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Civil Litigation Fall 24, Chs. 6 and 7

Horizontales
Motions made during the trial are usually made orally, whereas all other motions must be made in writing, filed with the court clerk, and ___ on the opposing attorneys.
A motion brought at the beginning of trial, or shortly before trial, that is made to ask the court to disallow the admission (or even the presentation) of certain evidence (testimony or documentary), often made on the grounds that the prejudicial effect of the proffered evidence would outweigh any probative value, but can be made for any reason why the movant would argue that the evidence should not be admitted.
The party who makes a motion to the court asking the court to issue an order in the case is called the ___ or moving party.
___ is an affirmative defense applicable to all cases which dictates that a delay in pursuing a claim can be so long that the person against whom you are proceeding is unfairly hurt or prejudiced by that delay and the claim should be denied.
An answer is organized in the same general ___ as the complaint. It contains a caption that contains the title of the case (which is the same as that found in the complaint or petition), and the docket number assigned to the case by the court. The body or main part of the answer also contains allegations in the form of numbered paragraphs in which the contentions of the complaint are affirmed, denied, or denied on information and belief. Following these paragraphs might also be paragraphs setting out affirmative defenses. The answer concludes with a prayer, or “wherefore” clause, usually requesting that the plaintiff take nothing by way of the complaint. The signature and address of the attorney filing the answer.
Contributory ___ and comparative ___ are affirmative defenses applicable to tort cases, in which the defendant alleges the person who was harmed themselves engaged in negligent or careless conduct.
An affirmative defense applicable to tort cases called ___ by fellow servant arises when harm or injury is caused by a co-employee; in some jurisdictions it relieves an employer for work-related injury if employees were carefully chosen.
A motion for a ___ order is a discovery motion brought pursuant to FRCP 26(c), asking the court to limit a discovery request or to protect certain information from discovery due to a privilege, trade secrets, confidentiality, etc.
___ judicata is an affirmative defense applicable to all cases where the defendant asserts that the matter has been previously decided by judgment.
An ___ defense is a fact or circumstance that, if proven, defeats the plaintiff’s claim, even if the plaintiff can prove every contention alleged in the complaint (every element of the cause of action). ___ defenses must be alleged in the answer or they are deemed waived. In other words, if an ___ defense exists and is not alleged in the answer, the defendant may be barred from asserting it at trial.
___ of frauds is an affirmative defense applicable to contract disputes alleged where there is a Law that requires certain types of contracts (for example, those over $500) to be signed and evidenced by a writing to be enforceable in court and the alleged contract at issue in the case does not comply with those legal requirements.
An affirmative defense applicable to contract disputes where something that is offered as part of a deal (the “___”) becomes worthless or ceases to exist before the deal is completely carried out, is called failure of ___.
A posttrial motion to tax ___ is brought under FRCP 54 by the prevailing party to recover their ___ of litigation (filing fees, service fees etc.) in addition to the judgment.
Defendant's options in responding to a complaint include (1) negotiating a settlement, (2) challenging or contesting the factual claims of the plaintiff by filing and serving a responsive pleading called an ___, (3) challenging legal aspects of the case (jurisdiction, improper service, failure to state a claim upon which relief can be granted, etc.) by making an appropriate motion or by asserting these legal defenses in the answer as affirmative defenses, or by (4) choosing to not respond to the initial pleading, allowing the plaintiff to pursue default remedies.
An affirmative defense applicable to contract disputes by which one is stopped by their own prior acts from claiming a right against another person who has legitimately relied on those acts is called ___.
Any request that a party makes to the court to issue an order in the case, whether on a procedural issue or on a substantive issue, is called a ___.
A motion to strike made orally at trial is a request to the court to to ___ testimony from the record.
Motions must be made or opposed in good faith, and so if a court finds that an attorney has abusee the motion process, the court may order ___ to punish that attorney.
In order to oppose a motion, the responding party usually prepares affidavits or declarations, a memorandum of law in opposition to the motion, and a proposed order. These documents are then filed in court and served (usually by mail or electronically) on all other ___ to the action.
A motion for a more ___ statement can be filed pursuant to FRCP 12(e) when the complaint is so vague and ambiguous that it cannot be understood and cannot be answered. This motion asks plaintiff to clarify the allegations and make them intelligible. The moving party is expected to point out the defects in the complaint and explain what details need to be added.
A posttrial motion for ___ from judgment or order brought pursuant to FRCP 60, is a request to the court by one party that the court relieve a party from any judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies ___.
An affirmative defense applicable to contract and tort disputes is ___, the voluntary giving up of a right.
A denial in an answer on the basis of information and ___ is only acceptable when the pleader “honestly lacks firsthand knowledge of the true facts” and cannot easily ascertain the information necessary to straight up admit or deny the allegation.
In federal court, the time for a defendant to ___ to a complaint depends on the way the complaint was served. If the defendant waived formal service, the time in which to ___ is 60 days. The same time applies if the defendant is the United States, a federal agency or a federal employee. In other instances, defendants generally have 21 days in which to file and serve an answer or a responsive motion.
