6.3 Motions Practice

Updated 2013 by Gill Deford, 2015 by Jeffrey S. Gutman

To a great extent, federal litigation practice is a motions practice. Legal aid attorneys often challenge agency regulations or practices on constitutional or statutory grounds or both. Facts are often not in dispute and plaintiffs seek judgment as a matter of law. In such cases, neither discovery nor settlement features prominently in the litigation strategy. Rather, such cases are resolved through motions to dismiss or for summary judgment.

6.3.A. Procedure on Motions

A motion is a request for a court order. Federal Rule of Civil Procedure 7(b)(1) requires that all motions, except those made at trial, be made in writing and state with particularity the grounds supporting the motion and the relief or order sought. As discussed below, other rules set out specific requirements for particular kinds of motions. Typically, the motion is accompanied by a memorandum of law and a proposed order. When appropriate, you may establish facts in support of a motion by appending a declaration or an affidavit, which, in turn, may authenticate or explain attached documents or both. All motions are to be signed in accordance with Rule 11.1

Local rules of court typically provide detailed requirements regarding the form, content, length, and timing of motions, memoranda, and proposed orders.2 Motions are generally quite brief and simply state the nature of the motion and invite the court to review the accompanying memorandum.3 Local rules frequently require motions to certify that the movant consulted unsuccessfully with opposing counsel to resolve the matter at issue. Clerk’s offices refuse to permit filing of such motions without a required certification. Review your local rules with care and comply with all such certification requirements. Local rules frequently also identify categories of information, such as social security numbers, names of children, dates of birth and identifiable financial data, which must not be filed electronically with the court. Ordinarily, such information must be redacted from public filings and, when necessary, filed under seal with the court. Before filing a document with the court, review it carefully for confidential personal information and consult the local rules and experienced attorneys in your office regarding filing requirements.

Motions practice may also be governed by standing orders of the court. Standing orders may be issued by the particular judge hearing the case, or the court may issue specific scheduling orders pursuant to Rule 16(b). Some courts use case management tracking systems based on the expected complexity of the case and direct cases into alternative dispute resolution procedures. If you are new to the district in which you are practicing, consult with senior attorneys in your office for advice on the sources of local written litigation procedure as well as the unwritten local customs and practices that judges and opposing counsel expect you to follow.

The amount of factual detail and legal support necessary for a memorandum of law depends on the nature of the motion involved, the anticipated position of the opposing party, and the expectations of the court. Most memoranda include a brief introduction to familiarize the court with the case and the issues presented in the motion and follow with sections containing the pertinent facts, statutory framework, legal arguments, and the specific relief requested in the motion. If you represent the moving party, do not forfeit the opportunity to file a reply brief. The reply can and should respond to the arguments made by the opposing party and identify the argument you have made that have gone unrefuted. It is generally best not to introduce new arguments in the reply brief in support of the motion; doing so will likely result in a request to file a sur-reply which gives your opponent the last word. The content of your briefs should be concise and persuasive; heated rhetoric is usually not effective.

Unless your local practice provides otherwise, a motion should be accompanied by a proposed order granting the relief your client requests. It should be cast in the present tense, so that the judge may execute the order in the presence of counsel at the time of presentation. A carefully considered and drafted proposed order may well be signed by a busy federal judge. If you are seeking several forms of relief, set forth each request in a separately numbered paragraph. Do not assume that the judge will simply ignore your proposed order and craft her own. A thoughtfully prepared proposed order is itself an advocacy piece and may create a framework for oral argument and the judge’s consideration of your motion.

Although there are differences of opinion about the importance of oral argument, the better practice is to request oral argument on any motion critical to your case. If your motion is complicated or if opposing counsel has made strong arguments, oral argument may be useful. Similarly, if the judge assigned to your case is unfamiliar with or unsympathetic to the issues of legal aid clients, you may want an opportunity to answer any questions that the court may have or to persuade the court of the basis of the claims. If you have been constrained by the court’s page limits on briefs, oral argument is an opportunity to elaborate on issues of particular interest to the judge.

