A public officer suing or being sued in an official capacity may be described by the official title without the use of the officer's name.
Note: Amended July 13, 1994 to be effective September 1, 1994.
Tuesday, June 30, 2009
4:26-6. Initials or Contractions of First Name or Names; Effect on Filing of Complaints; Entry of Judgment; Notice or Certificate of Indebtedness
Actions may be instituted against defendants designated by an initial letter or letters or a contraction of a given first name or names. Neither final judgment nor notice or certificate of indebtedness shall, however, be entered or filed against a defendant so designated unless either the defendant has been designated as provided by R. 4:26-5 or the plaintiff amends the complaint to state at least one full given name of the defendant or the court otherwise orders.
Note: Source-R.R. 7.4-5 (second paragraph). Amended July 7, 1971 to be effective September 3, 1971; caption and text amended July 24, 1978 to be effective September 11, 1978.
Note: Source-R.R. 7.4-5 (second paragraph). Amended July 7, 1971 to be effective September 3, 1971; caption and text amended July 24, 1978 to be effective September 11, 1978.
4:26-5. Unknown Defendants: In Rem Actions
(a) Applicability. R. 4:26-5 applies only to actions governed by R. 4:4-5 (actions affecting specific property or a res).
(b) Description of Unknown Defendants. When it shall appear by the affidavit of inquiry required by R. 4:4-5(c) that the affiant has been unable to ascertain whether or not any personwho is a proper party defendant is married, or, if married, the given name of the wife of such male defendant or the surname and either the given name or initial thereof of the husband of such female defendant, or that the affiant has been unable to ascertain whether or not any person who is a proper party defendant is still the owner of the specific property or res or any interest therein, and has been unable to ascertain the names and residences of any of the person's successors in right, title and interest in the same, or that the affiant has been unable to ascertain whether or not such person is still alive, or if such person is known or believed to be dead, that the affiant has been unable, in either case, to ascertain the names and residences of such person's heirs, devisees or personal representatives or his, hers, their, or any of their, successors in right, title or interest in the property or res or interest therein, or of such of them as may be proper parties defendant in the action, any such person or unknown person or persons may be made a party defendant by such of the following designations as may be appropriate:
(1) As to any such male person and such wife, if he has any, by designating such male person by his proper given name and surname, as it appears of record or otherwise, and by designating such wife by the given name and surname of such male person, as it so appears, with "Mrs." prefixed thereto; or
(2) As to any such female person and such husband, if she has any, by designating such female person by her proper given name and surname, as it appears, of record or otherwise, and by designating such husband either
(i) By the name of such female, as it so appears, as "Mr. ..., husband of ..." using such surname of such female person in the first blank and such given name and such surname of such female person in the second blank; or
(ii) By the name "John Doe, husband of ..., said name of John Doe being fictitious," using the given name and surname of such female person in the blank; or
(3) As to any such person, whether such person is still alive or whether it is not known whether such person is alive or dead, or if such person is known or is believed to be dead, and as to any such person's unknown heirs, devisees or personal representatives or his, hers, their, or any of their successors in right, title and interest in such specific property or interest therein or such res, thus: "..., his or her heirs, devisees and personal representatives and his, hers, their, or any of their, successors in right, title and interest," using the name of such person in the blank.
(c) Designation of Unknown Owner or Claimant. When it shall appear by the affidavit of inquiry required by R. 4:4-5(c) that the affiant has been unable to ascertain the name or names of any unknown owner or claimant, such unknown owner or claimant may be made a party defendant and shall be sufficiently described for all purposes including service of process by the designation "Unknown Owner (or Unknown Claimant), his or her heirs, devisees and personal representatives, and his, hers, their or any of their successors in right, title and interest." Where title to real property or an interest therein or a lien or encumbrance thereon is involved, the inquiry shall include, and the affidavit of inquiry shall recite, reasonable diligence in searching the title, or having it searched, for a period of 60 years immediately prior to the commencementof the action. If such search does not disclose the name of a person who it is alleged or claimed owns the same or a part thereof, or some interest therein, or holds a lien or encumbrance thereon, the action may proceed against unknown owners or unknown claimants.
(d) Other Designations. Where the manner of joining or designating an unknown defendant is not specifically fixed by this rule, the court may on motion with or without notice order the action to proceed against such defendant by fixing the manner and the designation by which the person shall be made a party defendant, adding a description of the person's interest in the action and stating so much of the person's name as is known.
(e) Effect of Designation. The person or persons designated as set forth in R. 4:26-5 shall be deemed as a party defendant to the action and as sufficiently described for all purposes, including service of process.
Note: Source-R.R. 4:30-4(a)(b) (first sentence) (c)(d)(e); introductory paragraph and paragraphs (b), (c) and (d) amended July 13, 1994 to be effective September 1, 1994.
(b) Description of Unknown Defendants. When it shall appear by the affidavit of inquiry required by R. 4:4-5(c) that the affiant has been unable to ascertain whether or not any personwho is a proper party defendant is married, or, if married, the given name of the wife of such male defendant or the surname and either the given name or initial thereof of the husband of such female defendant, or that the affiant has been unable to ascertain whether or not any person who is a proper party defendant is still the owner of the specific property or res or any interest therein, and has been unable to ascertain the names and residences of any of the person's successors in right, title and interest in the same, or that the affiant has been unable to ascertain whether or not such person is still alive, or if such person is known or believed to be dead, that the affiant has been unable, in either case, to ascertain the names and residences of such person's heirs, devisees or personal representatives or his, hers, their, or any of their, successors in right, title or interest in the property or res or interest therein, or of such of them as may be proper parties defendant in the action, any such person or unknown person or persons may be made a party defendant by such of the following designations as may be appropriate:
(1) As to any such male person and such wife, if he has any, by designating such male person by his proper given name and surname, as it appears of record or otherwise, and by designating such wife by the given name and surname of such male person, as it so appears, with "Mrs." prefixed thereto; or
(2) As to any such female person and such husband, if she has any, by designating such female person by her proper given name and surname, as it appears, of record or otherwise, and by designating such husband either
(i) By the name of such female, as it so appears, as "Mr. ..., husband of ..." using such surname of such female person in the first blank and such given name and such surname of such female person in the second blank; or
(ii) By the name "John Doe, husband of ..., said name of John Doe being fictitious," using the given name and surname of such female person in the blank; or
(3) As to any such person, whether such person is still alive or whether it is not known whether such person is alive or dead, or if such person is known or is believed to be dead, and as to any such person's unknown heirs, devisees or personal representatives or his, hers, their, or any of their successors in right, title and interest in such specific property or interest therein or such res, thus: "..., his or her heirs, devisees and personal representatives and his, hers, their, or any of their, successors in right, title and interest," using the name of such person in the blank.
(c) Designation of Unknown Owner or Claimant. When it shall appear by the affidavit of inquiry required by R. 4:4-5(c) that the affiant has been unable to ascertain the name or names of any unknown owner or claimant, such unknown owner or claimant may be made a party defendant and shall be sufficiently described for all purposes including service of process by the designation "Unknown Owner (or Unknown Claimant), his or her heirs, devisees and personal representatives, and his, hers, their or any of their successors in right, title and interest." Where title to real property or an interest therein or a lien or encumbrance thereon is involved, the inquiry shall include, and the affidavit of inquiry shall recite, reasonable diligence in searching the title, or having it searched, for a period of 60 years immediately prior to the commencementof the action. If such search does not disclose the name of a person who it is alleged or claimed owns the same or a part thereof, or some interest therein, or holds a lien or encumbrance thereon, the action may proceed against unknown owners or unknown claimants.
(d) Other Designations. Where the manner of joining or designating an unknown defendant is not specifically fixed by this rule, the court may on motion with or without notice order the action to proceed against such defendant by fixing the manner and the designation by which the person shall be made a party defendant, adding a description of the person's interest in the action and stating so much of the person's name as is known.
(e) Effect of Designation. The person or persons designated as set forth in R. 4:26-5 shall be deemed as a party defendant to the action and as sufficiently described for all purposes, including service of process.
Note: Source-R.R. 4:30-4(a)(b) (first sentence) (c)(d)(e); introductory paragraph and paragraphs (b), (c) and (d) amended July 13, 1994 to be effective September 1, 1994.
4:26-5. Unknown Defendants: In Rem Actions
(a) Applicability. R. 4:26-5 applies only to actions governed by R. 4:4-5 (actions affecting specific property or a res).
(b) Description of Unknown Defendants. When it shall appear by the affidavit of inquiry required by R. 4:4-5(c) that the affiant has been unable to ascertain whether or not any personwho is a proper party defendant is married, or, if married, the given name of the wife of such male defendant or the surname and either the given name or initial thereof of the husband of such female defendant, or that the affiant has been unable to ascertain whether or not any person who is a proper party defendant is still the owner of the specific property or res or any interest therein, and has been unable to ascertain the names and residences of any of the person's successors in right, title and interest in the same, or that the affiant has been unable to ascertain whether or not such person is still alive, or if such person is known or believed to be dead, that the affiant has been unable, in either case, to ascertain the names and residences of such person's heirs, devisees or personal representatives or his, hers, their, or any of their, successors in right, title or interest in the property or res or interest therein, or of such of them as may be proper parties defendant in the action, any such person or unknown person or persons may be made a party defendant by such of the following designations as may be appropriate:
(1) As to any such male person and such wife, if he has any, by designating such male person by his proper given name and surname, as it appears of record or otherwise, and by designating such wife by the given name and surname of such male person, as it so appears, with "Mrs." prefixed thereto; or
(2) As to any such female person and such husband, if she has any, by designating such female person by her proper given name and surname, as it appears, of record or otherwise, and by designating such husband either
(i) By the name of such female, as it so appears, as "Mr. ..., husband of ..." using such surname of such female person in the first blank and such given name and such surname of such female person in the second blank; or
(ii) By the name "John Doe, husband of ..., said name of John Doe being fictitious," using the given name and surname of such female person in the blank; or
(3) As to any such person, whether such person is still alive or whether it is not known whether such person is alive or dead, or if such person is known or is believed to be dead, and as to any such person's unknown heirs, devisees or personal representatives or his, hers, their, or any of their successors in right, title and interest in such specific property or interest therein or such res, thus: "..., his or her heirs, devisees and personal representatives and his, hers, their, or any of their, successors in right, title and interest," using the name of such person in the blank.
(c) Designation of Unknown Owner or Claimant. When it shall appear by the affidavit of inquiry required by R. 4:4-5(c) that the affiant has been unable to ascertain the name or names of any unknown owner or claimant, such unknown owner or claimant may be made a party defendant and shall be sufficiently described for all purposes including service of process by the designation "Unknown Owner (or Unknown Claimant), his or her heirs, devisees and personal representatives, and his, hers, their or any of their successors in right, title and interest." Where title to real property or an interest therein or a lien or encumbrance thereon is involved, the inquiry shall include, and the affidavit of inquiry shall recite, reasonable diligence in searching the title, or having it searched, for a period of 60 years immediately prior to the commencementof the action. If such search does not disclose the name of a person who it is alleged or claimed owns the same or a part thereof, or some interest therein, or holds a lien or encumbrance thereon, the action may proceed against unknown owners or unknown claimants.
(d) Other Designations. Where the manner of joining or designating an unknown defendant is not specifically fixed by this rule, the court may on motion with or without notice order the action to proceed against such defendant by fixing the manner and the designation by which the person shall be made a party defendant, adding a description of the person's interest in the action and stating so much of the person's name as is known.
(e) Effect of Designation. The person or persons designated as set forth in R. 4:26-5 shall be deemed as a party defendant to the action and as sufficiently described for all purposes, including service of process.
Note: Source-R.R. 4:30-4(a)(b) (first sentence) (c)(d)(e); introductory paragraph and paragraphs (b), (c) and (d) amended July 13, 1994 to be effective September 1, 1994.
(b) Description of Unknown Defendants. When it shall appear by the affidavit of inquiry required by R. 4:4-5(c) that the affiant has been unable to ascertain whether or not any personwho is a proper party defendant is married, or, if married, the given name of the wife of such male defendant or the surname and either the given name or initial thereof of the husband of such female defendant, or that the affiant has been unable to ascertain whether or not any person who is a proper party defendant is still the owner of the specific property or res or any interest therein, and has been unable to ascertain the names and residences of any of the person's successors in right, title and interest in the same, or that the affiant has been unable to ascertain whether or not such person is still alive, or if such person is known or believed to be dead, that the affiant has been unable, in either case, to ascertain the names and residences of such person's heirs, devisees or personal representatives or his, hers, their, or any of their, successors in right, title or interest in the property or res or interest therein, or of such of them as may be proper parties defendant in the action, any such person or unknown person or persons may be made a party defendant by such of the following designations as may be appropriate:
(1) As to any such male person and such wife, if he has any, by designating such male person by his proper given name and surname, as it appears of record or otherwise, and by designating such wife by the given name and surname of such male person, as it so appears, with "Mrs." prefixed thereto; or
(2) As to any such female person and such husband, if she has any, by designating such female person by her proper given name and surname, as it appears, of record or otherwise, and by designating such husband either
(i) By the name of such female, as it so appears, as "Mr. ..., husband of ..." using such surname of such female person in the first blank and such given name and such surname of such female person in the second blank; or
(ii) By the name "John Doe, husband of ..., said name of John Doe being fictitious," using the given name and surname of such female person in the blank; or
(3) As to any such person, whether such person is still alive or whether it is not known whether such person is alive or dead, or if such person is known or is believed to be dead, and as to any such person's unknown heirs, devisees or personal representatives or his, hers, their, or any of their successors in right, title and interest in such specific property or interest therein or such res, thus: "..., his or her heirs, devisees and personal representatives and his, hers, their, or any of their, successors in right, title and interest," using the name of such person in the blank.
(c) Designation of Unknown Owner or Claimant. When it shall appear by the affidavit of inquiry required by R. 4:4-5(c) that the affiant has been unable to ascertain the name or names of any unknown owner or claimant, such unknown owner or claimant may be made a party defendant and shall be sufficiently described for all purposes including service of process by the designation "Unknown Owner (or Unknown Claimant), his or her heirs, devisees and personal representatives, and his, hers, their or any of their successors in right, title and interest." Where title to real property or an interest therein or a lien or encumbrance thereon is involved, the inquiry shall include, and the affidavit of inquiry shall recite, reasonable diligence in searching the title, or having it searched, for a period of 60 years immediately prior to the commencementof the action. If such search does not disclose the name of a person who it is alleged or claimed owns the same or a part thereof, or some interest therein, or holds a lien or encumbrance thereon, the action may proceed against unknown owners or unknown claimants.
(d) Other Designations. Where the manner of joining or designating an unknown defendant is not specifically fixed by this rule, the court may on motion with or without notice order the action to proceed against such defendant by fixing the manner and the designation by which the person shall be made a party defendant, adding a description of the person's interest in the action and stating so much of the person's name as is known.
(e) Effect of Designation. The person or persons designated as set forth in R. 4:26-5 shall be deemed as a party defendant to the action and as sufficiently described for all purposes, including service of process.
Note: Source-R.R. 4:30-4(a)(b) (first sentence) (c)(d)(e); introductory paragraph and paragraphs (b), (c) and (d) amended July 13, 1994 to be effective September 1, 1994.
4:26-4. Fictitious Names; In Personam Actions
In any action, irrespective of the amount in controversy, other than an action governed by R. 4:4-5 (affecting specific property or a res), if the defendant's true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification. Plaintiff shall on motion, prior to judgment, amend the complaint to state defendant's true name, such motion to be accompanied by an affidavit stating the manner in which that information was obtained. If, however, defendant acknowledges his or her true name by written appearance or orally in open court, the complaint may be amended without notice and affidavit. No final judgment shall be entered against a person designated by a fictitious name.
Note: Source-R.R. 7:4-5 (first paragraph); amended July 15, 1982 to be effective September 13, 1982; amended July 26, 1984 to be effective September 10, 1984; amended July 13, 1994 to be effective September 1, 1994.
Note: Source-R.R. 7:4-5 (first paragraph); amended July 15, 1982 to be effective September 13, 1982; amended July 26, 1984 to be effective September 10, 1984; amended July 13, 1994 to be effective September 1, 1994.