Verticales
A request to the court that a party be allowed to change, add to, or delete part of a pleading by submitting a new, revised pleading is called a motion to ___. Such a motion is usually granted under FRCP 15 unless the amendment would unfairly prejudice the other party.
A request under FRCP 12(f) that the court delete the portions of a pleading that are insufficient, redundant, immaterial, or scandalous is called a motion to ___ .
An affidavit is a statement that describes facts of which the affiant has personal knowledge, made under penalty of perjury, sworn before a ___ or other person authorized to administer an oath. A declaration is the same as an affidavit in that it contains factual statements made under penalty of perjury, except it is not sworn in front of a ___.
An agreement to pay less than the full debt or to accept late payment that has been completed by payment and a full release, applicable to contract disputes, is an affirmative defense called ___ and satisfaction.
Pursuant to FRCP 65, a petition for a temporary ___ order (TRO) is granted only when a court finds that some immediate and irreparable harm will result without it. If granted without notice to the opposing party, it must be followed as soon as possible by a hearing on a petition for preliminary injunction, for which notice to the opposing party is required.
A ___ of law in support of a motion provides the court the movant's legal argument in the form of a discussion or analysis of the applicable law (constitution, statutes, cases) that applies to the motion.
A motion for ___ as a matter of law, brought pursuant to FRCP 50, is a motion made during (or after) a trial in which one party asks the judge to rule in their favor because the other side has produced no evidence upon which a ___ can be based. Under Rule 50 the court applies a similar standard as in deciding a motion for summary ___. In state court, this type of motion is sometimes called a motion for a directed verdict.
An affirmative defense applicable to any type of case is the ___ of limitations, asserted when there is a law that sets a maximum amount of time after something happens for a case involving that occurrence to be taken to court.
A motion to ___ is a discovery motion brought pursuant to FRCP 37 asking the court to order the opposing party to comply with discovery requests.
___ or license is an affirmative defense available in all types of cases where the plaintiff has consented or given permission for the defendant's conduct.
A motion for summary judgment brought pursuant to FRCP 56 requests that the court enter judgment without trial because there is no genuine dispute as to any material fact in the case and the movant is entitled to judgment as a matter of ___.
The fact that a debt or claim has been discharged in a ___ proceeding can be used as an affirmative defense in any type of case.
Pursuant to FRCP 65 the procedure for obtaining a preliminary ___ is to file papers requesting a preliminary ___ and setting the matter for a hearing, along with affidavits and a memorandum of law that support the request. These papers must be served on the opposing party, and the matter is decided at a hearing.
An affirmative defense applicable to contract disputes where the defendant alleges that they have fulfilled their monetary obligations is called ___.
A motion for ___ on the pleadings can be brought under FRCP 12(c) if a party claims that the allegations in the pleadings are such that no contested issues remain, and ___ is appropriate for only one party.
A motion for ___ can be brought under FRCP 11 when an attorney has filed frivolous or unsupported pleadings or other documents. A motion for ___ can also be brought under FRCP 37, when a party has failed to comply with a discovery order. ___ can include an order to pay a penalty, an order to pay another party’s reasonable attorney’s fees and costs incurred because of the violation, nonmonetary sanctions such as striking the pleadings. A court can even hold the party or attorney in contempt as ___.
___ is an affirmative defense applicable to contract disputes, in which the defendant alleges that there was unlawful pressure on a person to do what he or she would not have otherwise done. Such unlawful pressure can include using force, threats of violence, physical restraint, etc.
To give up or relinquish a claim or right to the person against whom it might have been enforced is called ___ and is an affirmative defense applicable to contract disputes and tort cases.
Assumption of the ___ is an affirmative defense, applicable to tort cases, that the plaintiff knowingly and willingly exposing themselves to the possibility of harm.
A specific ___ is an answer in which each paragraph of the complaint is specifically addressed. The allegations can be denied, admitted, or denied on the basis of information and belief.
A request that the court end or terminate the case immediately, with no hearing on the merits of the plaintiff’s claim, and which can be filed pursuant to FRCP 12 instead of an answer when the court lacks jurisdiction, when service of process is insufficient, when the complaint fails to state a claim upon which relief can be granted, or when a necessary party has not been joined, is called a motion to ___.
Making a motion usually includes filing several documents along with the motion, including a notice of hearing on the motion, affidavits or declarations in support of the motion, a memorandum in support of the motion (sometimes called memorandum of points and authorities) and a proposed ___.
If an action is commenced in a court with jurisdiction but not the most convenient district in terms of location, a party can file a motion to change ___ to request that the court transfer the case to the ___ of a proper district that is more convenient for the parties, witnesses, or in the interest of justice.
A posttrial motion for ___ trial, brought pursuant to FRCP 59, is a request that the judge set aside the verdict or judgment and grant a ___ trial to the parties for such reasons as jury misconduct, mistake in the law, or newly discovered evidence.
An affirmative defense applicable to contract disputes, any kind of trickery used to cheat another of money or property illegally is called ___.
An affirmative defense available in __ type of case, award and arbitration is the assertion that there has been a resolution of a dispute by a person other than a judge; the award is the judgment.