Motion Practice
Motions Generally
Motions must be written, filed in court, and served on the opposing attorneys.
This requirement ensures all parties are adequately informed of the request being made to the court and have an opportunity to respond. Proper service is critical for due process.
Exception: Motions made orally in open court during a proceeding, such as during a trial or hearing, when the opposing party is present and has an immediate opportunity to respond. However, even oral motions often require some form of follow-up documentation.
Often, motions are followed by a brief court hearing.
During these hearings, attorneys for both the movant and opposing party present arguments to the judge, who then typically makes a ruling on the motion.
The purpose is to allow the court to hear arguments, clarify issues, and render a decision.
Motions are not considered to be pleadings.
While they resemble pleadings in appearance and structure, and follow many of the same formalities (e.g., captions, signature blocks), their function is different.
Pleadings (like complaints and answers) define the claims and defenses in a lawsuit, forming the foundation of the case.
Motions, on the other hand, are requests made to the court for a specific order or action during the course of litigation that address procedural or substantive issues, but do not themselves establish the core allegations or defenses of the case.
Preparing, Serving and Responding
Movant: The movant is the party initiating the request to the court (the "moving party"). This individual or entity is responsible for drafting, filing, and serving the motion and all supporting documents in accordance with court rules and applicable statutes.
Documents included in a motion typically comprise:
Motion: This is the core document that explicitly states the request being made to the court and the specific relief sought. It must clearly articulate the legal and factual grounds upon which the request is based.
Notice of Hearing on the Motion: This document informs all other parties involved in the case about the date, time, and location when the motion will be heard by the judge. It ensures that opposing parties have ample opportunity to prepare a response and appear in court.
Affidavits in Support of the Motion: Affidavits are sworn written statements of facts made under oath or affirmation, signed by the affiant, and notarized. They provide factual evidence to support the claims made in the motion.
In some jurisdictions, declarations are used instead of affidavits. A declaration serves the same purpose but is a written statement made under penalty of perjury, often without the need for notarization, as permitted by statute (e.g., 28 U.S.C.
1746).
Memorandum in Support (or Points and Authorities): This crucial legal brief provides the argumentative framework for the motion. It outlines the legal principles, statutes, rules, and precedents (case law) that justify the court granting the movant's request. It analytically applies the relevant law to the facts presented in the motion and supporting affidavits.
Format for drafting an affidavit (or declaration):
Written in the first person: The affiant speaks directly from their own perspective, enhancing the credibility and directness of the factual statements.
First paragraph describes the affiant: This section identifies the person making the statement, clarifying their name, address, occupation, and their relationship to the case (e.g., a party, a witness, or an attorney with personal knowledge of the facts).
State whether affidavit is made in support of or in opposition to the motion: This explicitly declares the purpose of the affidavit, making its intent clear to the court and all parties.
State the facts supporting or opposing the motion: This is the main body where factual statements are presented in numbered paragraphs. Each statement should be limited to facts of which the affiant has personal knowledge, avoiding legal conclusions or arguments. The facts must directly relate to the issues raised in the motion and provide the evidentiary basis for the relief sought.
Affidavit Example
Usually done in the first person
“I Mary S. Peterson, Esq., after being first duly sworn and cautioned state the following:
I am the attorney of record for Kim Possible
I have knowledge about the facts involved in this case
Kim Possible…
Preparing, Serving and Responding (continued)
Service and filing:
Service of motions is similar to service of an answer, typically requiring that a copy of the motion and all supporting documents be delivered to all other parties in the case. This is usually done through methods permitted by court rules, such as mail, personal delivery, or electronic service, to ensure due process.
Proof of service or Certificate of Service: After a motion is served, a document certifying that proper service has been made must be filed with the court. This document, often called a "Proof of Service" or "Certificate of Service," attests to when, how, and on whom the motion was served. It is crucial as it creates a record that all parties were officially notified, preventing claims of lack of notice and ensuring the court can proceed with the motion.
Responding to motions:
Affidavit in opposition: When opposing a motion that is supported by affidavits, the responding party often files their own affidavits. These affidavits present factual statements, sworn under oath, that contradict or refute the facts presented by the movant. They provide the court with the respondent's factual basis for opposing the motion.
Memorandum of points and authorities in opposition to the motion: This is the legal brief filed by the opposing party, much like the movant's memorandum but presenting counter-arguments. It cites legal principles, statutes, rules, and case law that demonstrate why the movant's request should be denied, and applies these laws to the respondent's factual position. It argues against the legal theories advanced by the movant.
Timing: Court rules typically set specific deadlines for responding to motions, usually within a certain number of days after service of the motion (e.g., 14 or 21 days), to allow adequate time for preparation and filing before the hearing.
