04-08-09 Rocky Hill Citizens for Responsible Growth v. Borough of Rocky Hill A-1595-07T1

04-08-09 Rocky Hill Citizens for Responsible Growth v. Planning
Bd. of the Borough of Rocky Hill
A-1595-07T1

A citizens group challenged an ordinance that created
standards for residential construction within a historic
preservation district. A developer complying with the standards
was "deemed to comply" with the district's development
ordinance.

On appeal, we held that the motion judge did not abuse her
discretion in denying an enlargement of time under Rule 4:69-
6(c), to challenge the ordinance.

We further held that a "deemer" provision of the municipal
ordinance did not usurp the Planning Board's authority under the
Municipal Land Use Law. N.J.S.A. 40:55D-1 to -163. We
concluded that the Planning Board's action was appropriate.

We did observe that, as a practical matter, plaintiffs'
challenge of the Planning Board's approval of the development
application, provided a forum for a review of the merits of the
challenged ordinance.

04-06-09 New Jersey Manufacturers v. Prestige Health Group A-1616-07T1

04-06-09 New Jersey Manufacturers v. Prestige Health Group
A-1616-07T1

Notwithstanding the procedural missteps relating to the
filing of an answer to the original complaint, plaintiffs may
not obtain default and default judgment as a result of
defendants' failure to file an answer to an amended complaint
because plaintiffs failed to serve that pleading on defendants'
attorney of record, contrary to Rule 1:5-1(a).

4:12-4. Disqualification for Interest

No deposition shall be taken before or recorded by a person, whether or not a certified shorthand reporter, who is a relative, employee or attorney of a party or a relative or employee of such attorney or is financially interested in the action. Any regulations of the State Board of Shorthand Reporters respecting disqualification of certified shorthand reporters shall apply to all persons taking or recording a deposition.

4:12-3. In Foreign Countries

Unless an international treaty or convention otherwise requires, in a foreign country depositions shall be taken (a) on notice before a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or (b) before such person or officer as may be appointed by commission or under letters rogatory. A commission or letters rogatory shall be issued on application and notice, and on such terms and with such directions as are appropriate. Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be addressed "To the Appropriate Judicial Authority in (here name the country)".

4:12-2. Without the State but Within the United States

Outside this State but within the United States or within a territory or insular possession subject to the dominion of the United States, depositions shall be taken before a person authorized to administer oaths by the laws of this State, of the United States or of the place where the examination is held.

4:12-2. Without the State but Within the United States

Outside this State but within the United States or within a territory or insular possession subject to the dominion of the United States, depositions shall be taken before a person authorized to administer oaths by the laws of this State, of the United States or of the place where the examination is held.

4:12-1. Within the State

Within this State, depositions shall be taken before a person authorized by the laws of this State to administer oaths.

4:11-5. Depositions Outside the State

A deposition for use in an action in this state, whether pending, not yet commenced, or pending appeal, may be taken outside this state either (a) on notice pursuant to R. 4:14-2, or, in the case of a foreign country, pursuant to R. 4:12-3; (b) in accordance with a commission or letter rogatory issued by a court of this state, which shall be applied for by motion on notice; or (c) in any manner stipulated by the parties. Depositions within the United States taken on notice shall be taken before a person designated by R. 4:12-2. Commissions and letters rogatory shall be issued in accordance with R. 4:12-3. If the deposition is to be taken by stipulation, the person designated by the stipulation shall have the power by virtue of the designation to administer any necessary oath.

4:11-5. Depositions Outside the State

A deposition for use in an action in this state, whether pending, not yet commenced, or pending appeal, may be taken outside this state either (a) on notice pursuant to R. 4:14-2, or, in the case of a foreign country, pursuant to R. 4:12-3; (b) in accordance with a commission or letter rogatory issued by a court of this state, which shall be applied for by motion on notice; or (c) in any manner stipulated by the parties. Depositions within the United States taken on notice shall be taken before a person designated by R. 4:12-2. Commissions and letters rogatory shall be issued in accordance with R. 4:12-3. If the deposition is to be taken by stipulation, the person designated by the stipulation shall have the power by virtue of the designation to administer any necessary oath.

4:11-4. Testimony for Use in Foreign Jurisdictions

Whenever the deposition of a person is to be taken in this State pursuant to the laws of another state, the United States, or another country for use in connection with proceedings there, the Superior Court may, on ex parte petition, order the issuance of a subpoena to such person in accordance with R. 4:14-7. The petition shall be captioned in the Superior Court, Law Division, shall be designated "petition pursuant to R. 4:11-4" and shall be filed in accordance with R. 1:5-6(b). It shall be treated as a miscellaneous matter and the fee charged shall be pursuant to N.J.S.A. 22A:2-7.

4:11-3. Perpetuation of Testimony

R. 4:11-1 and R. 4:11-2 do not limit the court's power to entertain an action to perpetuate testimony or to enter an order in any pending action for the taking of a deposition to perpetuate testimony.

4:11-2. Pending Appeal

If an appeal has been taken from a trial court judgment or before the taking of such an appeal if the time therefor has not expired, the trial court, on motion, may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further trial court proceedings. The motion shall show the names and addresses of the persons to be examined, the substance of the testimony which is expected to be elicited from each, and the reasons for perpetuating their testimony. If the court finds that perpetuation of the testimony may prevent a failure or delay of justice, it may make an order allowing the depositions to be taken and may make such orders as are provided for by R. 4:18-1 and R. 4:19. Depositions so taken may be used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in the court.

03-25-09 Sutter, M.D., P.A., et al. v. Horizon Blue Cross Blue Shield of New Jersey, et al. A-3708-06T3

03-25-09 John Ivan Sutter, M.D., P.A., et al. v. Horizon Blue
Cross Blue Shield of New Jersey, et al.
A-3708-06T3

1. In determining whether a proposed settlement of a
class action is fair and reasonable, the trial court must
conduct a fairness hearing pursuant to Rule 4:32-2(e). Where the
facts underlying the proposed settlement are in dispute by
objectors to the settlement, the trial court must conduct a
testimonial hearing during which the parties and objectors have
the opportunity to present and cross-examine witnesses before
the court determines whether the proposal is fair and
reasonable.

2. In determining whether a class attorney's fee award is
reasonable, the trial court must consider the lodestar method
(based upon a reasonable hourly rate) or the percentage recovery
(or common fund) method (based upon a reasonable percentage of
the proposed settlement). In applying the percentage recovery
method, however, the trial court must review the reasonableness
of the fees awarded in light of the hourly rate, the complexity
of the legal issues involved and whether the case is tried or
settled.

3. The court cannot base a percentage recovery fee award
on a disputed valuation of the settlement.