Going through the Motions. Alicia S. Hall Maron Marvel Bradley Anderson & Tardy LLC April 28, 2017

Transcription

1 Going through the Motions Alicia S. Hall Maron Marvel Bradley Anderson & Tardy LLC April 28, 2017

2 Why Motion Practice?

3 Motions throughout Litigation Pleadings Discovery Motions Pre-trial Motions Trial Motions Post-trial Motions Appellate Motions

4 Two Types of Pre-trial Motions: Dispositive and Nondispositive Dispositive = may dispose of entire case, one or more of plaintiff s claims, one or more of defendant s defenses Examples Motion to Dismiss, Motion for Summary Judgment Nondispositive = do not dispose of any claim(s) or defense(s) Examples Motions for Extensions of time, Motions to Compel Discovery, Motions to Amend Pleadings

5 Do I need to file a motion? Necessary v. desirable for the Court to be involved Do I need to ask the Court for permission? Do I need to ask the Court to act? v. Do I want to ask the Court to intervene? Do I want the Court s help?

6 Know the Rules of the Game Current Rules are Online: o Mississippi Rules of Court: MS Rules of Civil Procedure Advisory Committee Notes as of July 1, 2014 no more comments! Uniform Rules of Circuit and County Court Practice Uniform Chancery Court Rules Uniform Rules of Procedure for Justice Court Mississippi Electronic Courts Administrative Procedures

7 Know the Rules of the Game, cont. o Court s local rules (e.g. Hinds County Local Rules at o Judge s particular rules (e.g. Judge Kidd s rules: ules.pdf) o Call the court administrator (Judicial Directory and Court Terms: Publications/Pages/Judiciary-Directory-Court-Calendar.aspx)

8 Form and Structure of Motions Form of Motions: Miss. R. Civ. P. 7: An application to the court for an order shall be by motion which, unless made during a trial or hearing, shall be made in writing Structure of Motions: Be clear about the relief you want! Title accordingly. State the rules and case law clearly, and then get to the analysis section. Simple matters v. complicated ones

9 Form and Structure of Motions, cont. Sign It (and a note about Sanctions): Miss. R. Civ. P. 11: in signing a motion, you are verifying that (1) you ve read it, (2) to the best of your knowledge, there are good grounds for it, (3) it isn t being filed to harass or delay and is not frivolous Bad faith motions can file a Rule 11(b) motion for sanctions. Don t expect to make friends this way, but sometimes it has to be done.

10 Form and Structure of Motions, cont. Memorandum Briefs: Required? Depends on court and type of motion Federal Local Rule 7 requires brief for all motions State expressly required for summary judgment in circuit and county courts; no rule for chancery; several judges require them (see judge-specific orders) Briefs and appeal supplement record or attach as exhibit to motion

11 Dispositive Motions Motion to Dismiss for Failure to State a Claim (Rule 12(b)(6)) Motion for Judgment on the Pleadings (Rule 12(c)) Motion to Dismiss for Lack of Subject Matter Jurisdiction (Rule 12(b)(1)) Motion to Dismiss for Lack of Personal Jurisdiction (Rule 12(b)(2)) Motion for Summary Judgment (Rule 56)

12 Nondispositive Motions Refocus the case Discovery Motions before Motion for Summary Judgment

13 A Non-Exhaustive List of Non-Dispositive Motions Motion for Extension of Time to Serve Summons Miss. R. Civ. P. 4(h): file motion before 120 days for cause shown but after 120 days only for good cause or action shall be dismissed What it looks like in practice (motion, affidavit)

14 A Non-Exhaustive List of Non-Dispositive Motions Motion for Extension of Time to File an Answer, Respond to a Motion, etc. Miss. R. Civ. P. 6(b): if request extension before expiration of deadline, court can grant for cause shown, and request can be ex parte If request is after the deadline expires, the Court may only grant extra time upon a finding of excusable neglect Agreement of counsel and state court practice v. federal court practice

15 A Non-Exhaustive List of Non-Dispositive Motions Motion to Set Aside a Default Entry of Default = Miss. R. Civ. P. 55(c): for good cause shown Default Judgment (after hearing on damages) = Miss. R. Civ. P. 60(b): one of the reasons enumerated in the rule

16 A Non-Exhaustive List of Non-Dispositive Motions Non-Dispositive Rule 12 Motions Motion for More Definite Statement (but, notice pleading) Motion to Strike (stick with the truly scandalous)

17 A Non-Exhaustive List of Non-Dispositive Motions Motions to Add or Drop Parties See Forms to Miss. R. Civ. P Miss. R. Civ. P. 14 Defendants must move and be granted permission to sue a third party (attach proposed Complaint as an exhibit) Miss. R. Civ. P. 19 Joinder of Persons Needed for Just Adjudication (rare; landowners) Miss. R. Civ. P 24 - Intervene (of Right v. Permissive)

18 A Non-Exhaustive List of Non-Dispositive Motions Motion to Amend Pleading Miss. R. Civ. P. 15: o Before response or within 30 days if no response is due, as a matter of course o Otherwise, only by leave of court, but leave should be freely given when justice so requires Statute of limitations and relation back

19 A Non-Exhaustive List of Non-Dispositive Motions Motion to Recuse Miss. R. Civ. P. 16A and Uniform Rule of Circuit and County Court Practice 1.15 Must be filed within 30 days of learning the basis of recusal (or 30 days from when you should have known)

20 A Non-Exhaustive List of Non-Dispositive Motions Motion to Withdraw as Counsel Uniform Rules of Circuit and County Court 1.13 Must have permission to withdraw

21 A Non-Exhaustive List of Non-Dispositive Motions Motion to Substitute Parties Miss. R. Civ. P. 25 If a party dies and the death does not extinguish the claim, the court shall order substitution of the proper parties upon motion 90 days to substitute a party after a suggestion of death is filed

22 A Non-Exhaustive List of Non-Dispositive Motions Discovery Motions Miss. R. Civ. P. 37 Uniform Rule of Circuit and County Court Practice 4.04 What it looks like in practice

23 A Non-Exhaustive List of Non-Dispositive Motions More Discovery Motions Miss. R. Civ. P. 45: Subpoenas can be quashed Motion to File Under Seal: procedurally complicated; presumption that litigation documents are public records

24 A Non-Exhaustive List of Non-Dispositive Motions Motion for Pre-trial Conference Miss. R. Civ. P. 16: the court shall on motions of all parties hold a pre-trial conference at least 20 days before trial to consider the list itemized in Rule 16 Rarely used, but valuable tool

25 A Non-Exhaustive List of Non-Dispositive Motions Motion for Reconsideration Novel arguments, new information If you plan to just rehash your former arguments, consider an interlocutory appeal (if proper)

26 Practical Advice Deadlines for Motions Uniform Rule of Circuit and County Court Practice 4.03 Other Local Practice Provisions in Rule 4.03 Noticing Motions for Hearing Federal Court v. State Court Tips

27 Practical Advice Make the Judge s life easier Make your record Get a ruling

28 Final Point Miss. R. Civ. P. 1: These rules shall be construed to secure the just, speedy, and inexpensive determination of every action. The rule places consideration discretion in the trial judge for construing the rules in a manner that will secure their objectives. (Advisory Committee Note)