Motions

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P. 14-15?? Bar Notes
federal civil procedure

I. PRETRIAL ADJUDICATION
(when you get result / judgement even though you didn’t have proper trial)

A. Voluntary Dismissals

1. Sometimes a claimant wants to stop litigating her claim, either because she thinks it has
no merit, because it is too expensive or arduous to litigate, or because the defendant has
offered to settle the claim. The rules below define when voluntary dismissal is available and
what effect it may have on future litigation.

2. Dismissal Options

a. Option 1: A claimant can unilaterally dismiss her suit simply by filing a notice of
dismissal:
anytime before the D has filed an answer or motion for summ judg

b. Option 2: If a claimant cannot unilaterally dismiss (or simply chooses not to), she can
dismiss her claim by filing a stipulation of dismissal signed by all parties. This is what
typically happens when a case settles.

c. Option 3: If a claimant cannot dismiss under options 1 or 2 (or chooses not to), she can
dismiss only with the permission of the court. Generally, a court will grant permission,
but if the defendant has filed a counterclaim, the court will not allow dismissal unless:
the counterclaim can remain pending for independent adjudicticatiion

3. Prejudice on Future Litigation

a. May the plaintiff, after dismissing her claim, re-litigate it? The plaintiff’s ability to
re-litigate will depend on whether the claim was dismissed “with prejudice” or “without
prejudice.”

b. First, if the notice, stipulation, or court order specifies that the dismissal is with or
without prejudice, the plaintiff is bound by that specification.

c. Second, if the notice or stipulation does not address the issue, the dismissal is
presumed to be without prejudice for the first dismissal. Subsequent dismissals are
presumed to be with prejudice.
EXAMPLE: P sues D and has him served with process the same day. Before filing
anything with the court, D calls P and apologizes for the harm he has caused her. P
decides to file a notice of dismissal but does not specify in the dismissal whether the
dismissal is with or without prejudice. P’s dismissal is permissible.
EXAMPLE: After P dismissed her suit, D changed his tune. He retracted his apology
and bragged to his friends how he tricked P into dismissing her suit. P re-filed her
suit, but D argued that her new suit is barred by claim preclusion (a doctrine barring
re-litigation of claims that we will discuss later). D’s argument will fail because P’s
voluntary dismissal, owing to its silence on the issue of prejudice, is presumed to be
without prejudice.
EXAMPLE: In this second lawsuit, D filed an answer, and the case proceeded through
discovery. P was disappointed in the facts she was able to discover and did not

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want to put any more effort into the suit. She asks D to sign a stipulation of dismissal
dismissing the suit without prejudice, but D refuses to sign it. She therefore asks the
court to dismiss the suit. The court obliges, but does not specify in its order whether the
dismissal is with or without prejudice. This dismissal is presumed to be with prejudice
because it is P’s second dismissal.

B. Involuntary Dismissals

1. If the plaintiff fails to prosecute her case or refuses to comply with a court order or any of the
Federal Rules of Civil Procedure, a defendant may move to dismiss the action. A dismissal
issued in this circumstance is always with prejudice. Note that this type of dismissal is one of
the sanctions for discovery infractions discussed above.

C. Default Judgments

1. What if P sues D and has him properly served with process, but D never responds? If that
happens, D will be subject to a default judgment. Default judgments involve two steps:
entry of default
a.

b. entry of default judgement

2. Entry of Default (record keeping)

a. If a defending party fails to defend the action (usually by not responding to the
complaint within the appropriate time), the clerk must enter a default.

3. Default Judgment

a. Only after a default has been entered may a default judgment issue. How a default
judgment issues depends on the nature of the plaintiff’s claims.

b. Entry by Clerk

(1) If the plaintiff’s claim is for a “sum certain” (or a sum that can be made certain by
computation), and the plaintiff requests the default judgment, the clerk must enter
a default judgment and assess damages and costs against the defendant. Clerks
may not enter default judgments against:
minors or incompotent persons
EXAMPLE: P loaned D $100,000 at an interest rate at 5% per year, with
repayment due one year from the date the loan was made. D never repaid the
money, so P sued D and had him properly served. D never responded. The clerk
may enter a default as well as a default judgment. P’s claim is for a sum certain (or
a sum that can be made certain by computation) and is not lodged against a minor
or incompetent person.
EXAMPLE: P was injured in a car accident involving D. P sued D for $100,000
for injuries she sustained to her back, including $35,000 in medical costs and
$65,000 in pain and suffering. P had D properly served but D never responded.
The clerk can enter a default but not a default judgment. Although D is not a minor
or incompetent person, P has not sued D for a sum certain. True, $100,000 is a
(what is meant by a “sum certain”) “certain” amount, but it is not “certainly” the amount of harm P suffered.

