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Resolution Before Trial: Court Motions

Litigation is time-consuming and expensive. When possible, attorneys prefer to resolve cases before they reach the courtroom. The rules of civil procedure allow them to shortcut the process with pretrial motions.

motion is any legal pleading asking for the court's order on an issue. Pretrial motions happen after filing a criminal or civil case. A dispositive motion asks the judge for a ruling to end the case before the trial begins. Nondispositive motions may affect the case but will not prevent it from going to trial.

Motion to Quash

A motion to quash is a request to have all or part of a court proceeding declared invalid or void. It can be specific to one court order, such as a subpoena, warrant, or entire complaint. The judge reviews all arguments and evidence in favor of the motion and any arguments by the opposing party.

A motion to quash a complaint or warrant may lead to dismissal of the case. Potential witnesses use motions to quash to avoid subpoenas and depositions.

Motion to Dismiss

If a defendant believes a complaint has legal or factual flaws, they file a motion to dismiss. The judge reviews the motion in a way that most benefits the plaintiff. A pretrial motion to dismiss is usually based on one of these legal theories:

  • Lack of subject matter jurisdictionCourt rules require plaintiffs to file their cases in the proper court. A court with limited jurisdiction, such as a probate court, can't hear a contract dispute. Subject matter jurisdiction is an uncommon way to dismiss a civil suit.
  • Improper service of process. Any civil action requires proper process service, allowing the defendant to respond to the complaint and the trial date. Improper service may include a flaw in the summons or a delivery defect.
  • Failure to state a claim for relief. Plaintiffs must have good cause for a lawsuit. They must also request something the judge can grant as a matter of law. For instance, a plaintiff can ask for monetary damages to cover medical bills in a personal injury claim. They can't ask that the defendant stop driving forever.
  • Lack of personal jurisdiction. In a civil case, the court hearing the case must have "power" over the defendant. In legal language, the defendant must reasonably expect to get sued in the court where the lawsuit takes place. Plaintiffs can bring lawsuits in the court system where the incident happened, where the defendant lives, or if the defendant is a business in its state of incorporation. Any other location does not have personal jurisdiction.

Not all motions to dismiss result in dismissals. The plaintiff may file a motion to amend, and the judge must allow them to correct their claim for relief. In subject matter or personal jurisdiction cases, the plaintiff may request removal to the proper court.

Motion for Default Judgment

If the defendant fails to answer the complaint or file other motions within the time limit required by the summons, they are in default. In that case, the plaintiff may file a motion for default judgment. If the judge grants the default, the plaintiff gets the relief requested, and the defendant cannot challenge the verdict.

If the defendant has a valid reason for failing to answer (for instance, improper service of process), the defendant can file a motion to set aside the default. Courts prefer to resolve issues through litigation rather than by default. If the judge agrees the reason is valid, or there are still facts to determine, they will set the judgment aside.

Motion for Summary Judgment

When one party believes there is no dispute about any material fact in the case, they will move for a summary judgment. A summary judgment requires the moving party to prove that:

  • There are no undisputed facts in the case, so there is nothing for a judge or jury trial to discover
  • The moving party is entitled to judgment as a matter of law
  • Even if the facts in the opposing party's case are true, they can't overcome the facts and law in the moving party's case

A judge can enter a "partial summary judgment" if some of the facts or issues are not in dispute and some remain in doubt. The judge can also rule on evidence not presented in the motion or enter a summary judgment in favor of the nonmoving party.

Anti-SLAPP Motions

A strategic lawsuit against public participation (SLAPP suit) gets filed by a plaintiff trying to intimidate a critic or opponent in the public sphere. In a SLAPP suit, a plaintiff does not want to win or settle; the goal is to intimidate the defendant into ending their public comments. Defendants file anti-SLAPP motions pursuant to laws in states with anti-SLAPP laws to end such actions as First Amendment violations.

California's anti-SLAPP law allows litigants to terminate a case without further adjudication if the suit involves an issue under consideration by any judicial, legislative, or governmental body.


demurrer is technically a pleading rather than a motion. It challenges the legal sufficiency of a complaint rather than the facts. About half of state courts no longer use civil demurrers and they don't get used in federal district courts. In federal court, attorneys file a 12(b)(6) motion to dismiss for failure to state a claim.

Dispositive Motions in Alternative Dispute Resolution

The idea that arbitrators should consider dispositive motions seems counterintuitive. Alternative dispute resolution (ADR) is an alternative to traditional litigation. But most industry experts agree that arbitrators can rule on dispositive motions with the parties' agreement.

Since arbitration aims to reach a settlement agreement rather than a verdict for one party or the other, the need for arbitrators to rule on a summary judgment or motion to dismiss is doubtful. But, in a case where both parties are unable or unwilling to reach a compromise, the ability to end the case rather than send it back to trial court could help.

Hire an Attorney

If you need help or legal advice with these motions, contact a litigation attorney.

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