4:26-3. Virtual Representation of Future Interest
(a) Representation by Presumptive Taker. In an action affecting property in which any person in being or unborn has or may have a future interest other than a life or lesser estate, or where it is not known or is difficult to ascertain who is the person or class having such interest, it shall be necessary to join as parties to the action only the person or persons who would be entitled to such property if the event or contingency terminating all present estates and successive life or lesser estates therein had occurred on the date of the commencement of the action, and the judgment entered therein shall be binding upon all persons, whether in being or not, who may claim the future interest in the property, unless it shall affirmatively appear in the action that there exists a conflict of interest between the persons so joined and the persons not joined. Should such conflict exist, the court may, in its discretion, appoint from among the persons then next entitled upon the occurrence of the event or contingency, one person to represent all persons (whether in being or not) who may claim any future interest in the property.
(b) Representation by Donee of Power of Appointment. Where a party to an action is thedonee of a power of appointment of any type, it shall not be necessary to join the potential or permissible appointees of the power or takers in default, and the judgment entered therein shall be binding upon the appointees, unless it shall affirmatively appear in the action that there exists a conflict of interest between the donee of the power and the appointees.
(c) Representation by Other Parties or Guardians. In an action in which the interests of a person not in being are or may be affected or in which it is not known or is difficult to ascertain who is the person or class affected thereby and as to which paragraphs (a) and (b) are inapplicable because of the lack of a representative as therein described or because of the nature of the interest involved, the court, in its discretion, may appoint a party to the action to represent such persons, and the judgment entered therein shall be binding upon the persons so represented. If, however, it shall appear that no party to the action adequately represents the interests of such persons, the court shall appoint a guardian ad litem to represent them.
(d) Joinder of Additional Parties. Notwithstanding paragraphs (a), (b) and (c) hereof, the court, in its discretion, may require the joinder of additional persons.
Note: Source-R.R. 4:30-3. Paragraph (b) amended July 14, 1992 to be effective September 1, 1992.
(b) Representation by Donee of Power of Appointment. Where a party to an action is thedonee of a power of appointment of any type, it shall not be necessary to join the potential or permissible appointees of the power or takers in default, and the judgment entered therein shall be binding upon the appointees, unless it shall affirmatively appear in the action that there exists a conflict of interest between the donee of the power and the appointees.
(c) Representation by Other Parties or Guardians. In an action in which the interests of a person not in being are or may be affected or in which it is not known or is difficult to ascertain who is the person or class affected thereby and as to which paragraphs (a) and (b) are inapplicable because of the lack of a representative as therein described or because of the nature of the interest involved, the court, in its discretion, may appoint a party to the action to represent such persons, and the judgment entered therein shall be binding upon the persons so represented. If, however, it shall appear that no party to the action adequately represents the interests of such persons, the court shall appoint a guardian ad litem to represent them.
(d) Joinder of Additional Parties. Notwithstanding paragraphs (a), (b) and (c) hereof, the court, in its discretion, may require the joinder of additional persons.
Note: Source-R.R. 4:30-3. Paragraph (b) amended July 14, 1992 to be effective September 1, 1992.
4:26-2. Minor or Mentally Incapacitated Person
(a) Representation by Guardian. Except as otherwise provided by law or R. 4:26-3 (virtual representation), a minor or mentally incapacitated person shall be represented in an action by the guardian of either the person or the property, appointed in this State, or if no such guardian has been appointed or a conflict of interest exists between guardian and ward or for other good cause, by a guardian ad litem appointed by the court in accordance with paragraph (b) of this rule.
(b) Appointment of Guardian Ad Litem.
(1) Appointment of Parent in Negligence Actions. In negligence actions, unless the court otherwise directs, a parent of a minor or mentally incapacitated person shall be deemed to be appointed guardian ad litem of the child without court order upon the filing of a pleading or certificate signed by an attorney stating the parental relationship, the child's status and, if a minor, the age, the parent's consent to act as guardian ad litem and the absence of a conflict of interest between parent and child.
(2) Appointment on Petition. The court may appoint a guardian ad litem for a minor or an alleged mentally incapacitated person, upon the verified petition of a friend on his or her behalf. In an action in which the fiduciary seeks to have the account settled or has a personal interest in the matter, the petition shall state whether or not the guardian ad litem therein nominated was proposed by the fiduciary or the fiduciary's attorney. Each petition shall be accompanied by the sworn consent of the proposed guardian ad litem, stating his or her relationship to the minor or alleged mentally incapacitated person and certifying that he or she has no interest in the litigation, or if such interest exists, setting forth the nature thereof, and that he or she will with undivided fidelity perform the duties of guardian ad litem, if appointed. The court shall appoint the guardian ad litem so proposed unless it finds good cause for not doing so, in which case it shall afford the petitioner opportunity to file a new petition seeking the appointment of another person within 10 days of the rejection. If such new petition is not filed within such time, or if filed, is not granted, the court, when designating some other person as guardian ad litem, shall state for the record its reasons for rejecting petitioner's nominee. A conflict of interest between the petitioner and the minor or alleged mentally incapacitated person shall be good cause for rejection of the petitioner's nominee. Only one guardian ad litem shall be appointed for all minors or alleged mentally incapacitated persons unless a conflict of interest exists.
(3) Appointment on Party's Motion. On motion by a party to the action, the court may appoint a guardian ad litem for a minor or alleged mentally incapacitated person if no petition has been filed and either default has been entered by the clerk or, in a summary action brought pursuant to R. 4:67 or in a probate action, 10 days have elapsed after service of the order. Notice of the motion shall be served at least 10 days before the return date fixed therein upon the appropriate persons designated in R. 4:4-4(a)(1)(2)(3) or (c) either personally, at the time of service of process or thereafter, or by registered or certified mail, return receipt requested. The court on ex parte motion may, in lieu thereof, fix such notice of the motion, given to suchpersons in such manner as it deems appropriate.
(4) Appointment on Court's Motion. The court may appoint a guardian ad litem for a minor or alleged mentally incapacitated person on its own motion.
(c) Allowance of Fees. A guardian ad litem appointed pursuant to this rule or R. 4:26-3(c) (failure of virtual representation) who intends to apply for an allowance of a fee shall serve upon all parties and file with the court at least 7 days before the hearing a written notice of the amount applied for stating that the report and affidavit of services (unless no such affidavit is required under R. 4:87-7) have been filed and that copies thereof will be furnished on request.
(d) Filing Foreclosure Reports. Notwithstanding the appointment of a guardian ad litem in a foreclosure action to represent the interests of a minor or incapacitated person by a judge, if the written report of the guardian ad litem raises no objection or dispute as to the right to foreclosure, the report shall be filed with the Superior Court Clerk in Trenton. Reports which raise an objection or dispute shall be filed with the judge who appointed the guardian ad litem.
Note: Source-R.R. 4:30-2(a)(b)(c), 7:12-6; paragraph (b) amended July 16, 1981 to be effective September 14, 1981; paragraphs (a), (b) and (c) amended July 14, 1992 to be effective September 1, 1992; paragraph (b)(3) amended July 13, 1994 to be effective September 1, 1994; caption amended, and paragraphs (a), (b)(1), (b)(2), (b)(3), and (b)(4) amended July 12, 2002 to be effective September 3, 2002; new paragraph (d) added July 9, 2008 to be effective September 1, 2008.
(b) Appointment of Guardian Ad Litem.
(1) Appointment of Parent in Negligence Actions. In negligence actions, unless the court otherwise directs, a parent of a minor or mentally incapacitated person shall be deemed to be appointed guardian ad litem of the child without court order upon the filing of a pleading or certificate signed by an attorney stating the parental relationship, the child's status and, if a minor, the age, the parent's consent to act as guardian ad litem and the absence of a conflict of interest between parent and child.
(2) Appointment on Petition. The court may appoint a guardian ad litem for a minor or an alleged mentally incapacitated person, upon the verified petition of a friend on his or her behalf. In an action in which the fiduciary seeks to have the account settled or has a personal interest in the matter, the petition shall state whether or not the guardian ad litem therein nominated was proposed by the fiduciary or the fiduciary's attorney. Each petition shall be accompanied by the sworn consent of the proposed guardian ad litem, stating his or her relationship to the minor or alleged mentally incapacitated person and certifying that he or she has no interest in the litigation, or if such interest exists, setting forth the nature thereof, and that he or she will with undivided fidelity perform the duties of guardian ad litem, if appointed. The court shall appoint the guardian ad litem so proposed unless it finds good cause for not doing so, in which case it shall afford the petitioner opportunity to file a new petition seeking the appointment of another person within 10 days of the rejection. If such new petition is not filed within such time, or if filed, is not granted, the court, when designating some other person as guardian ad litem, shall state for the record its reasons for rejecting petitioner's nominee. A conflict of interest between the petitioner and the minor or alleged mentally incapacitated person shall be good cause for rejection of the petitioner's nominee. Only one guardian ad litem shall be appointed for all minors or alleged mentally incapacitated persons unless a conflict of interest exists.
(3) Appointment on Party's Motion. On motion by a party to the action, the court may appoint a guardian ad litem for a minor or alleged mentally incapacitated person if no petition has been filed and either default has been entered by the clerk or, in a summary action brought pursuant to R. 4:67 or in a probate action, 10 days have elapsed after service of the order. Notice of the motion shall be served at least 10 days before the return date fixed therein upon the appropriate persons designated in R. 4:4-4(a)(1)(2)(3) or (c) either personally, at the time of service of process or thereafter, or by registered or certified mail, return receipt requested. The court on ex parte motion may, in lieu thereof, fix such notice of the motion, given to suchpersons in such manner as it deems appropriate.
(4) Appointment on Court's Motion. The court may appoint a guardian ad litem for a minor or alleged mentally incapacitated person on its own motion.
(c) Allowance of Fees. A guardian ad litem appointed pursuant to this rule or R. 4:26-3(c) (failure of virtual representation) who intends to apply for an allowance of a fee shall serve upon all parties and file with the court at least 7 days before the hearing a written notice of the amount applied for stating that the report and affidavit of services (unless no such affidavit is required under R. 4:87-7) have been filed and that copies thereof will be furnished on request.
(d) Filing Foreclosure Reports. Notwithstanding the appointment of a guardian ad litem in a foreclosure action to represent the interests of a minor or incapacitated person by a judge, if the written report of the guardian ad litem raises no objection or dispute as to the right to foreclosure, the report shall be filed with the Superior Court Clerk in Trenton. Reports which raise an objection or dispute shall be filed with the judge who appointed the guardian ad litem.
Note: Source-R.R. 4:30-2(a)(b)(c), 7:12-6; paragraph (b) amended July 16, 1981 to be effective September 14, 1981; paragraphs (a), (b) and (c) amended July 14, 1992 to be effective September 1, 1992; paragraph (b)(3) amended July 13, 1994 to be effective September 1, 1994; caption amended, and paragraphs (a), (b)(1), (b)(2), (b)(3), and (b)(4) amended July 12, 2002 to be effective September 3, 2002; new paragraph (d) added July 9, 2008 to be effective September 1, 2008.
RULE 4:26. PARTIES PLAINTIFF AND DEFENDANT
4:26-1. Real Party in Interest
Every action may be prosecuted in the name of the real party in interest; but an executor, administrator, guardian of a person or property, trustee of an express trust or a party with whom or in whose name a contract has been made for the benefit of another may sue in the fiduciary's own name without joining the person for whose benefit the suit is brought. A trustee of an express trust may be sued without joining the beneficiaries of the trust unless it shall affirmatively appear in the action that a conflict of interest exists between the trustee and the beneficiaries.
Note: Source-R.R. 4:30-1; amended July 13, 1994 to be effective September 1, 1994.
Every action may be prosecuted in the name of the real party in interest; but an executor, administrator, guardian of a person or property, trustee of an express trust or a party with whom or in whose name a contract has been made for the benefit of another may sue in the fiduciary's own name without joining the person for whose benefit the suit is brought. A trustee of an express trust may be sued without joining the beneficiaries of the trust unless it shall affirmatively appear in the action that a conflict of interest exists between the trustee and the beneficiaries.
Note: Source-R.R. 4:30-1; amended July 13, 1994 to be effective September 1, 1994.
4:25-7. Attorney Conferences
(a) Prior to Pretrial. In cases that are to be pretried, the attorneys shall confer before the date assigned for the pretrial conference in order to reach agreement on as many matters as possible.
(b) Exchange of Information. Except as otherwise provided by paragraph (d) of this rule, in cases that have not been pretried, attorneys shall confer and, seven days prior to the initial trial date, exchange the pretrial information as prescribed by Appendix XXIII to these rules. At trial and prior to opening statements, the parties shall submit to the court the following in writing: (1) copies of any Pretrial Information Exchange materials that have been exchanged pursuant to this rule, and any objections made thereto; and (2) stipulations reached on contested procedural, evidentiary, and substantive issues. In addition, in jury trials, the parties shall also exchange and submit (1) any proposed voir dire questions, (2) a list of proposed jury instructions pursuant to R. 1:8-7, with specific reference either to the Model Civil Jury Charges, if applicable, or to applicable legal authority, and (3) a proposed jury verdict form that includes all possible verdicts the jury may return. Failure to exchange and submit all the information required by this rule may result in sanctions as determined by the trial judge.
(c) Continuing Obligation. Attorneys shall have the continuing obligation to report to the court any stipulations reached during the course of the trial.
(d) Waiver of Exchange. The parties may, in writing, waive the requirement of the exchange of information as set forth in paragraph (b) of this rule, but such waiver shall not affect the obligation to provide that information to the court at the commencement of trial.
Note: Source of paragraph (a)-R. 4:25-3(a). New rule adopted July 13, 1994 to be effective September 1, 1994; caption amended, paragraph (b) amended, and new paragraph (c) adopted July 5, 2000 to be effective September 5, 2000; paragraph (b) amended and new paragraph (d) added July 12, 2002 to be effective September 3, 2002.
(b) Exchange of Information. Except as otherwise provided by paragraph (d) of this rule, in cases that have not been pretried, attorneys shall confer and, seven days prior to the initial trial date, exchange the pretrial information as prescribed by Appendix XXIII to these rules. At trial and prior to opening statements, the parties shall submit to the court the following in writing: (1) copies of any Pretrial Information Exchange materials that have been exchanged pursuant to this rule, and any objections made thereto; and (2) stipulations reached on contested procedural, evidentiary, and substantive issues. In addition, in jury trials, the parties shall also exchange and submit (1) any proposed voir dire questions, (2) a list of proposed jury instructions pursuant to R. 1:8-7, with specific reference either to the Model Civil Jury Charges, if applicable, or to applicable legal authority, and (3) a proposed jury verdict form that includes all possible verdicts the jury may return. Failure to exchange and submit all the information required by this rule may result in sanctions as determined by the trial judge.
(c) Continuing Obligation. Attorneys shall have the continuing obligation to report to the court any stipulations reached during the course of the trial.
(d) Waiver of Exchange. The parties may, in writing, waive the requirement of the exchange of information as set forth in paragraph (b) of this rule, but such waiver shall not affect the obligation to provide that information to the court at the commencement of trial.
Note: Source of paragraph (a)-R. 4:25-3(a). New rule adopted July 13, 1994 to be effective September 1, 1994; caption amended, paragraph (b) amended, and new paragraph (c) adopted July 5, 2000 to be effective September 5, 2000; paragraph (b) amended and new paragraph (d) added July 12, 2002 to be effective September 3, 2002.
4:25-6. Pretrial Conference After Grant of New Trial
If a new trial is directed by either the trial court or the appellate court, a pretrial conference shall be scheduled if the action was originally pretried and in such other actions as the court directs.
Note: Source-R.R. 4:29-7.
Note: Source-R.R. 4:29-7.
4:25-5. Scheduling of Pretrial Conferences
In cases to be pretried, the court shall schedule pretrial conferences at such times as may be necessary to maintain a full trial calendar. Not more than two actions shall be noticed for pretrial conferences within the same hour before the same judge. The court shall notice all cases of the same attorney or firm before the same judge and consecutively.
Note: Source -- R.R. 4:29-4(a) (b) (c); amended June 28, 1996 to be effective September 1, 1996; amended July 5, 2000 to be effective September 5, 2000; amended July 28, 2004 to be effective September 1, 2004.
Note: Source -- R.R. 4:29-4(a) (b) (c); amended June 28, 1996 to be effective September 1, 1996; amended July 5, 2000 to be effective September 5, 2000; amended July 28, 2004 to be effective September 1, 2004.