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federal civil procedure

c. Entry by the Court

(1) If the clerk cannot enter a default judgment, it must be entered by the court.
The court will not issue the judgment automatically; the plaintiff must make an
application to the court.

(2) Minor or Incompetent Person: If the defendant is a minor or incompetent person,

the court will issue a judgment only if the defendant is:
represented by a guardian or some other competent person

(3) Appearance but Later Default: If the defendant initially appeared in the case but
later refused to defend the action, the court may issue a default judgment only if
the defendant has been served with written notice of the application for default
seven days before a hearing on the application.

(4) Hearings: The judge may hold hearings to ascertain the appropriate amount of
damages or any other matter the judge deems appropriate.

4. Relief From Entry of Default and Default Judgment

a. If a clerk enters a default, the court may set it aside for good cause. If the clerk or court
enters a default judgment, the court may set it aside in accordance with Rule 60(b)—a
post-trial motion discussed later in this outline.
EXAMPLE: P sued D, and D drafted an answer denying P’s allegations. On the way
to the courthouse to file the answer, D had a heart attack. Six days later, D was able to
have his answer properly filed, but the clerk had already entered a default. D may ask
the court to set aside the default, and the court will likely do so.

D. Motion to Dismiss

1. Defined

a. A motion to dismiss is a motion filed by a defending party seeking the dismissal of a

claim filed against him. Motions to dismiss are usually filed by defendants, but a plaintiff
can file a motion to dismiss if she is sued on a counterclaim. The same goes for third
party defendants (sued on impleader claims) or co-defendants (sued on cross claims).

2. Timing

a. A motion to dismiss must be filed before an answer is filed. Given that the time within
which to file an answer is either 21 days (where process was served) or 60 days (where
service of process was waived), a motion to dismiss must be filed within 21 or 60 days.

3. Grounds

a. A motion to dismiss may be made on any of the following grounds.

b. Lack of subject matter jurisdiction

EXAMPLE: P sued D, who is non-diverse, for injuries she sustained in a car accident.
Assuming there is no federal law addressing car accidents, D should file a motion to
dismiss arguing that the court lacks subject matter jurisdiction over the dispute.

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c. Lack of personal jurisdiction

EXAMPLE: P traveled to New York for vacation, where she was injured by a New York
resident. She sued the resident in her home state of Oklahoma. The New York resident
should file a motion to dismiss challenging the court’s personal jurisdiction over him.

d. Improper venue

EXAMPLE: P traveled to New York for vacation, where she was injured by a New York
resident. She brought suit in the Southern District of New York because that was the
most convenient venue for her. D does not reside in the Southern District, and the
cause of action did not arise there. D should move to dismiss the suit for improper
venue.

e. Insufficient process (const’l requirement/ issue- usually about notice)

EXAMPLE: P sued D and chose to have him served by flushing the process down
the toilet—a method approved by the courts of the state in which P sued. D should
move to dismiss based on insufficient process because that method of service was not
reasonably calculated to apprise him of the claims against him.

f. Insufficient service of process (statutory)

EXAMPLE: P sued D, and the process server left process at D’s home with a friend
staying at the house for the weekend. Although D received the process, that method
of service was impermissible under state and federal rules. D should move to dismiss
based on insufficient service of process.

g. Failure to state a claim upon which relief can be granted (actually about the merits of claim)
EXAMPLE: P sued D for speaking French in a public place. D should file a motion to
dismiss for failure to state a claim because, regardless of whether D was speaking
French, it is not unlawful to speak French in a public place.

(1) First, a court assessing a motion to dismiss always assumes the claimant’s
allegations are true—i.e., that D really was speaking French.

