Materials, timing, and purpose: differences between dispositive motions

Professor Nathenson
Civil Procedure II

MATERIALS TIMING, PURPOSE: DIFFERENCES BETWEEN DISPOSITIVE MOTIONS

These motions are used for “dispositive” purposes, i.e., to “dispose” of a claim, defense, or issue in favor of the moving party. This might include decisions such as:

  • Dismissing the non-movant’s claim or defense.
  • Finding as a matter of law that the movant must prevail on its own claim or defense.

Review the table below, which shows the types of motions, materials that the court can consider, who may assert such a motion, and the proper timing for these motions.

 Rule FRCP 12(b)(6) FRCP 12(c) FRCP 56   FRCP 50(a)   FRCP 50(b)  
Type of motion Motion to dismiss Motion for judgment on the pleadings Motion for summary judgment Motion for judgment as a matter of law (directed verdict) Renewed motion for judgment as a matter of law (judgment notwithstanding the verdict, or J.N.O.V.)
Materials that the court can consider Face of complaint.

Note: if the movant includes materials beyond the complaint and the court considers them, the court must convert the motion to summary judgment. See FRCP 12(d).

 Complaint and answer (and reply if any) Discovery and disclosure materials, as well as affidavits, more Partial or full trial record Full trial record
Example P v D for failure to invite. No need for discovery or trial. Dismiss (at least once without prejudice or with leave to amend). P v D for battery.

  1. D admits to battery and damages. No need for discovery or trial. Judgment for P.
  2. Or D raises statute of limitations in answer. Court orders a reply where P admits the battery was 30 years ago. Judgment for D.
 P v. D for negligence. D submits affidavits showing she was out of town, didn’t own the car that hit P, and that P made the whole thing up. P submits nothing. No need for trial. Judgment for D. At trial for negligence, P puts forth no evidence, saying “In my heart I know it was D.” Court may issue judgment for D, though many judges prefer to deny 50(a) motions to give jury a chance to do the right thing. During trial, D puts forth a 50(a) motion that is denied. Jury returns verdict for P even though P had no evidence. D renews their motion, which is now granted. Judgment for D. (Note that movant can join an alternative  motion for a new trial).
Movant Party opposing a claim Either party Either party Either party Either party
Timing Through trial but usually before answer Through trial but usually after close of pleadings Up to 30 days after close of discovery After non-moving party heard on issue and prior to submission of case to jury. Up to 28 days after entry of judgment, so long as movant had moved for a Rule 50(a) motion on that issue during trial.
Purpose Gatekeeping: preventing legally frivolous or factually insufficient claims. Gatekeeping: preventing legally frivolous or factually insufficient claims or defenses.

Note FRCP 12(f) re striking an insufficient defense.

 Gatekeeping, avoiding need for trial when there is not a genuine dispute regarding the facts material to claims or defenses. Takes issue(s) away from jury before jury decides when no reasonable fact-finder could find for non-movant. Changes jury verdict on an issue, when a reasonable fact-finder must find for the moving party.

Motion is also known as J.N.O.V., or “Judgment Non Obstante Veredicto.”

Revised 11/10/20