4:25-4. Designation of Trial Counsel
Counsel shall, either in the first pleading or in a writing filed no later than ten days after the expiration of the discovery period, notify the court that designated counsel is to try the case, and set forth the name specifically. If there has been no such notification to the court, the right to designate trial counsel shall be deemed waived. No change in such designated counsel shall be made without leave of court if such change will interfere with the trial scheduIe. In Track I or II tort cases pending for more than two years, and in Track III or IV tort cases pending for more than three years, the court, on such notice to the parties as it deems adequate in the circumstances, may disregard the designation if the unavailability of designated counsel will delay trial. If the name of trial counsel is not specifically set forth, the court and opposing counsel shall have the right to expect any partner or associate to proceed with the trial of the case, when reached on the calendar.
Note: Source-R.R. 4:29-3A(a); amended July 13, 1994 to be effective September 1, 1994; amended July 10, 1998 to be effective September 1, 1998; caption and text amended July 5, 2000 to be effective September 5, 2000; amended July 12, 2002 to be effective September 3, 2002; amended July 9, 2008 to be effective September 1, 2008.
Note: Source-R.R. 4:29-3A(a); amended July 13, 1994 to be effective September 1, 1994; amended July 10, 1998 to be effective September 1, 1998; caption and text amended July 5, 2000 to be effective September 5, 2000; amended July 12, 2002 to be effective September 3, 2002; amended July 9, 2008 to be effective September 1, 2008.
4:25-3. Form of Pretrial Memoranda
Pretrial memoranda shall include the 16 items enumerated in R. 4:25-1(b), set forth in the same sequence and with corresponding numbers, and the following additional items, numbered as indicated:
(17) The date the attorneys for the parties conferred and matters then agreed upon;
(18) A certification that all pretrial discovery has been completed or, in lieu thereof, a statement as to those matters of discovery remaining to be completed;
(19) A statement as to which parties, if any, have not been served and which parties, if any, have defaulted.
Note: Source-R.R. 4:29-3(a)(b)(c)(d)(e). Caption amended, paragraph (b) adopted, and former paragraphs (b), (c) and (d) deleted July 7, 1971 to be effective September 13, 1971; paragraph (b) amended July 14, 1972 to be effective September 5, 1972; caption amended, paragraph (a) deleted and caption of paragraph (b) deleted July 13, 1994 to be effective September 1, 1994.
(17) The date the attorneys for the parties conferred and matters then agreed upon;
(18) A certification that all pretrial discovery has been completed or, in lieu thereof, a statement as to those matters of discovery remaining to be completed;
(19) A statement as to which parties, if any, have not been served and which parties, if any, have defaulted.
Note: Source-R.R. 4:29-3(a)(b)(c)(d)(e). Caption amended, paragraph (b) adopted, and former paragraphs (b), (c) and (d) deleted July 7, 1971 to be effective September 13, 1971; paragraph (b) amended July 14, 1972 to be effective September 5, 1972; caption amended, paragraph (a) deleted and caption of paragraph (b) deleted July 13, 1994 to be effective September 1, 1994.
4:25-2. Notices; Filing of Pretrial Memorandum
(a) Notice of Pretrial Conference. Thirty days' notice of the pretrial conference shall be provided to all parties or their attorneys. The notice shall not be given earlier than 150 days after service of the original complaint on the defendant, except that the court may direct earlier notice either on its own motion or for good cause on the application of a party, with or without consent of the adverse party.
(b) Filing and Service of Memorandum. The parties shall submit to the court and serve on all other parties a pretrial memorandum, as prescribed by R. 4:25-3, at least three days prior to the pretrial conference date specified in the notice of pretrial conference.
Note: Source -- R.R. 4:29-2(a) (b). Caption and paragraph (a) amended, paragraphs (b) and (c) adopted July 7, 1971 to be effective September 13, 1971; paragraphs (a) and (c) amended and paragraph (b) deleted July 14, 1972 to be effective September 5, 1972; paragraph (a) amended June 28, 1996 to be effective September 1, 1996; caption and paragraphs (a) and (b) amended July 28, 2004 to be effective September 1, 2004.
(b) Filing and Service of Memorandum. The parties shall submit to the court and serve on all other parties a pretrial memorandum, as prescribed by R. 4:25-3, at least three days prior to the pretrial conference date specified in the notice of pretrial conference.
Note: Source -- R.R. 4:29-2(a) (b). Caption and paragraph (a) amended, paragraphs (b) and (c) adopted July 7, 1971 to be effective September 13, 1971; paragraphs (a) and (c) amended and paragraph (b) deleted July 14, 1972 to be effective September 5, 1972; paragraph (a) amended June 28, 1996 to be effective September 1, 1996; caption and paragraphs (a) and (b) amended July 28, 2004 to be effective September 1, 2004.
4:25-2. Notices; Filing of Pretrial Memorandum
(a) Notice of Pretrial Conference. Thirty days' notice of the pretrial conference shall be provided to all parties or their attorneys. The notice shall not be given earlier than 150 days after service of the original complaint on the defendant, except that the court may direct earlier notice either on its own motion or for good cause on the application of a party, with or without consent of the adverse party.
(b) Filing and Service of Memorandum. The parties shall submit to the court and serve on all other parties a pretrial memorandum, as prescribed by R. 4:25-3, at least three days prior to the pretrial conference date specified in the notice of pretrial conference.
Note: Source -- R.R. 4:29-2(a) (b). Caption and paragraph (a) amended, paragraphs (b) and (c) adopted July 7, 1971 to be effective September 13, 1971; paragraphs (a) and (c) amended and paragraph (b) deleted July 14, 1972 to be effective September 5, 1972; paragraph (a) amended June 28, 1996 to be effective September 1, 1996; caption and paragraphs (a) and (b) amended July 28, 2004 to be effective September 1, 2004.
(b) Filing and Service of Memorandum. The parties shall submit to the court and serve on all other parties a pretrial memorandum, as prescribed by R. 4:25-3, at least three days prior to the pretrial conference date specified in the notice of pretrial conference.
Note: Source -- R.R. 4:29-2(a) (b). Caption and paragraph (a) amended, paragraphs (b) and (c) adopted July 7, 1971 to be effective September 13, 1971; paragraphs (a) and (c) amended and paragraph (b) deleted July 14, 1972 to be effective September 5, 1972; paragraph (a) amended June 28, 1996 to be effective September 1, 1996; caption and paragraphs (a) and (b) amended July 28, 2004 to be effective September 1, 2004.
RULE 4:25. PRETRIAL CONFERENCES
4:25-1. Pretrial Conferences
(a) Actions to Be Pretried. Pretrial conferences in contested actions may be held in the discretion of the court either on its own motion or upon a party's written request. The request of a party for a pretrial conference shall include a statement of the facts and reasons supporting the request. The pretrial conference shall be recorded verbatim.
(b) Pretrial Order. Immediately upon the conclusion of the conference, the court shall enter a pretrial order to be signed forthwith by the attorneys, which shall recite specifically:
(1) A concise descriptive statement of the nature of the action.
(2) The admissions or stipulations of the parties with respect to the cause of action pleaded by plaintiff or defendant-counterclaimant.
(3) The factual and legal contentions of the plaintiff as to the liability of the defendant.
(4) The factual and legal contentions of the defendant as to non-liability and affirmative defenses.
(5) All claims as to damages and the extent of injury, and admissions or stipulations with respect thereto, and this shall limit the claims thereto at the trial. Where such claims have been disclosed in answers to interrogatories they may be incorporated by reference.
(6) Any amendments to the pleadings made at the conference and, where necessary, the time fixed within which such amended pleadings shall be filed. Except when ordered on the court's own motion, no amendments of pleadings shall be granted at the conference which would justify an adverse party in demanding additional time for investigation and further discovery, and result in delay of the trial.
(7) A specification of the issues to be determined at the trial including all special evidence problems to be determined at trial and issues, not raised by the pleadings, which occur to the trial judge, with an appropriate notation if the attorney concerned does not wish to advance such issues.
(8) A specification of the legal issues raised by the pleadings which are abandoned or otherwise disposed of. No legal issue shall be ruled upon at the pretrial conference as to which there is any doubt or reasonably arguable question. If a ruling is sought on any such legal issue, the matter should be set forth with directions that formal motion be made thereon at a later time and before the pretrial judge if possible.
(9) A list of the exhibits marked in evidence by consent.
(10) Any limitation on the number of expert witnesses.
(11) Any direction with respect to the filing of briefs. A request by the court for briefs should be included where the resolution of any general legal problem is not clear, or where special problems of evidence exist, as noted by the attorneys or on inquiry by the pretrial judge.
(12) In special circumstances the order of opening and closing to the jury at the trial.
(13) Any other matters which have been agreed upon in order to expedite the disposition of the case.
(14) In the event that a particular member or associate of a firm is to try a case, or if outside trial counsel is to try the case, the name must be specifically set forth. No change in such designated trial counsel shall be made without leave of court if such change will interfere with the trial schedule. If the name of trial counsel is not specifically set forth, the court and opposing counsel shall have the right to expect any partner or associate to proceed with the trial of the case, when reached on the calendar.
(15) The estimated length of the trial.
(16) When the case shall be placed on the weekly call.
When entered, the pretrial order becomes part of the record, supersedes the pleadings where inconsistent therewith, and controls the subsequent course of action unless modified at or before the trial or pursuant to R. 4:9-2 to prevent manifest injustice. The matter of settlement may be discussed at the sidebar, but it shall not be mentioned in the order.
(c) Trial Briefs. If trial briefs are ordered at a pretrial conference the pretrial order shall specify to which judge or other court official they shall be submitted and within what time. Where it appears that the trial will be presided over by a judge other than the pretrial judge, the pretrial judge shall file a copy of the pretrial order with the Assignment Judge or the Assignment Judge's designee, who shall make appropriate arrangements so that it may be determined after the briefs are received whether the action is one which requires study in advance by the trial judge. If so, a day certain shall be fixed and the action assigned to a particular trial judge for disposition at least 2 days in advance of the date so fixed.
(d) Disposition by Pretrial Judge. Notwithstanding the provisions of (c) hereof, and even though a continuance is ordered during the conference because of inadequate preparation by the parties of any matter, in the absence of some unusual circumstance the pretrial judge shall retain the case until the completion of the conference. The Assignment Judge shall, whenever possible, assign the case for trial and all preliminary motions to the pretrial judge.
Note: Source -- R.R. 4:29-1(a)(b)(d)(e), 4:29-6. Paragraph (a) amended July 7, 1971 to be effective September 13, 1971; paragraph (a) amended July 14, 1972 to be effective September 5, 1972; paragraph (a), and paragraph (b)(7) amended July 17, 1975 to be effective September 8, 1975; paragraph (a) amended July 24, 1978 to be effective September 11, 1978; paragraph (a) amended December 20, 1983 to be effective December 31, 1983; paragraph (a) amended November 7, 1988 to be effective January 2, 1989; paragraphs (c) and (d) amended July 13, 1994 to be effective September 1, 1994; paragraph (a) amended July 5, 2000 to be effective September 5, 2000; paragraphs (a) and (b) amended July 28, 2004 to be effective September 1, 2004.
(a) Actions to Be Pretried. Pretrial conferences in contested actions may be held in the discretion of the court either on its own motion or upon a party's written request. The request of a party for a pretrial conference shall include a statement of the facts and reasons supporting the request. The pretrial conference shall be recorded verbatim.
(b) Pretrial Order. Immediately upon the conclusion of the conference, the court shall enter a pretrial order to be signed forthwith by the attorneys, which shall recite specifically:
(1) A concise descriptive statement of the nature of the action.
(2) The admissions or stipulations of the parties with respect to the cause of action pleaded by plaintiff or defendant-counterclaimant.
(3) The factual and legal contentions of the plaintiff as to the liability of the defendant.
(4) The factual and legal contentions of the defendant as to non-liability and affirmative defenses.
(5) All claims as to damages and the extent of injury, and admissions or stipulations with respect thereto, and this shall limit the claims thereto at the trial. Where such claims have been disclosed in answers to interrogatories they may be incorporated by reference.
(6) Any amendments to the pleadings made at the conference and, where necessary, the time fixed within which such amended pleadings shall be filed. Except when ordered on the court's own motion, no amendments of pleadings shall be granted at the conference which would justify an adverse party in demanding additional time for investigation and further discovery, and result in delay of the trial.
(7) A specification of the issues to be determined at the trial including all special evidence problems to be determined at trial and issues, not raised by the pleadings, which occur to the trial judge, with an appropriate notation if the attorney concerned does not wish to advance such issues.
(8) A specification of the legal issues raised by the pleadings which are abandoned or otherwise disposed of. No legal issue shall be ruled upon at the pretrial conference as to which there is any doubt or reasonably arguable question. If a ruling is sought on any such legal issue, the matter should be set forth with directions that formal motion be made thereon at a later time and before the pretrial judge if possible.
(9) A list of the exhibits marked in evidence by consent.
(10) Any limitation on the number of expert witnesses.
(11) Any direction with respect to the filing of briefs. A request by the court for briefs should be included where the resolution of any general legal problem is not clear, or where special problems of evidence exist, as noted by the attorneys or on inquiry by the pretrial judge.
(12) In special circumstances the order of opening and closing to the jury at the trial.
(13) Any other matters which have been agreed upon in order to expedite the disposition of the case.
(14) In the event that a particular member or associate of a firm is to try a case, or if outside trial counsel is to try the case, the name must be specifically set forth. No change in such designated trial counsel shall be made without leave of court if such change will interfere with the trial schedule. If the name of trial counsel is not specifically set forth, the court and opposing counsel shall have the right to expect any partner or associate to proceed with the trial of the case, when reached on the calendar.
(15) The estimated length of the trial.
(16) When the case shall be placed on the weekly call.
When entered, the pretrial order becomes part of the record, supersedes the pleadings where inconsistent therewith, and controls the subsequent course of action unless modified at or before the trial or pursuant to R. 4:9-2 to prevent manifest injustice. The matter of settlement may be discussed at the sidebar, but it shall not be mentioned in the order.
(c) Trial Briefs. If trial briefs are ordered at a pretrial conference the pretrial order shall specify to which judge or other court official they shall be submitted and within what time. Where it appears that the trial will be presided over by a judge other than the pretrial judge, the pretrial judge shall file a copy of the pretrial order with the Assignment Judge or the Assignment Judge's designee, who shall make appropriate arrangements so that it may be determined after the briefs are received whether the action is one which requires study in advance by the trial judge. If so, a day certain shall be fixed and the action assigned to a particular trial judge for disposition at least 2 days in advance of the date so fixed.
(d) Disposition by Pretrial Judge. Notwithstanding the provisions of (c) hereof, and even though a continuance is ordered during the conference because of inadequate preparation by the parties of any matter, in the absence of some unusual circumstance the pretrial judge shall retain the case until the completion of the conference. The Assignment Judge shall, whenever possible, assign the case for trial and all preliminary motions to the pretrial judge.
Note: Source -- R.R. 4:29-1(a)(b)(d)(e), 4:29-6. Paragraph (a) amended July 7, 1971 to be effective September 13, 1971; paragraph (a) amended July 14, 1972 to be effective September 5, 1972; paragraph (a), and paragraph (b)(7) amended July 17, 1975 to be effective September 8, 1975; paragraph (a) amended July 24, 1978 to be effective September 11, 1978; paragraph (a) amended December 20, 1983 to be effective December 31, 1983; paragraph (a) amended November 7, 1988 to be effective January 2, 1989; paragraphs (c) and (d) amended July 13, 1994 to be effective September 1, 1994; paragraph (a) amended July 5, 2000 to be effective September 5, 2000; paragraphs (a) and (b) amended July 28, 2004 to be effective September 1, 2004.
4:24-3. Discovery After Judgment
The provisions of R. 4:24 shall not preclude the further use of discovery proceedings, on motion and order of the court, after the entry of judgment.
4:24-2. Motions Required to Be Made During Discovery Period
No motion for the relief provided by the following rules may be granted in any action unless it is returnable before the expiration of the time limited for discovery unless on notice and motion, for good cause shown, the court otherwise permits: R. 4:8 (motion for leave to file a third-party complaint); R. 4:7-6, 4:28-1, or 4:30 (motion for joinder of additional parties); R. 4:38-1 (motion for consolidation); and R. 4:38-2 (motion for separate trials). Unless the court otherwise permits for good cause shown, motions to compel discovery and to impose or enforce sanctions for failure to provide discovery must be made returnable prior to the expiration of the discovery period.