(2) Second, don’t forget (as we noted in the section on drafting the complaint) that the
claimant’s allegations must be “plausible” to survive this type of motion to dismiss.
A claim need not be “probable” to be plausible, but it does need to have enough
facts supporting it for the judge to find that the plaintiff is onto something, or rather,
is not merely guessing that the defendant committed a wrong.
EXAMPLE: P buys gas every week a couple blocks from her house. There are
two gas stations there, one on each corner. P thinks it is odd that the prices at
the stations are nearly always identical. She believes they are colluding and sues
them both for a violation of federal trade law. To survive a motion to dismiss for
failure to state a claim, P’s complaint must contain a factual predicate far more
substantial than the simple claim that the prices are usually the same.

h. Failure to join an indispensable party

EXAMPLE: P sued D for failing to return a painting she had leased him. The painting is

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federal civil procedure

now in the hands of X, a person to whom D sub-leased the painting. X is a necessary

party. D should move to dismiss the suit based on P’s failure to join X in the suit.

4. Waiver

a. The federal rules require certain defenses to be raised at certain times. If they are not
raised at that time, the party possessing the defense waives the right to raise it. These
defenses might thus be called “use ‘em or lose ‘em” defenses, meaning that if the
defending party makes a motion to dismiss, but does not include the defense, the party
forfeits the defense. Note that if a party does not file a motion to dismiss but instead
files an answer, the defense must be raised in that pleading or else it is waived.

b. Use ‘em or Lose ‘em: In the First Response

(1) If a party wishes to defend the action against him on any of the grounds below,
and he files a motion to dismiss, he must include the defenses in the motion
or else forfeit them. (Note that if a party files an answer instead of a motion to
dismiss, these defenses must also be raised in that pleading or else are forfeited.)

(a) lack of PJ

(b) improper venue

(c) insufficient process

(d) insufficient service of process

c. Use ‘em or Lose ‘em: Before the Trial Ends

(1) If a party wishes to defend the action against him on any of the grounds below, he
must raise them anytime before the trial ends, or else forfeit them.
failure to state a claim upon which relief can be granted
(a)

(b) failure to join a necessary party

d. Never Lost

(1) SMJ

EXAMPLE: P sues D for injuries she sustained in a car accident. D files a motion
to dismiss challenging venue, which is denied. D then files a motion to dismiss
challenging personal jurisdiction. This motion will be denied because D forfeited
the defense by not raising it in his initial motion.
EXAMPLE: After D’s motion to dismiss for lack of PJ is denied, he files an answer
listing the defense of insufficient service of process. D may not raise that defense
because he failed to raise it in the initial motion to dismiss.
EXAMPLE: During the litigation, D argues that P’s complaint fails to state a claim
upon which relief can be granted. The court may entertain that argument because
D did not waive it, even though he did not include it in his initial motion to dismiss.
EXAMPLE: D loses at trial and decides to appeal. On appeal, D argues that the
court lacked subject matter jurisdiction over the suit—an argument D has never
made before. D did not waive that argument, and the court of appeals must
consider it.

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 bar notes

RECAP QUESTIONS

Before returning from your break, please take three minutes and answer the following questions. Try
to answer these questions without looking at your Bar Notes. If you must go back to your notes, try
rewriting the answer in your own words. This exercise will help improve your memory retention of these
concepts.

1. What are the three options for voluntary dismissal?

1. filing a notice of dismissal

2. if claimant can dismiss unilaterally, file a stipulation of dismissal signed by all parties
3. court’s permission

2. When must a motion to dismiss be filed? On what grounds?

must be filed before an answer is filed

grounds are: 1) lack of PJ 2) lack of SMJ 3) improper venue 4) insufficient process 5) insufficient service of process
6)failure to state a claim upon which relief can be granted 6) failure to join an indispensable party

3. Which defenses must be brought or are waived in the first response? Which defenses must be
brought before trial ends? Which defenses may be brought any time?

in first response: 1) lack of PJ 2) lack of SMJ 3) improper venue 4) insufficient process 5) insufficient service of process
before trial ends:6) failure to state a claim upon which relief can be granted 6) failure to join an indispensable party
never lost : SMJ

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federal civil procedure

E. Motions for Summary Judgment

1. Defined

a. A motion for summary judgment is a motion challenging a claim or defense on the

merits. In making the motion, the movant is essentially arguing, “If we went to trial right
now, the jury would undoubtedly rule in my favor on this claim or defense.”

b. Using the language of the Federal Rules, the movant is arguing that there is:
no genuine dispute as to any material fact, and i am entitled to

judgement as matter of law

2. Analysis

a. Step 1

(1) When a party moves for summary judgment, the first step is for the court to assess
the arguments advanced by the movant.

