10.4 Pretrial Motions, Summary Judgment & Injunctions

10.4 Pretrial Motions, Summary Judgment & Injunctions

[!NOTE] NALS PP Exam Blueprint Focus: Motion practice represents the core arena of pretrial legal advocacy. The NALS Professional Paralegal Examination tests candidates on the mechanical assembly of federal motion packages, local meet-and-confer requirements, identifying waivable defenses under FRCP 12(h), distinguishing Rule 12(b)(6) dismissal from Rule 56 summary judgment, applying the Celotex burden-shifting trilogy, and managing emergency injunctive remedies under FRCP 65.

Pretrial motions allow litigants to challenge procedural defects, resolve discrete legal questions, dispose of meritless claims or defenses without the expense of trial, and preserve the status quo through equitable injunctive relief. Paralegals are integral to motion practice: coordinating briefing schedules, drafting supporting factual declarations, compiling authenticated evidentiary appendices, and tracking strict federal and local calendaring rules.

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Anatomy & Mechanics of Pretrial Motion Practice

Under FRCP Rule 7(b), an application to the court for an order must be made by motion. Unless made orally during a hearing or trial, the motion must: (1) be in writing; (2) state with particularity the grounds for seeking the order; and (3) state the specific relief sought.

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|                         The Complete Federal Motion Package                             |
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| 1. Notice of Motion             Specifies date, time, courtroom, and assigned judge.    |
| 2. Motion                       Formal statement of statutory grounds and relief sought.|
| 3. Memorandum of Law (Points &  Comprehensive legal brief citing statutes, rules, and   |
|    Authorities)                 controlling case law; contains facts, law, & argument. |
| 4. Supporting Declarations /    Sworn statements establishing personal knowledge under  |
|    Affidavits                   28 U.S.C. § 1746; authenticates documentary exhibits.   |
| 5. Evidentiary Exhibits         Authenticated contracts, deposition pages, discovery.   |
| 6. Statement of Undisputed      Local rule requirement for summary judgment (Rule 56).  |
|    Material Facts               Numbered paragraphs with specific record pin-cites.     |
| 7. Certificate of Compliance /  Certifies mandatory meet-and-confer and page limits.   |
|    Meet-and-Confer Certification                                                        |
| 8. Proposed Order               Formal order drafted for presiding judge's signature.   |
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Affidavits vs. Unsworn Declarations under 28 U.S.C. § 1746

Historically, factual submissions supporting motions required a formal affidavit sworn and notarized before a Notary Public. In federal practice, 28 U.S.C. § 1746 eliminates the need for notarization by permitting unsworn declarations under penalty of perjury:

• For declarations executed within the United States:

  "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)."

• Under Rule 56(c)(4), a declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the declarant is competent to testify on the matters stated.

Local Rule Meet-and-Confer Requirements

Nearly all federal district courts enforce local rules mandating that moving counsel engage in a substantive meet-and-confer conference (in person, by videoconference, or by telephone) with opposing counsel prior to filing any motion. The goal is to resolve or narrow disputed issues without judicial intervention. The moving party must file a Certificate of Meet-and-Confer detailing the date, duration, participants, and outcome of the conference. Failure to confer often results in summary denial or striking of the motion.

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Motions to Dismiss: FRCP 12(b)

Under FRCP Rule 12(b), a defendant may assert seven specific procedural and substantive defenses by motion before serving a responsive pleading (Answer):

The Strict Waiver Doctrine (FRCP 12(g) & 12(h))

The interaction between Rule 12(g) and Rule 12(h) is a major focus on paralegal certification exams:

• The Omnibus Motion Rule (Rule 12(g)(2)): A party that makes a motion under Rule 12 must not make another motion under Rule 12 raising a defense or objection that was available to the party but omitted from its earlier motion.
• The Four Waivable Defenses (Rule 12(h)(1)): Defenses under 12(b)(2) (personal jurisdiction), 12(b)(3) (venue), 12(b)(4) (insufficient process), and 12(b)(5) (insufficient service) are strictly and permanently waived if:
  1. Omitted from a pre-answer Rule 12 motion; or
  2. If no pre-answer motion is made, omitted from the original Answer or an amendment allowed as a matter of course under Rule 15(a)(1).
  • Exam Trap: If a defendant files a Rule 12(b)(6) motion to dismiss and fails to include a defense of lack of personal jurisdiction, the personal jurisdiction defense is forfeited forever. The defendant cannot raise it in a subsequent motion or in its answer.
• Subject Matter Jurisdiction (Rule 12(h)(3)): If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action. SMJ can never be waived, consented to, or forfeited.

Failure to State a Claim: Rule 12(b)(6) Standards

A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. The court evaluates whether the complaint contains sufficient factual matter, accepted as true, to state a claim that is plausible on its face (Twombly and Iqbal).

• Four Corners of the Complaint: The court looks solely within the four corners of the complaint, exhibits attached to the complaint, and matters of public record subject to judicial notice.
• Conversion to Summary Judgment (Rule 12(d)): If matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all material pertinent to the motion.

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Other Rule 12 Pretrial Motions

• Motion for Judgment on the Pleadings (FRCP 12(c)): Filed after the pleadings are closed (i.e., after the complaint and answer, and any replies, have been filed), but early enough not to delay trial. A Rule 12(c) motion tests whether, taking all well-pleaded factual allegations of the nonmoving party as true and construing all inferences in their favor, the moving party is entitled to judgment as a matter of law based solely on the face of the closed pleadings.
• Motion for a More Definite Statement (FRCP 12(e)): A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must point out the defects and the details desired. If granted, the opposing party must obey the order within 14 days or the court may strike the pleading.
• Motion to Strike (FRCP 12(f)): The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The motion must be made before responding to the pleading or within 21 days if no response is allowed.