Note: Source-R.R. 4:28(b); amended June 7, 2005 to be effective immediately; amended December 6, 2005 to be effective immediatel
Note: Source-R.R. 4:28(b); amended June 7, 2005 to be effective immediately; amended December 6, 2005 to be effective immediatel
4:24-2. Motions Required to Be Made During Discovery Period
No motion for the relief provided by the following rules may be granted in any action unless it is returnable before the expiration of the time limited for discovery unless on notice and motion, for good cause shown, the court otherwise permits: R. 4:8 (motion for leave to file a third-party complaint); R. 4:7-6, 4:28-1, or 4:30 (motion for joinder of additional parties); R. 4:38-1 (motion for consolidation); and R. 4:38-2 (motion for separate trials). Unless the court otherwise permits for good cause shown, motions to compel discovery and to impose or enforce sanctions for failure to provide discovery must be made returnable prior to the expiration of the discovery period.
Note: Source-R.R. 4:28(b); amended June 7, 2005 to be effective immediately; amended December 6, 2005 to be effective immediatel
Note: Source-R.R. 4:28(b); amended June 7, 2005 to be effective immediately; amended December 6, 2005 to be effective immediatel
4:24-1. Time for Completion of Discovery
(a) Originally Named Parties. Except for proceedings under R. 4:11 (depositions before action or pending appeal), and R. 4:22 (request for admissions) and except as otherwise provided by R. 5:5-1(e) (civil family actions), all proceedings referred to in R. 4:10-1 to R. 4:23-4 inclusive shall be completed within the time for each Track as hereafter prescribed counting from the date the first answer is filed or from 90 days after the first defendant is served, whichever occurs first: Track I -- 150 days; Track II -- 300 days; and Tracks III and IV, except as otherwise provided by R. 4:69-4 -- 450 days. If an originally named party has been unable to be timely served, an extension of discovery may be sought pursuant to paragraph (c) of this rule.
(b) Added Parties. A party filing a pleading that joins a new party to the action shall serve a copy of all discovery materials on or otherwise make them available to the new party within 20 days after service of the new party's initial pleading. If a new party is joined, the scheduled discovery end date shall be extended for a 60-day period, unless reduced or enlarged by the court for good cause shown.
(c) Extensions of Time. The parties may consent to extend the time for discovery for an additional 60 days by stipulation filed with the court or by submission of a writing signed by one party and copied to all parties, representing that all parties have consented to the extension. A consensual extension of discovery must be sought prior to the expiration of the discovery period. If the parties do not agree or a longer extension is sought, a motion for relief shall be filed with the Civil Presiding Judge or designee in Track I, II, and III cases and with the designated managing judge in Track IV cases, and made returnable prior to the conclusion of the applicable discovery period. The movant shall append to such motion copies of all previous orders granting or denying an extension of discovery or a certification stating that there are none. On restoration of a pleading dismissed pursuant to Rule 1:13-7 or Rule 4:23-5(a)(1) or if good cause is otherwise shown, the court shall enter an order extending discovery and specifying the date by which discovery shall be completed. The extension order may describe the discovery to be completed and such other terms and conditions as may be appropriate. No extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown.
(d) Applicability. This rule shall be applicable to all actions commenced on or after September 5, 2000. In all actions commenced prior to said date, the time for completion of discovery shall be 150 days from the date of service of the complaint on each defendant or as otherwise prescribed by the applicable differentiated case management rule in effect when the complaint was filed or by court order. In any pending action, however, the parties may agree and, in appropriate cases, the court may on notice direct sua sponte that further discovery shall be limited or extensions granted consistent with this amended rule.
Note: Source – R.R. 4:28(a)(d); amended July 13, 1994 to be effective September 1, 1994; amended January 21, 1999 to be effective April 5, 1999; caption amended, text amended and designated as paragraph (a), new paragraphs (b), (c), and (d) adopted July 5, 2000 to be effective September 5, 2000; corrective amendment to paragraph (d) adopted February 26, 2001 to be effective immediately; paragraph (c) amended July 12, 2002 to be effective September 3, 2002; paragraph (c) amended July 27, 2006 to be effective September 1, 2006; paragraphs (b) and (c) amended July 9, 2008 to be effective September 1, 2008; paragraph (c) amended December 2, 2008 to be effective immediately.
(b) Added Parties. A party filing a pleading that joins a new party to the action shall serve a copy of all discovery materials on or otherwise make them available to the new party within 20 days after service of the new party's initial pleading. If a new party is joined, the scheduled discovery end date shall be extended for a 60-day period, unless reduced or enlarged by the court for good cause shown.
(c) Extensions of Time. The parties may consent to extend the time for discovery for an additional 60 days by stipulation filed with the court or by submission of a writing signed by one party and copied to all parties, representing that all parties have consented to the extension. A consensual extension of discovery must be sought prior to the expiration of the discovery period. If the parties do not agree or a longer extension is sought, a motion for relief shall be filed with the Civil Presiding Judge or designee in Track I, II, and III cases and with the designated managing judge in Track IV cases, and made returnable prior to the conclusion of the applicable discovery period. The movant shall append to such motion copies of all previous orders granting or denying an extension of discovery or a certification stating that there are none. On restoration of a pleading dismissed pursuant to Rule 1:13-7 or Rule 4:23-5(a)(1) or if good cause is otherwise shown, the court shall enter an order extending discovery and specifying the date by which discovery shall be completed. The extension order may describe the discovery to be completed and such other terms and conditions as may be appropriate. No extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown.
(d) Applicability. This rule shall be applicable to all actions commenced on or after September 5, 2000. In all actions commenced prior to said date, the time for completion of discovery shall be 150 days from the date of service of the complaint on each defendant or as otherwise prescribed by the applicable differentiated case management rule in effect when the complaint was filed or by court order. In any pending action, however, the parties may agree and, in appropriate cases, the court may on notice direct sua sponte that further discovery shall be limited or extensions granted consistent with this amended rule.
Note: Source – R.R. 4:28(a)(d); amended July 13, 1994 to be effective September 1, 1994; amended January 21, 1999 to be effective April 5, 1999; caption amended, text amended and designated as paragraph (a), new paragraphs (b), (c), and (d) adopted July 5, 2000 to be effective September 5, 2000; corrective amendment to paragraph (d) adopted February 26, 2001 to be effective immediately; paragraph (c) amended July 12, 2002 to be effective September 3, 2002; paragraph (c) amended July 27, 2006 to be effective September 1, 2006; paragraphs (b) and (c) amended July 9, 2008 to be effective September 1, 2008; paragraph (c) amended December 2, 2008 to be effective immediately.
4:23-6. Electronically Stored Information
Absent exceptional circumstances, the court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.
Note: Adopted July 27, 2006 be effective September 1, 2006.
Note: Adopted July 27, 2006 be effective September 1, 2006.
4:23-5. Failure to Make Discovery
(a) Dismissal.
(1) Without Prejudice. If a demand for discovery pursuant to R. 4:17, R. 4:18-1, or R. 4:19 is not complied with and no timely motion for an extension or a protective order has been made, the party entitled to discovery may, except as otherwise provided by paragraph (c) of this rule, move, on notice, for an order dismissing or suppressing the pleading of the delinquent party. The motion shall be supported by an affidavit reciting the facts of the delinquent party's default and stating that the moving party is not in default in any discovery obligations owed to the delinquent party. Unless good cause for other relief is shown, the court shall enter an order of dismissal or suppression without prejudice. Upon being served with the order of dismissal or suppression without prejudice, counsel for the delinquent party shall forthwith serve a copy of the order on the client by regular and certified mail, return receipt requested, accompanied by a notice in the form prescribed by Appendix II-A of these rules, specifically explaining the consequences of failure to comply with the discovery obligation and to file and serve a timely motion to restore. If the delinquent party is appearing pro se, service of the order and notice hereby required shall be made by counsel for the moving party. The delinquent party may move on notice for vacation of the dismissal or suppression order at any time before the entry of an order of dismissal or suppression with prejudice. The motion shall be supported by affidavit reciting that the discovery asserted to have been withheld has been fully and responsively provided and shall be accompanied by payment of a $100 restoration fee to the Clerk of the Superior Court, made payable to the “Treasurer, State of New Jersey,” if the motion to vacate is made within 30 days after entry of the order of dismissal or suppression, or a $300 restoration fee if the motion is made thereafter. If, however, the motion is not made within 90 days after entry of the order of dismissal or suppression, the court may also order the delinquent party to pay sanctions or counsel fees and costs, or both, as a condition of restoration.
(2) With Prejudice. If an order of dismissal or suppression without prejudice has been entered pursuant to paragraph (a)(1) of this rule and not thereafter vacated, the party entitled to the discovery may, after the expiration of 60 days from the date of the order, move on notice for an order of dismissal or suppression with prejudice. The attorney for the delinquent party shall, not later than 7 days prior to the return date of the motion, file and serve an affidavit reciting that the client was previously served as required by subparagraph (a)(1) and has been served with an additional notification, in the form prescribed by Appendix II-B, of the pendency of the motion to dismiss or suppress with prejudice. In lieu thereof, the attorney for the delinquent party may certify that despite diligent inquiry, which shall be detailed in the affidavit, the client's whereabouts have not been able to be determined and such service on the client was therefore not made. If the delinquent party is appearing pro se, the moving party shall attach to the motion a similar affidavit of service of the order and notices or, in lieu thereof, a certification as to why service was not made. Appearance on the return date of the motion shall be mandatory for the attorney for the delinquent party or the delinquent pro se party. The moving party need not appear but may be required to do so by the court. The motion to dismiss or suppress with prejudice shall be granted unless a motion to vacate the previously entered order of dismissal or suppression without prejudice has been filed by the delinquent party and either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated.
(3) General Requirements. All motions made pursuant to this rule shall be accompanied by an appropriate form of order. All affidavits in support of relief under paragraph (a)(1) shall include a representation of prior consultation with or notice to opposing counsel or pro se party as required by R. 1:6-2(c). If the attorney for the delinquent party fails to timely serve the client with the original order of dismissal or suppression without prejudice, fails to file and serve the affidavit and the notifications required by this rule, or fails to appear on the return date of the motion to dismiss or suppress with prejudice, the court shall, unless exceptional circumstances are demonstrated, proceed by order to show cause or take such other appropriate action as may be necessary to obtain compliance with the requirements of this rule. If the court is required to take action to ensure compliance or the motion for dismissal or suppression with prejudice is denied because of extraordinary circumstances, the court may order sanctions or counsel fees and costs, or both. An order of dismissal or suppression shall be entered only in favor of the moving party.
(b) Failure to Furnish Expert's Report. The court at trial may exclude the testimony of a treating physician or of any other expert whose report is not furnished pursuant to R. 4:17-4(a) to the party demanding the same.
(c) Motion to Compel. Prior to moving to dismiss pursuant to subparagraph (a)(1) of this rule, a party may move for an order compelling discovery demanded pursuant to R. 4:18-1 or R. 4:19. An order granting a motion to compel shall specify the date by which compliance is required. If the delinquent party fails to comply by said date, the aggrieved party may apply for dismissal or suppression pursuant to subparagraph (a)(1) of this rule by promptly filing a motion to which the order to compel shall be annexed, supported by a certification asserting the delinquent party's failure to comply therewith.
Note: Source – R.R. 4:23-6(c)(f), 4:25-2 (fourth sentence); paragraph (a) amended July 29, 1977 to be effective September 6, 1977; paragraph (a) amended July 16, 1981 to be effective September 14, 1981; paragraph (a) amended November 5, 1986 to be effective January 1, 1987; paragraph (a) caption amended and subparagraphs (a)(1) captioned and amended, and (a)(2) and (3) captioned and adopted, June 29, 1990 to be effective September 4, 1990; paragraph (a)(3) amended July 13, 1994 to be effective September 1, 1994; paragraph (a)(1) amended June 28, 1996 to be effective September 1, 1996; paragraph (a) amended July 10, 1998 to be effective September 1, 1998; caption amended, paragraphs (a)(1) and (a)(2) amended, and new paragraph (a)(4) adopted July 5, 2000 to be effective September 5, 2000; paragraph (a)(1) amended and new paragraph (c) added July 12, 2002 to be effective September 3, 2002; paragraph (a)(1) amended and paragraph (a)(4) deleted July 27, 2006 to be effective September 1, 2006; paragraphs (a)(1) and (a)(2) amended July 9, 2008 to be effective September 1, 2008.
(1) Without Prejudice. If a demand for discovery pursuant to R. 4:17, R. 4:18-1, or R. 4:19 is not complied with and no timely motion for an extension or a protective order has been made, the party entitled to discovery may, except as otherwise provided by paragraph (c) of this rule, move, on notice, for an order dismissing or suppressing the pleading of the delinquent party. The motion shall be supported by an affidavit reciting the facts of the delinquent party's default and stating that the moving party is not in default in any discovery obligations owed to the delinquent party. Unless good cause for other relief is shown, the court shall enter an order of dismissal or suppression without prejudice. Upon being served with the order of dismissal or suppression without prejudice, counsel for the delinquent party shall forthwith serve a copy of the order on the client by regular and certified mail, return receipt requested, accompanied by a notice in the form prescribed by Appendix II-A of these rules, specifically explaining the consequences of failure to comply with the discovery obligation and to file and serve a timely motion to restore. If the delinquent party is appearing pro se, service of the order and notice hereby required shall be made by counsel for the moving party. The delinquent party may move on notice for vacation of the dismissal or suppression order at any time before the entry of an order of dismissal or suppression with prejudice. The motion shall be supported by affidavit reciting that the discovery asserted to have been withheld has been fully and responsively provided and shall be accompanied by payment of a $100 restoration fee to the Clerk of the Superior Court, made payable to the “Treasurer, State of New Jersey,” if the motion to vacate is made within 30 days after entry of the order of dismissal or suppression, or a $300 restoration fee if the motion is made thereafter. If, however, the motion is not made within 90 days after entry of the order of dismissal or suppression, the court may also order the delinquent party to pay sanctions or counsel fees and costs, or both, as a condition of restoration.
(2) With Prejudice. If an order of dismissal or suppression without prejudice has been entered pursuant to paragraph (a)(1) of this rule and not thereafter vacated, the party entitled to the discovery may, after the expiration of 60 days from the date of the order, move on notice for an order of dismissal or suppression with prejudice. The attorney for the delinquent party shall, not later than 7 days prior to the return date of the motion, file and serve an affidavit reciting that the client was previously served as required by subparagraph (a)(1) and has been served with an additional notification, in the form prescribed by Appendix II-B, of the pendency of the motion to dismiss or suppress with prejudice. In lieu thereof, the attorney for the delinquent party may certify that despite diligent inquiry, which shall be detailed in the affidavit, the client's whereabouts have not been able to be determined and such service on the client was therefore not made. If the delinquent party is appearing pro se, the moving party shall attach to the motion a similar affidavit of service of the order and notices or, in lieu thereof, a certification as to why service was not made. Appearance on the return date of the motion shall be mandatory for the attorney for the delinquent party or the delinquent pro se party. The moving party need not appear but may be required to do so by the court. The motion to dismiss or suppress with prejudice shall be granted unless a motion to vacate the previously entered order of dismissal or suppression without prejudice has been filed by the delinquent party and either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated.
(3) General Requirements. All motions made pursuant to this rule shall be accompanied by an appropriate form of order. All affidavits in support of relief under paragraph (a)(1) shall include a representation of prior consultation with or notice to opposing counsel or pro se party as required by R. 1:6-2(c). If the attorney for the delinquent party fails to timely serve the client with the original order of dismissal or suppression without prejudice, fails to file and serve the affidavit and the notifications required by this rule, or fails to appear on the return date of the motion to dismiss or suppress with prejudice, the court shall, unless exceptional circumstances are demonstrated, proceed by order to show cause or take such other appropriate action as may be necessary to obtain compliance with the requirements of this rule. If the court is required to take action to ensure compliance or the motion for dismissal or suppression with prejudice is denied because of extraordinary circumstances, the court may order sanctions or counsel fees and costs, or both. An order of dismissal or suppression shall be entered only in favor of the moving party.
