Federal Motion Practice: How to File and Argue Motions

Jurisdiction: Federal

Federal Motion Practice in Civil Litigation

Federal motions are the primary mechanism by which parties advance their positions and resolve disputes before trial in federal court. Understanding motion practice under the Federal Rules of Civil Procedure (FRCP) is essential for both attorneys and self-represented litigants. This guide covers the most common motions, the substantive standards they must satisfy, and the procedural requirements for proper filing.

General Motion Requirements and Format

Before addressing specific motion types, understanding the procedural framework ensures your motions comply with local rules and federal requirements.

Required Components

Every motion must include:

Notice of Motion: A cover sheet identifying the motion, the party filing it, and the relief sought

Memorandum of Law: The substantive argument explaining the legal basis for the motion

Supporting Declarations or Affidavits: Factual declarations establishing facts outside the record (except for motions relying solely on the pleadings)

Proposed Order: A separate document for the judge to sign if the motion is granted

Proof of Service: Certification that the motion was served on all parties

Timing and Local Rules

Motions must comply with:

FRCP 5(a): Service requirements—typically all parties must receive notice before filing, or simultaneously with filing

Local Rules: Each federal district has specific page limits, briefing schedules, and formatting requirements. Always consult your district's Local Rules before filing

FRCP 6(d): Papers filed via electronic filing systems are deemed served when filed

Motion to Dismiss Under FRCP 12(b)(6)

A Rule 12(b)(6) motion challenges the legal sufficiency of the complaint, asserting the plaintiff has failed to state a claim upon which relief can be granted.

The Twombly/Iqbal Standard

The Supreme Court's decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), establish the modern pleading standard. A complaint must contain sufficient facts to state a plausible claim for relief.

Plausibility requires more than merely possible facts—the facts must make relief plausible, not merely speculative. Courts apply a context-specific analysis, considering:

What constitutes a reasonable inference from the allegations

Whether facts alleged are consistent with liability or suggest mere innocence

Whether the complaint contains enough facts to support an inference of wrongdoing

Analysis Strategy

When drafting a Rule 12(b)(6) motion:

Identify the required elements of each cause of action

Demonstrate that the complaint fails to allege facts satisfying at least one element

Argue that allegations are conclusory, speculative, or inconsistent with plausibility

Cite case law from your circuit establishing plausibility standards for similar claims

When opposing a Rule 12(b)(6) motion, provide facts in the complaint that, taken as true, establish plausibility. Remember: the court accepts all well-pleaded factual allegations as true, but not legal conclusions or bare assertions.

Rule 12(b) Defenses

Rule 12(b)(6) is just one ground. Other defenses under Rule 12(b) include:

12(b)(1): Lack of subject matter jurisdiction

12(b)(2): Lack of personal jurisdiction

12(b)(3): Improper venue

12(b)(4)-(5): Insufficient process or service of process

12(b)(7): Failure to join indispensable parties

Filing any Rule 12(b) defense waives others not raised in the same motion, except those waivable defenses may be raised later.

Motion for Summary Judgment Under FRCP 56

A summary judgment motion argues that no genuine dispute of material fact exists and judgment should enter as a matter of law.

The Legal Standard

Under FRCP 56(a), summary judgment is appropriate when the moving party demonstrates there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The Supreme Court's Celotex Corp. v. Catrett, 477 U.S. 317 (1986), established the burden-shifting framework:

Moving party: Must initially demonstrate the absence of a genuine issue of material fact by citing discovery materials, admissions, or declarations

Responding party: Must establish a genuine dispute by producing evidence creating a reasonable likelihood a jury would find for the non-moving party

Material fact: One affecting the outcome under applicable law

Practical Considerations

Summary judgment motions require:

Detailed statement of undisputed facts with specific citations to evidence

Clear explanation of why no genuine dispute exists

Analysis of applicable law and how it applies to established facts

Identification of evidence the opponent must provide to survive

Opposing summary judgment requires:

Countering undisputed fact statements

Identifying specific evidence (depositions, documents, declarations) creating genuine disputes

Demonstrating the evidence is admissible

Showing reasonable jurors could differ on material facts

Motion for Judgment on the Pleadings Under FRCP 12(c)

This motion asserts that the complaint (and answer, if responsive) fails to state a claim as a matter of law, similar to Rule 12(b)(6) but typically filed after the answer.

