Motions (in general)
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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):
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Must be in writing unless made at a hearing
A statement of what relief you’re 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
Advanced Civil Litigation Class 7
Slide 1
Motion to Dismiss
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Before the answer is filed, this can be based on:
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A 12(b) defense
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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
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Failure to join a “necessary party”
An affirmative defense
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Also sometimes called a “demurrer”
Unlikely to be granted because affirmative defenses are
questions of “fact” for trial
Many of these are waived if not raised before the answer
Advanced Civil Litigation Class 7
Slide 2
Filing the Motion
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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
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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
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Judges and clerks like when you decrease their work load
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.
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You usually must send it to the other party at least a certain #
of days before the oral argument hearing
Advanced Civil Litigation Class 7
Slide 3
Other Types of Motions
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Motion to strike all or part of the pleading
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Motion for a more definite statement
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Because it is defamatory, irrelevant, inflammatory, etc.
Because the other party did not cooperate during
discovery regarding that point
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
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This can be done as long as the federal court has
jurisdiction
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This is done by filing a “notice” of removal with the federal
district court to where you want to bring the case
Change venue
Advanced Civil Litigation Class 7
Slide 4
Drafting the Answer – General Points
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Be aware of time limits and make sure to observe them
Structure:
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Be clear and concise, like the complaint
Use numbered paragraphs; and use separate numbers for
each idea
Avoid irrelevant or inflammatory language
Don’t reveal any more facts than necessary
Don’t present evidence or draw conclusions of fact or law
Be truthful and not frivolous
If you’re not sure about an allegation, state that you don’t
have sufficient information upon which to form a belief
rather than an outright denial
State separate defenses in separate sections
Advanced Civil Litigation Class 7
Slide 5
How to Organize an Answer
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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.
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“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 (you’re 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 plaintiff’s complaint so as
to avoid confusion
Don’t use “argumentative denials.”
 i.e., don’t explain why you’re denying it; just deny it
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Advanced Civil Litigation Class 7
Slide 6
Other things to Put in an Answer 1
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Affirmative Defenses
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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
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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:
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That the complaint be dismissed
Sanctions or costs against the plaintiff
“Such further relief as the court deems just and proper”
Advanced Civil Litigation Class 7
Slide 7
Other things to Put in an Answer 2
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Counterclaims
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Cross-claims
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This is alleging a cause of action against a co-defendant
Certification by attorney
Verification affidavit signed by the defendant
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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
This is just like with the complaint
The answer can be served by mail (it does not require
personal service). Certified mail is best.
Advanced Civil Litigation Class 7
Slide 8
Adding and Amending Pleadings
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Third Party Practice
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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:
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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
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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
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Permission will be given if it’s within a certain period of time
and/or if the amendment won’t prejudice the other side
Advanced Civil Litigation Class 7
Slide 9
Post-Pleading Motions
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Judgment on the Pleadings
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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
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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:
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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!
Advanced Civil Litigation Class 7
Slide 10