(b) Failure to Furnish Expert's Report. The court at trial may exclude the testimony of a treating physician or of any other expert whose report is not furnished pursuant to R. 4:17-4(a) to the party demanding the same.
(c) Motion to Compel. Prior to moving to dismiss pursuant to subparagraph (a)(1) of this rule, a party may move for an order compelling discovery demanded pursuant to R. 4:18-1 or R. 4:19. An order granting a motion to compel shall specify the date by which compliance is required. If the delinquent party fails to comply by said date, the aggrieved party may apply for dismissal or suppression pursuant to subparagraph (a)(1) of this rule by promptly filing a motion to which the order to compel shall be annexed, supported by a certification asserting the delinquent party's failure to comply therewith.
Note: Source – R.R. 4:23-6(c)(f), 4:25-2 (fourth sentence); paragraph (a) amended July 29, 1977 to be effective September 6, 1977; paragraph (a) amended July 16, 1981 to be effective September 14, 1981; paragraph (a) amended November 5, 1986 to be effective January 1, 1987; paragraph (a) caption amended and subparagraphs (a)(1) captioned and amended, and (a)(2) and (3) captioned and adopted, June 29, 1990 to be effective September 4, 1990; paragraph (a)(3) amended July 13, 1994 to be effective September 1, 1994; paragraph (a)(1) amended June 28, 1996 to be effective September 1, 1996; paragraph (a) amended July 10, 1998 to be effective September 1, 1998; caption amended, paragraphs (a)(1) and (a)(2) amended, and new paragraph (a)(4) adopted July 5, 2000 to be effective September 5, 2000; paragraph (a)(1) amended and new paragraph (c) added July 12, 2002 to be effective September 3, 2002; paragraph (a)(1) amended and paragraph (a)(4) deleted July 27, 2006 to be effective September 1, 2006; paragraphs (a)(1) and (a)(2) amended July 9, 2008 to be effective September 1, 2008.
4:23-4. Failure of Party to Attend at Own Deposition
If a party or an officer, director, or managing agent of a party or a person designated under R. 4:14-2(c) or 4:15-1 to testify on behalf of a party fails to appear before the officer within this State who is to take his deposition, after being served with a proper notice, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (1), (2) and (3) of R. 4:23-2(b). In lieu of any order or in addition thereto the court shall require the party failing to act to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this rule may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by R. 4:10-3.
Note: Source – R.R. 4:27-4. Former rule deleted and new R. 4:23-4 adopted July 14, 1972 to be effective September 5, 1972; amended July 5, 2000 to be effective September 5, 2000; caption amended July 27, 2006 to be effective September 1, 2006.
Note: Source – R.R. 4:27-4. Former rule deleted and new R. 4:23-4 adopted July 14, 1972 to be effective September 5, 1972; amended July 5, 2000 to be effective September 5, 2000; caption amended July 27, 2006 to be effective September 1, 2006.
4:23-3. Expenses on Failure to Admit
If a party fails to admit the genuineness of any document or the truth of any matter as requested under R. 4:22, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, that party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that
(a) The request was held objectionable pursuant to R. 4:22-1, or
(b) The admission sought was of no substantial importance, or
(c) The party failing to admit had reasonable ground for not making the admission.
Note: Source-R.R. 4:27-3. Former rule deleted and new R. 4:23-3 adopted July 14, 1972 to be effective September 5, 1972; introductory paragraph amended July 13, 1994 to be effective September 1, 1994.
(a) The request was held objectionable pursuant to R. 4:22-1, or
(b) The admission sought was of no substantial importance, or
(c) The party failing to admit had reasonable ground for not making the admission.
Note: Source-R.R. 4:27-3. Former rule deleted and new R. 4:23-3 adopted July 14, 1972 to be effective September 5, 1972; introductory paragraph amended July 13, 1994 to be effective September 1, 1994.
4:23-2. Failure to Comply With Order
(a) Failure to Be Sworn or Answer a Question. If a deponent fails to be sworn or to answer a question after being directed to do so, the failure may be considered a contempt of that court.
(b) Other Matters. If a party or an officer, director, or managing or authorized agent of a party or a person designated under R. 4:14-2(c) or 4:15-1 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under R. 4:23-1, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the introduction of designated matters in evidence;
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof with or without prejudice, or rendering a judgment by default against the disobedient party;
(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders.
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
Note: Source-R.R. 4:27-2(a)(b). Former rule deleted and new R. 4:23-2 adopted July 14, 1972 to be effective September 5, 1972; paragraph (b)(2) amended July 13, 1994 to be effective September 1, 1994; paragraph (b) amended July 5, 2000 to be effective September 5, 2000; paragraph (b)(3) amended July 12, 2002 to be effective September 3, 2002.
(b) Other Matters. If a party or an officer, director, or managing or authorized agent of a party or a person designated under R. 4:14-2(c) or 4:15-1 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under R. 4:23-1, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the introduction of designated matters in evidence;
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof with or without prejudice, or rendering a judgment by default against the disobedient party;
(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders.
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
Note: Source-R.R. 4:27-2(a)(b). Former rule deleted and new R. 4:23-2 adopted July 14, 1972 to be effective September 5, 1972; paragraph (b)(2) amended July 13, 1994 to be effective September 1, 1994; paragraph (b) amended July 5, 2000 to be effective September 5, 2000; paragraph (b)(3) amended July 12, 2002 to be effective September 3, 2002.
RULE 4:23. FAILURE TO MAKE DISCOVERY; SANCTIONS
4:23-1. Motion for Order Compelling Discovery
A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
(a) Motion. If a deponent fails to answer a question propounded or submitted under R. 4:14 or 4:15, or a corporation or other entity fails to make a designation under R. 4:14-2(c) or 4:15-1, the discovering party may move for an order compelling an answer or designation in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion pursuant to R. 4:10-3.
(b) Evasive or Incomplete Answer. For the purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.
(c) Award of Expenses of Motion. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is denied, the court shall, after opportunity for hearing, require the moving party to pay to the party opposing the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
Note: Source-R.R. 4:27-1. Former rule deleted and new R. 4:23-1 adopted July 14, 1972 to be effective September 5, 1972; paragraphs (a) and (c) amended July 13, 1994 to be effective September 1, 1994; paragraph (a) amended July 5, 2000 to be effective September 5, 2000.
A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
(a) Motion. If a deponent fails to answer a question propounded or submitted under R. 4:14 or 4:15, or a corporation or other entity fails to make a designation under R. 4:14-2(c) or 4:15-1, the discovering party may move for an order compelling an answer or designation in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion pursuant to R. 4:10-3.
(b) Evasive or Incomplete Answer. For the purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.
(c) Award of Expenses of Motion. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is denied, the court shall, after opportunity for hearing, require the moving party to pay to the party opposing the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
Note: Source-R.R. 4:27-1. Former rule deleted and new R. 4:23-1 adopted July 14, 1972 to be effective September 5, 1972; paragraphs (a) and (c) amended July 13, 1994 to be effective September 1, 1994; paragraph (a) amended July 5, 2000 to be effective September 5, 2000.
4:22-2. Effect of Admission
Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of R. 4:25-1 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will be prejudicial to maintaining the action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against that party in any other proceeding.
Note: Source-R.R. 4:26-2. Former rule deleted and new R. 4:22-2 adopted July 14, 1972 to be effective September 5, 1972; amended July 13, 1994 to be effective September 1, 1994.
Note: Source-R.R. 4:26-2. Former rule deleted and new R. 4:22-2 adopted July 14, 1972 to be effective September 5, 1972; amended July 13, 1994 to be effective September 1, 1994.
RULE 4:22. REQUESTS FOR ADMISSIONS
4:22-1. Request for Admission
A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters of fact within the scope of R. 4:10-2 set forth in the request, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.
Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after being served with the summons and complaint. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify the answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless stating that a reasonable inquiry was made and that the information known or readily obtainable is insufficient to enable an admission or denial. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial, may not, on that ground alone, object to the request but may, subject to the provisions of R. 4:23-3, deny the matter or set forth reasons for not being able to admit or deny.
Requests for admission and answers thereto shall be served pursuant to R. 1:5-1 and shall not be filed unless the court otherwise directs.
The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The provisions of R. 4:23-1(c) apply to the award of expenses incurred in relation to the motion.
Note: Source-R.R. 4:26-1. Former rule deleted and new R. 4:22-1 adopted July 14, 1972 to be effective September 5, 1972; amended November 27, 1974 to be effective April 1, 1975; amended July 24, 1978 to be effective September 11, 1978; amended July 13, 1994 to be effective September 1, 1994.
A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters of fact within the scope of R. 4:10-2 set forth in the request, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.
Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after being served with the summons and complaint. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify the answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless stating that a reasonable inquiry was made and that the information known or readily obtainable is insufficient to enable an admission or denial. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial, may not, on that ground alone, object to the request but may, subject to the provisions of R. 4:23-3, deny the matter or set forth reasons for not being able to admit or deny.
Requests for admission and answers thereto shall be served pursuant to R. 1:5-1 and shall not be filed unless the court otherwise directs.
The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The provisions of R. 4:23-1(c) apply to the award of expenses incurred in relation to the motion.
Note: Source-R.R. 4:26-1. Former rule deleted and new R. 4:22-1 adopted July 14, 1972 to be effective September 5, 1972; amended November 27, 1974 to be effective April 1, 1975; amended July 24, 1978 to be effective September 11, 1978; amended July 13, 1994 to be effective September 1, 1994.
4:21A-8. Administration
(a) Assignment Judge. The Assignment Judge or other judge designated by order of the Supreme Court shall be responsible for the supervision of the arbitration programs in the vicinage, including the resolution of all issues arising therefrom. The Assignment Judge may delegate all or any of those powers to any Superior Court judge in the vicinage.
(b) Administrative Director of the Courts. The Administrative Director of the Courts shall promulgate such guidelines and forms as required for the implementation of the programs.
(c) Civil Division Manager. The civil division manager or designee for the vicinage shall perform all of the functions specified by these rules and shall serve as arbitration administrator to perform all required non-judicial functions implementing the arbitration programs.
(b) Administrative Director of the Courts. The Administrative Director of the Courts shall promulgate such guidelines and forms as required for the implementation of the programs.
(c) Civil Division Manager. The civil division manager or designee for the vicinage shall perform all of the functions specified by these rules and shall serve as arbitration administrator to perform all required non-judicial functions implementing the arbitration programs.
4:21A-7. Arbitration of Minor's and Mentally Incapacitated Person's Claims
If all parties to the action accept the arbitration award disposing of the claim of a minor or mentally incapacitated person, the attorney for the guardian ad litem shall forthwith so report to the Assignment Judge and a proceeding for judicial approval of the award pursuant to R. 4:44 shall be held as expeditiously as possible.
4:21A-6. Entry of Judgment; Trial De Novo
(a) Appealability. The decision and award of the arbitrator shall not be subject to appeal.
(b) Dismissal. An order shall be entered dismissing the action following the filing of the arbitrator's award unless:
(1) within 30 days after filing of the arbitration award, a party thereto files with the civil division manager and serves on all other parties a notice of rejection of the award and demand for a trial de novo and pays a trial de novo fee as set forth in paragraph (c) of this rule; or
(2) within 50 days after the filing of the arbitration award, the parties submit a consent order to the court detailing the terms of settlement and providing for dismissal of the action or for entry of judgment; or
(3) within 50 days after the filing of the arbitration award, any party moves for confirmation of the arbitration award and entry of judgment thereon. The judgment of confirmation shall include prejudgment interest pursuant to R. 4:42-11(b).
(c) Trial De Novo. An action in which a timely trial de novo has been demanded by any party shall be returned, as to all parties, to the trial calendar for disposition. A trial de novo shall be scheduled to occur within 90 days after the filing and service of the request therefor. A party demanding a trial de novo must tender with the trial de novo request a check payable to the "Treasurer, State of New Jersey" in the amount of $200 towards the arbitrator's fee and may be liable to pay the reasonable costs, including attorney's fees, incurred after rejection of the award by those parties not demanding a trial de novo. Reasonable costs shall be awarded on motion supported by detailed certifications subject to the following limitations:
(1) If a monetary award has been rejected, no costs shall be awarded if the party demanding the trial de novo has obtained a verdict at least 20 percent more favorable than the award.
(2) If the rejected arbitration award denied money damages, no costs shall be awarded if the party demanding the trial de novo has obtained a verdict of at least $250.
(3) The award of attorney's fees shall not exceed $750 in total nor $250 per day.
(4) Compensation for witness costs, including expert witnesses, shall not exceed $500.
(5) If the court in its discretion is satisfied that an award of reasonable costs will result in substantial economic hardship, it may deny an application for costs or award reduced costs.
(b) Dismissal. An order shall be entered dismissing the action following the filing of the arbitrator's award unless:
(1) within 30 days after filing of the arbitration award, a party thereto files with the civil division manager and serves on all other parties a notice of rejection of the award and demand for a trial de novo and pays a trial de novo fee as set forth in paragraph (c) of this rule; or
(2) within 50 days after the filing of the arbitration award, the parties submit a consent order to the court detailing the terms of settlement and providing for dismissal of the action or for entry of judgment; or
(3) within 50 days after the filing of the arbitration award, any party moves for confirmation of the arbitration award and entry of judgment thereon. The judgment of confirmation shall include prejudgment interest pursuant to R. 4:42-11(b).
(c) Trial De Novo. An action in which a timely trial de novo has been demanded by any party shall be returned, as to all parties, to the trial calendar for disposition. A trial de novo shall be scheduled to occur within 90 days after the filing and service of the request therefor. A party demanding a trial de novo must tender with the trial de novo request a check payable to the "Treasurer, State of New Jersey" in the amount of $200 towards the arbitrator's fee and may be liable to pay the reasonable costs, including attorney's fees, incurred after rejection of the award by those parties not demanding a trial de novo. Reasonable costs shall be awarded on motion supported by detailed certifications subject to the following limitations:
(1) If a monetary award has been rejected, no costs shall be awarded if the party demanding the trial de novo has obtained a verdict at least 20 percent more favorable than the award.
(2) If the rejected arbitration award denied money damages, no costs shall be awarded if the party demanding the trial de novo has obtained a verdict of at least $250.
(3) The award of attorney's fees shall not exceed $750 in total nor $250 per day.
(4) Compensation for witness costs, including expert witnesses, shall not exceed $500.
(5) If the court in its discretion is satisfied that an award of reasonable costs will result in substantial economic hardship, it may deny an application for costs or award reduced costs.
4:21A-5. Arbitration Award
No later than ten days after the completion of the arbitration hearing, the arbitrator shall file the written award with the civil division manager. The court shall provide a copy thereof to each of the parties. The award shall include a notice of the right to request a trial de novo and the consequences of such a request as provided by R. 4:21A-6.
4:21A-4. Conduct of Hearing
(a) Prehearing Submissions. At least 10 days prior to the scheduled hearing each party shall exchange a concise statement of the factual and legal issues, in the form set forth in Appendix XXII-A or XXII-B to these rules, and may exchange relevant documentary evidence. A copy of all documents exchanged shall be submitted to the arbitrator for review on the day of the hearing.
(b) Powers of Arbitrator. The arbitrator shall have the power to issue subpoenas to compel the appearance of witnesses before the panel, to compel production of relevant documentary evidence, to administer oaths and affirmations, to determine the law and facts of the case, and generally to exercise the powers of a court in the management and conduct of the hearing.
(c) Evidence. The arbitrator shall admit all relevant evidence and shall not be bound by the rules of evidence. In lieu of oral testimony, the arbitrator may accept affidavits of witnesses; interrogatories or deposition transcripts; and bills and reports of hospitals, treating medical personnel and other experts provided the party offering the documents shall have made them available to all other parties at least one week prior to the hearing. In the discretion of the arbitrator, police reports, weather reports, wage loss certifications and other documents of generally accepted reliability may be accepted without formal proof.
(d) General Provisions for Hearing. Arbitration hearings shall be conducted in court facilities and no verbatim record shall be made thereof. Witness fees shall be paid as provided for trials in the Superior Court.
(e) Subsequent Use of Proceedings. The arbitrator's findings of fact and conclusions of law shall not be evidential in any subsequent trial de novo, nor shall any testimony given at the arbitration hearing be used for any purpose at such subsequent trial. Nor may the arbitrator be called as a witness in any such subsequent trial.
