Civil Litigation

Chapter 9

Motion Practice

Purpose of Motions

• Motions are used to request the court to act upon an issue in a case

Timing of Motions

• Pre-trial Includes Discovery Motions

• Trial• Post-trial

Components of Motion

• Notice of Motion• Supporting Affidavit• Supporting Exhibits• Certification of Service• Proposed Order

Notice of Motion

Supporting Affidavit

Supporting Exhibit

Certification of Service

• Document to certify that the motion package has been served on the adversary

Proposed Order

• A motion seeks the court to act• The court generally acts by issuing an

order• The proposed order is drafted so the

judge can rule on the motion and sign the order that was submitted with it

Benefits of Proposed Order

• Speed; that is, upon a decision, the order can be signed immediately

• Clarity; that is, this order describes what is sought by the moving party

Motions to Dismiss

• Rather than file an Answer some litigants may rely upon a motion to dismiss the litigation

• Motion to Dismiss suggests plaintiff’s complaint is fundamentally flawed

Responses to Motion to Dismiss

• Reply and contest basis for motion to dismiss

• Some flaws in the Complaint may be satisfied by filing an Amended Complaint with the “missing” information now included

Motion for Judgment on the Pleadings

• At the close of pleadings• May be file by either plaintiff or

defendant• Seeks dismissal, while assuming all

facts as plead are true• Asserts there is a fundamental legal

flaw in opponent’s cause of action

Motion for Entry of Default Judgment

• Failure to answer within time, may result in the entry of default

• In federal court, entry of default prevents other side from filing answer

• If damages not readily assessed, plaintiff must move before the court to determine damage amount

Motion to Vacate Default

• This motion seeks to reopen a default judgment

• Usually requires a good reason for the failure to answer

• Many jurisdictions will also require that the defaulted party has a valid defense to the complaint

Motion for Request for Extension of Time to Answer

• When agreement from plaintiff is not able to be obtained

• This motion seeks more time from the court to answer the complaint

Discovery Motions I

• During the discovery process, many motions may be used to either compel compliance or protect a party from harassment or unduly burdensome requests

Discovery Motions II

• When a party has failed to answer or satisfactorily answer a discover request, a Motion to Compel is often used

• Many jurisdictions require counsel to confer in effort to avoid filing discovery motions

Discovery Motions III

• A party receiving a discovery request will sometimes seek court’s protection from some requests

• Usually requires a showing that the request is unduly burdensome

Protective Order

• Party seeking protection from a discovery request will seek a protective order

• Protective order will determine limits of the need to respond to discovery request

Pre-Trial Motion

• Motion for Summary Judgment

Motion for Summary Judgment I

• Seeks dismissal as there is no serious factual dispute

• No need for a finding of fact, just decision on the law

Motion for Summary Judgment II

• Differs from earlier motion to dismiss• This motion relies on pleadings,

discovery responses, affidavits• Judgment can be granted on a partial

basis; that is, may not resolve all counts, but only some

Motion for Summary Judgment III

• Summary judgment motion may be defeated if, in response to the motion, the adversary is able to show there is a material factual dispute

• This material factual dispute has to be resolved at a trial

Motions During Trial

• Motions during trial are not always anticipated and unlike most other motions will be oral

Motion to Mold Verdict

• Occasionally a decision will require the intervention of the court to shape the decision to the facts of the case

• In a case of comparative negligence, the court may have to mold the verdict to reflect the dollar amount of a verdict based on the liability determined

Judgment N.O.V.

• Also known as a Motion for a Judgment As a Matter of Law

• This is a rare motion that asks the judge to set aside a verdict of a jury

Motion for a New Trial

• Seeks new trial based on errors during trial

• Usually made to the judge that heard the case

• Usually made shortly after decision• Usually a requirement to file an appeal