NJ Practice
Rothman
Fall 2011
I. Basics/NJ Court System
General Equity
Law
(civil)
Sup. Court
Family (equity)
Criminal
Small Claims (max $3k)
Special Civil (max $15k)
Appellate Div.
Superior Courts
a. Rothman’s Rules
i. Purpose of civil law system from litigant’s perspective is to leverage settlement
ii. Purpose of civil law system from judge’s perspective is to:
1. Clear the docket &
2. Do justice
iii. Note: this 2-fold role is the reason we need/have court rules
iv. Type of relief sought will determine the appropriate court in which to file a civil action
b. Vicinage: generally by county. Assignment Judge is responsible for all of the courts in the vicinage. Presiding Judge is responsible for their individual court. An Assignment Judge may temporarily assign a judge to sit in another Division to manage the caseload
c. Court of Equity: power over the person, not the law. Power to force people to do or not to do something (court of persuasion in a way—most jurisdictions don’t differentiate between courts of law & equity)
d. Court Rules
i. Part I – rules of general application
1. R.1:1-2 – all rules are to be construed to secure a just determination, simplicity in procedure, fairness in determination & elimination of unjustifiable expense & delay
a. State v. Dilley: (1967) a specific rule controls a general one
b. Baumann v. Marinaro: (1984) for the NJ rules that parallel federal rules, courts may draw on federal precedent to aid construction
c. In the absence of a rule, the court may proceed in any manner compatible with the purposes expressed in the rules
d. Any rule may be relaxed or dispensed with, unless otherwise stated, if adherence would yield injustice
ii. Part II – appellate rules
iii. Part IV – trial level rules
e. Rulemaking Power – Winberry v. Salisberry: plaintiff was charged with a heinous crime, grand jury doesn’t indict, he then sues for libel.
i. R.1:3-1 – Calculating time
1. Day 1 = the next day; Ex: If you have a 45 day period pursuant to a ruling entered today, you start counting tomorrow
2. For periods </= 7 days you DON’T count weekends or legal holidays
3. For periods >/= 7 days you DO count weekends & legal holidays, except for the last day. If the last day is a weekend or legal holiday, you continue until the following day which is neither a weekend or legal holiday
4. Legislature SOL for appeal = 100 days
5. NJ Supreme Court SOL = 45 days
6. Note: while Sup. Crt. can’t prevent legislation of any kind, it may enforce its rules of practice & procedure when if their rule conflicts with legislation on the same point
II. Pleadings
a. COMPLAINT – R.4:5s set forth criteria for structure & content of complaint & answer; R.4:6s provide procedural mechanisms for when parties don’t adhere to R.4:5s
i. Ex: R.4:5-8 requires plaintiff to allege specific facts sufficient to support the claim (dates, names, etc.) & R.4:6-4 allow defendant to file a motion for a more definite statement if plaintiff doesn’t allege with sufficient specificity
1. You would ask for an amended complaint with more specific facts so that you can answer properly, or for dismissal in the event plaintiff fails to amend by providing an answerable complaint within 10 days so you don’t have to file another motion
a. If they do amend, defendant has 10 days to answer from date of service
ii. NJ SOL: Tort = 2 years; Contract = 6 years
iii. General Content
1. No cover sheet in NJ
2. 3 in margin @ top of pg 1 for court clerk’s notes/stamp (not strictly enforced)
3. Attorney’s name, address & phone #
4. Box or separation
5. Full name of all parties & designation as plaintiff or defendant etc.
6. Type of action (civil or criminal)
7. Court, county, division (law, chancery etc.), docket #
8. Jurisdictional note: “P, John Doe, of XYZ County, brings this action…
9. Counts (most important goes first, then in order of whichever tells your story the best)
10.Findings of Fact – list of brief facts (every fact) needed to recover under your claims. Must plead with particularity
a. Ex: if claiming fraud (verbal) you have to list date of convo., what was said, by whom, etc. – R.4:5-8 – Pleading Special Matters
11.Ad damnum Clause: Wherefore Plaintiff demands as follows…(list recovery sought) (this goes after findings)
a. May be good to have an ad adamnum clause for each count because each count may entitle plaintiff to different recovery (keep in mind the type of relief sought may lead to removal to another court, so ask only that which may be granted in that court. Also helpful because not all theories will apply to all defendants if multiple defendants are named)
2
Atty name, address #
John Doe,
Plaintiff
v.
Jane Doe, Defendant
Superior Court of
New Jersey
Essex County
Law Division
Docket No: 123-45-67
Civil Action
iv. (must include in your complaint that you’re seeking punitive damages & you must renew that motion at trial)
b. CERTIFICATION – Notice of Potentially Liable Persons (filed w/ 1st pleading)
i. Entire Controversy Doctrine: with their 1st pleading, each party shall file a certification
able, you will get an adjournment. If no designation is made, you will have to proceed (10 days from close of discovery??? CHECK THIS) – R.4:25-4
b. Jury Demand (if applicable) – must be made within 10 days of filing of the last responsive pleading – R.4:35-1
f. PROCESS
i. Purpose: to put the other party on notice (Due Process in this context = adequate notice)
ii. Who may serve process – R.4:4-3
iii. Must Include – (think who, what, when, where, why & how)
1. Complaint: answers why, what & who (as does summons)
2. Summons: answers where you go to respond & when you have until & how to do it
iv. In Personam Jurisdiction – In NJ, for in personam, personal service is the primary method of service of process
v. R. 4:4-4 – Summons; Personal Service; In Personam Jurisdiction
1. Sandwich Rule: when serving an employee in a suit against his employer, the employee must be acting in their professional capacity. If they are sitting at their desk eating lunch, they cannot be served
a. This does not apply to corporate officers, who are always acting as officers for purpose of this rule
vi. R.4:4-4(c) – Optional Mailed Service: used when you don’t think defendant will dodge you b/c they are a well-established person or organization. If they answer w/in 60 days, service is good. If not, they are not in default & you must then seek to serve them in another way. [try 4:4-4(a) then try (b)]
1. Constructive Notice: only available after due diligence to serve personally
2. R.4:4-4(c) – Optional Mailed Service: when suing a large corporation you can generally mail service of process to their headquarters & service will be valid if they accept. They usually will, sometimes with a stipulation of an extension of time to reply
a. If they don’t respond in 60 days, you must file another way
b. You can do this for any defendant, not just a corporation, but the corporations are more likely to accept w/ stipulation, whereas a small defendant may not accept
3. Note: there is an implied easement (in a way) on real estate to let officers of the court onto property to serve process
g. Amending the Complaint
i. Standard: must be for good cause & without prejudice to adversary
ii. During Trial: if amending during trial, there may be prejudice since defendant won’t have time to prepare a defense, but if the reason you’re learning of these new facts necessitating the amendment, is because your adversary didn’t disclose certain information, they may be estopped from objecting to the amendment on grounds of prejudice
iii. Bifurcation: if you are permitted to amend, the judge may bifurcate the claims and allow you to bring one at a later time
h. Requirements for Default Judgment – 2 Steps/2Motions:
