Pre-trial Motions Practice

Motions

A motion is a way to ask the court for certain action. The party will “move” the court for an order or other action. Motion practice is a substantial part of litigation. A timely, persuasive, and thorough motion can cause an entire count to be stricken from the complaint, can cause an entire case to be dismissed before it gets started, or can even cause judgment to be rendered on either whole or part of the case without a jury or judge hearing a single witness' testimony.

The ways in which, and when, motions must be presented, are governed by rules specific to the jurisdiction in which the case is pending. Unless the motion concerns something administrative, such as a motion for a continuance or rescheduling of discovery, a memorandum of law must accompany most motions, especially those concerning legal questions or the application of law to the facts of the case. Also, it is essential to review the local rules of the court to determine whether additional requirements are imposed, such as paper dimensions, margin size, format, page limitations, etc. Some courts also require a special backing paper onto which all filings must be attached.

This subchapter concerns usual pretrial motions, such as motions to dismiss and motions for summary judgment, but will not deal with discovery motions.

Motions look like pleadings in that they usually begin with the name of the court, followed by the caption, the title of the motion, the body of the motion, the “wherefore” clause (i.e., the relief requested), and the attorney’s signature. For example:

Most, if not all, motions must be accompanied by a certification by the movant’s attorney. The certification, sometimes called a certification page (although some jurisdictions do not require a separate page), certifies to the court that the movant has sent a copy of the motion and supporting documents to opposing counsel. For example:

Some jurisdictions hold that a motion unaccompanied by a certification must be denied.

All motions must be served within a specific time period, as designated by the rules of the jurisdiction in which the case is pending. For example, under the federal rules (Rule 6(d)), every party must be served with all motions and supporting documents at least five days before the date of the hearing.

Motion to Dismiss

As discussed in previous chapters, a party may move to dismiss the case for various reasons, including 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, and failure to join a necessary party.

“The very purpose of Fed.R.Civ.P. 12(b)(6) ‘is to enable defendants to challenge the legal sufficiency of complaints without subjecting themselves to discovery.’ ” -Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 566 (6th Cir., 2003).

Most jurisdictions, including the federal rules, require that all of the above grounds for dismissal that a party wants to raise be raised in one motion to dismiss. The rationale behind this is that otherwise, the complaint (or counterclaim or crossclaim) would be contested numerous times on numerous grounds, thereby delaying the case and causing the judicial system to be more inefficient. The exception to this rule is that motions to dismiss for lack of subject matter jurisdiction may be raised at any time, even if another motion to dismiss has been previously addressed.

Also as explained in previous chapters, some grounds that are normally raised in a motion to dismiss are waived if not raised within the requisite time. For example, lack of personal jurisdiction, improper venue, insufficiency of process and insufficiency of service of process are waived if not objected to or contested (by motion to dismiss or within the answer) within the time required by the particular jurisdiction. Under the federal rules, this time is usually 20 days after being served with the summons and complaint. Failure to join a necessary party or failure to state a claim upon which relief can be granted may be raised in the answer or may be raised by a motion for judgment on the pleadings, or may be raised during trial. Lack of subject matter jurisdiction is never waivable.

By filing a motion to dismiss for failure to state a claim upon which relief can be granted means, the moving party is asking the court to dismiss the complaint because the allegations contained within the complaint do not form any legally cognizable claim. In other words, the movant is asserting that even if all the plaintiff's claims were true, there is no relief that the court would be empowered to grant to the plaintiff. For example:

Mary sues Todd in federal court. In the one count complaint, Mary makes the following pertinent allegations:

1. The defendant owns the property directly adjacent to the plaintiff’s property.
2. A limb on the tree on the defendant’s property overhang’s the plaintiff’s property.
3. The limb fell on the plaintiff’s property.

Wherefore, the plaintiff requests damages.

Todd moves to dismiss the complaint on the ground that the complaint does not set forth a cause of action upon which relief can be granted. The state in which Mary has brought her action has laws that preclude any recovery for a fallen tree limb, unless the owner of the tree has prior knowledge that the limb is in danger of falling. Because Mary has not alleged that Todd knew that the limb was in danger of falling (whether or not it actually was in danger of falling is not determinative – Todd’s knowledge is the important factor here), Mary has not set forth a claim upon which relief can be granted, and the motion to dismiss must be granted.

See Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 77 (3d Cir. 2003):

“if an aspect of a claim concerns the merits, on a Rule 12(b)(6) motion to dismiss for failure to state a claim a court must accept the complaint's allegations as true . . . .” (citations omitted).

Some jurisdictions also hold that if the non-moving party does not timely respond or object to the motion to dismiss, the motion will be granted.

Motion to Strike

A motion to strike, under the federal rules, asks the court to order a party to remove from any pleading

“any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” -FRCP 12(f).

Some jurisdictions define a motion to strike as a motion to dismiss for failure to state a claim upon which relief can be granted.

For example, in the example above about Mary’s complaint against Todd for the fallen tree limb, if paragraph #8 stated, “The defendant’s automobile is red,” Todd could move to strike paragraph 8 because whether Todd’s car is red or blue or magenta with lime green dots is immaterial to the underlying action. 

