Motions during pretrial can help in the resolution of many important questions about your lawsuit. A motion is a request for a court’s action that is filed by the lawyer on behalf of the interested party. If the motion can be able to terminate a specific action, such motion is called a dis-positive motion because of its capability to dispose. If the ruling is on some incidental question that arises during the litigation, it is a non-dis-positive motion. The information after this will allow you to have understanding of relevant facts.
Motion to Dismiss
A motion to dismiss is filed if you think that the other party has conducted discovery. Most of the time, a motion to dismiss is based on things that are deficient which should be included in the complaint filed before the court. Deficiencies can either be:
Lack of subject matter jurisdiction. It means that the court cannot take action because it does not have the authority to do so. For example, a court will not have jurisdiction over the case when jurisdiction is exclusively given to another court. In this scenario, the case should be dismissed.
Lack of personal jurisdiction. This means that even if the court has jurisdiction over the subject matter, it failed to acquire jurisdiction over the person of the accused. In this case the court will not be able to decide on the matter without violating due process that is accorded the accused.
Improper venue. “Venue” refers to the particular location of the court. It should be noted that venue is different from jurisdiction. Venue, although stipulated by law, is subject to compromise, upon agreement by the parties. On the other hand, jurisdiction of the court can never be compromised. A frequent solution to this problem is not to dismiss the case, but to order that it be transferred to the proper venue. Thus, improper venue cannot be said to be fatal to an action in the strict sense.
Insufficiency of process or insufficient service of process. A case may be dismissed if there is a technical defect in the summons (which is rare), or if you were not properly served with the summons and complaint (which is more common). Even if substantial aspects of the law have been said to be more important than procedural ones, the basic procedure should still be followed because this ensures that the right to due process by the parties is observed.
Failure to state a claim upon which relief may be granted. If there is no right for relief, it is the duty of the lawyer to inform the client. Thus, the lawyer should tell the client that a law suit should not be pursued if the client is not entitled to judicial remedies. It can be evaluated with the assessment of relevant information which could prove the evidence available to the client.
Summary Judgment Motion
Summary judgment can be availed when the facts of the case are not disputed by the parties. It is called summary judgment because there is no need to have trial for the adjudication to arise. The purpose of a trial is to have somebody decide what the facts are. A trial needs the presence of the judge or the jury. If the facts are not in dispute, there is no need for a trial. If the facts are not disputed, either party can request for a summary judgment and the court can render judgment without having trial.
Summary judgment is described as “a blunt instrument” that can abruptly terminate the litigation. However, most parties do not prefer summary judgment because there are a lot of prohibited motions in summary judgment. If the court agrees with the party opposing the motion and finds that the key facts are in dispute, the court cannot enter judgment and must instead send the case to trial.
Motion for Default Judgment
A default judgment can be attained when through the fault of the defendant, the defendant is unable to present its evidence and go to the trial. When a defendant is in default, the plaintiff can ask the court clerk to make a note of that fact in the file, a procedure called entry of default. Entry of default is something serious as this means that the defendant can no longer present its evidence. Instead, the only question in dispute is how much the plaintiff should receive in damages. The court will send the defendant a notice stating that default has been entered against him or her.
If a defendant is in default, acts promptly, and has an adequate excuse, he or she may be able to convince the court to set aside or vacate the entry of default from the file. However, lifting of the order of default can only be done if the defendant is able to present a valid reason for failing to appear and present its evidence. Courts very much prefer that cases be decided on the merits, which often influences them to grant a motion to vacate entry of default. But in some cases, a court will decide that the defendants reasons aren’t good enough and refuse to set aside or vacate the entry of default.