Term
| Under Rule 7(b) what are the three requirements that motions must meet? |
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Definition
1) Be in writing, unless made during a hearing or a trial
2) State with particularlity the grounds seeking the order
3) State the Relief sought |
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Term
| What is the party that requests the motion called? |
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Definition
| The Party requesting the motion is called the "movant" or the "moving party" |
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Term
What happens with regards to the nonmoving party after a motion is filed?
What can the moving party due in response?
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Definition
| Yes, the nonmoving party ahs the right to serve opposition papers and the moving party may reply further as necessary |
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Term
How can the court respond to a motion?
Must a hearing be held for the court to respond to the motion? |
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Definition
| The court can issue an oral decision from the bench or in wrigint with or without a hearing dpending on the type of motion |
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Term
Under Rule 11(b), how must a signed pleading or motion be made?
What happens under Rule 11(c) if this is not done?
Does this part of Rule 11 apply to discovery? |
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Definition
Any signed pleading/motion must be made to the best of the person's knowledge/information and belief based on Rule 11(b). Otherwise the court may issue a Sanction under Rules 11(c) if it finds that a party has violated 11(b)
This rule does not apply to discovery resquests/responses (Rules 26-37). |
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Term
| What are some Examples of different motions? |
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Definition
1) Motion to dimiss (i.e. statute of limitations)
2) Judgement on the pleadings - no evidence required
3) Motion for Summary Judgment (pleadings plus evidence) (Rules 56)
4) Motion to Change Venue
5) Motion in Limine (to exlcude, include, preclude evidence).
6) Motion for Reconsideration
5) motion to Strike Jury Demand (in all counts or some)
6) Motion for Defaul Judgment (failure of a party to respond to a pleading)
7) Demurrer Motions ("common law" and applicable to state courts and to a "particular" pleading) |
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Term
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Definition
| "Demurrer" means "objection", not "dismiss" |
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Term
When was the dmeurrer abolished?
What replaced the Demurrer?
Where is a Demurrer still ued? |
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Definition
The demurrer was abolished by Rule 7(c) of the FRCP when the FRCP went into
effect in 1938. The demurrer was replaced by the Rule 12(b)(6) Motion to
Dismiss for Failure to State a Claim upon which relief can be granted.
Demurrer still used in CA and VA state courts. |
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Term
| Notice of Motion (What is it?) |
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Definition
| A notice of motion is a legal procedural device for notifying the opposing party that he or she will be requesting a formal determination on an issue pertaining to the current case. The notice must be delivered not only to the proper court, but also served to the opposing party. Generally, it will be regarding procedural issues, such as the admissibility of evidence, but one may also seek the conclusion of a case through dismissal or summary judgment. (from Wisegeek.com) |
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Term
What should accompany certain kinds of motions?
When must always accompany a motion? |
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Definition
When filed and depending on the motion type, it should be accompanied by a memorandum of points and authorities (Memo of law) supported by affidavits or declarations in support thereof (this is always the fact when filing a motion for summary judgment for example)/
You must always attach a proposed order to the motion file for the Court and a certificate of service. |
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Term
What is a motion to dismiss?
What is an example? |
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Definition
A motion to dismiss asks the court to decide/issue an orer that the claim(s), even if true as state, are not the ones for which the law offers a legal remedy.
For example: we would ask the court to dismiss for failure to state a valid claim; the court, however, msut assume the truth of the factual allegations, but at the end, willl decide that the claim states no cause of action under law, upon which relief can be granted. |
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Term
| What happens to motions to dismiss based on the statue of limitations? |
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Definition
- Motions such as the ones based on SOL are subject to dismissal automatically,
no further evidence is required. |
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Term
| How are defenses presented? |
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Definition
Defenses are presented by a pleadings if a responsive pleading is required,
otherwise by filing a Motion to Dismiss (See Rule 12(b) “Defenses”) |
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Term
Judgement on the Pleadings
What is it and is evidence required? |
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Definition
A "judgment" entered after the pleadings have been filed, but before trial (Rule 12(c))
No evidence is required. |
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Term
Under Rule 56, what is a Summary Judgment and when may be used? |
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Definition
| It is a judgment rendered by the court before trial when "There is no dispute as to the material facts of the case and a party is entitle to judgment as a matter of law" |
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Term
| What should you be wary of when filing a motion of Summary Judgment? |
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Definition
| The court must always see the evidence in favor of the non-moving party. |
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Term
| What are the two types of Summary Judgment? |
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Definition
| Full and partial summary Judgment |
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Term
| Under Rule 56, when must a motion to summary judgment be filed? |
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Definition
| It may be filed any time until 30 days of the close of discovery, unless a different time is set. |
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Term
| What are material issues of facts? |
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Definition
“Material issues of fact" refers to any facts that could allow a fact-finder to
decide against the moving party |
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Term
What happens if full sj is granted?
What happens if partial SJ is granted? |
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Definition
If full SJ is granted, then there is no trial
If partial SJ s granted, then the trial will go for still disputed facts |
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Term
| Can SJ be issued about liability but then a trial takes place to determine damages? |
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Definition
Yes, a judge may grant summary judgment regarding liability, but still hold a
trial to determine damages only. |
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Term
| What is a motion in limine? |
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Definition
| A motion in limine is filed by a party to a lawsuit which asks the court for an order limiting or preventing certain evidence from being presented at the trial by the opposing party. |
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Term
When is a motion in limine normally filed?
What is its purpose? |
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Definition
| Normally it is filed in advance of the tirla, but it can be raised during trial before the evidence in question is offered. The purpose of this motion is to prevent evidence which is irrelevant, inadmissible or prejudical. |
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Term
| What are the three kinds of motions in limine? |
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Definition
| to Include, to preclude or to exclude evidence or something at trial. |
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Term
| Inclusionary motion in limine |
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Definition
a motion asking the court to have evidence included in the
trial. |
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Term
| Exlcusionary motion in limine |
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Definition
a motion asking the court to have evidence excluded in the
trial. |
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Term
| Preclusionary motion in limine |
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Definition
a motion asking the court to have evidence precluded in the
trial |
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Term
| When will evidence be precluded at trial? |
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Definition
“..where the probative value of the evidence is “substantially outweighed by the
probability that the admission will (a) necessitate the undue consumption of time,
or (b) create
substantial danger of undue prejudice, of confusing the issues, or of misleading
the jury.”
(See Evid. Code, § 352.) |
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Definition
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