Chapter 7 -- Motion Practice -- Concepts Flashcards Preview

LAS109 - Civil Pro I > Chapter 7 -- Motion Practice -- Concepts > Flashcards

Flashcards in Chapter 7 -- Motion Practice -- Concepts Deck (23):
1

4 motions that may be brought after pleadings but before trial

1.  judgment on the pleadings

2.  summary judgment

3.  voluntary/involuntary dismissal

4.  default judgment

2

Judgments on pleadings are made in the light most (1) to the (2).   This motion is usually only made for (3), (4) facts.  It is closely related to a (5) and is made after (6).

1.  favorable

2.  opposition

3.  undisputed

4.  legal

5.  motion to dismiss

6.  pleadings are closed

3

Motions to amend (1) are given freely.  They are attached to the (2).  It can be made even if (3) is pending.

1.  pleadings

2.  proposed amended pleading

3.  judgment on pleadings

14

*Summary judgment is made (1) and when there is no (2). It can be made on (3). (4) can be made on one of several issues within a count.

1. before trial 2. genuine dispute of material fact 3. any claim 4. partial summary

15

*A complaining party can move for summary judgment (1) after commencement of action or after (2). A defending party moves (3). The motion is usually made after (4).

1. 20 days 2. adverse party files for summary judgment 3. at any time 4. facts are known (discovery, etc.)

16

*In deciding whether to grant summary judgment, the court does not decide (1) of facts--only whether they are (2). The (3) do not determine this. An opposing party responds to this motion in an (4).

1. truth 2. material (undisputed) 3. pleadings 4. affidavit proving material issues remain

17

At the hearing on the motion for summary judgment, the judge will usually allow (1) and then take the case (2) and enter a (3) at a later time.  This latter sets out (4) motion is granted or denied and (5) and (6).

1.  oral argument

2.  under advisement

3.  written order

4.  what issues

5.  findings

6.  reasonings

18

When an order disposes of the entire case, it is (1) and (2).  It may not be appealable for (3) under Rule 54, which leaves it up to the (4).  Denial of motion for summary judgment is (5).

1.  final

2.  appealable

3.  partial summary judgment

4.  judge

5.  not final/not appealable

19

Be (1) with motions for summary judgment/dismissal and prepare them in an (2), (3) manner, leaving the (4) that includes and refers to (5) to go into detail.  

1.  timely

2.  orgainized

3.  progressive

4.  memorandum

5.  exhibits

 

20

Affidavits are (1) by witnesses who are (2) and have (3).  They are signed by a (4).  (5) are similar but the witness signs under penalty of perjury.

1.  sworn testimony

2.  competent

3.  first-hand knowledge

4.  notary public

5.  Declarations

21

A person opposing a motion for summary judgment should offer a (1) with supporting (2) to demonstrate (3), although they are not required to do anything at all.  The affidavits should present testimony that (4) to present credibility issues that can only be decided in trial.  It should also raise (5) of the movant's affidavits.

1.  memorandum

2.  affidavits

3.  issues of material fact remain

4.  contradicts the movant's affidavits

5.  defects (improperly notarized, eg)

22

Two types of dismissals

 

1.  voluntary

2.  involuntary

23

3 ways to obtain voluntary dismissal

1.  PLT files a notice of dismissal with clerk of court (no court order required)

2.  All parties agree, and PLT files with court a stipulation of dismissal signed by parties (settlement) (no court order required)

3.  by court order

24

25

Unless otherwise stated, a voluntary dismissal is (1), meaning it can be refiled later.  A second notice of dismissal is (2), however, to avoid abuse.  In voluntary dismissals, the only issue the courts usually look at are (3) and (4) to the defendant.  Voluntary dismissals will not be granted if there is a (5) or if the defendant (6).

1.  without prejudice

2.  with prejudice

3.  legal prejudce

4.  costs/expenses

5.  counterclaim against PLT

6.  objects to the dismissal

26

Involuntary dismissal allows a claim to be terminated if a PLT is guilty of (1).  This can be done by the (2) or (3).   An involuntary dismissal is (4), so it is (5).

1.  misconduct

2.  DEF

3.  court

4.  with prejudice

5.  final/appealable

27

3 ways involuntary dismissal may be granted

1.  PLT fails to prosecute a claim (respond to motions, etc)

2.  PLT fails to comply with rules of procedure or court orders

3.  judgment on partial findings - evidence fails to demonstrate cause of action (bench trial only)

28

Defaults are similar to (1) and usually involve the (2).  They are allowed only when the claim seeks (3).  The PLT presents an (4) setting out facts showing default and (5).

1.  dismissals

2.  defendant

3.  affirmative relief (specific or computable sum)

4.  affidavit

5.  amount due

29

It is good practice and sometimes required to serve a notice of default (1) before the (2).  

1.  3 days

2.  hearing

30

At the hearing on the motion,commonly called the (1), the PLT must be prepared to show that (2), that the (3), and what the (4) are.  Supporting (5) and (6) should be present.

1.  prove up

2.  service on the defaulting party was proper

3.  allegations of the complaint are true

4.  proper damages

5.  documentation

6.  witnesses

31

4 tips to avoid a default being vacated

1.  serve DEF as directly as possible

2.  wait long enough, usually 60-90 days, before seeking default

3.  Send letters regularly to DEF requesting response

4.  send DEF notice of motion

32

3 elements of consolidation

1.  actions can be consolidated only when all actions are pending before court

2.  actions must have common facts or law

3.  court may use discretion to consolidate only certain issues

33

The court may order separate trials where doing so will create (1), avoid (2) or permit a case to be tried more (3) and (4).  Typically (5) will be separated.  Typically, a decision to sever will be made at the (6) and can be dicey with deciding where to separate (7).

1.  convenience

2.  prejudice

3.  efficiently 

4.  economically

5.  unrelated permissive counterclaims

6.  pretrial conference

7.  jury trials