(f) Failure to Appear. An appearance on behalf of each party is required at the arbitration hearing. If the party claiming damages does not appear, that party's pleading shall be dismissed. If a party defending against a claim of damages does not appear, that party's pleading shall be stricken, the arbitration shall proceed and the non-appearing party shall be deemed to have waived the right to demand a trial de novo. Relief from any order entered pursuant to this rule shall be granted only on motion showing good cause and on such terms as the court may deem appropriate, including litigation expenses and counsel fees incurred for services directly related to the non-appearance.
(b) Powers of Arbitrator. The arbitrator shall have the power to issue subpoenas to compel the appearance of witnesses before the panel, to compel production of relevant documentary evidence, to administer oaths and affirmations, to determine the law and facts of the case, and generally to exercise the powers of a court in the management and conduct of the hearing.
(c) Evidence. The arbitrator shall admit all relevant evidence and shall not be bound by the rules of evidence. In lieu of oral testimony, the arbitrator may accept affidavits of witnesses; interrogatories or deposition transcripts; and bills and reports of hospitals, treating medical personnel and other experts provided the party offering the documents shall have made them available to all other parties at least one week prior to the hearing. In the discretion of the arbitrator, police reports, weather reports, wage loss certifications and other documents of generally accepted reliability may be accepted without formal proof.
(d) General Provisions for Hearing. Arbitration hearings shall be conducted in court facilities and no verbatim record shall be made thereof. Witness fees shall be paid as provided for trials in the Superior Court.
(e) Subsequent Use of Proceedings. The arbitrator's findings of fact and conclusions of law shall not be evidential in any subsequent trial de novo, nor shall any testimony given at the arbitration hearing be used for any purpose at such subsequent trial. Nor may the arbitrator be called as a witness in any such subsequent trial.
(f) Failure to Appear. An appearance on behalf of each party is required at the arbitration hearing. If the party claiming damages does not appear, that party's pleading shall be dismissed. If a party defending against a claim of damages does not appear, that party's pleading shall be stricken, the arbitration shall proceed and the non-appearing party shall be deemed to have waived the right to demand a trial de novo. Relief from any order entered pursuant to this rule shall be granted only on motion showing good cause and on such terms as the court may deem appropriate, including litigation expenses and counsel fees incurred for services directly related to the non-appearance.
4:21A-3. Settlements; Offer of Judgment
If an action is settled prior to the arbitration hearing, the attorneys shall so report to the civil division manager and an order dismissing the action shall be entered. The provisions of R. 4:58 shall not apply to arbitration proceedings.
4:21A-2. Qualification, Selection, Assignment and Compensation of Arbitrators
(a) By Stipulation. All parties to the action may stipulate in writing to the number and names of the arbitrators. The stipulation shall be filed with the civil division manager within 14 days after the date of the notice of arbitration. The stipulated arbitrators shall be subject to the approval of the Assignment Judge and may be approved whether or not they met the requirements of paragraph (b) of this rule if the Assignment Judge is satisfied that they are otherwise qualified and that their service would not prejudice the interest of any of the parties.
(b) Appointment From Roster. If the parties fail to stipulate to the arbitrators pursuant to paragraph (a) of this rule, the arbitrator shall be designated by the civil division manager from the roster of arbitrators maintained by the Assignment Judge on recommendation of the arbitrator selection committee of the county bar association. Inclusion on the roster shall be limited to retired judges of any court of this State who are not on recall and attorneys admitted to practice in this State having at least seven years of experience in New Jersey in any of the substantive areas of law subject to arbitration under these rules, and who have completed the training and continuing education required by R. 1:40-12(c). The arbitrator selection committee, which shall meet at least once annually, shall be appointed by the county bar association and shall consist of one attorney regularly representing plaintiffs in each of the substantive areas of law subject to arbitration under these rules, one attorney regularly representing defendants in each of the substantive areas of law subject to arbitration under these rules, and one member of the bar who does not regularly represent either plaintiff or defendant in each of the substantive areas of law subject to arbitration under these rules. The members of the arbitrator selection committee shall be eligible for inclusion in the roster of arbitrators. The Assignment Judge shall file the roster with the Administrative Director of the Courts. A motion to disqualify a designated arbitrator shall be made to the Assignment Judge on the date of the hearing.
(c) Number of Arbitrators. All arbitration proceedings in each vicinage in which the number and names of the arbitrators are not stipulated by the parties pursuant to paragraph (a) of this rule shall be conducted by either a single arbitrator or by a two-arbitrator panel, as determined by the Assignment Judge.
(d) Compensation of Arbitrators.
(1) Designated Arbitrators. Except as provided by subparagraph (2) hereof, a single arbitrator designated by the civil division manager, including a retired judge not on recall, shall be paid a per diem fee of $350. Two-arbitrator panels shall be paid a total per diem fee of $450, to be divided evenly between the panel members.
(2) Stipulated Arbitrators. Arbitrators stipulated to by the parties pursuant to R. 4:21A-2(a) shall be compensated at the rate of $70 per hour but not exceeding a maximum of $350 per day. If more than one stipulated arbitrator hears the matter, the fee shall be $70 per hour but not exceeding $450 per day, to be divided equally between or among them. The parties may, however, stipulate in writing to the payment of additional fees, such stipulation to specify the amount of the additional fees and the party or parties paying the additional fees.
(b) Appointment From Roster. If the parties fail to stipulate to the arbitrators pursuant to paragraph (a) of this rule, the arbitrator shall be designated by the civil division manager from the roster of arbitrators maintained by the Assignment Judge on recommendation of the arbitrator selection committee of the county bar association. Inclusion on the roster shall be limited to retired judges of any court of this State who are not on recall and attorneys admitted to practice in this State having at least seven years of experience in New Jersey in any of the substantive areas of law subject to arbitration under these rules, and who have completed the training and continuing education required by R. 1:40-12(c). The arbitrator selection committee, which shall meet at least once annually, shall be appointed by the county bar association and shall consist of one attorney regularly representing plaintiffs in each of the substantive areas of law subject to arbitration under these rules, one attorney regularly representing defendants in each of the substantive areas of law subject to arbitration under these rules, and one member of the bar who does not regularly represent either plaintiff or defendant in each of the substantive areas of law subject to arbitration under these rules. The members of the arbitrator selection committee shall be eligible for inclusion in the roster of arbitrators. The Assignment Judge shall file the roster with the Administrative Director of the Courts. A motion to disqualify a designated arbitrator shall be made to the Assignment Judge on the date of the hearing.
(c) Number of Arbitrators. All arbitration proceedings in each vicinage in which the number and names of the arbitrators are not stipulated by the parties pursuant to paragraph (a) of this rule shall be conducted by either a single arbitrator or by a two-arbitrator panel, as determined by the Assignment Judge.
(d) Compensation of Arbitrators.
(1) Designated Arbitrators. Except as provided by subparagraph (2) hereof, a single arbitrator designated by the civil division manager, including a retired judge not on recall, shall be paid a per diem fee of $350. Two-arbitrator panels shall be paid a total per diem fee of $450, to be divided evenly between the panel members.
(2) Stipulated Arbitrators. Arbitrators stipulated to by the parties pursuant to R. 4:21A-2(a) shall be compensated at the rate of $70 per hour but not exceeding a maximum of $350 per day. If more than one stipulated arbitrator hears the matter, the fee shall be $70 per hour but not exceeding $450 per day, to be divided equally between or among them. The parties may, however, stipulate in writing to the payment of additional fees, such stipulation to specify the amount of the additional fees and the party or parties paying the additional fees.
RULE 4:21A. . ARBITRATION OF CERTAIN CIVIL ACTIONS
4:21A-1. Actions Subject to Arbitration; Notice and Scheduling of Arbitration
(a) Mandatory Arbitration. Arbitration pursuant to this rule is mandatory for applicable cases on Tracks I, II, and III, as set forth in paragraphs (1), (2), and (3) below, and only as required by the managing judge for cases on Track IV, except that cases having undergone a prior, unsuccessful court-ordered mediation shall not be scheduled for arbitration unless the court finds good cause for the matter to be arbitrated or unless all parties request arbitration.
(1) Automobile Negligence Actions. All tort actions arising out of the operation, ownership, maintenance or use of an automobile shall be submitted to arbitration in accordance with these rules.
(2) Other Personal Injury Actions. Except for professional malpractice and products liability actions, all actions for personal injury not arising out of the operation, ownership, maintenance or use of an automobile shall be submitted to arbitration in accordance with these rules.
(3) Other Non-Personal Injury Actions. All actions on a book account or instrument of obligation, all personal injury protection claims against plaintiff's insurer, and all other contract and commercial actions that have been screened and identified as appropriate for arbitration shall be submitted to arbitration in accordance with these rules.
(b) Voluntary Arbitration. Any action not subject to mandatory arbitration pursuant to subsections (1), (2), or (3) of paragraph
(a) of this rule may be submitted to arbitration on written stipulation of all parties filed with the civil division manager.
(c) Removal From Arbitration. An action assigned to arbitration may be removed therefrom as follows:
(1) Prior to the notice of the scheduling of the case for arbitration or within 15 days thereafter, the case may be removed from arbitration upon submission to the arbitration administrator of a certification stating with specificity that the controversy involves novel legal or unusually complex factual issues or is otherwise ineligible for arbitration pursuant to paragraph (a). A copy of this certification must be provided to all other parties. A party who objects to removal shall so notify the arbitration administrator within ten days after the receipt of the certification, and the matter will then be referred to a judge for determination. The arbitration administrator shall, however, remove the case from arbitration if no objection is made and the reasons for removal certified to are sufficient.
(2) If either party seeks to remove a case from arbitration subsequent to 15 days after the notice of hearing, a formal motion must be made to the Civil Presiding Judge or designee.
(d) Notice of Arbitration; Scheduling; Adjournment. The notice to the parties that the action has been assigned to arbitration shall also specify the time and place of the arbitration hearing and its date, which shall not be earlier than 45 days following the date of the notice. Unless the parties otherwise consent in writing, the hearing shall not be scheduled for a date prior to the end of the applicable discovery period, including any extension thereof. The hearing shall take place, however, no later than 60 days following the expiration of that period, including any extension. Adjournments of the scheduled date shall be permitted only as provided by R. 4:36-3(b).
(e) Pretrial Discovery. The assignment of an action for arbitration shall not affect a party's opportunity to engage in pretrial discovery nor an attorney's professional obligation to do so.
(a) Mandatory Arbitration. Arbitration pursuant to this rule is mandatory for applicable cases on Tracks I, II, and III, as set forth in paragraphs (1), (2), and (3) below, and only as required by the managing judge for cases on Track IV, except that cases having undergone a prior, unsuccessful court-ordered mediation shall not be scheduled for arbitration unless the court finds good cause for the matter to be arbitrated or unless all parties request arbitration.
(1) Automobile Negligence Actions. All tort actions arising out of the operation, ownership, maintenance or use of an automobile shall be submitted to arbitration in accordance with these rules.
(2) Other Personal Injury Actions. Except for professional malpractice and products liability actions, all actions for personal injury not arising out of the operation, ownership, maintenance or use of an automobile shall be submitted to arbitration in accordance with these rules.
(3) Other Non-Personal Injury Actions. All actions on a book account or instrument of obligation, all personal injury protection claims against plaintiff's insurer, and all other contract and commercial actions that have been screened and identified as appropriate for arbitration shall be submitted to arbitration in accordance with these rules.
(b) Voluntary Arbitration. Any action not subject to mandatory arbitration pursuant to subsections (1), (2), or (3) of paragraph
(a) of this rule may be submitted to arbitration on written stipulation of all parties filed with the civil division manager.
(c) Removal From Arbitration. An action assigned to arbitration may be removed therefrom as follows:
(1) Prior to the notice of the scheduling of the case for arbitration or within 15 days thereafter, the case may be removed from arbitration upon submission to the arbitration administrator of a certification stating with specificity that the controversy involves novel legal or unusually complex factual issues or is otherwise ineligible for arbitration pursuant to paragraph (a). A copy of this certification must be provided to all other parties. A party who objects to removal shall so notify the arbitration administrator within ten days after the receipt of the certification, and the matter will then be referred to a judge for determination. The arbitration administrator shall, however, remove the case from arbitration if no objection is made and the reasons for removal certified to are sufficient.
(2) If either party seeks to remove a case from arbitration subsequent to 15 days after the notice of hearing, a formal motion must be made to the Civil Presiding Judge or designee.
(d) Notice of Arbitration; Scheduling; Adjournment. The notice to the parties that the action has been assigned to arbitration shall also specify the time and place of the arbitration hearing and its date, which shall not be earlier than 45 days following the date of the notice. Unless the parties otherwise consent in writing, the hearing shall not be scheduled for a date prior to the end of the applicable discovery period, including any extension thereof. The hearing shall take place, however, no later than 60 days following the expiration of that period, including any extension. Adjournments of the scheduled date shall be permitted only as provided by R. 4:36-3(b).
(e) Pretrial Discovery. The assignment of an action for arbitration shall not affect a party's opportunity to engage in pretrial discovery nor an attorney's professional obligation to do so.
RULE 4:19. PHYSICAL AND MENTAL EXAMINATION OF PERSONS
In an action in which a claim is asserted by a party for personal injuries or in which the mental or physical condition of a party is in controversy, the adverse party may require the party whose physical or mental condition is in controversy to submit to a physical or mental examination by a medical or other expert by serving upon that party a notice stating with specificity when, where, and by whom the examination will be conducted and advising, to the extent practicable, as to the nature of the examination and any proposed tests. The time for the examination stated in the notice shall not be scheduled to take place prior to 45 days following the service of the notice, and a party who receives such notice and who seeks a protective order shall file a motion therefor, returnable within said 45-day period. The court may, on motion pursuant to R. 4:23-5, either compel the discovery or dismiss the pleading of a party who fails to submit to the examination, to timely move for a protective order, or to reschedule the date of and submit to the examination within a reasonable time following the originally scheduled date. A court order shall, however, be required for a reexamination by the adverse party's expert if the examined party does not consent thereto. This rule shall be applicable to all actions, whenever commenced, in which a physical or mental examination has not yet been conducted.
Note: Source-R.R. 4:25-1; amended July 13, 1994 to be effective September 1, 1994; amended July 5, 2000 to be effective September 5, 2000; amended July 12, 2002 to be effective September 3, 2002.
Note: Source-R.R. 4:25-1; amended July 13, 1994 to be effective September 1, 1994; amended July 5, 2000 to be effective September 5, 2000; amended July 12, 2002 to be effective September 3, 2002.
4:18-2. Copies of Documents Referred to in Pleading
When any document or paper is referred to in a pleading but is neither annexed thereto nor recited verbatim therein, a copy thereof shall be served on the adverse party within 5 days after service of his written demand therefor.
Note: Source-R.R. 4:24-2.
Note: Source-R.R. 4:24-2.
RULE 4:18. DISCOVERY AND INSPECTION OF DOCUMENTS AND PROPERTY; COPIES OF DOCUMENTS
4:18-1. Production of Documents, Electronically Stored Information, and Things and Entry Upon Land for Inspection and Other Purposes; Pre-Litigation Discovery
(a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on behalf of that party, to inspect, copy, test, or sample any designated documents (including writings, drawings, graphs, charts, photographs, sound recordings, images, electronically stored information, and any other data or data compilations stored in any medium from which information can be obtained and translated, if necessary, by the respondent into reasonably usable form), or to inspect, copy, test, or sample any designated tangible things that constitute or contain matters within the scope of R. 4:10-2 and that are in the possession, custody or control of the party on whom the request is served; or
(2) to permit entry upon designated land or other property in the possession or control of the party on whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of R. 4:10-2.
