Handout #10- Motion for Summary Judgment
Also- please staple pleadings, complaint on top.
-2 or 3 well plead causes of action is sufficient
Look over Depositions & Discovery rules CR 26-37
CR 7- Pleadings, State defers to Local Rules for pleadings and motions
King County- 14th largest country in the US
Local Rule 7- three pages long, very detailed
Local Rule 7(4)(b)(5) Motions
• 5 required sections
• 7(5)(b)(1)- specific relief
EX Florence Landis Motion
• Why aren't evidentiary documents attached? ER 201 Judicial Notice
• 7(5)(b)(6)- Page limit
• Either party may file a motion- other party Reply
• Proposed Order - draft order for motion you wish to have granted, Judge will sign.
• How many days? "Five days" = five calendar days, "five court days"= five court days
• "one week" = what does that mean? go to website, call clerk, find out! (probably seven calendar days, or five court days)
• Furlough Days- courts closed due to budget cuts
• Need enough time before trial to have your motions heard
• Motion for Reconsideration KCLR 7(6)
➢ KCLR 59 anytime a judge "screws up", you can file within 10 days for motion to reconsider, which asks judge to correct mistake. Requires:
• Newly discovered evidence- something that has come to light since the judge ruled.
• And WHY you didn't have the evidence previously
• If judge finds the motion meritorious, the other side may file an opposition, do not file one automatically.
(If you can't find what you're looking for under Local Rule- Check corresponding CR)
P 194
Motions-
• Speaking Motions- motions made during trial
• Dispositive Motions- motions that will dispose of something
• Why are motions not pleadings? Pleadings frame the issues; motions are micro-examinations of intricacies of case.
• Number of Motions is Infinite
• "Moving Party"- the party making the motion
• "Responding Party"- the other side
• Memorandum of Points & Authorities- "Memo of P's and A's"
• KCLR 7(5)(b) Form of Motion and Responsive Pleadings
➢ Combined with Memo into one document
Declaration vs. Affidavit
• Declaration- statement under penalty of perjury (most often used)
• Affidavit- notarized statement
• Filing- same as pleadings, one to court, one to opposing party, one to judge.
• Oral Arguments are becoming a rarity.
• Proposed Order Required-Bring it with you, judge can tweak if necessary.
• Notice- you can always give MORE time. Professional courtesy- dictates that you clear the date with the other party.
• Tentative Rulings- in some places, on heavily congested court days, call in phone line will let you know what Judges tentative rulings are the night before. Others will let you know day of. Intended to shorten amount of oral argument time.
• Sanctions- when you file motions/oppositions in bad faith, you will not only lose, but be sanctioned as well.
• You can file a motion for anything- EX "motion to knock it off"
• Motion to Quash also known as Special Appearance
• Motion for Summary Judgment- CR 56
➢ If, after discovery, there is no factual dispute, either party may ask Judge for SJ, as a matter of law.
• CR 56c - 28 calendar days notice required for motion,
➢ 11 days for opposition
➢ 5 days for reply
• You may set motion for summary judgment at any time at least 14 days before trial
• When would you calendar your SJ deadline? Must be finished and FILED 42 days early, calendar 90 DAYS before trial!
• CR 56- no details as to page limitations
➢ Go to Local Rules
➢ You can ask for court permission to extend page limitation
• CR 56e
➢ Summary Judgment replaces trial, pleadings not sufficient, evidence must be submitted.
Always file a Reply?
• pro- Your argument will be last in Judges mind
• con- Judges don't want reiteration of motion
Notary- being a notary is extremely useful. You should become a notary.
p 207
Types of Motions
• Motion In Limine- Motion to limit evidence ER 403, always argued before trial.
• Motion for Judgment as a Matter of Law- mid-trial summary judgment
• Judgment Non Obstante Veredicto- JNOV Judge sets aside jury verdict and gives their own.
• Jury Nullification- Judge takes rights away from jury
• Motion for New Trial CR 59- Motion for reconsideration (many states require motion for new trial before appealing)
➢ Sometimes used as bargaining chip to force plaintiff to take less $ than awarded by jury.
➢ 10 days to file
• Motion to Tax Cost- filed by losing party to reduce cost bill.
Tuesday, February 1, 2011
Thursday, January 27, 2011
1.27.11
Handout- #9 Sample Motion + Extra copies of omitted page from handout #7
Review CR 12- will be on Midterm
-All rules mentioned in class should be read through, so that you know where to look for the parts you need on the midterm.
