What Are Motions?
What Are Motions?
Motions are proceedings that occur before your trial that can resolve some issues pertaining to your case. A motion is a request that your attorney files with the court that asks for the court to rule on a specific matter prior to trial.
One of the most common motions is the “motion to dismiss.” This is often filed early in the suit, usually prior to discovery. A defendant brings about this motion when there is believed to be legal deficiencies in the case. The court will go over the motion and the complaint from a viewpoint that is most advantageous to the plaintiff. Usually, motions to dismissed are based on one or more of the following six legal faults:
The court doesn’t have the power to rule on the dispute.
This is called “lack of subject matter jurisdiction,” and usually refers to state laws requiring certain courts to hear certain kinds of cases.
The court doesn’t have the power over an individual to rule on an aspect that affects the individual personally.
This is called “lack of personal jurisdiction.” An example might be if you are a resident of Texas, but were involved in an accident while on vacation in New Mexico, but were sued in Nevada, you could reasonably claim that you are not under the jurisdiction of Nevada.
The court is an improper venue.
What this usually means is that there are state laws requiring that the case take place in a certain venue. Usually, a case is not dismissed with an improper venue motion, but it is moved to the correct venue.
You were improperly served or there was a defect in the summons.
While the latter (insufficiency of process) is very rare, the former (insufficiency of service of process) is a rather common occurrence. Either of these is a reason for dismissal. If you feel you were improperly served, make sure you tell your attorney about how were served, as a problem with the service of process can lead to a dismissal in your case.
There is no claim that can grant relief.
This means that, for example, though the plaintiff claimed that you were negligent and that led to the plaintiff’s injury, you may not be liable under the law; therefore, you cannot be held responsible for the plaintiff’s injuries. Another reason might be that the statute of limitations has run out.
The plaintiff hasn’t sued the correct persons or all the persons involved.
This is called a “failure to join a necessary party,” and it is required when there are multiple defendants to a lawsuit that all persons involved are a part of the suit. Sometimes, a court will dismiss the case based on this, but, more likely, the court will notify the plaintiff of this deficiency and the other parties are involved in the case. Sometimes, this motion will reveal aspects to the case gotten through discovery, and, if this is the case, this motion for dismissal is usually converted by the court into a motion for summary judgment.
A motion for summary judgment is a request that the case end before the trial. The facts are not disputed, and a judgment can be entered right away. A trial is designed to decide the facts. If the facts are not contested, then a trial is unneeded. A motion for summary judgment can be filed by either party if that party believes the uncontested facts in the case will result in a favorable ruling for him or her. In the motion, the filing party asks that the court apply the law to the undisputed facts and enter in a judgment in his or her favor. To prevent a summary judgment, the other party must provide evidence to the court (evidence that would be permitted at trial) showing that the facts are in dispute. If the court finds this to be the case and sides with the motion’s opposing party, the case goes on to trial.
A motion for summary judgment does not replace a trial, but it can simplify the process for some cases that do not need a trial. It can also handle aspects of a trial case prior to the trial. In a summary judgment, the court is only allowed consider those facts that have been revealed prior to trial, such as in discovery. If witness credibility is an issue, the case should be resolved at trial.
If you hope to settle the case at trial and your opponent has filed a motion for summary judgment, and you are disputing it, you need to provide your attorney with as much help as you are able. You will be needed to provide testimony rebutting the facts of the case as the other party has laid them out.
It is also possible to request a summary judgment on only part of a claim. One reason for this might be that, for instance, liability is not in dispute, but damages are. In this case, a motion of summary judgment would pertain only to liability and the trial would focus on damages.
Motion for Default Judgment
This occurs when a defendant fails to answer a summons in time. When a defendant misses the deadline in the summons, he or she is in default, and the plaintiff can then request the court for an entry of default judgment. For the defendant in the case, this means that, because he or she has failed to answer or appear in court, there is no chance of disputing liability in the case. All that is left to decide is how much the defendant owes to the plaintiff.
If you have a valid reason that you did not answer the summons, the court might be convinced to vacate the default. This means that the entry of default judgment is removed from the case file, and, as courts most often prefer to decide cases based on the facts of both sides in a case, if your excuse is good enough, you’ll likely get the default vacated.
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