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Movant

MOVANT

One who makes a motion before a court. The applicant for a judicial rule or order.

Generally, it is the job of the movant to convince a judge to rule, or grant an order, in favor of the motion. Rules and legal precedent within particular jurisdictions, as well as the type of motion sought, dictate the burdens of proof and persuasion each party must meet when a court considers a motion.

For example, one common type of motion is a motion for summary judgment. This motion is made shortly before a trial commences and is granted if the pleadings, depositions, answers to interrogatories, and affidavits indicate that no genuine dispute as to any material fact exists and that the movant is entitled to a favorable judgment as a matter of law. In other words, if the facts of the case are not disputed, it is easier, faster, and less expensive for a judge to simply rule on the legal issues that apply to those facts, avoiding a trial altogether.

A summary judgment movant in most jurisdictions has the burden of showing that no genuine issue of material fact exists and that, by law, the undisputed facts support a judgment in the movant's favor. But once the movant meets this burden, the opposing party is given a chance to refute the movant's argument. The opposing party will try to establish that there is a genuine dispute about a material fact in the case and that the law does not support a judgment in the movant's favor.

For example, assume a case in which a fashion model is suing a newspaper for publishing her picture without her knowledge or permission in an advertisement for a nightclub. Shortly before trial the newspaper makes a motion for summary judgment. The movant newspaper admits that the photograph of the model ran in the newspaper and that the newspaper did not have the model's permission to publish it. The newspaper argues, however, that the model has no right under current law to sue the newspaper, which merely sells space for advertisements, and that her only legal recourse is in suing the advertiser that placed the advertisement in the newspaper. Thus, the newspaper has argued that no material facts are in dispute. The movant has also shown that, given the incontestable material facts, the law would support a judgment in favor of the newspaper.

Now the burden shifts to the model, who must demonstrate the existence of a disputed fact that, if proven, would make the newspaper legally liable. She may do this by producing an affidavit—a sworn written statement—by a former newspaper employee alleging that the newspaper did not merely print the advertisement but actually created the advertisement with the model's picture for the nightclub. Because this material fact, if proven, could make the newspaper legally liable, the court would deny the movant's summary judgment motion.

In most jurisdictions the burden of producing evidence supporting the granting or denial of a summary judgment motion shifts between the movant and the opposing party, but the ultimate burden of persuading the court remains with the movant. A movant's burdens of proof and persuasion differ depending on the jurisdiction and the type of motion. In Hawaii, a movant in a criminal case seeking to have the trial continued or postponed because a witness is unavailable must show that the movant has exercised due diligence in finding the witness; the witness would provide substantial favorable evidence; the witness is otherwise available and willing to testify; and the movant would be materially prejudiced by a denial of the continuance (State v. Lee, 9 Hawai'i App. 600, 856 P.2d 1279 [1993]). In Utah a movant requesting that the court set aside its child support award because of a judicial mistake in failing to use a required joint custody worksheet in computing the amount of child support need only demonstrate the existence of a judicial mistake. A denial of the motion by the trial court, without an explanation as to why it deviated from the joint custody worksheet requirement, was an abuse of discretion and was reversed and remanded by an appellate court (Udy v. Udy, 893 P.2d 1097 [Utah App. 1995]).

further readings

Foremaster, Gary T. 1987. "The Movant's Burden in a Motion for Summary Judgment." Utah Law Review 1987.

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