Class V Subject matter: By the end of this class, you will be able to: Recap of discovery Motions By the end of this class, you will be able to: Describe the main types of initial motions Evaluate the pros and cons of filing these motions Plan strategy related to filing of motions

Initial Motions – Considerations Timing Must be made before (or at time of) responsive pleading If motion is filed, D does not have to file responsive pleading until 14 days after court rules on motion If denied, D can pursue interlocutory appeal, petition Court of Appeals for writ to review, or file motion to reconsider (all rarely granted) If granted, P usually cannot re-file complaint unless order specifies otherwise; but usually leave to amend is granted. P can appeal. Evidence Usually, court treats allegations in complaint as true, and extrinsic evidence not permitted Consolidation If initial motion made, may include all applicable defenses (and can also join other motions)

Initial Motions – Considerations Waiver If Initial motion made, certain defenses waived if not included Waivable defenses: (1) lack of personal jurisdiction; (2) improper venue; (3) insufficiency of process; (4) insufficiency of service of process Non-waivable defenses: (1) lack of subject matter jurisdiction; failure to join indispensible party; (3) failure to state a claim/defense; (4) other affirmative defenses. Sanctions Risk of sanctions if motion is used for improper purpose http://abovethelaw.com/2009/12/dont-mess-with-texas-blokes/

Initial Motions – Types Lack of subject matter jurisdiction Use where complaint does not allege sufficient basis for SMJ P bears burden of proof of establishing SMJ Court accepts allegations in complaint as true Defendant can introduce evidence contesting jurisdiction Courts usually permit P jurisdictional discovery if requested Motion will only be granted if it appears certain that P can’t prove any set of facts supporting SMJ Dismissal is not on the merits, so P can re-file in a different forum

Initial Motions – Types Lack of personal jurisdiction Use where complaint does not allege sufficient basis for PJ P bears burden of establishing PJ Must make prima facie showing, i.e., evidence which, if believed, would be sufficient. Court accepts complaint’s uncontroverted factual allegations as true, draws reasonable inferences in favor of P. If prima facie showing is contested by D (can introduce evidence), P needs to prove PJ by preponderance of the evidence. Dismissal is not on the merits, so P can re-file in different forum.

Initial Motions – Types Improper venue Use where court is not proper judicial district for the case Split of authority over who bears burden of proof Court can decide what proof to allow; usually there are submissions of affidavits, declarations, discovery material If court determines venue is improper, it may dismiss the case, or transfer it to any district in which it could have originally been brought Dismissal is not on the merits, so P can re-file in another forum

Initial Motions – Types Insufficiency of process / service of process Use where problems with form and content of summons (4) or method of service (5) Burden of proof on P Usually met by producing proof of service D can rebut If granted, court may either dismiss action or quash service Generally, if it appears that effective service can be made and no prejudice, court will quash and permit re-service Dismissal is without prejudice to re-filing

Initial Motions – Types Failure to state a claim Most common motion; use when allegations don’t meet pleading requirements or allegations disclose bar to recovery Differences between CA and Federal pleading standard Also heightened pleading standard for certain causes of action, like fraud Bar to recovery in allegations could be statute of limitations, statute of frauds, lack of capacity, etc. Court must accept as true all P’s factual allegations, and draws inferences in light most favorable to P Court usually can’t consider material outside the complaint Can augment facts from documents incorporated by reference into complaint, matters of public record, facts susceptible to judicial notice If P refers to a document in the complaint, which is central to its claim and about which no dispute as to authenticity, D can attach it to MTD for court to consider Dismissal is on the merits; res judicata applies

Initial Motions – Types Failure to join a necessary or indispensible party Use to compel joinder of necessary party or obtain dismissal Moving party has burden Must demonstrate “equity and good conscience” require dismissal High burden, not usually granted Dismissal is without prejudice

Initial Motions – Types Motion for a more definite statement Use if pleading is so vague/ambiguous that you can’t reasonably be required to frame a response Only if it’s so indefinite that D can’t ascertain nature of claim asserted Must specify defects and details allegedly required to eliminate vagueness Rarely granted Court can require complaint be amended, or information provided through declarations or other means

Initial Motions – Types Motion to Strike Use when pleading contains insufficient defense or redundant, immaterial, impertinent, or scandalous matter Purpose is to avoid expenditure of time/money from litigating spurious issues Can reduce early disclosure requirements But usually disfavored b/c often used as delaying tactics Court views the pleading under attack in light most favorable to pleader Where any doubt about allegations, court errs on side of letting them stand

