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Civil Dispositive Motions:
A Basic Breakdown
1) Simplified Timeline:
2) Pre-Trial Motions: Rule 12(b)(6) and Summary Judgment
A. Rule 12(b)(6) Motions to Dismiss
1. Challenge the sufficiency of the complaint on its face. Movant asks
the court to dismiss the complaint for “failure to state a claim upon which
relief may be granted.”
2. Standard: The court may grant the motion if the allegations in the
complaint are insufficient or defective as a matter of law in properly stating
a claim for relief. For example:
a) The complaint is for fraud, which requires specific pleading,
but a required element of fraud is not alleged.
* Defendant may move at any time. Plaintiff must wait until 30 days after
commencement of action.
**Movant must have moved for d.v. after close of evidence.
Complaint
Filed
Trial
Begins
Discovery and Mediation
Process
Motion
for D.V.
(Rul
Motion
for D.V.
Motion
for
JNOV**
Motion
for New
Trial
Jury‟s
Verdict
Plaintiff‟s
Evidence
10 days
12(b)(6) Motions
Summary Judgment Motions*
Entry of
Judgment
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b) The complaint alleges breach of contract, but incorporates
by reference (and attaches) a contract that is unenforceable as a
matter of law.
c) The complaint alleges a claim against a public official in a
context in which that official has immunity as a matter of law.
3. The court only looks at the complaint (and documents incorporated
by reference).
a) If the court looks outside the complaint, the motion is
effectively converted to a summary judgment and should be treated
under the provisions of Rule 56.
4. All allegations of the complaint must be accepted as true.
5. Rule 12(b)(6) motions should be granted carefully and sparingly
and are not generally favored.
a) If the defect can be repaired with an amendment to the
complaint, the court should consider allowing the plaintiff the
chance to correct the defect.
b) Motions to dismiss under Rule 12(b)(6) are adjudications on
the merits, and therefore should be granted with caution.
B. Summary Judgment (Rule 56)
1. Summary judgment motions ask the court to examine the record
and determine whether any material questions exist for a jury to decide.
2. Standard: Court “shall” grant a motion for summary judgment if
“there is no genuine issue of material fact” as shown by “the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any.”
a) The record must be viewed in the light most favorable to the
party against whom judgment is sought.
b) The court may grant summary judgment as to all of the
claims or only a portion of them. Rule 56(c).
(1) If only a portion of the claims are adjudicated, the
court shall specify the remaining material issues in an order,
and those issues shall proceed to trial. Rule 56(d).
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c) The court may grant summary judgment as to liability only
and leave damages for the jury, as appropriate. Id.
d) The court may also grant summary judgment against the
moving party, if appropriate. Rule 56(c).
e) Summary judgment is available in declaratory judgment
actions. Rule 56(a).
3. The Motion:
a) May be filed by a defending party any time. May be filed by
a complaining party any time after 30 days from commencement of
action. Rule 56(a), (b).
b) The motion must be filed at least 10 days prior to hearing.
Rule 56(c).
(1) Court is not required to conduct a hearing, but it is
common to do so upon notice of the moving party.
(2) If the non-moving party files affidavits in opposition to
the motion, they must be served on the movant (personal
delivery, fax, or other actual delivery) at least 2 days prior to
hearing.
(a) Court may continue the hearing for any
reasonable time or take other reasonable action to
allow service of affidavits. 56(c), (f).
(b) Affidavits must meet essential evidentiary
thresholds for admissibility, including competency,
personal knowledge, and absence of hearsay. Rule
56(e).
3) At Trial and Post-Trial: Directed Verdict, JNOV, and New Trial
A. Directed Verdict, JNOV (Rule 50)
1. Directed Verdict
a) After Plaintiff‟s evidence or after the close of all the
evidence, a party may move for a directed verdict in its favor.
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b) Standard: If the non-moving party‟s evidence is insufficient
as a matter of law to go to a jury, the Court should grant a directed
verdict for the moving party.
c) Granting motions for plaintiff: A court may grant a directed
verdict motion for the party with the burden of proof, although it is
not common. Doing so at the close of that party‟s evidence is even
more rare, and should be done only if the defendant cannot put on
contrary evidence as a matter of law.
2. Judgment Notwithstanding the Verdict (JNOV) (Rule 50(b))
a) If a losing party has moved for directed verdict at the close of
all the evidence, and it was not granted, that party may move again
for a judgment in its favor if the verdict is for the opponent.
b) Timing: The motion must be made within 10 days after entry
of judgment. The court may also make the motion on its own.
c) Standard: If the directed verdict could properly have been
granted for the movant, the court should grant JNOV. (JNOV can
also be thought of as a “directed verdict after the verdict.”)
3. JNOV Combined with Motion for New Trial (Rule 50(c), 59):
a) A losing party may move for a new trial on grounds that the
credible evidence was strongly in its favor.
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These motions are
often combined with motions for JNOV, and they have the same
10-day time limit.
b) If a judge determines the standard for JNOV is not met, but
that the evidence strongly weighed in favor of the losing party, he or
she may grant a new trial.
(1) See Decision Diagram below.
(2) This decision is in the judge‟s discretion, and the
Court of Appeals reviews it only for manifest disregard of the
record.
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Rule 59(a)(7). There are eight other bases for granting a new trial, including: irregularities
preventing a fair trial; misconduct of jury or opposing party; accident or surprise; new, previously
undiscoverable evidence; jury disregard for court‟s instructions, excessive or inadequate
damages; error of law; and any other reason established in prior case law. Rule 59(a)(1)-(6),
(8).
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c) Conditional Ruling: If the judge grants JNOV, he or she
must also make a conditional ruling on the new trial motion. Rule
50(c)(1).
(1) New trial conditionally granted: If appellate court
reverses JNOV, new trial will proceed unless Court of
Appeals rules otherwise.
(2) New trial conditionally denied (unusual): Movant may
appeal the denial. Case proceeds according to the ruling of
the appellate court.
B. Directed Verdict/JNOV/New Trial Decision Diagram:
* This diagram assumes a jury trial. In a non-jury trial, the court, as finder of fact, may grant a Rule 41(b)
dismissal for defendant at close of plaintiff‟s evidence even where the plaintiff has presented evidence
that would be sufficient to take to a jury.
** This is a rare occurrence, particularly in negligence cases. A court should take extra caution when
granting directed verdict or JNOV for the party with the burden of proof.
Court„s
Conclusion
Court‟s
Action
Evidence
insufficient
to support a
verdict for
plaintiff.
Evidence
strongly favors
defendant, but
some evidence
for plaintiff.
Evidence
strongly favors
plaintiff, but
some evidence
for defendant.
Evidence
does not
clearly weigh
in favor of
either party.
Court should
grant d.v. for
defendant.
(Should
grant JNOV
for
defendant if
verdict is for
plaintiff.)
Court should deny
d.v. and JNOV
motions.* May
consider granting
new trial for
defendant if
verdict is for
plaintiff.
Court should
deny d.v. and
JNOV
motions.
Court should
deny d.v. and
JNOV motions.
May consider
granting new
trial for plaintiff
if verdict is for
defendant.
Evidence
for plaintiff is
uncontroverted
(met burden as
a matter of law).
Court should
grant d.v. for
plaintiff.**
(Should grant
JNOV for
plaintiff if
verdict is for
defendant.)