Motions (in general)

1
Motions (in general)

• A motion is a request for some type of relief
  from a judge it seeks an order from the judge.
• Basic requirements for a motion (Rule 7)
• Must be in writing unless made at a hearing
• A statement of what relief youre seeking
• Should have the same caption as the complaint
• Grounds for the motion must be stated with
  particularity
• Must eb signed by the attorney and have contact
  info
• A separate memorandum of law can be attached,
  explaining the law behind the request and why it
  should be granted by the court
• Appropriate affidavits and/or exhibits can be
  attached

2
Motion to Dismiss

• Before the answer is filed, this can be based on
• A 12(b) defense
• Lack of subject matter jurisdiction
• Lack of personal jurisdiction
• Improper Venue
• Insufficiency of process
• Insufficiency of service of process
• Failure to state a claim upon which relief can be
  granted
• Also sometimes called a demurrer
• Failure to join a necessary party
• An affirmative defense
• Unlikely to be granted because affirmative
  defenses are questions of fact for trial
• Many of these are waived if not raised before the
  answer

3
Filing the Motion

• Remember that for a motion in response to a
  complaint, it must be within 20 days of service
  of process (in the federal system)
• The motion can (and in some courts, must) be
  accompanied by a proposed order for the judge
  to sign
• Judges and clerks like when you decrease their
  work load
• When drafting the motion, you usually leave a
  time for the clerk to fill in at which there will
  be a hearing on the motion before the judge
• The clerk fills in the time and send a copy back
  to you with the time filled in
• Then, you send the motion with the time filled in
  to the other party sending it by certified mail
  is fine.
• You usually must send it to the other party at
  least a certain of days before the oral
  argument hearing

4
Other Types of Motions

• Motion to strike all or part of the pleading
• Because it is defamatory, irrelevant,
  inflammatory, etc.
• Because the other party did not cooperate during
  discovery regarding that point
• Motion for a more definite statement
• Also, in some cases, you can ask for a bill of
  particulars, which specifies facts left vague in
  the complaint
• Removal from state court to federal court
• This can be done as long as the federal court has
  jurisdiction
• This is done by filing a notice of removal with
  the federal district court to where you want to
  bring the case
• Change venue

5
Drafting the Answer General Points

• Be aware of time limits and make sure to observe
  them
• Structure
• Be clear and concise, like the complaint
• Use numbered paragraphs and use separate numbers
  for each idea
• Avoid irrelevant or inflammatory language
• Dont reveal any more facts than necessary
• Dont present evidence or draw conclusions of
  fact or law
• Be truthful and not frivolous
• If youre not sure about an allegation, state
  that you dont have sufficient information upon
  which to form a belief rather than an outright
  denial
• State separate defenses in separate sections

6
How to Organize an Answer

• For each paragraph of the complaint, state
  whether you
• Admit the paragraph
• Deny the paragraph
• Deny sufficient information upon which to form a
  belief
• You can also admit in part and deny in part e.g.
• Paragraph 3 is admitted except insofar as
  defendant denies sufficient information upon
  which to form a belief as to whether Plaintiff
  works as a center fielder for the Yankees.
• Leave to proof
• Deny upon information and belief (youre not
  sure)
• Refuse to respond because you think the statement
  improperly cites a conclusion of law or is not
  applicable
• Number your paragraphs the same as the
  plaintiffs complaint so as to avoid confusion
• Dont use argumentative denials.
• i.e., dont explain why youre denying it just
  deny it

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Other things to Put in an Answer 1

• Affirmative Defenses
• Make a separate section for each of these they
  should be drafted and alleged similar to causes
  of action
• Make sure you insert all of these that might be
  applicable, as failure to bring one up might
  waive it.
• Use the descriptive term for your defense
• E.g., The plaintiff failed to bring the action
  within the appropriate statute of limitations.
  rather than The plaintiff waited too long to
  bring the lawsuit.
• Relief (wherefore) clause. You can ask
• That the complaint be dismissed
• Sanctions or costs against the plaintiff
• Such further relief as the court deems just and
  proper

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Other things to Put in an Answer 2

• Counterclaims
• This should be alleged in the same manner as a
  complaint
• Use separate paragraphs for every cause of action
• Make sure to incorporate the relief you want in
  your wherefore clause
• Cross-claims
• This is alleging a cause of action against a
  co-defendant
• Certification by attorney
• Verification affidavit signed by the defendant
• This is just like with the complaint
• The answer can be served by mail (it does not
  require personal service). Certified mail is best.

9
Adding and Amending Pleadings

• Third Party Practice
• An impleader complaint brings a new party into
  the lawsuit. The third party complaint (usually
  filed by a defendant against a third party) is
  drafted similarly to an initial complaint. Keep
  in mind
• The court must have personal jurisdiction over
  the third party
• Service must be made on the third party as on the
  defendant (with a summons, etc.)
• Amending the pleading
• You might want to do this to add an affirmative
  defense, change an admission to a denial, etc.
• This must be done my motion to the court for
  permission
• Permission will be given if its within a certain
  period of time and/or if the amendment wont
  prejudice the other side

10
Post-Pleading Motions

• Judgment on the Pleadings
• If, based on the pleadings, one side or the other
  is entitled to judgment as a matter of law, that
  can be granted now
• Summary Judgment
• This is done with evidentiary submission from
  each side under Rule 56 (of the FRCP).
• The motion will only be granted if, based on the
  evidence submitted, the judge can rule that
• there is no triable issue of fact and
• that no reasonable trier of fact can find for one
  side or the other, even when viewing the evidence
  in the light most favorable to that party
• In general, motions have their own time limits,
  which you must observe. When in doubt, call the
  clerk!