CivPro Flashcards
Motion to Dismiss for Failure to State a Claim
D files motion to dismiss because P failed to state a claim upon which relief may be granted.
Grounds for 12(b)(6) (non-exclusive)
- Even if the facts are true, no recovery is plausible
2.Insufficient facts supporting P’s claim
Dismissal: complaints dismissed on 12(b)(6) are dismissed with prejudice unless otherwise ordered by the judge
Timing: may be raised before or at trial.
12(b) Motions
Available Motions + Timing
Pre-answer motion where D attacks the validity of the complaint.
Motions
- Lack of SMJ: can be raised at any time
- Lack of PJ: waived if D did not raise motion in D’s answer.
- Improper Venue: waived if D did not raise motion in D’s answer.
- Insufficient Service of Process: waived if D did not raise motion in D’s answer.
- Failure to Join a Party: may be raised before or at trial
Motion to Strike
Motion to Strike = before responding to a pleading (or if no response to the pleading), within 21 days of service, a party may move to strike redundant, immaterial, or scandalous material.
Motion for a More Definitive Statement
Motion for More Definitive Statement = before responding to the pleading, a party (usually the D) may move for a more definitive statement if complaint is ambiguous.
Motion for Summary Judgment
Standard for Motion for SJ: no genuine dispute of a material fact.
Burden: moving party may use affidavits and discovery to show there is no genuine dispute of material fact.
- Affidavits must be based on personal knowledge (but may supplement with other evidence).
Timing: motion for SJ must be made within 30 days after close of discovery.
Denial of Motion for SJ: NOT APPEALABLE.
Partial Summary Judgment
Summary judgment on one/some, but not all claims.
Directed Verdict (Judgment as a Matter of Law)
JMOL = motion asking the court to order that a reasonable jury would not have a legally sufficient evidentiary basis to find in favor of the non-moving party.
Timing
- D can make a motion for JMOL after a P’s case.
- Either party can raise motion when both parties rest.
Standard: evidence viewed in light most favorable to the non-moving party.
Renewed Motion for JMOL
Must first make JMOL before the case went to jury.
Timing
- Motion for JMOL before case goes to jury.
- After the case goes to the jury and within 28 days of the verdict, if the judge agrees that no reasonable jury could have rendered the verdict, the judge will grant the motion and may overturn the verdict.
Motion for Relief from Judgment
Motion for Relief from Judgment = a court may relieve a party from a final judgment order if:
- There was a mistake, inadvertence, surprise, or neglect (e.g., a clerical error).
2.Newly discovered evidence could not have been discovered in time to move for a new trial
- Fraud
- Judgment is void
- “Any other reason that justifies relief.
Timing: no more than a year after the entry of the judgment or order or the date of the proceeding.
Motion for a New Trial
May be granted a new trial if the error in the trial would have reasonably changed the outcome of the case.
- Harmless errors will not pass muster.
Possible Grounds
- Absent an error, the outcome of the case could have been different.
- Erroneous admission or exclusion of evidence
- Improper conduct by a party, witness, lawyer, or a juror.
- Verdict is against “clear weight of the evidence”
Remittur
Damages are excessive
Remittur = a new trial could be ordered unless the party agrees to the reduction of the jury’s award because it is deemed excessive (“shocks the conscious”).
- The party can CHOOSE.
Additur
Damages are insufficient
NO ADDITUR IN FEDERAL COURT
However, in STATE Court, a judge may give the losing party a choice between paying greater damages OR a new trial.
New Trial on Basis of Newly Discovered Evidence
Requirements
The moving party must show the following:
- That the evidence was discovered after the end of the trial,
- The party was reasonably diligent in searching for the evidence during or before trial, AND
- The evidence was material.