(b) Procedure. The request may, without leave of court, be served on the plaintiff after commencement of the action and on any other party with or after service of the summons and complaint on that party. A copy of the request shall also be simultaneously served on all other parties to the action. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced. The party on whom the request is served shall serve a written response within 35 days after the service of the request, except that a defendant may serve a response within 50 days after service of the summons and complaint on that defendant. On motion, the court may allow a shorter or longer time. The written response, without documentation annexed but which shall be made available to all parties on request, shall be served by the party to whom the request was made on all other parties to the action. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, including an objection to the requested form or forms for producing electronically stored information, stating the reasons for objection. If objection is made to part of an item or category, the part shall be specified and inspection permitted of the remaining parts. If objection is made to the requested form or forms for producing electronically stored information or if no form was specified in the request, the responding party shall state the form or forms it intends to use. The party submitting the request may move for an order of dismissal or suppression or an order to compel pursuant to R. 4:23-5 with respect to any objection to or other failure to respond to the request or any part thereof or any failure to permit inspection as requested. If a party who has furnished a written response to a request to produce or who has supplied documents in response to a request to produce thereafter obtains additional documents that are responsive to the request, an amended written response and production of such documents, as appropriate, shall be served promptly. Unless the parties otherwise agree, or the court otherwise orders: (1) A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request; (2) if a request does not specify the form or forms for producing electronically stored information, a responding party shall produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable; and (3) a party need not produce the same electronically stored information in more than one form.
(c) Persons Not Parties. This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land. Pre-litigation discovery within the scope of this rule may also be sought by petition pursuant to R. 4:11-1.
Note: Source – R.R. 4:24-1. Former rule deleted and new R. 4:18-1 adopted July 14, 1972 to be effective September 5, 1972; rule caption and paragraph (c) amended July 14, 1992 to be effective September 1, 1992; paragraphs (a) and (b) amended July 13, 1994 to be effective September 1, 1994; paragraph (b) amended July 10, 1998 to be effective September 1, 1998; paragraph (b) amended July 5, 2000 to be effective September 5, 2000; paragraph (b) amended July 12, 2002 to be effective September 3, 2002; caption and paragraphs (a) and (b) amended July 27, 2006 to be effective September 1, 2006 .
(a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on behalf of that party, to inspect, copy, test, or sample any designated documents (including writings, drawings, graphs, charts, photographs, sound recordings, images, electronically stored information, and any other data or data compilations stored in any medium from which information can be obtained and translated, if necessary, by the respondent into reasonably usable form), or to inspect, copy, test, or sample any designated tangible things that constitute or contain matters within the scope of R. 4:10-2 and that are in the possession, custody or control of the party on whom the request is served; or
(2) to permit entry upon designated land or other property in the possession or control of the party on whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of R. 4:10-2.
(b) Procedure. The request may, without leave of court, be served on the plaintiff after commencement of the action and on any other party with or after service of the summons and complaint on that party. A copy of the request shall also be simultaneously served on all other parties to the action. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced. The party on whom the request is served shall serve a written response within 35 days after the service of the request, except that a defendant may serve a response within 50 days after service of the summons and complaint on that defendant. On motion, the court may allow a shorter or longer time. The written response, without documentation annexed but which shall be made available to all parties on request, shall be served by the party to whom the request was made on all other parties to the action. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, including an objection to the requested form or forms for producing electronically stored information, stating the reasons for objection. If objection is made to part of an item or category, the part shall be specified and inspection permitted of the remaining parts. If objection is made to the requested form or forms for producing electronically stored information or if no form was specified in the request, the responding party shall state the form or forms it intends to use. The party submitting the request may move for an order of dismissal or suppression or an order to compel pursuant to R. 4:23-5 with respect to any objection to or other failure to respond to the request or any part thereof or any failure to permit inspection as requested. If a party who has furnished a written response to a request to produce or who has supplied documents in response to a request to produce thereafter obtains additional documents that are responsive to the request, an amended written response and production of such documents, as appropriate, shall be served promptly. Unless the parties otherwise agree, or the court otherwise orders: (1) A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request; (2) if a request does not specify the form or forms for producing electronically stored information, a responding party shall produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable; and (3) a party need not produce the same electronically stored information in more than one form.
(c) Persons Not Parties. This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land. Pre-litigation discovery within the scope of this rule may also be sought by petition pursuant to R. 4:11-1.
Note: Source – R.R. 4:24-1. Former rule deleted and new R. 4:18-1 adopted July 14, 1972 to be effective September 5, 1972; rule caption and paragraph (c) amended July 14, 1992 to be effective September 1, 1992; paragraphs (a) and (b) amended July 13, 1994 to be effective September 1, 1994; paragraph (b) amended July 10, 1998 to be effective September 1, 1998; paragraph (b) amended July 5, 2000 to be effective September 5, 2000; paragraph (b) amended July 12, 2002 to be effective September 3, 2002; caption and paragraphs (a) and (b) amended July 27, 2006 to be effective September 1, 2006 .
4:17-8. Use, Filing and Effect of Interrogatories
(a) Use. Answers to interrogatories may be used to the same extent as provided by R. 4:16-1(a) and R. 4:16-1(b) for the use of the deposition of a party. If less than all of the interrogatories and answers thereto are marked or read into evidence by a party, an adverse party may read into evidence any other of the interrogatories and answers or parts thereof necessary for a fair understanding of the parts read into evidence. Interrogatories shall not be marked into evidence without good cause.
(b) Filing. Neither the interrogatories nor the answers shall be filed unless the court so directs at the pre-trial conference or trial.
(c) Pleading Not Stayed. The service of interrogatories shall not stay the time for service of an answering pleading.
Note: Source-R.R. 4:23-7, 4:23-10, 4:23-13. Paragraph (a) amended July 14, 1972 to be effective September 5, 1972; paragraph (b) amended July 24, 1978 to be effective September 11, 1978.
(b) Filing. Neither the interrogatories nor the answers shall be filed unless the court so directs at the pre-trial conference or trial.
(c) Pleading Not Stayed. The service of interrogatories shall not stay the time for service of an answering pleading.
Note: Source-R.R. 4:23-7, 4:23-10, 4:23-13. Paragraph (a) amended July 14, 1972 to be effective September 5, 1972; paragraph (b) amended July 24, 1978 to be effective September 11, 1978.
4:17-8. Use, Filing and Effect of Interrogatories
(a) Use. Answers to interrogatories may be used to the same extent as provided by R. 4:16-1(a) and R. 4:16-1(b) for the use of the deposition of a party. If less than all of the interrogatories and answers thereto are marked or read into evidence by a party, an adverse party may read into evidence any other of the interrogatories and answers or parts thereof necessary for a fair understanding of the parts read into evidence. Interrogatories shall not be marked into evidence without good cause.
(b) Filing. Neither the interrogatories nor the answers shall be filed unless the court so directs at the pre-trial conference or trial.
(c) Pleading Not Stayed. The service of interrogatories shall not stay the time for service of an answering pleading.
Note: Source-R.R. 4:23-7, 4:23-10, 4:23-13. Paragraph (a) amended July 14, 1972 to be effective September 5, 1972; paragraph (b) amended July 24, 1978 to be effective September 11, 1978.
(b) Filing. Neither the interrogatories nor the answers shall be filed unless the court so directs at the pre-trial conference or trial.
(c) Pleading Not Stayed. The service of interrogatories shall not stay the time for service of an answering pleading.
Note: Source-R.R. 4:23-7, 4:23-10, 4:23-13. Paragraph (a) amended July 14, 1972 to be effective September 5, 1972; paragraph (b) amended July 24, 1978 to be effective September 11, 1978.
4:17-6. Limitation of Interrogatories
Except as otherwise provided by R. 4:17-1(b), the number of interrogatories or of sets of interrogatories to be served is not limited except as required to protect the party from annoyance, expense, embarrassment, or oppression. The party to whom interrogatories are propounded may apply for a protective order in accordance with R. 4:10-3.
Note: Source-R.R. 4:23-11. Amended and first sentence deleted (see R. 4:10-4) July 14, 1972 to be effective September 5, 1972; amended July 13, 1994 to be effective September 1, 1994.
Note: Source-R.R. 4:23-11. Amended and first sentence deleted (see R. 4:10-4) July 14, 1972 to be effective September 5, 1972; amended July 13, 1994 to be effective September 1, 1994.
4:17-5. Objections to Interrogatories
(a) Objections to Questions; Motions. A party upon whom interrogatories are served who objects to any questions propounded therein may either answer the question by stating "The question is improper" or may, within 20 days after being served with the interrogatories, serve a notice of motion, to be brought on for hearing at the earliest possible time, to strike any question, setting out the grounds of objection. The answering party shall make timely answer, however, to all questions to which no objection is made. Interrogatories not stricken shall be answered within such unexpired period of the 60 days prescribed by R. 4:17-4(b) as remained when the notice of motion was served or within such time as the court directs. The propounder of a question answered by a statement that it is improper may, within 20 days after being served with the answers, serve a notice of motion to compel an answer to the question, and, if granted, the question shall be answered within such time as the court directs.
(b) Objections to Request for Copies of Papers. A party served with interrogatories requesting copies of papers who objects to the furnishing thereof shall, in lieu of complying with the request, either state with specificity the reasons for noncompliance or invite the propounder to inspect and copy the papers at a designated time and place. The propounder of a request for a copy of a paper which is not complied with, may, within 20 days after being served with the answers, serve a notice of motion directing compliance with the request or for other appropriate relief.
(c) Interrogatory Motions; Form. Motions to strike interrogatories or to compel more specific answers thereto shall include a short statement of the nature of the action and shall have annexed thereto the text of the questions and answers, if any, objected to.
(d) Costs and Fees on Motion. If the court finds that a motion made pursuant to this rule was made frivolously or for the purpose of delay or was necessitated by action of the adverse party that was frivolous or taken for the purpose of delay, the court may order the offending party to pay the amount of reasonable expenses, including attorney's fees, incurred by the other party in making or resisting the motion.
Note: Source-R.R. 4:23-8 (first, second, third, fourth and seventh sentences). Paragraph (c) adopted July 14, 1972 to be effective September 5, 1972; paragraphs (a) and (b) amended July 13, 1994 to be effective September 1, 1994.
(b) Objections to Request for Copies of Papers. A party served with interrogatories requesting copies of papers who objects to the furnishing thereof shall, in lieu of complying with the request, either state with specificity the reasons for noncompliance or invite the propounder to inspect and copy the papers at a designated time and place. The propounder of a request for a copy of a paper which is not complied with, may, within 20 days after being served with the answers, serve a notice of motion directing compliance with the request or for other appropriate relief.
(c) Interrogatory Motions; Form. Motions to strike interrogatories or to compel more specific answers thereto shall include a short statement of the nature of the action and shall have annexed thereto the text of the questions and answers, if any, objected to.
(d) Costs and Fees on Motion. If the court finds that a motion made pursuant to this rule was made frivolously or for the purpose of delay or was necessitated by action of the adverse party that was frivolous or taken for the purpose of delay, the court may order the offending party to pay the amount of reasonable expenses, including attorney's fees, incurred by the other party in making or resisting the motion.
Note: Source-R.R. 4:23-8 (first, second, third, fourth and seventh sentences). Paragraph (c) adopted July 14, 1972 to be effective September 5, 1972; paragraphs (a) and (b) amended July 13, 1994 to be effective September 1, 1994.
4:17-4. Form, Service and Time of Answers
(a) Form of Answers; By Whom Answered. Except as otherwise provided in this rule, interrogatories shall be answered in writing under oath by the party upon whom served, if an individual, or, if a public or private corporation, a partnership or association, or governmental agency, by an officer or agent who shall furnish all information available to the party. If a party is unavailable, the interrogatories may be answered by an agent or authorized representative, including a liability carrier who is conducting the defense, whose answers shall bind the party. The party shall furnish all information available to the party and the party's agents, employees, and attorneys. The person answering the interrogatories shall designate which of such information is not within the answerer's personal knowledge and as to that information shall state the name and address of every person from whom it was received, or, if the source of the information is documentary, a full description including the location thereof. Each question shall be answered separately, fully and responsively either in the space following the question or on separate pages. Except as otherwise provided by paragraph (d) of this rule, if in any interrogatory a copy of a paper is requested, the copy shall be annexed to the answer. If the interrogatory requests the name of an expert or treating physician of the answering party or a copy of the expert's or treating physician's report, the party shall comply with the requirements of paragraph (e) of this rule.
(b) Service of Answers; Time; Enlargement of Time. Except as otherwise provided by R. 4:17-1(b)(2), the party served with interrogatories shall serve answers thereto upon the party propounding them within 60 days after being served with the interrogatories. For good cause shown the court may enlarge or shorten such time upon motion on notice made within the 60-day period. Consent orders enlarging the time are prohibited.
(c) Copies; Service by Propounding Party. The original of the answers shall be served upon the propounding party, who shall then serve a copy of the interrogatories and answers upon each of the other parties. Parties against whom default has been entered need not, however, be served, and parties represented by the same attorney need be served with one copy.
(d) Option to Produce Business Records. When the answer to an interrogatory may be derived or ascertained from or requires annexation of copies of the business records of the party on whom the interrogatory has been served or from an examination, audit or inspection of such business records, or from a compilation abstract or summary based thereon, or from electronically stored information, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained.
(e) Expert's or Treating Physician's Names and Reports. If an interrogatory requires a copy of the report of an expert witness or treating or examining physician as set forth in R. 4:10-2(d)(1), the answering party shall annex to the interrogatory an exact copy of the entire report or reports rendered by the expert or physician. The report shall contain a complete statement of that persons opinions and the basis therefor; the facts and data considered in forming the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; and whether compensation has been or is to be paid for the report and testimony and, if so, the terms of the compensation. If the answer to an interrogatory requesting the name and report of the party's expert or treating physician indicates that the same will be supplied thereafter, the propounder may, on notice, move for an order of the court fixing a day certain for the furnishing of that information by the answering party. Such order may further provide that an expert or treating physician whose name or report is not so furnished shall not be permitted to testify at trial. Except as herein provided, the communications between counsel and expert deemed trial preparation materials pursuant to R. 4:10-2(d)(1) may not be inquired into.
Note: Source – R.R. 4:23-4, 4:23-5, 4:23-6(a)(b)(c)(d). Paragraph (a) amended and paragraph (d) adopted July 14, 1972 to be effective September 5, 1972; paragraph (a) amended September 13, 1976 to be effective September 13, 1976; paragraph (a) amended and paragraph (e) adopted July 29, 1977 to be effective September 6, 1977; paragraph (a) amended July 16, 1981 to be effective September 14, 1981; paragraph (a) amended July 26, 1984 to be effective September 10, 1984; paragraph (a) amended November 2, 1987 to be effective January 1, 1988; paragraph (a) amended November 7, 1988 to be effective January 2, 1989; paragraph (c) amended June 29, 1990 to be effective September 4, 1990; paragraphs (a), (b) and (e) amended July 13, 1994 to be effective September 1, 1994; paragraph (c) amended June 28, 1996 to be effective September 1, 1996; paragraph (b) amended July 5, 2000 to be effective September 5, 2000; paragraph (e) amended July 12, 2002 to be effective September 3, 2002; paragraph (e) amended July 28, 2004 to be effective September 1, 2004; paragraph (d) amended July 27, 2006 to be effective September 1, 2006 .
(b) Service of Answers; Time; Enlargement of Time. Except as otherwise provided by R. 4:17-1(b)(2), the party served with interrogatories shall serve answers thereto upon the party propounding them within 60 days after being served with the interrogatories. For good cause shown the court may enlarge or shorten such time upon motion on notice made within the 60-day period. Consent orders enlarging the time are prohibited.
(c) Copies; Service by Propounding Party. The original of the answers shall be served upon the propounding party, who shall then serve a copy of the interrogatories and answers upon each of the other parties. Parties against whom default has been entered need not, however, be served, and parties represented by the same attorney need be served with one copy.
(d) Option to Produce Business Records. When the answer to an interrogatory may be derived or ascertained from or requires annexation of copies of the business records of the party on whom the interrogatory has been served or from an examination, audit or inspection of such business records, or from a compilation abstract or summary based thereon, or from electronically stored information, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained.
(e) Expert's or Treating Physician's Names and Reports. If an interrogatory requires a copy of the report of an expert witness or treating or examining physician as set forth in R. 4:10-2(d)(1), the answering party shall annex to the interrogatory an exact copy of the entire report or reports rendered by the expert or physician. The report shall contain a complete statement of that persons opinions and the basis therefor; the facts and data considered in forming the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; and whether compensation has been or is to be paid for the report and testimony and, if so, the terms of the compensation. If the answer to an interrogatory requesting the name and report of the party's expert or treating physician indicates that the same will be supplied thereafter, the propounder may, on notice, move for an order of the court fixing a day certain for the furnishing of that information by the answering party. Such order may further provide that an expert or treating physician whose name or report is not so furnished shall not be permitted to testify at trial. Except as herein provided, the communications between counsel and expert deemed trial preparation materials pursuant to R. 4:10-2(d)(1) may not be inquired into.