Meta Data
Understanding Document Metadata: Metadata refers to "data about data." In legal documents, this includes hidden information embedded within files, such as creation dates, modification times, author names, tracked changes, comments, revisions, and even hidden text. This data can reveal sensitive information about the drafting process, internal discussions, and inadvertent disclosures.
Importance of "Scrubbing" Documents: Before electronically transmitting legal documents, it is crucial to "scrub" them to remove this hidden metadata. This process is essential for several reasons:
Protecting Confidentiality: Prevents the disclosure of sensitive client information, attorney-client communications, or work product that was never intended for the opposing party.
Avoiding Inadvertent Disclosure: Ensures that drafts, comments, or prior versions containing strategies or privileged information are not accidentally shared.
Ethical Obligations: Attorneys have an ethical duty to protect client confidentiality and prevent unauthorized access to privileged information.
Preventing Misinterpretation: Metadata could be misinterpreted or used to gain an unfair advantage in litigation.
How to Access and Remove Metadata (e.g., Microsoft Word):
In Microsoft Word, you can typically access document properties and inspect the document by going to "File" then "Info." From there, options like "Check for Issues" > "Inspect Document" allow you to identify and remove various types of metadata (e.g., comments, revisions, hidden text, document properties).
For more thorough scrubbing, especially when dealing with highly sensitive documents, converting the document to a static format like PDF (flattened if necessary) is often recommended, or using specialized metadata removal software.
Preserve Original Documents: Always save an unscrubbed, original version of your document. The scrubbing process can permanently alter or delete certain data, which might be needed for your own records, future amendments, or internal reference, especially if tracked changes or comments are essential to your internal workflow.
Court Procedures Involving Motions
Hearings
Law and Motion: These are regularly scheduled court sessions dedicated to hearing arguments on various motions. Judges typically review filed documents (motions, oppositions, replies) in advance and hear oral arguments from attorneys, often ruling on multiple motions in a single session. This process is designed for judicial efficiency in handling the volume of pretrial procedural matters.
Arrange specific time with judge to hear motion: For particularly complex or lengthy motions, or those requiring extensive evidentiary presentations, parties may need to request a special setting. This involves coordinating with the judge's chambers or the court clerk to schedule a dedicated hearing time outside the general law and motion calendar, allowing more time for detailed arguments and deliberation.
Tentative Rulings/Rulings from the Bench
Tentative Rulings: In many jurisdictions, judges issue tentative rulings before the actual hearing date. These are preliminary decisions based solely on the written submissions. Parties can then choose to accept the tentative ruling or appear at the scheduled hearing to present oral arguments to persuade the judge to change their preliminary decision. If no party requests oral argument, the tentative ruling often becomes the final order.
Rulings from the Bench: After hearing oral arguments, judges may deliver a ruling orally from the bench, immediately following the arguments. This immediate decision provides clarity and moves the litigation forward quickly. Such oral rulings are often followed by a written order or minute order later to memorialize the decision.
Orders after the motions: Following a judge's ruling on a motion, a formal court order is issued. This document legally commands the parties to take certain actions, grants or denies the requested relief, and clarifies the court's decision. Orders are crucial as they are binding and can form the basis for further action (e.g., discovery, trial, appeal). Attorneys often draft proposed orders for the judge's review and signature.
Sanctions:
To discourage frivolous motions: Sanctions are penalties imposed by the court on a party or attorney for engaging in improper conduct during litigation. This includes filing motions that are not well-grounded in fact or law, known as frivolous motions, or motions filed for an improper purpose (such as harassment or delay). The court's authority to impose sanctions, often found in rules like FRCP 11, aims to ensure the integrity of the judicial process, deter abuses, and compensate opposing parties for expenses incurred due to such conduct.
Specific Motions
Pretrial Motions
Motion to Dismiss - FRCP 12(b)(6): This motion is filed by a defendant to ask the court to dismiss a plaintiff's complaint because it fails "to state a claim upon which relief can be granted." This means that even if all the factual allegations in the complaint are taken as true, they do not establish a legally recognized cause of action or entitle the plaintiff to any legal remedy. The court does not consider evidence outside the four corners of the complaint when ruling on this motion; it only assesses the legal sufficiency of the pleading.
Motion for a More Definite Statement - FRCP 12(e): A party may move for a more definite statement when a pleading to which a responsive pleading is required is so vague or ambiguous that the party cannot reasonably prepare a response. This motion is not for clarifying minor details but for addressing fundamental unclarity, and it is usually disfavored because discovery is the primary tool for uncovering information.
