Chapter 6: Going Through The Motions

• Pages: 89-103
• Author: Janet S. Kole

Going Through

The Motions

Youwill have many opportunities during the course of

litigating your client’scase to draft motions and support-

ing briefs. The topic is overwhelming, and Iwill not at-

tempt to discuss all the possible motions that are avail-

able to adefendant. Iwill discuss only those preliminary

motions that you may decide to draft instead of answer-

ing the complaint. As Idiscussed above, adefendant may

move to dismiss part or all of the complaint or to force

the plaintiff to state its claim more fully.

Be aware that your motion may make sense to the

plaintiff as well as to you, and that the plaintiff usually

has the right to amend the complaint or to “replead.” As

Imentioned earlier,infederal court, Rule 15 provides

that aparty may amend its pleading once as amatter of

course within twenty one days of serving the original or

within twenty one days after service upon it of arespon-

sive pleading or motion. So expect that your complaint

to the court about the complaint will help the plaintiff

cure the defect about which you are complaining. Check

Chapter Six

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