Date of this Version
Court Review, Volume 50, Issue 3 (2014)
Misunderstandings regarding the definition of a crossmotion often lead to problems during the filing and briefing of cross-motions in state and federal courts. This article focuses on defining and illustrating the elements of a proper cross-motion, identifying and illustrating common problems caused by the filing and briefing of improper crossmotions, and offering solutions to those problems.
As most commonly understood by judges and practitioners, a cross-motion in state or federal court possesses three elements: (1) it is filed against the originally moving party; (2) it is filed by a party against whom the original motion was filed; and (3) it requests an order similar to that requested by the originally moving party against the cross-moving party. Common problems posed by the filing and briefing of improper cross-motions in state and federal court include (1) a violation of the action’s motion-filing deadline, (2) a violation of the court’s proscription against the filing of replies on cross-motions, (3) a violation of the court’s proscription against the filing of sur-replies on dispositive motions, and (4) a violation of the court’s page limitation on memoranda of law. Possible solutions to those common problems include (1) filing a motion before the opposing party files its motion, (2) requesting leave to depart from the action’s scheduling order or the court’s local rules, (3) moving to strike the improper cross-motion, and (4) in the context of pleading amendments, filing a timely amended complaint rather than a cross-motion for leave to file an amended complaint in response to a motion to dismiss for failure to state a claim.