CR 12e - Motion for More Definite Statement
-Motion by D against P for complaint that is so deficient that an intelligent answer is nearly impossible.
-Also called a DEMURRER ("de-mur") in other states. Even if demurrer is sustained, an amendment is generally granted. Can lead to stronger complaint, which may not be to your advantage.
CR 12f- Motion to Strike
-Court may strike any redundant or impertinent or scandalous material from pleadings.
p 188 Failure to Answer CR 55
Options when Complaint is filed-
1. Answer
2. File Motion to Dismiss (CR 12)
3. File a Notice of Appearance
Notice of Appearance
"To the P and to P's counsel, comes now the D by and through his attorney and hereby appears in the action."
-Not an answer, not a challenge, does not stop time period you have to respond.
Default Judgments
A. If you don't answer in 20 days, the other side can take a default. But if they don't default you can answer anytime until they do. You have as much time as you want to answer, provided a motion for default has not been filed. If default has been filed you must ask court for permission to file answer.
B. If you file a Notice of Appearance plaintiff must give defendant five days notice of motion for default. If they've waited a year to file for default, then they must give you 10 days notice of motion for default.
C. Always file Notice of Appearance to insure that you will receive notice of motion for default. If you do not respond to complaint they can get default judgment without notifying you.
D. If you file a Notice of Appearance and you get a motion for default you can still answer the complaint as long as you do so before the motion for default is actually heard.
E. If you do get defaulted, CR 60, Relief from Error, throw yourself on mercy of court. Almost always grant relief, but will likely sanction you (and you will probably lose your job).
-Judges hate default judgments, and will set them aside readily.
-You can get a default without giving notice, but you should give notice, even if they have not filed a notice of appearance.
-Duty to Cooperate Clause- in most Insurance policies- If insured person does not inform insurance company of legal action, insurance will not cover, and you may lose the pocket in your lawsuit.
How to Count CR 6
Four Basic Rules
1.The Day of the Act -or- When do I start counting?
-The day that something is done does not count.
EX John is served Jan. 5th, when is the last day that John can file? (20 days later) 25th
Jan. 5th does not count. Count 20 days beginning on Jan. 6th. The only day that doesn't count is the day that he is served. Count it out on your fingers, best way to be right.
EX Friday hearing. Judge says "have the papers to me 3 days before hearing". What day do you need to have your papers in? Tuesday. (Day of hearing does not count)
2. The 7/11 Rule -or- Do weekends & holidays count?
If the time to do something is less than 7 days, No. STATE- If the time to do something is 7 days or greater, Yes, weekends and holidays count. FEDERAL- If the time to do something is 11 days or greater, weekends and holidays count.
EX Friday hearing. Judge says "have papers to me 7 days before hearing". What day do you need to have your papers in? Friday.
EX Tuesday- File your answer in 5 days. Tuesday.
EX We need to file our response 5 days before the hearing on Friday the 13th. Friday the 6th.
3. The Business Days Rule -or- what if it lands on a non-business day?
If the due date falls on a weekend or holiday (after applying first two rules) it is due the next court day.
4. Post Office Rule -or- When does it need to be mailed?
Add 3 days (calendar days) to deadline, (you have 3 days less). CR 6e
You must mail it while allowing three days for it to arrive within the deadline.
EX Judge says "I want your answer by Friday". You can personally bring the answer on Friday, or mail it Tuesday.
Local Rules- Alphabetical by County
Counties- vary widely
Motion- Request to court for relief of some kind.
CR 7 - Does not define form of motions, state defers to county on form. (Counties cannot make rules that contradict state rules).
- Almost always in writing. Sometimes made orally, called "speaking motions", EX "move to strike". If you anticipate making a motion during the trial, you should have it in written form.
King County Local Rule 7
- Motion- 6 days notice to opponent for motion
- Opposition- 2 court days prior to the hearing by noon- opposition due
EX if motion will be heard on Friday, opposition due Wednesday by noon.
- Reply- 1 court day notice by noon- reply due
- Motion > Opposition > Reply
- Motions to be made in writing unless during trial.
- Motions should be pithy, to the point.
- Oral motions must be DISPOSITIVE (dispose of something- summary judgment, default judgment, motion for dismissal, CR 12b.)
- Motions are a) filed with court, b) to opponent, and c) to judge. (Judges/Working/Chambers copy- generally filed with Judges mailroom.)