(a) The court considers whether the movant has shown—based on the movant’s
arguments alone—that the non-movant lacks sufficient facts and/or law to
prevail on the claim or defense in question.

(b) The movant can do this in either of two ways:

1) by pointing out—using citations to the record—holes in the opposing

party’s claims or defenses, or

2) by adducing new evidence demonstrating that the claim or defense

cannot be true.

Note In considering these arguments, the court will not question the credibility of D or D’s wit-
nesses.

EXAMPLE: P sues D sue for injuries she sustained in a car accident.

During discovery, D asks for information pertaining to P’s injuries, and
she supplies none. D should move for summary judgment and cite to
the record showing P’s lack of evidence. In the words of the rule, D is
arguing, “There is no dispute that P was not injured and the law says
that non-injured persons have no right to relief. Thus, I win.”
EXAMPLE: P sues D for injuries she sustained in a car accident.
During discovery, D asks for information pertaining to P’s injuries,
and she supplies a report from a voodoo doctor claiming that a nasty
spirit has entered her body as a result of the accident. D should
move for summary judgment and cite to this report in the record as
P’s only evidence of injury. D is arguing, “P’s evidence fails to create
any genuine dispute of material fact. The evidence is so weak that no
reasonable jury could find that P was injured, and the law says that non-
injured persons have no right to relief. Thus, I win.”
EXAMPLE: P sues D for injuries she sustained in a car accident. D
had three friends with him in that car at the time, each of whom believe
that the light was green in his favor. D should move for summary
judgment and proffer affidavits from these witnesses. D is arguing, “I

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have evidence showing that I was not negligent, and the law says non-
negligent people are not liable. Thus, I win.”

b. Step 2

(1) If the movant has cleared the Step 1 hurdle, the court then turns to the
non-movant’s response. (If the movant has not cleared the hurdle, the court simply
denies the motion and doesn’t even need to turn to the non-movant’s response.)
To survive summary judgment, the non-movant must:
adduce evidence sufficient for a reasonable
jury to find in her favor

(a) In determining whether the non-movant has done this, the court will look only
at the non-movant’s evidence (i.e., the court does not weigh the evidence
against the movant’s) and will assume all of her witnesses are truth tellers
(i.e., the court does not consider credibility issues).

(b) If the non-movant does not produce evidence but merely refers the court
to her pleadings (a.k.a. “sitting on her pleadings”), the court will grant the
motion. (If the pleadings are filed under oath, however, they amount to an
affidavit, which does have evidentiary value.)
EXAMPLE: P sues D for injuries she sustained in a car accident. D moved
for summary judgment after discovering that P has never sought the care
of a licensed physician—thus indicating that P never suffered an injury.
In response, P supplies an affidavit from her uncle, a physician licensed
in England, which describes P’s injuries and his treatment plan for her.
Upon this affidavit, the court should probably deny the motion for summary
judgment because such evidence is sufficient for a reasonable jury to find
that P suffered an injury. In other words, there is a genuine dispute of material
fact for the jury to resolve.
EXAMPLE: P sues D for injuries she sustained in a car accident. D moves
for summary judgment and as evidence in his favor, offers the affidavit of
100 nuns who were picnicking near the scene at the time of the accident.
The nuns unanimously, and with characteristic grace, state that the light
was green in D’s favor at the time of the accident. P responds with a single
affidavit from Damian, a devil in human form and a known liar, stating that the
light was green in P’s favor at the time of the accident. The court should deny
the motion because P’s evidence, taken alone (i.e., not weighed against D’s
evidence) and assumed to be true, is sufficient for a jury to find in her favor. P
has, in other words, shown a genuine dispute of material fact.

c. Who can make the motion?

(1) Plaintiffs or defendants can move for summary judgment. However, defendants
make summary judgment motions far more often than plaintiffs. This is because
the plaintiff, to prevail on her own motion for summary judgment, must adduce
evidence sufficient for a reasonable jury to find in her favor on every element of
her claim and hope the defendant is able to respond with no evidence on any
element of the claim.

Note One summary judgment argument commonly used by defendants—pointing out, with cita-
tions to the record, the gaps in the claimant’s evidence—is unavailable to plaintiffs when they
move for summary judgment.

