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Basic Motions in the San Antonio Division

Disclaimer: These materials give specific information about the procedures that a litigant must follow in a suit in the San Antonio Division of the United States District Court for the Western District of Texas. Different requirements may apply under the Local Rules and standing orders of other federal courts outside the Western District of Texas. Also, the information presented in these pages is for educational purposes only, and does not constitute legal advice. Every case is different, and the correct legal answer always depends on the facts of the individual case. If you want a legal opinion about your own case, you should seek help from a licensed attorney.

1. What are motions for?

A "motion" is the formal way you ask the court to do something in your case. You make a motion by putting your request in writing and filing it with the district clerk's office. Or, during your trial or during a hearing that is being recorded by a court reporter, you can make an "oral" motion simply by telling the judge that you want to make a motion. Some motions must be made in writing. To find out whether you must make a certain motion in writing, check in the rules of civil procedure and the local rules, or ask the clerk or the courtroom deputy. If you can get the other side to agree to what you want the court to do, you can file a "joint" motion with a proposed "Agreed Order" for the judge to sign. If the other side objects to what you want, you will file a motion, and the defendant will have the chance to file a response. The basic rules that apply to motions are: Local Rules CV-5 (filing & service), CV-7 (contents), CV-10 (form) and Fed. R. Civ. P. 7(b), 10, and 11.

2. What should my motion say?

The attached sample motion shows the basic form of a written motion. You can also look at motions filed by the defendant, or motions in the public records at the district clerk's office from an earlier employment discrimination case, to get an idea of what your motion should look like.

Each request to the court should be made in a separate motion. Also, each motion should be self-contained. Do not assume that the judge will read the whole file before ruling on the motion. Don't waste time going through information that's irrelevant to the motion, but be sure that anything important to the motion is explained in the motion and/or attached, if necessary. Your motion must include the following:

Requested relief. Explain what you want and why you think you should get that thing (known as the "requested relief") based on the facts of your situation. Be sure to tell the court which documents in the court's records (or in your appendix) establish the relevant facts.
Supporting authority. Look in Local Rule CV-7(c) to find out if your motion must include "supporting authority." If you have to include supporting authority, you should tell the court what rule(s), law(s), and/or court opinion(s) support your argument that you should get what you ask for.
Requested findings. Sometimes, the rule that allows you to ask for something says that the court must make make a "finding" (or that one of the parties make a "showing") before the court can grant the motion. When a court makes a "finding," it declares that a certain fact is true as far as the law is concerned. "Findings" are related to "showings": if you have to make a showing and the court decides that you succeeded, the court will make a "finding" that the showing was made. Your motion should explain why the facts here support any required findings/showings.
Request for hearing. If the motion is important, you may ask for an oral hearing before the judge. An oral hearing is a chance for the parties to discuss the motion in person with the judge. For simple motions, a hearing is unnecessary. If you ask for a hearing, explain to the judge why you think it is necessary. See Local Rule CV-7(h).
Identifying information. Sign the motion, print out your name, address, and phone number, and add the words "pro se" after your name.
Certificate of service. Every motion must include your signed statement that the motion was properly served on the defendant. If the defendant has an attorney, all documents are delivered to the attorney, rather than to the defendant directly. You can serve motions by hand-delivering them or by mailing them certified mail, return receipt requested. A sample "certificate of service" is attached. See Local Rule CV-5(c).
Supporting documents. If your motion is based on facts that aren't already in the court's records, you should attach supporting documents in an appendix to your motion. If you don't have document that clearly proves a fact, you can create an affidavit (a sworn statement by a witness) to get evidence into the record (see the attached sample affidavit). Avoid attaching unnecessary documents to your motion, as this can irritate the judge. It is not necessary to give the court the same documents over and over, nor is it necessary to attach documents that have been submitted by the defendant. As a result, many motions do not require separate supporting documents (Note: motions for summary judgment and responses to summary judgment must always have supporting documents attached.)
Proposed order. Along with every motion, you should also file a proposed order for the judge to sign. If the court must make any findings, you should include these in your proposed order. A sample order is attached. If the defendant has agreed to whatever it is you're asking for, you should call the order an "Agreed Order" and you and the attorney for the defendant should both sign it at the bottom. See Local Rule CV-5(d), CV-7(e).

Make your motion as short as possible (usually 1 - 3 pages long). You cannot file a motion longer than 10 pages without leave (permission) from the court. The 10-page limit does not include any appendix or proposed order attached to the motion. If your motion contains a long description of the facts, you can put these facts in a "fact summary" as part of your appendix, rather than describing them in your motion, so that you have room to make your arguments within the 10-page limit. If you need permission to file a motion longer than 10 pages, you should file a "Motion for Leave to File a Motion Exceeding Page Limits."

