In Chapter 6 you learned the general requirements for all motions. In Chapter 7 you learned the many different types of motions that a party may bring after the pleadings are complete but before trial begins. The exercises in this portion of the workbook are designed to give you additional practice in both understanding and drafting the various litigation motions and the responses to the motions. Before beginning the exercises, review the specific objectives for this chapter of the text.
· How to draft a motion for judgment on the pleadings
· When a motion for summary judgment is appropriate
· What must be included in a motion for summary judgment
· What response the opponent should make to a summary judgment motion
· How to obtain a dismissal of a lawsuit
· How to cure a default judgment
· When consolidation and separation of trials may occur
TESTING YOUR COMPREHENSION
Test your comprehension of Chapter 7 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 A motion for judgment on the pleadings is made before the pleadings are closed.
2. T F A motion for summary judgment may be made when there are no genuine disputes over any material facts.
3. T F A plaintiff may move for summary judgment 20 days after the action has been commenced or after an adverse party has moved for summary judgment.
4. T F A defendant may move for summary judgment at any time.
5. T F A party opposing a summary judgment may rely on denials in the pleadings to resist the motion.
6. T F On a motion for summary judgment, evidentiary defects in the moving party's affidavits should be raised in the opposing memorandum.
7. T F Dismissal of an action may be voluntary or involuntary.
8. T F A voluntary dismissal is only proper if all claims are dismissed against all parties.
9. T F A voluntary dismissal is without prejudice unless otherwise stated.
10. T F An involuntary dismissal is with prejudice unless otherwise ordered.
11. T F Defaults are allowed only when the claimant seeks affirmative relief.
12. T F Consolidation may be ordered when different actions are pending in different courts.
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 is a motion for judgment on the pleadings? How does a motion for judgment on the pleadings differ from a motion to dismiss and a motion for summary judgment?
2. Under the Federal Rules of Civil Procedure, a motion for summary judgment must be served on all other parties at least 10 days before the hearing date. However, local rules and state rules usually require a longer period of time. What are the notice requirements under your local federal rules? Under your state rules?
3. A moving party is entitled to summary judgment only if there is no genuine issue as to any material fact. What does this mean? In hypothetical number 1, what would constitute a genuine issue as to a material fact?
4. If a motion for summary judgment fails to show on its face that the movant is entitled to relief, theoretically the opposing party does not need to do anything. However, why is it good practice for the opposing party still to file an opposing memorandum?
5. There are two ways a plaintiff may obtain a voluntary dismissal of the complaint. What are the two ways?
6. What is the two dismissal rule" in federal court?
7. What are the grounds for an involuntary dismissal?
8. Under what circumstances may a default judgment be entered by the clerk of the court? Why is it necessary to sometimes obtain a default judgment by the court?
PROJECTS FOR RESEARCH AND WRITING
Each of the following projects requires you to prepare documents from 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. Prepare a motion for summary judgment on behalf of the Samsons against Emeralds Catering in hypothetical number 1. Assume that the only defense Emeralds Catering has raised in the lawsuit is that the staff had mixed up the time of the Samsons' party with the time of the party for another customer.
2. Assume that the Samsons in hypothetical number 1 have filed their complaint against Emeralds Catering. However, before Emeralds Catering files any papers, the Samsons decide to dismiss their complaint. Draft a notice of dismissal on behalf of the Samsons.
3. Assume that Emeralds Catering has failed to respond to the complaint filed by the Samsons in hypothetical number 1. Using the form on the following page, prepare a motion for default on behalf of the Samsons.
MOTION FOR DEFAULT
Plaintiffs ____________________ and ____________________ move for an order finding defendant Emeralds Catering in default, finding that the defendant owes plaintiffs the sum of _______________ plus costs, and for judgment against the defendant in that amount. In support of their motion, the plaintiffs state:
WHEREFORE, the plaintiffs request that the court find defendant Emeralds Catering in default, hold a hearing to determine the exact amount due the plaintiffs, and enter judgment for plaintiffs and against the defendant in that amount.
Attorney for Plaintiffs
4. In order to ensure that a default judgment will not be set aside, there are several steps that a plaintiff should take prior to seeking a default judgment. Make a list of the steps which the plaintiff should take, and include the list in your litigation guide.