Check your local rules or consult with those knowledgeable about unwritten practices to see what steps are necessary to request oral argument on a motion. In some districts, oral argument must be specifically requested; in others, it will be granted only upon a “proper showing” to the presiding judge. In many jurisdictions, oral argument is uncommon. If the assigned judge allows oral argument, find out how that judge conducts motions hearings. Sit in the courtroom for a few hours to observe; talk to other attorneys who have appeared before the judge. Find out whether the judge limits the time for argument and whether there is opportunity for rebuttal. The more you can learn about how a hearing might proceed, the more prepared and effective you can be.

6.3.B. Motions Addressed to the Pleadings and Parties

6.3.B.1. Rule 12

In many cases, a defendant’s first response to a complaint is to file a motion to dismiss pursuant to Rule 12(b).4 The defendant’s Rule 12(b)(6) motion—the Rule 12(b) motion you are most likely to encounter— will generally argue either that the factual allegations made in the complaint, even if true, do not set forth a cognizable legal claim, or that the complaint is factually insufficient in that, for example, it fails to allege facts that are sufficient to state a plausible claim for relief. The first sort of argument raises questions of law for briefing, many or all of which you would have considered pre-filing and have discussed in your pre-filing litigation memorandum. The second sort of argument will require you to consider whether to oppose the motion on the ground that the complaint satisfies notice pleading standards,/5/ or whether to move to supplement or amend the complaint to add more factual allegations consistent with Rule 11.5

6.3.B.2. Rule 15

Rule 15(a)(1), which governs amending pleadings as a matter of course, was changed significantly effective December, 2009. It now permits a plaintiff that has filed a complaint an opportunity to amend the complaint without leave of court 1) within 21 days of service or 2) when an answer is required, within 21 days of the filing of the answer or 21 days after a Rule 12(b), (e) or (f) motion is filed, whichever is earlier. The purpose of the new rule is to permit the pleader a limited amount of time to amend their complaint in response to assertions made in the answer or arguments made in a Rule 12 motion. Doing so may serve to limit the disputes between the parties or moot points made in the Rule 12 motion. 6 No longer may the plaintiff wait after a motion to dismiss (filed without an answer) to file an amended complaint as a matter of course. And, no longer does the filing of an answer preclude the plaintiff from amending as a matter of course. Following the expiration of these periods (with or without the filing of an amended complaint), amended complaints may be filed only by leave of court or written consent of the adverse party. Leave to amend should be freely given. A court's refusal to grant leave to amend is reviewed under an abuse of discretion standard, unless the denial is based on futility, in which case the court applies a de novo standard of review.7 Typically, the motion for leave to file an amended complaint attaches the amended complaint, which is deemed filed when the motion is granted. In Krupski v. Costa Crociere S.p.A., the Supreme Court recently eplained the relation-back doctrine for amended pleadings that is set out in Rule 15(c).8

6.3.B.3. Rule 19

Legal aid advocates should have a working knowledge of Federal Rule of Civil Procedure 19, which deals with the compulsory joinder of parties. Rule 19(a) establishes the rule for determining whether a party is “necessary” and who must therefore be joined if possible. Joinder may, however, not be feasible if the person is not subject to service of process, if joinder deprives the court of subject-matter jurisdiction, and if the party properly objects to venue.9 In such cases, Rule 19(b) requires the court to determine whether the action should proceed without the necessary party or whether the party is indispensable, and, therefore, the case must be dismissed.10

6.3.B.4. Rule 23

In class actions, the complaint should contain allegations concerning the class drafted in light of Rule 23. It should allege facts to support the requirements of numerosity, commonality, typicality, and representativeness. When practical, a motion for class certification can and should be filed with the complaint in order to lessen the defendant's ability to moot out the case by providing quick relief to the named plaintiffs. Other cases may require discovery to establish the factual basis for class certification. A motion for class certification and accompanying memorandum must contain the evidence and argument necessary to demonstrate that the prerequisites of Rule 23(a) are met and that the action is maintainable under one or more of the forms of class actions listed in Rule 23(b). Again, be sure to consult your local rules, because many districts have specific requirements on the form of class action complaints and a limited time, often sixty or ninety days, after filing the complaint within which the motion for class certification must be filed.11   In class actions in which you seek a temporary restraining order (TRO) or preliminary injunction on behalf of the class, you should move immediately for conditional class certification under Rule 23(c).

