Motion Practice in Business Litigation

In simplest terms, motion practice is the process by which you ask the Court for a specific form a relief.

The procedure for making a motion depends on which court you are in and the individual rules of the judge assigned to your case. Generally speaking, however, there are two procedural formats for bringing a motion: one is by “notice” (or “notice of motion”) and the other is by “order to show cause.” The traditional and most common way is to proceed by notice of motion. When you proceed by notice of motion, a date is set (sometimes by you as the movant and other times by the court) when your motion will be submitted to the judge for a decision and/or oral argument. The supporting papers typically include a notice of motion, a memorandum of law (where the legal arguments in support of your motion are set forth); affirmations (normally used by attorneys and some other categories of individuals) and/or affidavits where the facts supporting the legal arguments are set forth (in federal court declarations are typically used instead of affidavits and affirmations); and supporting exhibits. The other side then submits opposition papers and you have the opportunity to reply.

The other common method of bringing a motion is by order to show cause. You typically bring a motion by order to show cause when you are seeking some form of emergency relief and/or when you are seeking some form of interim relief. An example would be an application for a preliminary injunction. This is a common motion in business litigation and may be used, for example, when a competitor is using your proprietary information and you are looking to stop your competitor from using such information. Sometimes, the breach might be so severe and the damage which is being incurred is so immediate that you might ask the court to force the other side to stop the malfeasant activity on a temporary basis even before the motion is submitted to the court. Unlike when you are proceeding by notice of motion, when you proceed by order to show cause, the judge reviews the papers and decides whether or not the motion should go forward. If the judge decides that the motion should go forward, he or she will sign the order to show cause and direct how service is to be made.

In some instances, yes. It depends on the judge which is assigned to your case. This practice is more common in federal court.

The term dispositive motion is used to describe a motion which decides some or all of the claims asserted in a case. Typically, these include motions to dismiss and motions for summary judgment. A motion for summary judgment is made when you believe that the law and all material facts necessitate a judgment in your favor. Often, but not always, a motion for summary judgment is made after discovery has been completed in a case.

As a motion is basically a formal request for relief, the types of motions which can be made in a business litigation are literally endless.

One common type of motion which is made is one to amend the complaint. Often, after starting a business lawsuit, you will realize that there are additional claims that you want to assert in an action. For example, you may discover that there is an additional and related contract which has been breached and you may want to add a claim for the breach of such contract. Similarly, you may learn about certain additional facts which are pertinent to an existing claim which you may want to add to the complaint. As a defendant, you may want to make a motion to assert a defense that you may have forgotten to assert and/or only learned about later in the case.

Another common motion to bring at or near the beginning of a business litigation is a motion for a preliminary injunction. As discussed above, in the context of a business litigation, a motion for a preliminary injunction often seeks to stop your competitor from doing a certain activity which is causing you damage and/or about to cause you damage such as when a competitor is using your trademark or copyright and/or is stealing your customers. In order to be successful with an application for a preliminary injunction, you have to show in your motion papers that i) there is a high likelihood of success on the merits in the action; ii) irreparable harm will be experienced if the relief is not granted; and iii) the balance of equities favor the granting of the injuncting relief. The standard for obtaining a preliminary injunction is very high as you are requesting that the court provide you with at least part of the relief you are seeking in a case before that case is even decided.

Please contact us today to discuss your business litigation matter. We look forward to hearing from you.