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Motion for Summary Judgment: FRCP 56

A Motion for Summary Judgment allows the court to enter final judgment on all or part of an action without holding a trial, when there is no factual controversy for a jury to decide.

The Standard: FRCP 56(a)

Under Rule 56(a), summary judgment is granted if:

"the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."

• Material Fact: A fact that might affect the outcome of the lawsuit under the governing substantive law.
• Genuine Dispute: A dispute where the evidence is such that a reasonable jury could return a verdict for the nonmoving party. If evidence is merely colorable or not significantly probative, summary judgment may be granted.

The Celotex Trilogy (1986)

Modern summary judgment practice was established by three landmark Supreme Court decisions issued in 1986:

1. Celotex Corp. v. Catrett: When the nonmoving party bears the ultimate burden of proof at trial, the moving party does not need to submit affirmative evidence negating the plaintiff's claim. The movant can satisfy its initial summary judgment burden simply by "pointing out to the district court that there is an absence of evidence to support the nonmoving party's case."
2. Anderson v. Liberty Lobby, Inc.: The trial judge must view the evidence through the prism of the substantive evidentiary standard of proof that applies at trial (e.g., preponderance of the evidence vs. clear and convincing evidence in fraud or defamation). The judge does not weigh evidence or make credibility determinations, but asks whether a fair-minded jury could return a verdict for the nonmovant on that evidence.
3. Matsushita Electric Industrial Co. v. Zenith Radio Corp.: The nonmoving party must do more than simply show that there is some "metaphysical doubt" as to the material facts. Where the nonmovant's factual claim is contextually implausible, it must come forward with more persuasive evidence than would otherwise be necessary.

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|                        Summary Judgment Evidentiary Burden Shift                        |
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| 1. Movant's Initial Burden       Submits record citations showing no genuine dispute of |
|                                  material fact OR points out absence of evidence.       |
|                                                ▼                                        |
| 2. Burden Shifts to Nonmovant    Cannot rely on mere allegations or denials in pleadings|
|                                  Must designate specific admissible record facts.       |
|                                                ▼                                        |
| 3. Court's Evaluation            Draws all justifiable inferences in nonmovant's favor. |
|                                  Determines if reasonable jury could find for nonmovant.|
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Timing & Supporting Materials (FRCP 56(b)–(c))

• Timing: Unless a different time is set by local rule or scheduling order, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.
• Record Materials (Rule 56(c)(1)): Parties must support factual assertions by citing to particular parts of materials in the record: depositions, documents, ESI, affidavits or declarations, stipulations, admissions, or interrogatory answers.
• Rule 56(d) Relief When Facts Are Unavailable: If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition (e.g., because key depositions have not yet occurred), the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or take discovery; or (3) issue any other appropriate order.

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Provisional Remedies: Injunctive Relief under FRCP 65

Injunctive relief is an equitable remedy commanding an entity to perform a specific act (mandatory injunction) or refrain from doing a specific act (prohibitory injunction). Because it alters or freezes rights prior to a full trial on the merits, it is an extraordinary remedy governed by strict constitutional and procedural safeguards under FRCP Rule 65.

Temporary Restraining Orders (FRCP 65(b))

A TRO is an emergency measure designed to preserve the status quo until an adversarial hearing on a preliminary injunction can be conducted.

• Ex Parte Issuance Criteria (Rule 65(b)(1)): The court may issue a TRO without written or oral notice to the adverse party only if:
  1. Specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
  2. The movant's attorney certifies in writing any efforts made to give notice and the reasons why notice should not be required (e.g., demonstrating that notice would cause the adverse party to immediately destroy evidence, transfer bank assets overseas, or flee the jurisdiction).
• Strict Duration Cap: An ex parte TRO expires at the time fixed by the court, not to exceed 14 days. The court may extend it once for good cause for a like period (up to 14 additional days), or longer if the adverse party consents. An ex parte TRO can never exceed 28 days without converting into a preliminary injunction.

Preliminary Injunctions (FRCP 65(a))

Under Rule 65(a)(1), the court may issue a preliminary injunction only on notice to the adverse party. An adversarial hearing is mandatory.

• The Four-Factor Equitable Standard (Winter v. Natural Resources Defense Council, Inc. (2008)):
  1. Likelihood of Success on the Merits: The plaintiff must demonstrate a substantial probability of prevailing on the underlying claims.
  2. Irreparable Harm: The plaintiff must establish that it is likely to suffer irreparable injury in the absence of an injunction. Irreparable injury is harm that cannot be remedied by monetary damages at the conclusion of trial (e.g., loss of unique real property, ongoing destruction of trade secrets, or constitutional rights violations).
  3. Balance of Equities: The hardship to the plaintiff if relief is denied must outweigh the hardship to the defendant if relief is granted.
  4. The Public Interest: The injunction must not disserve or harm the public interest.

The Mandatory Security Bond: FRCP 65(c)

Under Rule 65(c), the court may issue a preliminary injunction or TRO only if the movant gives security (posts a cash or surety bond) in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The bond protects the enjoined party from financial ruin if it ultimately prevails at trial.