3. What do I do with my motion once it's ready?

Print out the motion and proposed order on letter-sized paper. Sign the motion and the certificate of service. Attach any exhibits to the motion. Then make at least three additional copies of this set of documents. Two-hole punch everything at the top. One copy will go to each defendant, the original plus one copy will go to the court, and the remaining copy or copies are for you to keep. (NOTE: If you file the motion by mail or in the court's night drop box, you should make at least four copies so that you have one to keep in your file even after you send everything off to the clerk.)

Prepare a letter to the defendant's attorney to let the attorney know that you're filing the motion and proposed order with the court. Attach one copy of the motion (with exhibits) and proposed order to this letter. Put these papers in a properly addressed envelope and serve this on the defendant (by certified mail or hand delivery).

To file the motion and the proposed order with the court, you must give the clerk the original documents and one copy of both documents. The original documents will be filed in the clerk's file. The court's extra copy goes to the judge's office. Any additional copies you give to the clerk will be "file-stamped" (marked to confirm the date and time that they were received by the clerk) and returned to you. Get at least one file-stamped copy to keep for yourself. If you file your motion and proposed order by mail or in the court's night drop box, you will need to include a self-addressed, stamped envelope so that the clerk can mail you your file-stamped copies. Also, if you file anything by mail or using the night drop box, you should always keep one copy of the documents in your own file when you send everything to the clerk.

4. What happens after my motion is filed?

The defendant has 11 calendar days after receiving your motion in which to file a response. If the defendant files a response, you may file a reply to the response. After those 11 days have passed, the court may rule on your motion at any time (even if you are still busy preparing a reply). If you are filing a reply, it is a good idea to call the judge's law clerk and let the law clerk know you intend to file a reply. If the court decides to hold a hearing, the district clerk will tell you the date and time for the hearing.

5. Should I reply to the defendant's response?

Only file a reply if you have something new to say that will help the judge make a good decision. For example, if the defendant brings up some new facts that weren't discussed in your motion, you may need to tell the court more about those facts. Likewise, if the defendant makes a legal argument about a new issue and you did not say anything about that issue in your motion, you may want to put your side of the argument in a reply. DO NOT use a reply brief simply to repeat on the arguments you made in your motion. This wastes the judge's time and can make the judge angry at you.

Your reply should be in the form of a letter addressed to the judge but filed with the court clerk. Do not send the letter directly to the judge. Make the reply as short as possible.

6. What happens when I get a motion from the defendant?

You normally have eleven calendar days from the receipt of the defendant's motion in which to file a response. See Local Rule CV-7(f). Whether you file a response depends on what the defendant has asked for. If you don't object to what the defendant wants (such as a short extension of time on a deadline), you do not have to respond. But if the motion is a "dispositive" motion, such as a motion for summary judgment, you will probably want to respond. If you do not file a response, the court will usually treat the motion as "unopposed" and grant it automatically. If you need more time to respond to a motion, file a "Motion to Extend Time" on or before the day of the deadline, so that the judge knows you oppose the motion.

Your written response should look like a motion, except that it should explain the reasons the court should not do what the defendant has asked the court to do. Follow the structure of the defendant's motion. Use the same numbers and answer the defendant's points in the same order, so that the court can follow your counter-arguments. Then add any additional points in your favor. Be sure to answer each argument by the defendant, point for point. Sometimes, defeating just one point in the defendant's motion will defeat the whole motion. On the other hand, some motions will win if just one of the defendant's points succeeds.

Your response must contain the following:

Response to defendant's request. Explain exactly why the court should not grant the defendant's requested relief, based on the facts of your case. Tell the court which documents in the court's records or in your appendix to the motion (see below) support your view of the facts.
Supporting authority. Tell the court what rule(s), law(s), and/or court opinion(s) support your argument that the court should not grant the defendant's motion.
Response to requested findings. If the defendant asks the court to make findings but you do not believe the facts support those findings, explain why the court should not make the findings. Again, point out any documents that support your argument.
Request for hearing. If you think the judge should hold a hearing to discuss the motion, you can request an oral hearing and explain why you think the hearing is necessary.
Identifying information. Sign the response, print out your name, address, and phone number, and add the words "pro se" after your name.
Certificate of service. Follow the same form you would use for a motion.
Supporting documents. If your response is based on facts that aren't already in the court's records, you should attach supporting documents in an appendix to your motion. If you don't have document that clearly proves a fact, you can use an affidavit (a sworn statement by a witness, including yourself) to get evidence into the record.
Proposed order. Include a proposed order that denies the defendant's motion.

Like a motion, a response may not be longer than 10 pages (not including the appendix or proposed order) without permission from the court. File the response the same way you would file a motion.

Sample Documents

View sample motion and certificate of service (PDF)
Download Sample motion and certificate of service (WordPerfect 5.1)

View sample affidavit (PDF)
Download sample affidavit (WordPerfect 5.1)

View sample order (PDF)
Download sample order( WordPerfect 5.1)

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This page was last updated on: 01/03/02