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d. Materials used

(1) Summary judgment concerns the sufficiency of the evidence in the case. How is
this evidence presented to the court in a motion? The rule allows the parties to
present, and the court to refer to on its own, the pleadings, discovery documents,
materials produced in mandatory disclosure, and affidavits.

(2) Importantly, the information offered to the court needs to be admissible at trial,
even if:
it isn’t presently in a form that is admissable


EXAMPLE: P sues D, and D moves for summary judgment. P responds with an
affidavit from a witness stating that she “saw D drive through the red light and
strike P” and that “a friend told me last week that he saw D run through that red
light, too.” The court will consider the witness’s first statement but not the second.
The first statement contains admissible evidence even though affidavits, on
their own, are not admissible at trial. The second statement is hearsay and not
admissible, even if presented via live testimony.

e. When may the motion be made?

(1) Unless a local rule or court order says otherwise, a party may move for summary
judgment anytime before:
30 days after the close of discovery

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 bar notes

RECAP QUESTIONS

Before returning from your break, please take three minutes and answer the following questions. Try
to answer these questions without looking at your Bar Notes. If you must go back to your notes, try
rewriting the answer in your own words. This exercise will help improve your memory retention of these
concepts.

1. What steps will a court follow when evaluating a summary judgment motion?

1. court assesses ONLY the movant’s arguments - considers where movant has shown that the non-movant lacks
sufficient facts and /or law to prevail on the claim / defense in question
2. court looks ONLY at non movant’s evidence to see if there is enough evidence sufficient for a reasonable
jury to find in her favor

2. When may a party move for summary judgment?

anytime before 30 days after the close of discovery

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federal civil procedure

II. Motions

A. Motion for Judgment as a Matter of Law (Rule 50(a))

1. During a jury trial, the court may enter (on its own accord or upon the motion of a party) a
“judgment as a matter of law” (JML) on a particular claim.

2. A JML is appropriate if:

a. the party against whom the judgment is entered has been fully heard on an issue, and

b. the party lacks sufficient evidence to prevail on an issue necessary to a particular claim
or defense. This standard is, in essence, the same as the summary judgment standard.
A court will thus assume:
all of the witnesses are truth tellers (?)

EXAMPLE: P sues D for injuries she sustained as a passenger in his car. To prevail at
trial, P needs to show that D was negligent and that his negligence caused her injury.
During trial, P put on evidence that D was negligent, but failed to put on any evidence
that she suffered injury. After P has been fully heard on her claim, D moves for JML.
The court may grant the motion because P lacks evidence sufficient for a jury to find
that she was injured—an issue necessary to prevail on her claim.

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 bar notes

RECAP QUESTIONS

Before returning from your break, please take three minutes and answer the following questions. Try
to answer these questions without looking at your Bar Notes. If you must go back to your notes, try
rewriting the answer in your own words. This exercise will help improve your memory retention of these
concepts.

1. Who can exercise the right to a jury trial?

a us citizen / defendant (?)

2. What are the three types of verdicts?

general verdict, special verdict, genl erdict w/answers to written questions

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federal civil procedure

B. Post-Trial Motions

1. Suppose your case goes to trial and you lose. What can you do (besides appeal)? You have
several options, each of which is discussed below.

2. Renewed Motion for Judgment as a Matter of Law (Rule 50(b))

a. Defined:

(1) If a party files an unsuccessful motion for a JML during trial, and then loses at trial,
the party may file a “renewed motion for judgment as a matter of law.” This motion
makes the same argument as an ordinary JML and is decided according to the
same standard. Note that the title to this motion is telling: a renewed motion for
judgment as a matter of law presupposes that a JML motion was made at trial. If
no such motion was made:
a party may not make a renewed judgement as a matter of law

b. Joint motion for a new trial

(1) When making a renewed motion for JML, the movant may move jointly or in the
alternative for a new trial (a motion we will discuss shortly).

c. Timing:

(1) A renewed motion for JML must be filed within 28 days of judgment.

(2) Note that the date of judgment is not necessarily the date of the verdict. The
date of the verdict is the date when the jury delivers its decision on the contested
factual issues. The date of judgment is the date when the court actually declares
one party or the other the winner.

d. Judicial options:

(1) In ruling on a renewed motion for JML, the court may

(a) allow the verdict to stand,

(b) enter the opposite verdict, or

(c) order a new trial (even if a motion for new trial was not made).