Motion to Strike - FRCP 12(f): This motion asks the court to order the removal of certain matter from a pleading. It can be used to strike any "insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter." Its purpose is to clean up the pleadings and avoid the introduction of irrelevant or prejudicial material at trial, thereby streamlining the litigation process.
Motion to Amend - FRCP 15: This motion seeks the court's permission to modify a pleading (such as a complaint or an answer) after it has been filed. Under FRCP 15(a), leave to amend is typically granted freely "when justice so requires," especially in the early stages of litigation, to ensure that cases are decided on their merits rather than on technical pleading deficiencies. Common reasons for amendment include adding new claims, defenses, parties, or correcting factual errors.
Motion for Judgment on the Pleadings - FRCP 12(c): This motion is made after the pleadings are closed (i.e., after the complaint and answer have been filed) but early enough not to delay trial. It asserts that, based solely on the factual allegations contained within the pleadings (without considering outside evidence), one party is entitled to judgment as a matter of law. It's often used when there are no material facts in dispute and the only issues are legal interpretations.
Motion for Change of Venue - FRCP 12(b)(3): This motion requests the court to transfer the case from the currently chosen court to a different judicial district. Grounds for such a motion typically include improper venue (meaning the lawsuit was filed in a court that is not the statutorily correct geographical location), or, under 28 U.S.C. 1404(a), for the convenience of parties and witnesses and in the interest of justice, even if the original venue was proper.
Motion to Quash Return of Service - FRCP 4 & 12: A motion to quash challenges the validity of the service of process. If granted, it means the plaintiff did not properly notify the defendant of the lawsuit, and as a result, the court does not have personal jurisdiction over the defendant. Common grounds include improper delivery of the summons and complaint or serving the wrong person. It does not dismiss the case itself but typically allows the plaintiff to re-serve the defendant properly.
Discovery Motions:
Motion to Compel - FRCP 37(3)(b): This motion is filed when a party fails to adequately respond to discovery requests (such as interrogatories, requests for production of documents, or requests for admission), or when a deponent fails to answer questions during a deposition. It asks the court to order the non-compliant party to provide the requested discovery. If the motion is granted, the court may award attorneys' fees and costs against the non-compliant party. Continued non-compliance can lead to more severe sanctions.
Motion for a Protective Order - FRCP 37: A party or person from whom discovery is sought may file this motion to protect themselves from unreasonable annoyance, embarrassment, oppression, or undue burden or expense. The court can issue an order specifying the terms and conditions for discovery, such as limiting the scope or methods of discovery, protecting trade secrets, or requiring that discovery be conducted in a particular manner or at a particular time.
Motion for Summary Judgment - FRCP 56: This is a powerful pretrial motion requesting the court to rule in favor of a party without a full trial. It argues that there is "no genuine dispute as to any material fact" and that the movant is "entitled to judgment as a matter of law." The court reviews evidence (affidavits, depositions, discovery responses) to determine if a trial is truly necessary. If granted, the case (or parts of it) is resolved without proceeding to trial.
Motion for Sanctions - FRCP 11: This motion requests the court to impose penalties (sanctions) on a party or attorney for violating rules of court, particularly for making baseless factual or legal contentions, or for filing pleadings, motions, or other papers for an improper purpose (such as harassment, unnecessary delay, or increasing the cost of litigation). Sanctions can range from monetary fines to dismissal of a case or striking of a pleading.
Trial Motions:
Motion in Limine - FR of Evidence: "In limine" means "at the threshold." This motion is typically made before or during the early stages of trial to obtain a ruling on the admissibility of certain evidence, testimony, or legal arguments. Its purpose is to prevent the introduction of potentially prejudicial or irrelevant information to the jury, thus streamlining the trial and ensuring fairness. A favorable ruling can prevent an opponent from mentioning certain topics during voir dire or opening statements.
Motion for Judgment as a Matter of Law - FRCP 50: This motion can be made during a jury trial after a party has presented its case (or after all evidence is in). It argues that no reasonable jury could find for the non-moving party based on the evidence presented, and thus, the judge should rule directly without sending the case to the jury. If granted, the judge essentially takes the case away from the jury because the evidence is legally insufficient to support a verdict for the opposing party. This motion effectively combines the former motions for a directed verdict and judgment notwithstanding the verdict into a unified procedure.
Motion for a Directed Verdict - FRCP 50: Historically, this motion was made before the case was submitted to the jury, asking the judge to enter a verdict because the other side had failed to present sufficient evidence to sustain a cause of action or a defense. While the terminology has largely been replaced by the "Motion for Judgment as a Matter of Law" under FRCP 50, the underlying concept remains the same: a request for the judge to rule without jury deliberation due to insufficient evidence.