6.3.B.5. Rule 25

Legal aid attorneys frequently need to substitute parties when a client dies or becomes incompetent and when government officers change. Under Rule 25(a), if a party dies, but the claim survives, a motion to substitute may be made by any party or the decedent's successor or representative. The action is dismissed if the motion is not made within ninety days after "service of a statement noting the death."12 A statement or suggestion of death is not required to be filed.13 The ninety day period only begins to run upon filing and proper service.14 Given the language of the Rule, there is sometimes controversy over the nature of the document that qualifies as a "statement." Such a statement is a formal and specific document resembling Federal Rule of Civil Procedure Form 9. Federal courts have frequently described the triggering statement as a “formal” document.15 When a public officer is a party to a pending action and dies, resigns, or ceases to hold office, the successor is automatically substituted as a party.16 A suggestion of substitution may be filed by either party and the court may order substitution, but its failure to do so is not important.

6.3.C. Preliminary Relief

6.3.C.1. Preliminary Injunctions

Federal Rule of Civil Procedure 65 governs motions for TROs and preliminary injunctions. Because complex and varying circumstances often arise, trial courts are given broad discretion over granting or denying preliminary relief. Such orders accordingly are reviewed for abuse of discretion.17 The standards for both TROs and preliminary injunctions are formulated by case law rather than by rule or statute; the standards have sometimes been formulated differently in different circuits. However, the Supreme Court's recent decision in Winter v. Natural Resources Defense Council, established a more exacting standard and limited to some degree a sliding scale approach.18 To obtain a preliminary injunction, the plaintiff must establish that it is:

  • likely to succeed on the merits;19

  • likely to suffer irreparable injury if preliminary relief is denied;

  • the balance of equities tips in the plaintiff's favor; and

  • an injunction would serve the public interest.20

The Court rejected the Ninth Circuit's sliding scale approach in which only a "possibility" of irreparable injury was sufficient when the plaintiff showed a "strong likelihood" of prevailing on the merits.21 Instead, the Court held that a likelihood of irreparable injury is required, in keeping with the notion that preliminary injunctive relief is an extraordinary remedy requiring a "clear showing" of entitlement.22 Winter, involving the Navy's use of sonar in training exercises and its potential impact on aquatic wildlife in the Pacific, also raised the profile of the balance of equities and public interest factors, regarding those factors as "important" and criticizing the Ninth Circuit for giving them cursory consideration.23 Indeed, even assuming a likelihood of irreparable injury, the Winter majority found these factors to outweigh it.

Where Winter leaves the oft-used sliding scale analysis is not clear. One way of reading Winter is that "likelihood" of irreparable injury is a now a floor and a showing beyond it may be balanced against a relatively weaker showing on the remaining factors. In dissent, Justice Ginsburg wrote:

Consistent with equity's character, courts do not insist that litigants uniformly show a particular, predetermined quantum of probable success or injury before awarding equitable relief. Instead, courts have evaluated claims for equitable relief on a "sliding scale," sometimes awarding relief based on a lower likelihood of harm when the likelihood of success is very high. This Court has never rejected that formulation, and I do not believe it does so today.24

Winter did not specifically address a converse question: given a showing of a likelihood of irreparable injury, may a court issue a preliminary injunction based on something less than a likelihood of success if the remaining factors weigh in favor of preliminary relief? The Second Circuit, for example, requires a showing of irreparable injury and either "(1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief."25 Given the relative uncertainty of success, the balance of hardships must tip decidedly in the movant's favor. The Fourth Circuit has read Winter to reject this sort of sliding scale inquiry in cases in which the movant has not established that it is more likely than not that they will prevail.26 The Second, Seventh and Ninth Circuits have disagreed and held that a sliding scale formulation survives Winter so long as a likelihood of irreparable injury is shown.27 Given this emerging split in the circuits, consult the law in your circuit to ascertain the standard, and if one does not yet exist, review the developing law in other cirucits in formulating your argument. 

