if NOT raised in the first responsive pleading or pre-answer motion to dismiss

NOTE: Ground (1) MAY be made at any time

Question 3

motino for judgment on the pleadings

Answer 3

AFTER D answers, a motion on the motion to dismiss grounds is called a “motion for judgment on the pleadings”
- ET: remember some would be waived by time D answers

Question 4

summary judgment (SJ) motion

Answer 4

a court will grant an SJ motion when:
1. there is no genuine issue of material fact, AND
2. movant is entitled to judgment as a matter of law

NOTE: the court MUST view the evidence in the light most favorable to the non-moving party
- an SJ motion may be sought on the entire case or for certain issues (partial summary judgment)
- If a motion to dismiss (or motion for judgment on the pleadings) presents matters outside the pleadings, the court may treat the motion as a SJ motion

Question 5

motion for judgment as a matter of law (JMOL)

Answer 5

may be brought @ any time before the case is submitted to the jury

Question 6

granting JMOL

Answer 6

JMOL will be granted if:
1. the non-moving party has been fully heard on the issue during a jury trial, AND
2. the court finds that a reasonable jury would NOT have a legally sufficient basis to rule in favor of the non-moving party on that issue

NOTE: the court MUST draw all reasonable inferences in the light most favorable to the opposing party

Question 7

renewal of JMOL motion

Answer 7

a party may renew its JMOL motion ONLY IF it moved BEFORE the case was submitted to the jury
- a renewed JMOL motion must be filed w/in 28 days of the entry of judgment

Question 8

motion for a new trial

Answer 8

court MAY grant a new trial for any reason for which a new trial has been granted in federal court
- must be filed no later than 28 days after the entry of judgment

Question 9

grounds for a new trial

Answer 9

• error @ trial that makes judgment unfair
• new evidence surfaced that could not be obtained with due diligience for the OG trial
• prejudicial misconduct of a party, attorney, 3P, or juror, OR
• verdict was excessive or inadequate