When to Use Rule 12(c)

After the answer is filed and the case is further developed

When legal deficiencies become clear through pleadings alone

When no discovery is needed to resolve the legal question

The standard mirrors Rule 12(b)(6): accepting all well-pleaded allegations as true, does the complaint state a plausible claim?

Motion to Compel Discovery Under FRCP 37

When a party fails to respond to discovery requests or provide adequate responses, FRCP 37 permits a motion to compel.

Prerequisites

Before filing, the movant must:

Make a good faith attempt to obtain compliance without court intervention (meet and confer requirement)

Demonstrate the discovery request is proper under FRCP 26-36

Show the responding party failed to comply

Relief and Sanctions

If the motion is granted, the court orders compliance. If the responding party fails to comply thereafter, sanctions may include:

Attorney's fees and costs incurred in bringing the motion

Striking pleadings or issuing default judgment

Contempt sanctions

Motion in Limine

While not formally codified in the FRCP, motions in limine are governed by the Federal Rules of Evidence (FRE) and common practice. These motions request the judge exclude evidence before trial.

Common Grounds

Evidence violates FRE 403: unfairly prejudicial impact outweighs probative value

Evidence violates FRE 408: settlement negotiations (inadmissible to prove liability)

Evidence violates FRE 410: plea negotiations

Hearsay under FRE 801-807 without proper exception

Character evidence under FRE 404

File motions in limine early, typically 30 days before trial. Courts prefer briefing focused on specific evidence, not broad categories.

Motion for Default Judgment Under FRCP 55

If a defendant fails to respond to a complaint or otherwise defaults, the plaintiff may seek default judgment.

Procedure

FRCP 55(a): Clerk enters default when a party fails to plead or otherwise defend

FRCP 55(b)(1): Plaintiff requests judgment by filing a motion

The court must find the defendant received proper notice

Courts disfavor default judgments and require strict compliance with notice and procedural requirements. Defendants can move to set aside default under FRCP 55(c) for good cause.

Motion to Amend Pleadings Under FRCP 15

FRCP 15 permits amendments to correct pleadings.

Standards

Before trial: Amendments are freely permitted as of right within 21 days of serving the pleading, or with written consent, or by leave of court

After trial: Courts grant amendments only in extraordinary circumstances

Courts apply the FRCP 15(a) standard, considering:

Undue prejudice to the opposing party

Timeliness of the amendment

Whether the amendment corrects a known deficiency

Bad faith

Temporary Restraining Orders and Preliminary Injunctions Under FRCP 65

When immediate relief is necessary to prevent irreparable harm, FRCP 65 permits motions for temporary restraining orders (TROs) and preliminary injunctions.

Legal Standard

The applicant must demonstrate:

Likelihood of success on the merits

Irreparable harm absent the injunction (damages are inadequate)

Balance of equities favoring the applicant

Public interest is served

Courts apply Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008), requiring a serious question on the merits and that the balance of equities tips decidedly in applicant's favor.

Procedural Requirements

File with declarations establishing facts supporting the standard

Provide notice to the opposing party (except in extraordinary circumstances)

Propose specific injunctive language

Post a bond under FRCP 65(c) unless waived

Key Takeaways

Comply with Local Rules: Each federal district has specific formatting, page limit, and briefing requirements; non-compliance may result in rejection or sanctions.

Master the Standards: Understand the distinct legal standards for each motion type—Rule 12(b)(6) requires plausibility, Rule 56 requires no genuine dispute of material fact, and Rule 65 injunctions require irreparable harm.

Perfect Your Factual Record: Motions succeed on the strength of declarations, admissions, and evidence. Citations must be precise and evidence must be admissible.

Meet and Confer: Good faith efforts to resolve disputes before filing motions to compel or for other relief are mandatory and improve your credibility with the court.

Procedural Precision Matters: Proper notice, service, proposed orders, and compliance with timing requirements prevent dismissal of otherwise meritorious motions.