Review CR 12- will be on Midterm
-All rules mentioned in class should be read through, so that you know where to look for the parts you need on the midterm.
CR 12e - Motion for More Definite Statement
-Motion by D against P for complaint that is so deficient that an intelligent answer is nearly impossible.
-Also called a DEMURRER ("de-mur") in other states. Even if demurrer is sustained, an amendment is generally granted. Can lead to stronger complaint, which may not be to your advantage.
CR 12f- Motion to Strike
-Court may strike any redundant or impertinent or scandalous material from pleadings.
p 188 Failure to Answer CR 55
Options when Complaint is filed-
1. Answer
2. File Motion to Dismiss (CR 12)
3. File a Notice of Appearance
Notice of Appearance
"To the P and to P's counsel, comes now the D by and through his attorney and hereby appears in the action."
-Not an answer, not a challenge, does not stop time period you have to respond.
Default Judgments
A. If you don't answer in 20 days, the other side can take a default. But if they don't default you can answer anytime until they do. You have as much time as you want to answer, provided a motion for default has not been filed. If default has been filed you must ask court for permission to file answer.
B. If you file a Notice of Appearance plaintiff must give defendant five days notice of motion for default. If they've waited a year to file for default, then they must give you 10 days notice of motion for default.
C. Always file Notice of Appearance to insure that you will receive notice of motion for default. If you do not respond to complaint they can get default judgment without notifying you.
D. If you file a Notice of Appearance and you get a motion for default you can still answer the complaint as long as you do so before the motion for default is actually heard.
E. If you do get defaulted, CR 60, Relief from Error, throw yourself on mercy of court. Almost always grant relief, but will likely sanction you (and you will probably lose your job).
-Judges hate default judgments, and will set them aside readily.
-You can get a default without giving notice, but you should give notice, even if they have not filed a notice of appearance.
-Duty to Cooperate Clause- in most Insurance policies- If insured person does not inform insurance company of legal action, insurance will not cover, and you may lose the pocket in your lawsuit.
How to Count CR 6
Four Basic Rules
1.The Day of the Act -or- When do I start counting?
-The day that something is done does not count.
EX John is served Jan. 5th, when is the last day that John can file? (20 days later) 25th
Jan. 5th does not count. Count 20 days beginning on Jan. 6th. The only day that doesn't count is the day that he is served. Count it out on your fingers, best way to be right.
EX Friday hearing. Judge says "have the papers to me 3 days before hearing". What day do you need to have your papers in? Tuesday. (Day of hearing does not count)
2. The 7/11 Rule -or- Do weekends & holidays count?
If the time to do something is less than 7 days, No. STATE- If the time to do something is 7 days or greater, Yes, weekends and holidays count. FEDERAL- If the time to do something is 11 days or greater, weekends and holidays count.
EX Friday hearing. Judge says "have papers to me 7 days before hearing". What day do you need to have your papers in? Friday.
EX Tuesday- File your answer in 5 days. Tuesday.
EX We need to file our response 5 days before the hearing on Friday the 13th. Friday the 6th.
3. The Business Days Rule -or- what if it lands on a non-business day?
If the due date falls on a weekend or holiday (after applying first two rules) it is due the next court day.
4. Post Office Rule -or- When does it need to be mailed?
Add 3 days (calendar days) to deadline, (you have 3 days less). CR 6e
You must mail it while allowing three days for it to arrive within the deadline.
EX Judge says "I want your answer by Friday". You can personally bring the answer on Friday, or mail it Tuesday.
Local Rules- Alphabetical by County
Counties- vary widely
Motion- Request to court for relief of some kind.
CR 7 - Does not define form of motions, state defers to county on form. (Counties cannot make rules that contradict state rules).
- Almost always in writing. Sometimes made orally, called "speaking motions", EX "move to strike". If you anticipate making a motion during the trial, you should have it in written form.
King County Local Rule 7
- Motion- 6 days notice to opponent for motion
- Opposition- 2 court days prior to the hearing by noon- opposition due
EX if motion will be heard on Friday, opposition due Wednesday by noon.
- Reply- 1 court day notice by noon- reply due
- Motion > Opposition > Reply
- Motions to be made in writing unless during trial.
- Motions should be pithy, to the point.
- Oral motions must be DISPOSITIVE (dispose of something- summary judgment, default judgment, motion for dismissal, CR 12b.)
- Motions are a) filed with court, b) to opponent, and c) to judge. (Judges/Working/Chambers copy- generally filed with Judges mailroom.)
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