(2) Note, however, that if the court grants a renewed JML motion, it must also issue
a conditional ruling on any motion for a new trial. This helps with any potential
appeals because, if the court’s JML ruling is set aside on appeal, the appeals court
can also review the appropriateness of a new trial.

3. Motion for a New Trial (Rule 59)

a. Defined

(1) A motion for a new trial is exactly what it sounds like: a motion seeking a repeat of
the trial. The old trial is declared a nullity, and the whole process starts over.

b. Grounds

(1) A motion for a new trial may be granted for any of the following reasons:

(a) Against the Great Weight of the Evidence: If the jury returns a verdict that

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ignores the great weight of the evidence, a court may order a new trial.
Interestingly, the court may take account of the comparative volume of and
credibility of the evidence—something the court may not do in a summary
judgment motion or a judgment as a matter of law.

(b) Excessive Damages: If a jury returns a verdict with damages that are “grossly
excessive” or “shock the conscience,” the court may, upon a motion, order
Text a new trial. The court may also choose an amount of damages it considers
appropriate and give the defendant the option of paying that amount or
submitting to a new trial. Note that there is no remedy in federal court if the
damages are grossly inadequate.
EXAMPLE: P sued D for a broken leg P suffered at D’s amusement park. P
sought $100,000 in compensatory damages, but the jury, for some unknown
reason, returned a verdict in P’s favor for $850,000. A court may order a
new trial, or in the alternative, choose an amount of damages it considers
appropriate to the harm suffered, and offer D the option of paying that to
avoid the new trial.

(c) Procedural Error or Misconduct: If the judge, parties, or witnesses violate the
rules of trial, a new trial may be ordered if, and only if:

1) the error or misconduct likely affected the result of the trial

party objected to error when she had opp to do so
2)

3) Examples of errors or misconduct include:

wrongful admission or exclusion of evidence at trial
a)
incorrect jury instructions
b)

c) Communication between witnesses

d) Ex parte communication with the judge

e) Juror misconduct

(d) Newly Discovered Evidence: If a party discovers evidence after the verdict
that could not, with reasonable diligence, have been discovered before the
verdict, a new trial is warranted as long as the evidence:
is not solely for the purpose of impeachment and would likely change the result

EXAMPLE: P sued D for a car accident and lost at trial. The verdict was
reported in the paper and X, who saw the accident but did not know of the
lawsuit, contacted the plaintiff to provide her with a video of the incident he
accidentally captured on his smartphone. P is entitled to a new trial as long
as she had no way to know of X’s video and the video is so powerful that it
would change the result of the trial.
EXAMPLE: P sued D for a car accident and lost at trial. After trial, P
discovered that D’s lone witness was previously convicted of perjury. Even
if P had a good excuse for not finding this evidence sooner, and even if
the evidence would have changed the result of the trial, a new trial is not
appropriate because the evidence is presented solely for the purpose of
impeachment.

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c. Timing

(1) A motion for a new trial must be filed within:

28 days of entry of judgement

4. Motion for Relief From Judgment (Rule 60(b))

a. Defined

(1) A motion for relief from judgment asks the court to undo the judgment entered.
Such a motion need not specify the appropriate steps the court should take after
the judgment has been undone; it need only ask for the court to set aside the
judgment.

b. Grounds

(1) A motion for relief from judgment may be granted for any of six reasons:

(a) Mistake, Inadvertence, or Excusable Neglect: This ground is often used by

litigants against whom a default judgment has been entered, but it need not
be confined to that context.
EXAMPLE: P sued D. D failed to respond and P obtained a default judgment
against D. D learned of the judgment and asked the court for relief from
judgment because he has been in a coma for the past two months. The court
will very likely grant the motion and allow D to defend himself in the action.

(b) Newly Discovered Evidence: The discovery of new evidence can be used
to support either a motion for a new trial or relief from judgment. The same
analysis applies (the evidence must not have been discoverable before trial,
the evidence must likely change the result, and the evidence must not be
for the purposes of impeachment). Whether to move for a new trial or relief
from judgment will depend on the timing of the motion (see below for more
information on timing).

