As part of the litigation process, you will be involved in drafting and responding to many pretrial motions. Although the types of motions and requirements for motions differ from court to court, there are some standard motions with uniform requirements that you must be familiar with. Before beginning the exercises, review the specific objectives for this chapter of the text.
What the general requirements are for all motions
How to obtain an extension of time and a continuance
When to serve motions
When there must be a substitution of parties
Why a case may be removed to federal court
TESTING YOUR COMPREHENSION
Test your comprehension of Chapter 6 by answering each of the following questions. Circle true or false for each answer. Although the answers may be found in the main text, try to answer each question before referring to the text.
1. T F All motions must be served on the opposing party by hand.
2. T F Following service of the motion, the originals of the notice and motion should be filed with the clerk of the court along with a proof of service.
3. T F The party bringing the motion is generally referred to as the moving party.
4. T F The party responding to a motion is generally referred to as the respondent (or responding party).
5. T F If a motion to extend time is made after the applicable time period has expired, the moving party must show good cause for granting the motion.
6. T F You do not need to follow the local rules governing motions so long as you follow the Federal Rules of Civil Procedure.
7. T F Under the federal rules, a motion must be made in writing.
8. T F As a matter of good practice, all documentation that accompanies a motion should be attached to and served with the motion.
9. T F A proof of service is a certificate that states that service on the other parties has been made in a proper manner.
10. T F The proof of service should never be attached to the motion.
11. T F A memorandum of law is the same as a declaration or affidavit.
12. T F Once a lawsuit is filed, there may not be a substitution of parties.
13. T F A notice for removal of an action from state court to federal court must be made within 30 days after the defendant receives notice of the plaintiff's initial pleading.
14. T F A verified petition is no longer required under the Federal Rules of Civil Procedure when a defendant wishes to remove an action from state court to federal court.
15. T F Once a notice of removal is filed, the parties must wait for an order from the court to effect the removal.
APPLYING YOUR KNOWLEDGE
Answer the following questions by applying the information you have learned from the main text. If you need more space for some of the questions, use a separate sheet of paper.
1. What are the three basic requirements that all motions must meet?
2. Unless otherwise specified under the federal rules of a court order, motions must be served at least five days before the hearing date. Local court rules and state rules usually require a longer period of time. Why is it a good idea, when possible, to give more than the minimum notice required?
3. What is a proof of service? Why must a proof of service be attached to the end of a motion?
4. How do you select a date for a hearing on the motion?
5. What is the purpose of attaching a memorandum of law to the motion? In some states, a motion will not be considered meritorious unless a memorandum of law is attached to the motion. Do your local state rules require that a memorandum of law be submitted with every motion?
6. What are the two choices which a respondent can make when served with a motion?
7. Why do judges sometimes issue tentative rulings?
8. What are the differences between a minute order and a written opinion and order of the court? What determines whether a judge will enter a minute order or whether a formal written opinion and order are necessary?
9. If a motion to extend time is made before the expiration of the applicable time period, the court may grant the motion for good cause. What grounds would constitute good cause for granting the motion?
PROJECTS FOR RESEARCH AND WRITING
Each of the following projects requires you to prepare documents from the information you have learned in the main text. In some instances, you will also need to conduct some basic legal research. Once you have finished each of the projects, place the projects in your litigation guide for future reference.
1. Using hypothetical number 6, prepare a Notice of Motion to reset a hearing date in the format set forth in exhibit 6.1 of the main text. Also, using the form on the following page, prepare the motion to reset the hearing date. The motion should be made on behalf of the City of Tannerville and should request that the court reset Thomass motion for discovery sanctions. Since the form does not list facts in support of the motion, you will need to think of specific facts which justify the courts granting of the motion.
MOTION TO RESET HEARING DATE
[caption]
Defendant _________________ moves this Court for an order continuing the hearing on plaintiffs motion for discovery sanctions, presently set for _________________, ten days.
In support of its motion, defendant states:
1._______________________________________________________________
_______________________________________________________________________2._______________________________________________________________
_______________________________________________________________________
Wherefore, defendant ________________ requests the Court to enter an order continuing the hearing, presently set for ________to _________.
______________________________
Attorneys for
______________________________
2. Assume your firm represents Sydney Kester in hypothetical number 3 and that Monroe's Grocery Store has made a motion for additional time to answer. Assume also that the motion is set for two weeks from today in your local court. Using the Exhibit 6.4 on page 198 of the main text as an example, prepare a statement of nonopposition to defendant's motion for additional time to answer.
Assume your firm represents Monroes Grocery Store. Using hypothetical number 3, prepare a motion for additional time to answer on behalf of Monroe's Grocery Store. Follow the format set forth in Exhibit 6.6. For purposes of this assignment, assume the following additional facts: The attorney received the complaint yesterday, and an answer is due in just over two weeks; the complaint alleges wrongful conduct by the defendant resulting in the plaintiff's injuries; the attorney needs time to investigate the claim and speak with employees of the defendant who may have knowledge of the incident and at least two of the employees who may have knowledge of the incident are presently on vacation and will not be returning for another week; the attorney needs an additional 10 days in which to respond.