Note: Source – R.R. 4:23-4, 4:23-5, 4:23-6(a)(b)(c)(d). Paragraph (a) amended and paragraph (d) adopted July 14, 1972 to be effective September 5, 1972; paragraph (a) amended September 13, 1976 to be effective September 13, 1976; paragraph (a) amended and paragraph (e) adopted July 29, 1977 to be effective September 6, 1977; paragraph (a) amended July 16, 1981 to be effective September 14, 1981; paragraph (a) amended July 26, 1984 to be effective September 10, 1984; paragraph (a) amended November 2, 1987 to be effective January 1, 1988; paragraph (a) amended November 7, 1988 to be effective January 2, 1989; paragraph (c) amended June 29, 1990 to be effective September 4, 1990; paragraphs (a), (b) and (e) amended July 13, 1994 to be effective September 1, 1994; paragraph (c) amended June 28, 1996 to be effective September 1, 1996; paragraph (b) amended July 5, 2000 to be effective September 5, 2000; paragraph (e) amended July 12, 2002 to be effective September 3, 2002; paragraph (e) amended July 28, 2004 to be effective September 1, 2004; paragraph (d) amended July 27, 2006 to be effective September 1, 2006 .
4:17-3. Number of Copies Served; Form of Interrogatories
The party serving the interrogatories shall furnish the answering party with the original thereof. The interrogatories shall be so arranged that after each separate question shall appear a blank space reasonably calculated to enable the answering party to have the answer typed in.
Note: Source-R.R. 4:23-3(a)(b). Amended July 14, 1972 to be effective September 5, 1972 (paragraph (a) formerly in R. 4:17-1); paragraph (a) amended July 15, 1982 to be effective September 13, 1982; paragraph (a) amended June 29, 1990 to be effective September 4, 1990; introductory sentence added, paragraph (b) amended and paragraph (c) deleted July 13, 1994 to be effective September 1, 1994; paragraph (a) amended and paragraphs (a) and (b) combined June 28, 1996 to be effective September 1, 1996.
Note: Source-R.R. 4:23-3(a)(b). Amended July 14, 1972 to be effective September 5, 1972 (paragraph (a) formerly in R. 4:17-1); paragraph (a) amended July 15, 1982 to be effective September 13, 1982; paragraph (a) amended June 29, 1990 to be effective September 4, 1990; introductory sentence added, paragraph (b) amended and paragraph (c) deleted July 13, 1994 to be effective September 1, 1994; paragraph (a) amended and paragraphs (a) and (b) combined June 28, 1996 to be effective September 1, 1996.
4:17-2. Time to Serve Interrogatories
Interrogatories may, without leave of court, be served upon the plaintiff or answers demanded pursuant to R. 4:17-1(b) after commencement of the action and served upon or demanded from any other party with or after service of the summons and complaint upon that party. Except as provided in R. 4:17-1(b)(2), initial interrogatories shall be served by plaintiff as to each defendant within 40 days after service of that defendant's answer and each defendant shall serve initial interrogatories within said 40-day period.
Note: Source-R.R. 4:23-2(a)(b)(c). Amended and last two sentences deleted July 14, 1972 to be effective September 5, 1972; amended July 13, 1994 to be effective September 1, 1994; amended July 5, 2000 to be effective September 5, 2000.
Note: Source-R.R. 4:23-2(a)(b)(c). Amended and last two sentences deleted July 14, 1972 to be effective September 5, 1972; amended July 13, 1994 to be effective September 1, 1994; amended July 5, 2000 to be effective September 5, 2000.
RULE 4:17. INTERROGATORIES TO PARTIES
4:17-1. Service, Scope of Interrogatories
(a) Generally. Any party may serve upon any other party written interrogatories relating to any matters which may be inquired into under R. 4:10-2. The interrogatories may include a request, at the propounder's expense, for a copy of any paper.
(b) Uniform Interrogatories in Certain Actions.
(1) Limitations on Interrogatories. In all actions seeking recovery for property damage to automobiles and in all personal injury cases other than wrongful death, toxic torts, cases involving issues of professional malpractice other than medical malpractice, and those products liability cases either involving pharmaceuticals or giving rise to a toxic tort claim, the parties shall be limited to the interrogatories prescribed by Forms A, B and C of Appendix II, as appropriate, provided, however, that each party may propound ten supplemental questions, without subparts, without leave of court. Any additional interrogatories shall be permitted only by the court in its discretion on motion.
(2) Automatic Service of Uniform Interrogatories. A party defendant served with a complaint in an action subject to uniform interrogatories as prescribed by subparagraph b(1) of this rule shall be deemed to have been simultaneously served with such interrogatories. The defendant shall serve answers to the appropriate uniform interrogatories within 60 days after service by that defendant of the answer to the complaint. The plaintiff in such an action shall be deemed to have been served with uniform interrogatories simultaneously with service of defendant's answer to the complaint and shall serve answers to the interrogatories within 30 days after service of the answer to the complaint. In all actions commenced prior to September 5, 2000, however, answers to uniform interrogatories shall be demanded by letter of demand served upon all adverse parties within the time prescribed by R. 4:17-2, and answers shall be served within the time prescribed by R. 4:17-4(b).
(3) Claims of Privilege, Protection. Privileged information need not be disclosed provided the claim of privilege is made pursuant to R. 4:10-2(e). Nor need information be disclosed if it is the subject of an identified protective order issued pursuant to R. 4:10-3.
(4) Obligation to Answer Every Question. Except as otherwise provided in subparagraph (b)(3) of this rule, every question propounded by a uniform interrogatory must be answered unless the court has otherwise ordered.
Note: Source-R.R. 4:23-1, 4:23-9. Last clause of second sentence and third and fourth sentences deleted (see R. 4:10B2(d) and R. 4:17B3) July 14, 1972 to be effective September 5, 1972; new caption for paragraph (a) and new paragraphs (b)(i) and (ii) adopted July 13, 1994 to be effective September 1, 1994; paragraph (b)(i) amended and paragraph (b)(iii) added June 28, 1996 to be effective September 1, 1996; paragraph (b)(i) amended July 10, 1998 to be effective September 1, 1998; paragraphs (b)(i), (b)(ii), and (b)(iii) redesignated as paragraphs (b)(1),(b)(2), and (b)(3), redesignated paragraphs (b)(2) and (b)(3) amended, and new paragraph (b)(4) adopted July 5, 2000 to be effective September 5, 2000.
(a) Generally. Any party may serve upon any other party written interrogatories relating to any matters which may be inquired into under R. 4:10-2. The interrogatories may include a request, at the propounder's expense, for a copy of any paper.
(b) Uniform Interrogatories in Certain Actions.
(1) Limitations on Interrogatories. In all actions seeking recovery for property damage to automobiles and in all personal injury cases other than wrongful death, toxic torts, cases involving issues of professional malpractice other than medical malpractice, and those products liability cases either involving pharmaceuticals or giving rise to a toxic tort claim, the parties shall be limited to the interrogatories prescribed by Forms A, B and C of Appendix II, as appropriate, provided, however, that each party may propound ten supplemental questions, without subparts, without leave of court. Any additional interrogatories shall be permitted only by the court in its discretion on motion.
(2) Automatic Service of Uniform Interrogatories. A party defendant served with a complaint in an action subject to uniform interrogatories as prescribed by subparagraph b(1) of this rule shall be deemed to have been simultaneously served with such interrogatories. The defendant shall serve answers to the appropriate uniform interrogatories within 60 days after service by that defendant of the answer to the complaint. The plaintiff in such an action shall be deemed to have been served with uniform interrogatories simultaneously with service of defendant's answer to the complaint and shall serve answers to the interrogatories within 30 days after service of the answer to the complaint. In all actions commenced prior to September 5, 2000, however, answers to uniform interrogatories shall be demanded by letter of demand served upon all adverse parties within the time prescribed by R. 4:17-2, and answers shall be served within the time prescribed by R. 4:17-4(b).
(3) Claims of Privilege, Protection. Privileged information need not be disclosed provided the claim of privilege is made pursuant to R. 4:10-2(e). Nor need information be disclosed if it is the subject of an identified protective order issued pursuant to R. 4:10-3.
(4) Obligation to Answer Every Question. Except as otherwise provided in subparagraph (b)(3) of this rule, every question propounded by a uniform interrogatory must be answered unless the court has otherwise ordered.
Note: Source-R.R. 4:23-1, 4:23-9. Last clause of second sentence and third and fourth sentences deleted (see R. 4:10B2(d) and R. 4:17B3) July 14, 1972 to be effective September 5, 1972; new caption for paragraph (a) and new paragraphs (b)(i) and (ii) adopted July 13, 1994 to be effective September 1, 1994; paragraph (b)(i) amended and paragraph (b)(iii) added June 28, 1996 to be effective September 1, 1996; paragraph (b)(i) amended July 10, 1998 to be effective September 1, 1998; paragraphs (b)(i), (b)(ii), and (b)(iii) redesignated as paragraphs (b)(1),(b)(2), and (b)(3), redesignated paragraphs (b)(2) and (b)(3) amended, and new paragraph (b)(4) adopted July 5, 2000 to be effective September 5, 2000.
4:16-4. Effect of Errors and Irregularities in Depositions
(a) As to Notice. All errors and irregularities in the notice for taking a deposition are waived unless at least 3 days before the time fixed for examination, or within such time as the court fixes by order, written objection is served upon the party giving the notice.
(b) As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer before whom or the person by whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.
(c) As to Taking of Deposition.
(1) Objections Not Waived. Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(2) Objections Waived. Except as otherwise provided by R. 4:14-3(c), errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented are waived unless timely objection thereto is made at the taking of the deposition. Objections to the form of written questions submitted under R. 4:15 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or redirect questions or, if the objection is as to recross questions, then within 5 days after service thereof.
(d) As to Completion and Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.
Note: Source-R.R. 4:22-1, 4:22-2, 4:22-3(a) (b) (c). Paragraph (d) amended July 14, 1972 to be effective September 5, 1972 (paragraphs (a)(b)(c) formerly R. 4:16-1, 4:16-2, 4:16-3); paragraph (c)(2) amended July 5, 2000 to be effective September 5, 2000.
(b) As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer before whom or the person by whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.
(c) As to Taking of Deposition.
(1) Objections Not Waived. Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(2) Objections Waived. Except as otherwise provided by R. 4:14-3(c), errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented are waived unless timely objection thereto is made at the taking of the deposition. Objections to the form of written questions submitted under R. 4:15 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or redirect questions or, if the objection is as to recross questions, then within 5 days after service thereof.
(d) As to Completion and Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.
Note: Source-R.R. 4:22-1, 4:22-2, 4:22-3(a) (b) (c). Paragraph (d) amended July 14, 1972 to be effective September 5, 1972 (paragraphs (a)(b)(c) formerly R. 4:16-1, 4:16-2, 4:16-3); paragraph (c)(2) amended July 5, 2000 to be effective September 5, 2000.
4:16-3. Effect of Taking or Using Deposition
A person does not become a party's witness for any purpose merely because that party has taken that person's deposition. At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by that party or by any other party.
Note: Source-R.R. 4:16-6. Former rule deleted (see R. 4:16-4(c)) and new R. 4:16-3 adopted July 14, 1972 to be effective September 5, 1972 (formerly in R. 4:10-6); amended July 13, 1994 to be effective September 1, 1994.
Note: Source-R.R. 4:16-6. Former rule deleted (see R. 4:16-4(c)) and new R. 4:16-3 adopted July 14, 1972 to be effective September 5, 1972 (formerly in R. 4:10-6); amended July 13, 1994 to be effective September 1, 1994.
4:16-2. Objections to Admissibility
Subject to the provisions of R. 4:16-4(c), objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
Note: Source-R.R. 4:16-5. Former rule deleted (see R. 4:16-4(b)) and new R. 4:16-2 adopted July 14, 1972 to be effective September 5, 1972 (formerly in R. 4:10-5).
Note: Source-R.R. 4:16-5. Former rule deleted (see R. 4:16-4(b)) and new R. 4:16-2 adopted July 14, 1972 to be effective September 5, 1972 (formerly in R. 4:10-5).
RULE 4:16. USE OF DEPOSITIONS; OBJECTIONS; EFFECT; ERRORS AND IRREGULARITIES
4:16-1. Use of Depositions
At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used in accordance with any of the following provisions:
(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the Rules of Evidence.
(b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing or authorized agent, or a person designated under R. 4:14-2(c) or R. 4:15-1 to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party, may be used by an adverse party for any purpose against the deponent or the corporation, partnership, association or agency.
(c) Except as otherwise provided by R. 4:14-9(e), the deposition of a witness, whether or not a party, may be used by any party for any purpose, against any other party who was present or represented at the taking of the deposition or who had reasonable notice thereof if the court finds that the appearance of the witness cannot be obtained because of death or other inability to attend or testify, such as age, illness, infirmity or imprisonment, or is out of this state or because the party offering the deposition has been unable in the exercise of reasonable diligence to procure the witness's attendance by subpoena, provided, however, that the absence of the witness was not procured or caused by the offering party. The deposition of an absent but not unavailable witness may also be so used if, upon application and notice, the court finds that such exceptional circumstances exist as to make such use desirable in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court.
(d) If only part of a deposition is offered in evidence by a party, an adverse party may require the offering party to introduce any other part which ought in fairness be considered with the part introduced, and any party may offer any other parts.
Substitution of parties pursuant to R. 4:34 does not affect the right to use depositions previously taken; and, when an action has been brought in any court of the United States or of any state and another action involving the same subject matter is afterward maintained between the same parties or their representatives or successors in interest, all depositions lawfully taken in the former action may be used in the latter as if originally taken therefor, provided that the officer's statement required by R. 4:14-6(a) was duly filed. A deposition previously taken may also be used as permitted by the Rules of Evidence.
Note: Source-R.R. 4:16-4. Former rule deleted (see R. 4:16-4(a)) and new R. 4:16-1 adoptedJuly 14, 1972 to be effective September 5, 1972 (formerly in R. 4:10-4); paragraph (c) amended July 21, 1980 to be effective September 8, 1980; paragraphs (a) and (c) and text amended July 26, 1984 to be effective September 10, 1984; paragraphs (c) and (d) amended July 13, 1994 to be effective September 1, 1994.
At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used in accordance with any of the following provisions:
(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the Rules of Evidence.
(b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing or authorized agent, or a person designated under R. 4:14-2(c) or R. 4:15-1 to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party, may be used by an adverse party for any purpose against the deponent or the corporation, partnership, association or agency.
(c) Except as otherwise provided by R. 4:14-9(e), the deposition of a witness, whether or not a party, may be used by any party for any purpose, against any other party who was present or represented at the taking of the deposition or who had reasonable notice thereof if the court finds that the appearance of the witness cannot be obtained because of death or other inability to attend or testify, such as age, illness, infirmity or imprisonment, or is out of this state or because the party offering the deposition has been unable in the exercise of reasonable diligence to procure the witness's attendance by subpoena, provided, however, that the absence of the witness was not procured or caused by the offering party. The deposition of an absent but not unavailable witness may also be so used if, upon application and notice, the court finds that such exceptional circumstances exist as to make such use desirable in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court.
(d) If only part of a deposition is offered in evidence by a party, an adverse party may require the offering party to introduce any other part which ought in fairness be considered with the part introduced, and any party may offer any other parts.
Substitution of parties pursuant to R. 4:34 does not affect the right to use depositions previously taken; and, when an action has been brought in any court of the United States or of any state and another action involving the same subject matter is afterward maintained between the same parties or their representatives or successors in interest, all depositions lawfully taken in the former action may be used in the latter as if originally taken therefor, provided that the officer's statement required by R. 4:14-6(a) was duly filed. A deposition previously taken may also be used as permitted by the Rules of Evidence.
Note: Source-R.R. 4:16-4. Former rule deleted (see R. 4:16-4(a)) and new R. 4:16-1 adoptedJuly 14, 1972 to be effective September 5, 1972 (formerly in R. 4:10-4); paragraph (c) amended July 21, 1980 to be effective September 8, 1980; paragraphs (a) and (c) and text amended July 26, 1984 to be effective September 10, 1984; paragraphs (c) and (d) amended July 13, 1994 to be effective September 1, 1994.
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