(c) Fraud, Misrepresentation, or Misconduct by a Party: If a party withholds key

evidence during discovery, bribes a witness, or makes false statements to the
court or other parties, a party subject to an adverse judgment may seek relief
from that judgment.

(d) Judgment Is Void: If the judgment entered is void because the court lacked
subject matter jurisdiction or personal jurisdiction, a party subject to the
judgment may seek relief from the judgment.

(e) Judgment Has Been Satisfied: If a party has satisfied the judgment entered
against it, the party may seek to have the judgment discharged so that it is
no longer under the supervision of the court. This type of relief is most often
sought in suits involving injunctive relief.

(f) Any Other Reason That Justifies Relief: This is a catch-all category. There
are few examples of its use, but there is wide agreement that it can’t be used
when one of the above five options would apply.

c. Timing

(1) A motion for relief from judgment must be made, first and foremost, within a
reasonable time. In practice, that means that the movant should make the motion
promptly after learning of the grounds for the motion.

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(a) However, any motion based on the first three grounds (mistake, new
evidence, and fraud) must be made no later than one year. Thus, even if
a party moves for relief from judgment as soon as she locates crucial new
evidence, for example, the motion may not be granted if it was made more
than a year from the final judgment.

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RECAP QUESTIONS

Before returning from your break, please take three minutes and answer the following questions. Try
to answer these questions without looking at your Bar Notes. If you must go back to your notes, try
rewriting the answer in your own words. This exercise will help improve your memory retention of these
concepts.

1. What is a renewed motion for judgment as a matter of law? When must this motion be filed?
a motion for a JML that presupposes that a JML motion was made at trial; must be
filed w/in 28 days of judgement

2. Describe a motion for a new trial. When may it be granted (on what grounds)?

motion for a new trial seeks a repeat of the trial; the old one is declared a nullity

grounds are :
1) against great weight of evidence
2) excessive damages
3) procedural error or misconduct
4) newly discovered evidence

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Multiple-Choice Questions
federal civil procedure
Question 1
Pamela sued David for trespassing at her Los Angeles
residence. The action was properly commenced in
a U.S. District Court. David defended by claiming
that he was in New York at the time that the incident
allegedly took place. David intends to call Wanda
as a witness to testify that she saw him in New York
on the day in question. Pamela believes that Wanda
is hopelessly nearsighted and could easily have
mistaken someone else for David. In order to impeach
Wanda’s testimony, Pamela sends Wanda a Notice to
Appear for Medical Examination before a licensed
ophthalmologist selected by Pamela.
Which of the following is most accurate?
(A) Wanda need not comply with the Notice to
Appear, because she is not a party to the
action and Pamela does not have authority to
order her to submit to a medical examination.
(B) Wanda need not comply with the Notice to
Appear, because physicians performing medical
examinations must be selected by the judge.
(C) Wanda must comply with the Notice to
Appear, because her eyesight is at issue.
(D) Wanda must comply with the Notice to
Appear, but David is entitled to a copy of the
ophthalmologist’s findings.
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Question 2
A man sued a woman in federal district court in State
A, alleging breach of contract. The man is a resident
of State B, and the woman is a resident of State A.
The man in good faith alleged damages in the amount
of $90,000. The woman filed an answer denying,
among other things, that a valid contract had been
formed. At the time that she filed her answer, the
woman did not raise improper service of process as
a defense in her answer. Thereafter, she filed a Rule
12(b) motion alleging improper service of process.
In the same motion, she moved for judgment on the
pleadings pursuant to Rule 12(c).
Which of the following is most accurate?
(A) The woman’s motion must be dismissed,
because Rule 12 motions must be filed before
any responsive pleading.
(B) The court must determine whether service
of process was proper before proceeding on
any other issue.
(C) The woman’s Rule 12(b) motion cannot be heard.
(D) The woman’s Rule 12(b) motion may be heard.

