Guide Motions Guide

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INTRODUCTION
A motion is a procedural device that is a formal request made to a Court for a decision on a specific part of a case. A judge will either Sustain (to agree with) or Overrule (to disagree with) a motion. Motions can be made throughout the case until a verdict is delivered.

Nb: Judge is used as a general term and may apply to Magistrates or Justices.



FORMAT
IN THE COURT OF THE COMMONWEALTH OF REDMONT
MOTION TO SUBJECT

Justification for Motion


DATED: This (day) day of (month) (year)

Example

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IN THE FEDERAL COURT OF THE COMMONWEALTH OF REDMONT
MOTION TO DISMISS

The defence moves that the complaint in this case be dismissed, and in support thereof, respectfully alleges:

1. Reason 1
2. Reason 2

DATED: This first day of January 2022


MOTION TO DISMISS
A motion to dismiss or motion for dismissal is a motion made in a case, where one party asks the court to dismiss or “throw out” the case without reviewing all of the facts and legal arguments of the case. Often a motion to dismiss is alleging that the claim should not proceed because of an issue unrelated to the facts.

Some reasons a party might file a motion to dismiss include:
  1. The court does not have jurisdiction over the parties or the subject matter of the case.
  2. The plaintiff failed to name a necessary party in the complaint, or named the wrong party.
  3. The defendant might also file a motion to dismiss because the plaintiff failed to state a claim for which relief can be granted. In other words, the plaintiff has not alleged a valid cause of action or has failed to allege all of the elements required for a particular cause of action. (For example, in a personal injury case claiming the defendant was negligent, the plaintiff must allege all of the elements of negligence. If the plaintiff’s complaint does not include an accusation that the defendant caused the harm to the plaintiff, the defendant might file a motion to dismiss based on the plaintiff’s failure to include the element of causation in their claim.
  4. Failure to Join a Party: the court decides that a trial should not proceed without the presence of all necessary parties who are critical to the case. A defendant who seeks dismissal must demonstrate why the absent party affects the outcome of the trial and that the ability to defend themselves will be impaired by that absence. This is up to the discretion of the Judge if their defense is compromised.
  5. The case is frivolous, lack of evidence is not frivolous. (This reason is implemented in 1-2-3-4 as well)

Withdrawal of the Motion to Dismiss
Once a Motion to Dismiss has been filed, the only way to withdraw it is for the filing party to formally request that the court remove the previously filed motion. A request for withdrawal of a motion must include the party’s reason for the withdrawal, and the decision of whether to do so is left with the judge. Withdrawals are most commonly done if the parties reach a settlement prior to a decision on the matter. Once the judge has ruled on a Motion to Dismiss, however, the order remains in place, regardless of the request for withdrawal.

Dismissal with Prejudice or without Prejudice
When a case is dismissed, it can be done so with prejudice, or without prejudice. Dismissing a case with prejudice means that the matter has been considered, and dismissed permanently so that the plaintiff cannot bring the matter back before the court. The dismissal of a case without prejudice sometimes occurs when the plaintiff has either filed the case in the wrong court, has come to the court unprepared due to no fault of his own, or there is some other issue that needs to be taken care of before the case can be heard. A dismissal without prejudice enables the plaintiff to re-file the lawsuit at a later time.

IN THE COURT OF THE COMMONWEALTH OF REDMONT
MOTION TO DISMISS

The defence move that the complaint in this case be dismissed, and in support thereof, respectfully alleges:

1. Reason for why the complaint should be dismissed. Don't come with new facts or the court will deny your motion! Lack of evidence is not a valid reason.
2. ...

DATED: This (day) day of (month) (year)


MOTION TO NOLLE PROSEQUI
A formal request made to the Judge by the prosecuting or complaining party to drop legal charges.



MOTION TO COMPEL
A formal request made to a Judge to order the non-complying party to produce the documentation or information requested or to sanction the non-complying party for their failure to comply with discovery requests.



MOTION TO RECONSIDER
A formal request made to a Judge concerning a previous ruling. The request must be made on a point of law or because new evidence has become available that relates to the prior ruling.

Only one Motion to Reconsider can be made per decision. Please provide all the arguments that you wish to make for why to reconsider within a single post.



MOTION TO RECUSE
A formal request made to a Judge to voluntarily remove themselves from a case, and have the judge replaced by another judge. This may be motioned due to a Judge’s actual or perceived impartiality or conflict of interest.

Grounds for recusal:
● Interest in the subject matter, or relationship with someone who is interested in it
● Background or experience, such as the Judge’s prior work as a lawyer
● Personal knowledge about the parties, or the facts of the case
● Ex parte communications with lawyers, or non-lawyers
● Rulings, comments, or conduct

If, at any point after a matter is allocated to a Judge, the Judge becomes aware of circumstances that she or he considers justify recusal, the Judge should recuse herself or himself and the case will be reallocated. A Motion to Recuse is decided by the presiding Judge in the first instance and the the Chief Justice in the second instance.



MOTION TO STRIKE
A motion to strike is requested when one of the parties wants something removed from the court record. This motion is usually requested when the record contains information or language that is not admissible evidence. A party may request a motion to strike if the language being removed from the record is redundant, vague, scandalous, immaterial, or impertinent. Furthermore, a party in a case can request that a vague statement be removed from the record and be replaced with a statement that is more specific and clear.



MOTION FOR SUMMARY JUDGMENT
This motion asks the judge to make a decision on the case without going to trial. Such a motion can only occur if none of the facts of the case are in dispute, thus all that needs to be decided is a final ruling on the case. If available, a motion for summary judgment can save both sides plenty of time and money. While a motion for summary judgment and a motion to dismiss are often confused with one another, they are not the same thing. A motion to dismiss results in the case being thrown out altogether and no verdict being issued. With a motion for summary judgment, however, the court and both parties agree that there is a legal issue that the court can rule on. For a summary judgment to be issued there can be no dispute about the material facts of the case and the party filing the motion must be entitled as a matter of law to a judgment.
 
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