Pretrial Motions in Civil Litigation

Pretrial motions are procedural tools that attorneys use to resolve issues, narrow disputes, and shape the course of litigation before trial. For paralegals working in civil litigation, understanding the different types of pretrial motions, their legal bases, and the procedures for filing them is critical to effective case management. These concepts are also tested on the NALA Certified Paralegal (CP) exam. This guide covers the most important pretrial motions and the paralegal's role in preparing them.

Motion to Dismiss (Rule 12(b))

A motion to dismiss is typically the first defensive motion filed in a case. Under Federal Rule of Civil Procedure 12(b), a defendant may move to dismiss the complaint on several grounds before filing an answer:

12(b)(1) Lack of subject matter jurisdiction: The court does not have authority over the type of case presented.
12(b)(2) Lack of personal jurisdiction: The court does not have authority over the defendant.
12(b)(3) Improper venue: The case was filed in the wrong court location.
12(b)(4) Insufficient process: The summons or complaint is defective in form.
12(b)(5) Insufficient service of process: The complaint was not properly served on the defendant.
12(b)(6) Failure to state a claim: Even accepting all allegations as true, the complaint does not state a legally cognizable claim.
12(b)(7) Failure to join a required party: A necessary party under Rule 19 has not been joined.

What is the legal standard for a 12(b)(6) motion to dismiss?

Under the Supreme Court's decisions in Bell Atlantic Corp. v. Twombly (2007) and Ashcroft v. Iqbal (2009), a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is "plausible on its face." This means the complaint must allege facts that allow the court to draw a reasonable inference that the defendant is liable, going beyond mere conclusory statements or a "formulaic recitation of the elements." The court does not consider evidence at this stage; the motion is decided solely on the face of the pleadings.

Motion for Summary Judgment (Rule 56)

A motion for summary judgment is one of the most powerful pretrial tools. Under Rule 56, a party may move for summary judgment on any claim or defense, asserting that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. If granted, the motion resolves the case (or specific claims) without trial.

How does a court decide a summary judgment motion?

The court examines the evidence in the record, including depositions, affidavits, interrogatory answers, admissions, and documents produced in discovery, and views all facts and inferences in the light most favorable to the non-moving party. The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact. The burden then shifts to the non-moving party to produce evidence showing a genuine issue for trial. The court does not weigh evidence or make credibility determinations at this stage.

Motion to Compel Discovery (Rule 37)

When a party fails to respond to discovery requests, provides incomplete responses, or objects improperly, the requesting party may file a motion to compel under Rule 37. The motion asks the court to order the opposing party to provide the requested discovery. Before filing, most courts require the parties to meet and confer in good faith to attempt to resolve the dispute without judicial intervention. The court may award reasonable expenses, including attorney's fees, to the prevailing party on a motion to compel.

Motion in Limine

A motion in limine (Latin for "at the threshold") is filed before trial to request a pretrial ruling on the admissibility of evidence. These motions are used to exclude prejudicial, irrelevant, or otherwise inadmissible evidence before it is presented to the jury, preventing the damage that would occur if the jury heard the evidence even if an objection were sustained at trial.

Excluding evidence of prior bad acts under Federal Rule of Evidence 404(b)
Excluding expert testimony that does not meet the Daubert reliability standard
Preventing reference to insurance coverage under Rule 411
Excluding settlement negotiations under Rule 408
Limiting testimony about subsequent remedial measures under Rule 407

Motion for Change of Venue (28 U.S.C. Section 1404)

A motion to transfer venue asks the court to move the case to a different district court for the convenience of parties and witnesses or in the interest of justice. Factors considered include the location of witnesses and documents, the plaintiff's choice of forum, the relative congestion of the courts, and the connection between the forum and the events giving rise to the claim.

Motion for Default Judgment (Rule 55)

When a defendant fails to respond to a complaint within the required time frame, the plaintiff may seek a default judgment. The process typically involves two steps: first, obtaining a clerk's entry of default under Rule 55(a), and then moving for default judgment under Rule 55(b). Courts may set aside a default for good cause shown, considering factors such as whether the default was willful, whether the defendant has a meritorious defense, and whether the plaintiff would be prejudiced by setting aside the default.

The Paralegal's Role in Motion Practice

Paralegals are deeply involved in motion practice throughout litigation. Key responsibilities include:

Researching case law and statutes supporting or opposing motions
Drafting motion briefs, memoranda of law, and supporting declarations
Compiling and organizing exhibits, affidavits, and evidence attachments
Calculating filing deadlines and response periods under applicable rules
Coordinating service of motion papers on opposing counsel
Preparing proposed orders for the court's consideration
Scheduling and preparing for oral argument on contested motions

Civil litigation procedure is a major component of the CP exam. Master motion practice and procedural rules with ParalegalPrep flashcards covering the Federal Rules of Civil Procedure. Create your free account to access practice questions that test your knowledge of pretrial procedures, and visit our pricing page for full exam prep access.

Pretrial Motions Every Paralegal Should Know: Types, Timing, and Strategy