3 Motions To Expect In Federal Civil Litigation
When clients think of civil litigation, they often think primarily of the trial at the end of the process. However, before getting to trial, it is important to hire an attorney who can best guide the court to narrow the factual and legal issues that will be presented at trial, if there is one. This narrowing is usually done through motion practice. During the time your case is in federal court, both your attorneys and the attorneys for the other party are likely to file numerous motions for the court to decide. And while every case is different, the following three types of motion are typically filed in most civil cases.
Motions to Dismiss
When a complaint is filed in federal court, the defendant generally has twenty-one days to answer the complaint or otherwise respond to it. Often, that response comes in the form of a motion to dismiss under Rule 12(b) of the Rules of Federal Procedure. This motion is used to address issues with the complaint that may be waived if they are not raised with the court prior to the defendant’s answer. The issues included in Rule 12(b) include lack of jurisdiction, improper venue, failure to join a necessary party, improper service and, the most commonly used, failure to state a claim on which relief can be granted. This last type of motion asserts that, even if all of the factual allegations made in the complaint are true, the plaintiff has no right to recover at law. Normally, the judge will make a decision on a motion to dismiss relatively quickly in order to keep the case moving. However, “relatively quickly” in federal court is often measured in months, not days or weeks. It is important to note that discovery is not usually stayed during the consideration of a motion to dismiss.
Motions for Summary Judgment
Closer to the time of trial, both sides will usually file motions for summary judgment on some or all of the causes of action asserted in the case. These motions, which are generally made after discovery is substantially completed, argue that there is no genuine question of material fact and that the moving party is entitled to judgment as a matter of law. Note that summary judgment does not require that there is no question as to any fact at all. Rather, the question of fact must be material and the dispute over it must be genuine. In other words, the party opposing summary judgment must present evidence tending to contradict the fact to show that it is genuinely in dispute. He or she must also explain how the fact is important to the determination of the case to demonstrate that it is a material fact.
Probably the most common types of motion in any civil case are motions relating to discovery disputes. In federal court, these motions are often referred to a magistrate judge who may hold a hearing and listen to the parties’ arguments about the discovery they are either seeking or attempting to withhold. Discovery motions include motions to compel written discovery, motions to compel depositions, motions for protective orders to protect confidential information, and motions to quash depositions that were improperly noticed or should not be allowed. Because each case is fact-dependent, there are as many types of discovery motions as there are cases in the federal system. In general, judges will attempt to get the parties to agree to a deposition or discovery schedule and a confidentiality agreement for sensitive information. Additionally, the federal rules of civil procedure and federal judges are usually predisposed to allow discovery on a wide range of topics. If you are involved in federal litigation, you should be prepared to produce documentary evidence, even evidence that you may not think is relevant, and to sit for a full day of deposition testimony.
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Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.