Question 3
Joan visited Dr. Brown. After examining her, he put
some drops in her left ear. She then left. However,
she continued to have difficulties with her balance.
Three weeks after her visit to Dr. Brown, Joan fell
and sustained serious injuries. Joan sued Dr. Brown
and requested a jury trial. The action was properly
commenced in a U.S. District Court.
At trial, Joan testified to the foregoing, and then
called Dr. Edward to the stand. Dr. Edward testified
that, in his opinion: (1) he had examined Joan and
found substantial damage to her inner ear; and (2) the
damage was caused by a fluid containing acid. Joan
then rested her case. Dr. Brown then took the stand
and testified that: (A) Joan had been suffering from
an infection that affected the inner ear; and (B) he had
put some drops of perforium (an innocuous, non-
acidic substance) into her ear. He further stated on
cross-examination that the bottle containing perforium
stood in the vicinity of a bottle containing an acidic
substance. He then rested his case.
In rebuttal, Joan called Dr. Edward, who stated that the
injury to Joan’s inner ear was totally inconsistent with
Dr. Brown’s assertion of an infection. All sides then
rested. Neither party moved for judgment as a matter
of law. The jury returned a verdict in favor of Joan. Dr.
Brown then moved for a renewed judgment as a matter
of law and, in the alternative, for a new trial. The trial
judge granted the motion for a renewed judgment
as a matter of law, but denied the motion for a new
trial. Joan then appealed the order granting a renewed
judgment as a matter of law by the trial court.
What should the appellate court decide to do?
(A) Reverse the judgment and reinstate the
verdict for Joan.
(B) Reverse the judgment, because a motion for
a new trial cannot be joined with a renewed
judgment as a matter of law.
(C) Reverse the judgment, but order a new trial.
(D) Affirm the judgment.
multiple-choice questions
Question 4
Joanne visited Dr. Blue. After examining her, Dr. Blue
put drops in Joanne’s eyes. In the ensuing weeks, she
had increasing difficulty with blurred vision. Three
weeks after the drops were administered, Joanne
was in a single-car accident after she experienced
an episode of extreme blurred vision while driving.
Joanne sued Dr. Blue in U.S. District Court and
requested a jury trial.
At trial, Joanne testified to the foregoing, and then
called Dr. Evans to the stand. He testified that he had
examined Joanne and found substantial damage to her
cornea, and that, in his opinion, the damage was caused
by a fluid containing acid. Joanne rested her case. Dr.
Blue then took the stand and testified that Joanne had
been suffering from an infection in both eyes when she
visited his office, and that he had only put saline drops
(an innocuous, non-acidic substance) into her eyes.
He further stated on cross-examination that the bottle
containing saline stood next to a bottle containing an
acidic substance. He then rested his case. In rebuttal,
Joanne called Dr. Evans, who stated that the injury to
Joanne’s eyes was entirely inconsistent with Dr. Blue’s
assertion of an infection. All sides then rested.
If Joanne moves for judgment as a matter of law, how
should the court decide her motion?
(A) Her motion should be denied.
(B) Her motion should be granted, because of
the admission of the non-movant, Dr. Blue,
that the saline bottle stood near a bottle
containing an acidic substance.
(C) Her motion should be granted, but not
because of the admission of the non-movant,
Dr. Blue, that the saline bottle stood near a
bottle containing an acidic substance.
(D) Her motion should be granted, because there
is a preponderance of reasonable evidence to
support her claim against Dr. Blue.
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federal civil procedure

Question 5
The plaintiff was injured in a fireworks accident at a
local baseball park. The plaintiff subsequently filed
a complaint against the defendant baseball park that
said, “On July 4, at Quahog Park in Pawtucket, RI,
the plaintiff was injured by fireworks. The plaintiff
suffered terrible burns, resulting in physical and
mental pain, loss of earnings, and loss of consortium.
The plaintiff has incurred medical expenses and losses
in the sum of $150,000.”
What would be the defense attorney’s most
appropriate response to the plaintiff’s claim?
(A) Motion for summary judgment.
(B) Motion to dismiss.
(C) Motion for judgment as a matter of law.
(D) Motion for physical and mental examination.

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multiple-choice questions

25
 federal civil procedure
BE SURE EACH MARK IS DARK AND COMPLETELY FILLS THE INTENDED OVAL, AS SHOWN IN A B C D
THE ILLUSTRATION AT THE RIGHT. COMPLETELY ERASE ANY MISTAKES OR STRAY MARKS.

Answer Grid
IN THE BOXES PROVIDED BELOW, PRINT YOUR LAST NAME,
SKIP A BOX, THEN PRINT YOUR FIRST NAME, SKIP A BOX,

1 A B C D 2 A B C D 3 A B C D 4 A B C D 5 A B C D
LAST NAME, THEN FIRST NAME
THEN PRINT YOUR MIDDLE INITIAL.

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