Initial Motions – Types Insufficient defense P must show that there is no issue of fact that might allow defense to succeed, no substantial issue of law, and P would be prejudiced if included Redundant Must show allegations are wholly foreign to the issues involved or needlessly repeated Immaterial Must show allegations have no bearing on controversy Impertinent Must show not responsive/relevant to issues involved Scandalous Must show unnecessarily question a person’s moral character, cast a cruelly derogatory light on person, are vulgar/repulsive, diminish dignity of court

Initial Motions – Types Motion for Judgment on the Pleadings Only use after pleadings are closed; any party can move Challenges legal sufficiency of other party’s pleadings Provides vehicle for summary adjudication on the merits before trial Will be granted when, even if all material facts in the pleading under attack are true, moving party entitled to JML Can be partially or wholly granted; res judicata effect

Initial Motions – Pros and Cons Pros/Cons of Initial Motions Pros: Can get case or certain claims dismissed Limit disclosure/discovery Alert judge to weaknesses Cons: P can amend Costly Narrowed scope of discovery Delay

Other Motions Transfer Motions Permits court to transfer any civil action either To another district where it might have been brought; or To any district to which all parties have consented If not on consent, court weighs: Convenience of parties (incl. location of parties and discovery material, and relative means) Convenience of witnesses Interests of justice (incl. judicial economy, subpoena power, potential consolidation, familiarity of transferee court with governing state law, docket congestion) Usually requires submission of affidavits; burden on moving party Court must transfer entire case

Other Motions Consolidation When separate actions involve common question of law/fact, court can: Join the separate actions Consolidate the separate actions Any other order necessary to avoid unnecessary cost/delay Courts consider: What questions of fact/law are common (individual issues can’t predominate) Judicial economy (incl. risk of delaying trial, risk of prejudice/confusion, burden on judicial resources) Convenience (incl. burden on parties, witnesses)

Other Motions Motion to compel arbitration Any party “aggrieved” by the “failure, neglect or refusal” of another party to comply with a dispute resolution clause may petition a district court that would have jurisdiction (if not for the agreement) for an order directing the dispute proceed per the arbitration clause Under Section 3 of the FAA, a party can also request a stay pending arbitration Factors considered Courts have said that the FAA embodies a liberal policy favoring arbitration (b/c it encourages judicial economy, etc.), and that agreements to arbitrate should be enforced just like any other contract Not as clear whether it applies to mediation or other forms of dispute resolution

Format and Procedures for Motions Remember to check local rules of the court AND judge’s individual practices General requirements / components: Notice of motion Should set forth date and time of hearing (if required), nature of motion, legal grounds, relief requested, docs upon which motion is based Caption can cut off extra parties Has to be signed

Format and Procedures for Motions Memorandum of points and authorities Usually contains (1) introduction/preliminary statement; (2) statement of facts; (3) argument section(s); (4) conclusion Intro should provide roadmap; argumentative; no cites Fact section should present facts to your advantage In argument sections, set out legal standard and use relevant case law Conclusion usually very minimal Affidavits Where extrinsic evidence is appropriate Proposed order If required by local rules Proof of service

Format and Procedures for Motions Planning the motion Make sure to plan enough time for research, first draft, rounds of edits, sending to the client Build in enough time to cite check / proof Usually have to also create TOA/TOC Filing Make sure you understand filing rules of court Make sure to coordinate with person performing the filing Figure out courtesy copy rules

Oppositions and Replies In response to a Motion, P can: File an opposition File a statement of non opposition Amend the complaint (one time as a matter of right) Will supersede prior complaint Dismiss action Oppositions May include any evidence upon which D relies P should include request for leave to amend Local rules will give time guidelines Replies Check rules for format/timing

Hearing / Order Hearings Order/Ruling Usually, court will hold oral argument, but has discretion not to Check local rules for judge’s inclination, and also ask people who have previously argued before the judge for advice Order/Ruling Judge will usually draft a decision stating reasons May also draft a minute order on the docket

Class Exercise Based on our fact pattern, consider: Whether it would be better to file an answer or motion? What types of motions could be made? If you filed a motion, what would your arguments be? What would you anticipate the other side would argue in opposition?

Wrap-Up Next Class We will discuss taking and defending depositions And prepare for your depositions on Thursday