USA Law and Practice Contributed by: Courtney Scobie and Jack Edwards, Ajamie LLP
their fees and costs and may not charge or collect unreasonable fees or costs. The extent and specificity of these requirements vary depending on State Bar rules, attorney‒client agreements, and ethical consid- erations.
also grant the plaintiff leave to re-file their complaint so that it can re-plead its claims properly. The legal standards for motions to dismiss depend on the grounds for dismissal. A FRCP 12 (b)(6) motion seeks to dismiss some or all of a complaint for failure to state a claim upon which relief may be granted. It must be decided based on the pleadings alone. Oth- er motions to dismiss, such as a motion to dismiss due to lack of subject matter or personal jurisdiction (FRCP 12 (b)(1) and (2)), can be decided based on material outside of the pleadings. By way of example, if a defendant contests personal jurisdiction, they may submit affidavits to prove their lack of minimum con- tacts with the forum in which the court sits. 4.3 Dispositive Motions The Federal Rules of Civil Procedure allow for several dispositive motions to be filed before trial, including: • Motion for judgment on the pleadings – this is similar to a motion to dismiss but is filed after the pleadings (complaint and answer) have been sub- mitted. It seeks judgment in favour of the moving party based solely on the allegations contained in the pleadings, assuming that all factual allegations in the opposing party’s pleading are true. • Motion for summary judgment – this is a request that the court enter judgment in favour of the mov- ing party before trial because there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. This motion is generally filed near the end or shortly after the close of discovery after the parties have had time to gather evidence to support their claims or defences. The motion and any response must be supported by admissible evidence, such as affida- vits, deposition transcripts, and documents col- lected during discovery. • Motion for directed verdict or judgment as a matter of law (JMOL) – in a jury trial, after the plaintiff has presented their case, the defendant may make a motion for a directed verdict (before the case is sent to the jury) or a motion for JMOL (after both parties have presented their cases). These motions argue that, based on the evidence presented, no reasonable jury could find in favour of the opposing party.
4. Pre-Trial Proceedings 4.1 Interim Applications/Motions
The Federal Rules of Civil Procedure contemplate sev- eral pre-trial motions that can be filed before a trial on the merits, including the following. • Motion to dismiss – this allows the defendant to ask the court to dismiss the case based on the plaintiff’s complaint. It can be based on various grounds, such as lack of subject matter jurisdic- tion, failure to state a claim, or improper venue. • Motion for summary judgment – this is a request by either party for the court to decide the case without a trial, based on the evidence and legal arguments presented in the motion. • Preliminary injunction – a litigant can move for a preliminary injunction to restrain a party from taking certain actions pending the outcome of the trial. It is often used in cases involving disputes over IP, breach of contract where specific performance is required, or other matters where immediate action is needed to preserve the status quo. Preliminary injunctions are frequently preceded by a tempo- rary restraining order, which is a request for more immediate relief and typically granted in emergen- cies (see 6.1 Circumstances of Injunctive Relief ). 4.2 Early Judgment Applications The most common early judgment application is a motion to dismiss under FRCP 12 (b). A motion to dismiss seeks to have some or all of the plaintiff’s claims dismissed. This motion is often based on legal arguments that the complaint fails to state a claim, lacks subject matter jurisdiction, or presents anoth- er procedural deficiencies. A defendant must file a motion to dismiss before answering the complaint. Courts decide motions to dismiss early in the case, so it can streamline the claims. If the court grants the motion to dismiss, either in whole or in part, it may
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