CivPro—Motions Flashcards
(22 cards)
What are the requirements for granting a motion for JMOL (judgment as a matter of law)?
Court will grant a JMOL (formerly known as “directed verdict”) IF:
- During the trial or hearing, the “party has been fully heard on an issue”; AND
- “A reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.”
HOW:
WHO: moving party
WHAT:
WHEN: pre-judgment motions for JMOL are made BEFORE case is submitted to the jury.
What are the requirements for filing a RJMOL—renewed motion for JMOL?
Must have previously moved for JMOL and been denied. Then, losing party may make a post-verdict “renewed JMOL to overturn the jury verdict based on insufficiency on the evidence, usually following entry of judgment.
What are 6 primary grounds for a motion for a new trial?
Primary grounds for a motion for a new trial include:
- Prejudicial error affecting a party’s substantial rights;
- Verdict was against “the manifest weight of the evidence” (including inadequate of excessive damages);
- Prejudicial misconduct by the court , a juror, or an adversary;
- Newly-discovered evidence;
- Unfair surprise from the evidence at trial; AND/OR
- Insufficiency of the evidence (not enough to support the jury’s final verdict).
TIMING: motion for new trial must be filed w/in 28 days after judgment.
What is a “pretrial scheduling order” and when is it used?
Following the pretrial conference, a “pretrial scheduling order” is given control the subsequent course of events in the case, including placing limitations on “the time to join other parties, amend the pleadings, complete discovery, and file motions.”
Which grounds may be included in a renewed motion for JMOL (R-JMOL)?
An R-JMOL is limited to the grounds that were raised by the JMOL, as the moving party is renewing a previous JMOL.
R-JMOL is normally paired w/a motion for new trial.
What is the timing of a R-JMOL (renewed judgment as a matter of law) or post-judgment JMOL?
Within 28 days of entry of a judgment.
A party that raised a JMOL may then make a post-judgment JMOL (or R-JMOL) w/in 28 days of the entry of a judgment.
What is a JMOL (judgment as a matter of law—formerly directed verdict)?
A motion for JMOL, may be raised by either party during trial proceedings claiming opposing party has insufficient evidence to reasonably support its case.
TIMING: can be made only after the opposing party has presented its case.
What are the ground for a motion for relief from judgment (motion to set aside a judgment)?
Grounds for relief from a judgment include:
- Clerical errors;
- Neglectful mistakes;
- Newly discovered evidence;
- Judgment is void; OR
- Judgment has been satisfied or discharged.
What is the timing for bringing a motion for relief from judgment (motion to set aside a judgment)?
Generally, a motion to set aside a judgment may not be brought more than 1-year after judgment.
What is the difference between a voluntary and involuntary dismissal?
A dismissal (the order or judgment that discharges or disposes of a suit, action, or motion) may be voluntary (which is by the Plaintiff’s motion) or involuntary (on motion of the court or defendant, irrespective of the desires of the Plaintiff).
TIP: a dismissal may be with prejudice (based on the merits of the case and barring further action on same), or it may be without prejudice (not based on the merits and not barring subsequent action).
Which Rule 12(b) defense may be raised at any time during proceedings?
Lack of SMJ (subject matter jurisdiction) may be raised at any time during the proceedings.
FRCP 12(b)
What is a motion for a more definitive statement?
A motion for a more definitive statement can be raised by the D when the P’s complaint is so vague that the D cannot prepare a response.
TIP: a motion for a more definitive statement does NOT count as a 1st response to a complaint for Rule 12 purposes.
What is a motion to strike?
A motion to strike is aimed at striking pleadings from the complaint that are redundant or immaterial.
FRCP 12(f)
What is a motion for judgment on the pleadings?
TIMING: AFTER the D files an answer and BEFORE discovery has begun…
A party may request that the court make a determination based on a review of all the pleadings filed.
What is a motion to dismiss for failure to state a claim?
A motion to dismiss for failure to state a claim is an assertion that, even if the court takes P’s claim as true, relief should NOT be granted.
TIP: TIMING: motion is filed BEFORE a D files an answer, and the court reviews this motion solely based on a P’s complaint.
When will a court grant a motion for summary judgment?
If, based on the pleadings, affidavits, and discovery, there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.
TIP: in determining whether there are any genuine issues of material fact, the court should construe all factual matters in the light most favorable to the non-moving party.
How must a non-moving party respond to a motion for summary judgment?
When a party moves for summary judgment and presents evidence of facts that would defeat the non-moving party’s claim, the non-moving party must respond by offering evidence of specific facts showing that there is a genuine issue for trial.
What is a FRCP Rule 12 motion?
FRCP 12 governs when and how a D may raise defenses and objections (i.e., a D is required to respond to a complaint through either a pre-answer motion or by answer, raising certain objections or they will be waived).
TIP: the D’s response must be filed w/in 21 days of service of process (or w/in 60 days if service is waived).
Which 7 pre-answer defenses are available under FRCP 12(b)?
- Lack of SMJ:
- Lack of PJ;
- Improper Venue;
- Insufficient process;
- Insufficient service of process;
- Failure to state a claim upon which relief can be granted; AND
- failure to join necessary parties.
Which 4 defenses are waived if not raised in the first response to the complaint?
If the D fails to raise any of these defenses in their first response to the complaint, they are considered waived:
- Lack of PJ
- Insufficient Process
- Insufficient service of process.
- Improper Venue
Which pre-answer motion does NOT count as a first response to the complaint?
Motion for a more definite statement/complaint.
TIP: Available when the complaint is so vague or ambiguous that a responsive pleading can’t reasonably be framed.
When may a motion for summary judgment be filed?
A party may file a motion for summary judgment at any time until 30 days after the close of all discovery.
TIP: summary judgment will be granted if there’s “no genuine dispute as to any material fact.”
