Question 1

When may an action be removed to federal district court? What is the correct procedure and what form is needed to remove an action to federal court?

Accepted Answer

The objective of removal is to have the case transferred from state court to federal court jurisdiction. The defendant is given this privilege under 28 U.S.C. § 1441 et seq. It affords the defendant the same opportunity that the plaintiff has to choose either the state or federal court when their respective jurisdictions are concurrent. A case may not be removed unless the federal district court has original jurisdiction over the subject matter of the lawsuit. The procedure for removing a case to federal court is governed by 28 U.S.C. § 1446. This statute requires the following procedure:
1. File a "notice of removal" in the federal district court encompassing the area where the state action is pending. The notice must be signed in compliance with Rule 11 of the Federal Rules of Civil Procedure, and a copy of all "process, pleadings, and orders served on . . . defendants" must be attached to the notice [28 U.S.C. § 1446(a)].
2. The notice is a "short plain statement of the grounds for removal" [§ 1446(a)]. It should state:
3. The notice of removal must be served on all parties and filed within thirty days after commencement of the state action or, if the original action is not removable but becomes removable, thirty days after amendment or service of papers from which it can be determined that the action has become removable.
4. A copy of the notice must be "promptly" filed with the state court; the state court must proceed no further.
5. If the time limit for responding to the initial pleading has expired, the defendant has five days from the date the notice is filed to file any motion, objection, or answer to the plaintiff's complaint [Rule 81(c)].

Question 2

Locate in your state rules the requirements, procedures, and time limits that apply to motions. Write a checklist for drafting, filing, and serving motions for both state and federal court, and place it in your systems folder. Verify the time limits pertaining to motions in the Pleadings, Motions, and Time Limits table at the end of the chapter. Add state deadlines.

Accepted Answer

You may want to draft a state checklist to use in evaluating students' work.
Federal Motions Checklist
I. Drafting Motions, Rules 7(b) and 11
A. Must be in writing, except at trial or hearing
B. Grounds stated with particularity setting forth order
C. Same caption as complaint (et al. allowed) D. Addresses of parties not necessary
E. Attorney's signature and address necessary
II. Components
A. Motion
B. Notice of Motion to inform opponent of motion and hearing (combined with motion) C. Affidavit to set forth additional facts
D. Memorandum of law to present legal authority
E. Order Granting Motion
III. Filing (this is discussed in Drafting the Documents) A. Obtain hearing date from clerk
B. File original documents with clerk
C. File copies in case file
D. Serve copies on plaintiff's attorney
IV. Service
A. Served on opposing attorney (Rule 5)
B. Served not less than five days before hearing [Rule 6(d)]
C. Affidavits served not less than one day before hearing [Rule 6(d)]

Question 3

What is a motion? State the purposes of motions in general.

Accepted Answer

A motion is a request to the court for an order granting relief favorable to the moving party. Motions have many purposes-for example, to obtain judicial relief such as dismissal of the action, exclusion of evidence, new trial, and others; to narrow the issues for trial; and to establish a record for appeal. The first of these purposes needs no explanation.

Question 4

What method should you use to determine the weaknesses in a complaint subject to a motion to dismiss the complaint? Explain how the method works.

Accepted Answer

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Question 5

Enter a reference to or copy of the notice of removal to federal court in your systems folder.
Develop your own brief checklist for the required procedural stages and place that in your systems folder.

Accepted Answer

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Question 6

What is the purpose of the following: third-party practice, amending and supplementing the pleadings, a motion for judgment on the pleadings, and a motion for summary judgment?

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Question 7

What are the requirements for a motion under federal and your state rules? Identify the particular rules that apply.

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Question 8

What are the other motions attacking the complaint? State their purposes.

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Question 9

Be able to list style and content considerations for drafting an answer, including those that apply to denials.

Accepted Answer

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Question 10

What is the purpose of a supporting affidavit in motion practice? A supporting memorandum of law? What is the difference between the two?

Accepted Answer

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Question 11

What are the components of an answer and define each of them. What is the procedure for locating the possible defenses to a claim?

Accepted Answer

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Question 12

From the steps for preparing and filing a third-party complaint, create a checklist for third-party practice and place it in your systems folder. See Federal Forms 22A and 22B. Note any variations in local practice.

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Question 13

Note the rules for calculating time for both the federal and your state jurisdiction [see Rule 6(a) and (e)] in your systems folder. Include the formula and the example on how to calculate the due date.

Accepted Answer

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Question 14

Explain the procedure, applicable rules, and time deadlines for filing and serving a motion to dismiss in both federal and your state courts.

Accepted Answer

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Question 15

Enter state time limits parallel to Rule 56 (summary judgment) in the Pleadings, Motions, and Time Limits exhibit at the end of the chapter. Fill in the state rule and deadline section up to the discovery section and add the table or page reference to your systems folder.

Accepted Answer

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Question 16

What is the purpose of the answer? When must it be filed? What rule is applicable?

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Question 17

What is a motion to dismiss? What purpose does it serve?

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Question 18

Describe the detailed procedure for filing and serving motions. What federal and state rules apply?

Accepted Answer

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Question 19

What are the other Rule 12(b) motions? Must they be made separately?

Accepted Answer

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Question 20

What is a demurrer? What purpose does it serve?

Accepted Answer

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Quiz 6: Defending and Testing the Lawsuit: Motions, Answers, and Other Responsive Pleadings