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Key Lessons From the NYC Bar Association’s “How-to” of Successful Motion Practice CLE Panel

Posted by attorney Rosanne Felicello

On March 5th, Jane Chuang and Rosanne Felicello co-chaired an ** event at the NYC Bar Association on the “how-to" of successful motion practice. The panelists included ** Justice Barbara R. Kapnick, NY Supreme Commecial Division, NY County; ** Judge Jed S. Rakoff, U.S. District Court, Southern District of New York; ** Acting Justice Salliann Scarpulla, NY Supreme, NY County; and ** Peter Tomlinson**, partner at Patterson Belknap Webb & Tyler LLP. Here are the key takeaways:

Motions to Dismiss

What you should consider before bringing one:

  1. Do you have grounds? If you make the motion and win, does the whole case go away? If you have grounds to make a partial motion to dismiss, will the value of the case change if you are successful? If you do not have grounds to make a complete dismissal of the case or substantially reduce the value of the case, you should consider not making a motion to dismiss.
  2. What court are you in? As a general rule of thumb, if you are in state court you are relatively less likely to be successful in getting out of the case with a motion to dismiss than if you are in federal court. First, the legal standards for a motion to dismiss are different in state and federal court. It is relatively more difficult to state a claim in federal court and a motion to dismiss may have a greater chance of prevailing. In state court, however, the standard on a motion to dismiss is more heavily weighted in favor of the plaintiff having the opportunity to develop its case during discovery. Second, the relative size of the court’s dockets should influence your decision regarding whether to bring a motion to dismiss. For example, if your case is in a general part in state court where the average docket is about 900 cases, you should not bother bringing a motion to dismiss if the main purpose for doing so is to educate the judge about your case. The caseloads in state court are too large for there to be much value in bringing a motion simply to educate the judge. More likely, you will end up annoying the judge if she feels that you have wasted her time. On the other hand, according to Judge Rakoff, if you are in federal court, a desire to educate the judge may be a valid reason to bring a motion to dismiss, if you have a colorable argument for relief, because the judge has more time available to devote to each case. You can use your motion to dismiss to
  3. What claim are you trying to dispose of? As a general rule, it is more difficult to dispose of a fraud claim on a motion to dismiss
  4. Is there a tactical benefit to bringing the motion? In NY state court, pursuant to ** CPLR § 3214(b) ** a motion to dismiss automatically stays discovery unless the court orders otherwise. In practice, discovery is usually stayed pending resolution of the motion. ** Rule 11(d) of the Rules of the Commercial Division** requires the court to make an affirmative decision about whether discovery will be stayed. It states that “court will determine . . . whether discovery will be stayed . . . pending the determination of any dispositive motion." The federal rules do not provide for an automatic stay of discovery pending resolution of a motion to dismiss, except for securities law cases where an automatic stay applies by statute.
  5. Will the plaintiff be able to re-plead to cure the defects that you point out? If the plaintiff will be able to remedy the defects with the complaint by re-pleading, you may want to hold off on bringing your motion to dismiss. If, however, you are confident that the plaintiff cannot cure the defects, you should consider bringing the motion to dismiss.

What types of documents you can submit with your MTD:

You can submit admissible evidence in the form of affidavits or documents with your motion to dismiss. Although the rules in both federal and state court allow them to be converted to summary judgment motions, in practice judges rarely convert them. Justice Kapnick said that she almost doesn’t ever convert motions to dismiss and Judge Rakoff noted that he only converted a motion to dismiss to a motion for summary judgment when he was dealing with a statute of limitations issue.

Motions to Re-argue/Re-consider

Don’t bring a motion for re-argument or re-consideration unless you are pointing out an error in calculation. It is more cost-effective to simply appeal because is extremely unlikely that the judge is going to change his mind. And your new motion merely gives the judge an opportunity to improve the record to support his initial ruling, especially where the motion for re-argument or re-consideration is an (improper) attempt to add something to the record.

Motions for preliminary relief

  1. Think about what you are asking for. Judges understand that an injunction is extraordinary relief and they do not wield the power of an injunction without considering the harm that may be inflicted on the defendant. For instance, state court judges are loathe to shut down a business and will only do so if it is the only way of effecting the relief, there is no other way to avoid the ongoing harm to the plaintiff, and the plaintiff posts a significant bond. In other words, injunctions are not given out lightly.
  2. Notice is generally required. In state court, notice is required by statute except in very limited circumstances. In federal court, notice is usually required by practice.
  3. In federal court, you must post a bond for preliminary relief. In state court, judges have discretion to require the party seeking preliminary relief to post a bond.
  4. There are exceptions. In state court, Yellowstone injunctions are routinely granted to enjoin a commercial landlord from evicting a commercial tenant while the court determines if the tenant is in breach of the lease. Under maritime law, you can seize a ship in port on a fairly modest showing.

Motions to compel

The clear message from the panel was that motions to compel are the least-favored motions. Overbroad discovery requests will not be sustained. In state court, discovery disputes are almost always resolved by conference. In the commercial division of state court and in federal court, the rules require that the parties meet and confer before bringing a motion to compel. In federal court, the Rule 26 conference at the beginning of the case sets the discovery that will be allowed. Many federal judges send discovery issues to their magistrate judges.

Because judges hate dealing with these motions and they generally turn on specific facts, it is better to resolve these issues orally either at a scheduled conference or via a teleconference to the court.

Summary judgment motions

If the opposing side can point to a dispute of a material fact, the summary judgment motion is a waste of time. Some cases are not winnable by summary motion. Don’t waste the court’s time making a SJ motion if there are issues of fact. In general, tort cases are less amenable to being resolved a motion for summary judgment than a contract case. If you are making a summary judgment motion, be sure to submit the evidence necessary for the court to rule in your favor. For instance, if you are filing a summary judgment motion in a contract case, be sure to attach a copy of the contract to the motion.

Motions in limine

Most judges allow motions in limine to deal with across the board issues regarding particular evidence, such as any mention of an ongoing investigation into the same subject matter by a third party. You do not need to use a motion in limine to exclude the evidence, you can ask that it be excluded at trial instead, but if you do you risk the cat getting out of the bag.

You should not make a motion for summary judgment in the guise of a motion in limine. Motions in limine should deal with evidentiary issues, not substantive issues.

Post-trial motions

Perhaps not surprisingly, judges dislike post-trial motions. It is easier to be successful on a post-trial motion if you are seeking to reduce a jury award rather than throw it out. Judges are not very receptive to motions to set aside the verdict. Further, if the award amount was determined by the bench, then there is little reason to make the motion.

Motions for sanctions

Judges do not often grant sanctions. Sometimes, you may be able to recover costs, but judges generally lean towards allowing zealous representation. If you cross the line with your advocacy, judges are generally inclined to let you know that they know rather than award sanctions.

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