When researching a potential motion for preliminary injunction, determine whether the applicable statute authorizes injunctive relief. Some cases have held that no showing of irreparable injury is necessary to obtain a preliminary injunction pursuant to such statutes because Congress has implicitly determined that a statutory violation is irreparable. Given the Supreme Court's repeated holdings regarding express and implied directions in legislative language, be very cautious in arguing that the plaintiff need not establish the threat of irreparable injury when seeking statutorily authorized injunctive relief.

6.3.C.2. Temporary Restraining Orders

Under Rule 65(b), the court may grant a TRO ex parte, without notice to the opposing party, only if (1) specific facts shown by affidavit or by a verified complaint "clearly" show that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition and (2) the applicant’s attorney certifies to the court in writing the efforts, if any, that have been made to give the notice and the reasons supporting his claim that notice should not be required.28

A TRO expires at any time that the court fixes, not to exceed fourteen days.29 However, the court may extend the order for another period of fourteen or fewer days for good cause shown or for a longer period if the adverse party consents. After an ex parte TRO is granted, the motion for a preliminary injunction is set for hearing at the earliest possible time and takes precedence over all other matters except older matters of the same character.30 On two days’ notice to the party that obtained the ex parte TRO, or shorter notice if the court so prescribes, the adverse party may move for modification or dissolution of the TRO.31 Rule 65(b)(2) and Rule 65(d) detail what the court must state on the record or in the injunction.  

Rule 65(c) requires an applicant for a TRO or preliminary injunction to post security for the issuance of preliminary relief in the event that the court later finds that the opposing party was wrongfully enjoined. Because this is likely to be a problem for legal aid clients, you must seek a waiver of this requirement and document your client’s inability to post security. The court may dispense with security when the applicant does not have the resources to post a bond.32   The Federal Rules do not favor ex parte TROs, as they are contrary to the adversarial system of justice. Unless you believe in good faith that notifying the opposing party will cause it to harm your client, try first to negotiate a settlement with the opposing party. Rule 65(b)(1)(B) requires an attempt to give notice and, in exercising its equitable authority, the court will want to know that you have attempted to resolve matters without taking valuable court time on an emergency basis. During negotiations, you may want to give to opposing counsel a draft of your TRO memorandum or notice of the statutory, regulatory, or case authority upon which you are relying. As a general proposition, the more candid you are in attempts to resolve matters without court involvement, the more reasonable you will appear to the court. Therefore, no matter how hurried you are, keep a record of all contacts with the opposing party or counsel and confirm them in a letter at the earliest possible time. At the same time, do no permit these discussions to drag on; real or perceived delay in seeking emergency injunctive relief may be viewed as suggesting the lack of irreparable injury. Despite the urgency, take extreme care in drafting the declarations or affidavits you draft, which must be signed under oath and will undoubtedly be examined carefully at this and future stages of the litigation.  

If a temporary settlement is not feasible, or is too time-consuming, call the court clerk’s office or district judge’s chambers, depending on who does scheduling in your district, and request a hearing time. As soon as you schedule a hearing, notify opposing counsel or parties by phone, followed by a confirming letter. Review all of your documents at this point to make sure they are in order, and, in particular, check your proposed order to see that it contains the detail required by Rule 65(d).

Although TRO hearings are often held in chambers and without evidence, be prepared to present witnesses to prove your need for a TRO. Whether or not you are in chambers, presentation of the facts is crucial. Of the elements for a TRO, proof of imminent irreparable injury is the most important. In litigation over public benefits, the client’s loss of a social welfare benefit can be irreparable injury.33 At a hearing on a motion for preliminary injunction, you should also be prepared to present live testimony, although your motion papers will present the relevant facts through declarations. The witnesses should be present even if the practice of the court is not to take such testimony. Many judges conduct a “mini-trial” on a preliminary injunction. Therefore, be prepared to present a compelling and sympathetic case that the client has been or will be imminently and irreparably harmed by the defendant’s unlawful conduct if preliminary relief is not granted, and will likely prevail on the merits.