Motion for A More Definite Statement

Under FRCP 12(e), if a pleading to which a party may respond is too vague or ambiguous, so that the responding party could not reasonably be expected to respond, the responding party may move for a more definite statement. A motion for a more definite statement asks the court to order the pleading party to revise the pleading so that the responding party may reasonably be given a chance to respond. The motion must point out the defects in the pleading that have caused the moving party to be unable to respond, and ask for specific details that are needed. For example:

John files an action against Bill in federal court. The only pertinent allegations contained in the complaint state: “9. The defendant’s vehicle struck the plaintiff’s vehicle in an intersection in the state of Texarkana. 10. The plaintiff has been injured as a result of the collision.” A court is likely to grant John’s motion for a more definite statement because the allegations are too vague to allow John to reasonably respond. John may ask, in his motion, for the date of the alleged collision and the exact intersection at which the alleged collision occurred. In such a case, the court is likely to order the plaintiff to supply those details.

See Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 132 (5th Cir. 1959).

Some jurisdictions do not allow motions specifically asking for more definite statements. Those jurisdictions often have some sort of alternative, such as a provision that allows a party to move for an order compelling the pleading party to revise the complaint so that the moving party can reasonably respond.

Motion for Summary Judgment

A motion for summary judgment asks the court to decide, based on the pleadings, depositions, answers to interrogatories, admissions, and any affidavits or other evidence on file, whether the movant is entitled to judgment in its favor. Such a motion can be made and granted even before the case is tried. Parties may also move for summary judgment after the case is tried, but before the case goes to the jury for deliberations. Whether a party moves for summary judgment before or after trial, the concepts and procedures are essentially the same.

In most, if not all jurisdictions, summary judgment is only available when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. The rationale behind this rule is that if the parties don’t dispute the material facts of the case, then the judge can determine whether the defendant is liable. For example:

John and Bill are involved in an automobile collision. John commences a civil action in the state of Texarkana against Bill to recover damages for injuries John sustained as a result of the collision. Both John and Bill stipulate that because Bill did not stop at a stop sign, he entered the intersection and struck John’s vehicle as it was crossing the intersection in the direction perpendicular to Bill. Texarkana’s laws specify that anyone who does not stop at a stop sign is strictly liable for any injuries that occur as a result. John moves for summary judgment on the ground that there are no genuine issues of material fact and he is entitled to judgment as a matter of law. Bill opposes summary judgment and argues that because he does not have a driver’s license, he cannot be liable. In Texarkana, liability is not precluded by lack of a driver’s license. The judge will grant John’s motion for summary judgment because, as there is no question as to what occurred, and under the facts, John is entitled to recover, John is entitled to judgment as a matter of law.

Where, however, the facts are not completely clear, summary judgment is inappropriate. In the example above, if the parties did not stipulate to the fact that Bill had not stopped at the stop sign, and Bill claimed that he had stopped at the stop sign, then a material fact is still in issue. If a material fact is still in issue, i.e., there is still a question about a fact that could either establish or negate liability, then summary judgment is inappropriate. Summary judgment is inappropriate in such circumstances because it asks the judge to become the trier of fact and decide whose versions of the facts are correct before any witnesses are even examined. The role of trying facts (i.e., that of determining which party's version of event is the truth), is left to the trial and, in a jury trial, to the jury.

Whether there is a genuine issue of material fact that is still in doubt is often far from clear. A material fact, as stated above, is a fact that could either establish or negate liability. A genuine issue of material fact means that there is a dispute about a material fact. Note that the fact in dispute must be material for summary judgment to be inappropriate. Just because there is a fact in dispute does not mean that summary judgment cannot be granted. For example:

Assume that, in the scenario above, both parties stipulate that because Bill did not stop at a stop sign, he entered the intersection and struck John’s vehicle as it was crossing the intersection in the direction perpendicular to Bill. John moves for summary judgment on the ground that there are no genuine issues of material fact and he is entitled to judgment as a matter of law. Bill opposes summary judgment and argues that John alleged that Bill’s car is blue, and Bill claims that his car is green. Thus, Bill argues, there is a dispute over a genuine issue of material fact. Because the color of the car is irrelevant to the merits of the case, and because Bill admitted striking John’s car, no genuine issue of material fact exists, and John is entitled to judgment as a matter of law.

See St. David's Health Care System v. U.S., 349 F.3d 232 (5th Cir. 2003).

Motion for Judgment on the Pleadings

A motion for judgment on the pleadings is very similar to summary judgment in that it asks the court for an order of judgment determining liability of lack thereof. A motion for judgment on the pleadings will occur before the trial and, unlike a motion for summary judgment, does not concern any matters other than what is contained within the pleadings. In other words, the moving and responding parties will not submit any affidavits or discovery documents with or in response to the motion. If the parties present any matters outside the pleadings, the motion will usually be treated as one for summary judgment. See E.E.O.C. v. W.H. Braum, Inc., 347 F.3d 1192, 1195 (10th Cir. 2003).