Post-trial Motions
Motion for Judgment as a Matter of Law - FRCP 50 (Renewed Motion): This motion, often referred to as a "renewed motion for judgment as a matter of law," is made after a jury has returned a verdict. A party must have previously made a motion for judgment as a matter of law before the case was submitted to the jury. This renewed motion asks the judge to set aside the jury's verdict and enter judgment for the movant, arguing that the evidence was legally insufficient to support the jury's finding.
Motion for Judgment Notwithstanding the Verdict (JNOV) - FRCP 50: This was the traditional term for what is now commonly called a "renewed motion for judgment as a matter of law." It was made after a jury verdict and asked the judge to overturn the jury's decision if no reasonable jury could have reached that verdict based on the evidence. Although the terminology has changed, the substance of the motion to set aside a jury verdict for lack of evidentiary support remains the same under FRCP 50.
Motion for New Trial - FRCP 59: This motion asks the court to set aside the jury's verdict (or the court's judgment in a bench trial) and order a new trial. Grounds for a new trial can be varied, including judicial error (e.g., incorrect jury instructions, improper exclusion of evidence), juror misconduct, newly discovered evidence, or if the verdict is against the manifest weight of the evidence. The court has broad discretion in granting a new trial to prevent a miscarriage of justice.
Motion to Tax Costs - FRCP 54: After a judgment is entered, the prevailing party can file this motion to recover certain litigation expenses from the losing party. "Costs" typically include items like filing fees, witness fees, deposition transcript costs, and photocopying expenses, but generally do not include attorneys' fees unless specifically provided by statute or contract. The court determines which costs are recoverable and in what amount.
Motions for Relief from Judgment or Order - FRCP 60: This motion allows a party to seek relief from a final judgment or order under specific, limited circumstances, often to correct errors or prevent manifest injustice. Common grounds include: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that could not have been discovered in time to move for a new trial; (3) fraud, misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; or (6) any other reason that justifies relief. It is generally intended to address problems that arise after the judgment is final.
Preliminary Injunctions and Temporary Restraining Orders
A request for a preliminary injunction closely resembles a formal noticed motion.
What it is: A preliminary injunction is a court order issued early in litigation, before trial, that compels or forbids a party from performing certain actions. Its purpose is to preserve the status quo and prevent irreparable harm to the moving party until a full trial on the merits can be held.
Requirements for Issuance: To obtain a preliminary injunction, the movant typically must demonstrate:
A substantial likelihood of success on the merits of the underlying claim.
That they will suffer irreparable harm if the injunction is not issued (harm that cannot be adequately compensated by money damages).
That the balance of equities (the harm to the movant if the injunction is denied versus the harm to the opposing party if it is granted) tips in their favor.
That the injunction is in the public interest.
Notice Requirement: Unlike an ex parte Temporary Restraining Order, a preliminary injunction generally requires notice to the opposing party and an opportunity for them to be heard before it can be issued. This ensures due process.
Security: Under FRCP 65(c), the court may require the applicant to give security (a bond or other undertaking) in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.
After a complaint is filed, the party files papers in court requiring a preliminary injunction.
Supporting Documents:
Affidavit: Sworn statements of facts from individuals with personal knowledge. These affidavits provide factual evidence to support the claims of irreparable harm, likelihood of success, and other elements required for the injunction.
Verified complaint: If the complaint itself is verified (meaning the plaintiff has sworn under oath to the truthfulness of its factual allegations), it can sometimes serve the same evidentiary purpose as a separate affidavit.
Memorandum of points and authorities: This legal brief outlines the legal arguments, statutes, rules, and case law that justify the court granting the preliminary injunction, applying the law to the facts presented in the affidavits/verified complaint.
Temporary Restraining Order (TRO)
FRCP 65: Specifically, FRCP 65(b) governs Temporary Restraining Orders.
Conditions for Granting: Granted only when a court finds that some immediate and irreparable harm will result without it, and that the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required. This extreme measure is reserved for true emergencies.
Ex Parte Nature: Resembles an ex parte motion (meaning it can be granted without prior notice to the opposing party) under very narrow circumstances as specified in FRCP 65(b)(1). This is permissible only if the movant can clearly show that immediate and irreparable injury, loss, or damage will result before the adverse party can be heard in opposition.
Purpose and Duration: Usually precedes a Preliminary Injunction. A TRO is a very short-term emergency measure, typically limited to a maximum of 14 days (unless extended for good cause for another 14 days) by FRCP 65(b)(2). It is designed to preserve the status quo until a hearing for a preliminary injunction can be held.
Security: Similar to preliminary injunctions, FRCP 65(c) also generally requires the applicant for a TRO to give security for the payment of costs and damages incurred by an wrongfully enjoined party.