Plaintiff must show that preliminary relief will not harm the defendant or that such harm is outweighed by the harm to the plaintiff from denying preliminary relief. In some cases, the plaintiff should be prepared to subpoena and examine the defendant. Although presenting a case only through the client and favorable witnesses is better, having the welfare administrator, housing bureaucrat, or correctional worker before the court not only increases the likelihood that the court will hear testimony, but also ensures that the court can, in fact, enter preliminary relief in the presence of the opposing party.

Rule 65(a)(2) allows for the consolidation of the preliminary injunction hearing with the trial on the merits. In some cases this may be to your client’s advantage, particularly when discovery is not essential.

6.3.D. Summary Judgment

Summary judgment is the procedural device intended to dispose of factually meritless or legally unpersuasive claims and defenses before trial. Federal Rule of Civil Procedure 56 authorizes summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thus, a motion for summary judgment pierces the pleadings to consider the facts of the case. In the last twenty-five years, summary judgment practice has played an increasingly prominent role in the resolution of federal litigation, and federal trial practice has been in relative decline.34

Either party may move for summary judgment and may do so with or without supporting affidavits.35 If used, affidavits must be based on personal knowledge, “set out facts that would be admissible in evidence” and show that the affiant is competent to testify on the matter.36 Unless the objection is waived, hearsay, for example, may not support a motion for summary judgment. If you are relying on the affidavit (or deposition) of an expert witness to oppose or support a motion for summary judgment, keep in mind the rules generally applicable to expert testimony. The affidavit should not just offer conclusory comments; rather, it should set forth the expert’s qualifications as well as the factual basis, reasoning, and methodology underlying the expert’s opinion.37

The movant may also support its motion for summary judgment with documents, answers to interrogatories, and deposition transcripts obtained in discovery. Review local federal court rules prior to filing a motion for summary judgment. Often, for example, the local rules will require a party to file a statement of material facts not in dispute with the motion. The adequacy of these statements and opposing statements has become an increasing focus of summary judgment disputes. Failure to offer adequate statements of undisputed fact or to oppose the statements of other parties can severely prejudice your clients.38

The 2009 amendments to Rule 56 made significant changes to timing issues involving summary judgment motions.  A movant may now file immediately after a complaint is filed.39 Unless otherwise ordered or prescribed by local rule, motions for summary judgment may be filed until 30 days after the close of discovery. Oppositions are due within 21 days and replies fourteen days after service.40

The moving party always bears the burden under Rule 56(c)(2) to establish the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. An issue of material fact is one “that might affect the outcome of the suit under the governing law.”41 A genuine dispute is one that a reasonable jury can resolve against the moving party.42 The judge’s role is not to weigh the evidence, but instead to determine whether there is a relevant and triable factual issue. Nor may the trial judge resolve factual disputes by ignoring or failing to credit relevant facts offered by the nonmoving party that contradict the movant's version of the facts.43 Nonetheless, some evaluation of the evidence is necessary to determine whether a jury can reasonably find in favor of the nonmoving party. That evaluation incorporates the standard of proof at trial, whether it is preponderance of the evidence or clear and convincing evidence.44

Moreover, in Celotex Corporation v. Catrett the Court tied the nature of the movant’s burden to the allocation of the burden of production in the underlying litigation.45 Celotex was a wrongful-death case against various asbestos manufacturers and distributors. During discovery, Celotex served interrogatories asking plaintiff to identify any witnesses who could testify to the decedent’s exposure to Celotex products. When plaintiff failed to identify any witnesses, Celotex moved for summary judgment on the ground that plaintiff lacked evidence proving that exposure to Celotex products caused the disease. Plaintiff opposed the motion on the ground that Rule 56 required the defendant to establish the absence of a genuine issue of material fact by filing affidavits specifically negating her claim that the decedent was exposed to Celotex products.

