1. 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

2. 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)

3. 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

4. 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

5. 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.

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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)

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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?

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