3.3 Motions Practice

A motion is a request for a court order (Rule 7(b)(1)). Motions practice is where much of a litigating paralegal's drafting time goes, and the NALA Certified Paralegal exam tests the standards, timing, and waiver rules of the big four: Rule 12(b) defenses, judgment on the pleadings, summary judgment, and judgment as a matter of law.

Rule 12(b) Defenses

Rule 12(b) lists seven defenses that may be raised by motion before (or instead of) answering:

1. 12(b)(1) — lack of subject-matter jurisdiction
2. 12(b)(2) — lack of personal jurisdiction
3. 12(b)(3) — improper venue
4. 12(b)(4) — insufficient process
5. 12(b)(5) — insufficient service of process
6. 12(b)(6) — failure to state a claim upon which relief can be granted
7. 12(b)(7) — failure to join a required party under Rule 19

The waiver rules are the most-tested material here. Under Rule 12(g) and 12(h):

• Defenses (2) through (5) are waived if omitted from the party's first Rule 12 motion, or from the answer if no motion is made. You get one consolidated shot — you cannot file a 12(b)(3) motion, lose, and then file a 12(b)(5) motion.
• Defenses (6) and (7) survive longer: they may be raised in any pleading, by a later motion for judgment on the pleadings under Rule 12(c), or at trial.
• Defense (1), lack of subject-matter jurisdiction, is never waived and can be raised at any time, even by the court on its own — because a court without power over the subject matter cannot act at all.

The 12(b)(6) Standard

A motion to dismiss for failure to state a claim attacks the legal sufficiency of the complaint. The court accepts all well-pleaded factual allegations as true and draws reasonable inferences in the plaintiff's favor, then asks whether the facts state a claim that is plausible on its face under Twombly and Iqbal. Legal conclusions and bare recitals of the elements get no presumption of truth. Under Rule 12(d), if the court considers matters outside the pleadings, the 12(b)(6) motion is converted into a motion for summary judgment — a classic exam point.

Judgment on the Pleadings — Rule 12(c)

After the pleadings are closed (complaint and answer both filed, including answers to counterclaims), any party may move for judgment on the pleadings. The standard mirrors 12(b)(6): accepting the non-movant's allegations as true, is the movant entitled to judgment based solely on what the pleadings themselves establish? It is essentially a late 12(b)(6) motion with the same outside-materials conversion rule.

Summary Judgment — Rule 56

Summary judgment is the workhorse dispositive motion, granted when the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Two phrases to master:

• Material fact — a fact that could affect the outcome under the governing law. Disputes over trivial facts do not matter.
• Genuine dispute — a reasonable jury could return a verdict for the nonmoving party based on the evidence. If the evidence is so one-sided that one party must prevail, summary judgment is proper (Anderson v. Liberty Lobby).

Unlike a 12(b)(6) motion, summary judgment reaches beyond the pleadings into evidence: depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, and interrogatory answers (Rule 56(c)). The movant need not produce affirmative evidence negating the opponent's claim; under Celotex, it may simply point out the absence of evidence supporting the non-movant's case, shifting the burden to the non-movant to come forward with specific facts. Timing: unless a different time is set, a party may move for summary judgment at any time until 30 days after the close of all discovery (Rule 56(b)). Courts also commonly require a separate statement of undisputed material facts, numbered paragraph by paragraph, with record citations — a document paralegals frequently assemble.

Judgment as a Matter of Law — Rule 50

Rule 50 operates at trial. Under Rule 50(a), once a party has been fully heard on an issue, the court may grant judgment as a matter of law (the older term is directed verdict) if a reasonable jury would not have a legally sufficient evidentiary basis to find for that party. The timing prerequisite is everything: the motion must be made before the case is submitted to the jury. Under Rule 50(b), if the jury returns a verdict the movant dislikes, it may file a renewed motion for judgment as a matter of law (formerly judgment notwithstanding the verdict, or JNOV) within 28 days after entry of judgment — but only if it preserved the issue with a Rule 50(a) motion earlier. No Rule 50(a) motion, no Rule 50(b) renewal.

Comparing the Dispositive Motions

The Paralegal's Role in Motion Drafting

Paralegals do substantial work on motions but always under attorney supervision. Typical tasks:

• Drafting supporting memoranda — first drafts of the statement of facts and legal argument, which the attorney revises and signs
• Assembling the record — pulling deposition excerpts, declarations, and exhibits; preparing the statement of undisputed material facts with pinpoint citations
• Cite-checking and Shepardizing/KeyCiting authorities to confirm they remain good law
• Procedural compliance — checking local rules for page limits, meet-and-confer requirements, proposed order formats, and hyperlinked brief rules
• Service and filing — preparing the certificate of service, filing through the court's electronic case filing (ECF) system, and calendaring response and reply deadlines

The boundary line is the unauthorized practice of law (UPL): paralegals may not sign motions on a client's behalf, appear or argue in court, or give legal advice about whether to file. Those acts are reserved to licensed attorneys — a point that ties motions practice directly to the Professional & Ethical Responsibility section of the exam.

Paralegal Scenario

Your attorney wants to move for summary judgment in a breach-of-contract case. You compile the key deposition transcript where the opposing party admitted no written modification existed, draft a 22-paragraph statement of undisputed material facts citing the transcript page and line for each, assemble the contract as Exhibit A, and verify the local rule's 25-page brief limit. The attorney signs; you e-file and calendar the opponent's 21-day response window. On the exam, recognize each of these steps as squarely within — not beyond — a paralegal's role.