The Court held that the defendant was entitled to summary judgment even though it did not file any affidavits to negate the claim of causation.46 The Court reasoned that because the plaintiff would have borne the initial burden of production on the issue of causation, had the case proceeded to trial, the defendant would have been entitled to judgment as a matter of law unless the plaintiff produced evidence showing that her husband had been exposed to Celotex products.47 Summary judgment was proper even though Celotex filed no affidavits because the plaintiffs’ lack of evidence on an issue on which she bore the burden of production necessarily made every other issue nonmaterial.48

The principal holding of Celotex is clear: Rule 56 requires the entry of summary judgment (after an adequate time for discovery) against a nonmoving party on a claim or defense on which it bears the underlying burden of production whenever the moving party shows that the nonmoving party lacks sufficient evidence to establish one or more elements of that claim or defense. The court must resolve all ambiguities and draw all permissible factual inferences against the movant, and issues of credibility should not generally be resolved by summary judgment. When, however, as in Celotex, a plaintiff cannot prove an essential element of a claim, all other factual issues are immaterial; hence, “no genuine issue as to any material fact” can then exist.49

Celotex makes clear that the party moving for summary judgment can easily satisfy the initial burden of showing the absence of a genuine issue of fact when the nonmoving party bears the burden on the claim or defense at issue. The motion need not be supported by evidence negating the claim. Rather, the moving party can meet the Rule 56 burden without filing negating affidavits if the responses to discovery show that the nonmoving party will not be able to establish an element of the claim or defense.

Celotex does not affect summary judgment practice when the moving party has the burden of production on the underlying claim or defense. When the moving party has the underlying burden, it must produce affidavits and other material that, if offered at trial, would entitle it to judgment as a matter of law. Thus, Celotex principally affects plaintiffs, since plaintiffs ordinarily bear the burden of production on all elements of a claim. However, because defendants bear the burden of production on most affirmative defenses, Celotex may be invoked against an unsupported affirmative defense.

When faced with a motion for summary judgment, the nonmoving party is likely to try to establish a material factual dispute.50 If discovery is not complete when the motion is filed, the nonmoving party may file a motion under Federal Rule of Civil Procedure 56(f) with an affidavit in which it must explain that it cannot yet oppose the motion because relevant discovery has not been obtained. If discovery is complete, the nonmovant generally needs to produce discovery or affidavits (or both) demonstrating the existence of a genuine issue of material fact that a reasonable finder of fact could decide in the nonmovant’s favor.

The Celotex and Anderson decisions have had a dramatic impact on the use of summary judgment practice to resolve federal court litigation. The message of the cases for plaintiffs is clear: prompt and thorough discovery is crucial. The impact of Celotex and Anderson in cases involving questions of motive, intent, or state of mind is largely fact dependent. On the one hand, courts commonly hold that summary judgment is not appropriate in cases involving an assessment of credibility, demeanor, and state of mind because this function is reserved for the finder of fact.51 On the other hand, virtually all cases involve some such element and to deny summary judgment reflexively in all such circumstances would undermine the utility of the summary judgment procedure. For the nonmoving party, resolution of this issue often turns on identifying record evidence revealing important questions of credibility on particular and relevant issues. This underscores the need to approach discovery with great care.

Whenever the plaintiff’s claim crucially depends on expert testimony to establish fault or causation, the defendant can combine a Celotex52 summary judgment motion with a Daubert53 challenge to the admissibility of plaintiff’s expert testimony.54 If, under Daubert, the trial court concludes that the expert testimony is inadmissible, and that without that expert testimony plaintiff will lack admissible evidence of fault or causation, then Celotex will require the entry of summary judgment.55 Good practice, therefore, requires the early retention and preparation of an expert in anticipation of a Daubert challenge likely to accompany a summary judgment motion. Although appeals from orders granting summary judgment are subject to plenary review, General Electric Co. v. Joiner held that when the basis for the grant of summary judgment is the exclusion of expert testimony, deferential abuse of discretion review governs the admissibility determination.56

Updated 2013 by Gill Deford, 2015 by Jeffrey S. Gutman