2010 Report of the Supreme Court Civil Practice Committee

2010 Report of the Supreme Court
Civil Practice Committee
January 25, 2010
TABLE OF CONTENTS
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION................................. 1
A. PROPOSED AMENDMENTS TO RULES 1:5-2, 4:4-7, 4:64-1, AND 4:65-2................................. 1
B. PROPOSED AMENDMENTS TO R. 1:6-2 — RE: REQUESTS TO EXTEND DISCOVERY............. 10
C. PROPOSED AMENDMENTS TO R. 1:13-7 — DISMISSAL OF CIVIL CASES FOR LACK OF
PROSECUTION .................................................................................................................... 13
D. PROPOSED AMENDMENTS TO R. 1:21-1 — WHO MAY PRACTICE; APPEARANCE IN COURT17
E. PROPOSED AMENDMENTS TO R. 1:36-3 — UNPUBLISHED OPINIONS ................................. 20
F. PROPOSED AMENDMENTS TO R. 2:2-3 — APPEALS TO THE APPELLATE DIVISION FROM
FINAL JUDGMENTS, DECISIONS, ACTIONS AND FROM RULES; TAX COURT........................ 22
G. PROPOSED AMENDMENTS TO R. 2:5-6 — APPEALS FROM INTERLOCUTORY ORDERS,
DECISIONS AND ACTIONS................................................................................................... 25
H. PROPOSED AMENDMENTS TO R. 4:3-2 — VENUE IN THE SUPERIOR COURT ....................... 27
I. PROPOSED AMENDMENTS TO R. 4:4-2 AND APPENDIX XII-A — RE: LEGAL SERVICES
HOTLINE ............................................................................................................................ 29
J. PROPOSED AMENDMENTS TO R. 4:4-3 — BY WHOM SERVED; COPIES .............................. 38
K. PROPOSED AMENDMENTS TO R. 4:12-4 — DISQUALIFICATION FOR INTEREST................... 41
L. PROPOSED AMENDMENTS TO R. 4:17-5 ─ OBJECTIONS TO INTERROGATORIES .................. 43
M. PROPOSED AMENDMENTS TO R. 4:18-1 ─ PRODUCTION OF DOCUMENTS .......................... 47
N. PROPOSED AMENDMENTS TO R. 4:24-1 — TIME FOR COMPLETION OF DISCOVERY........... 52
O. PROPOSED AMENDMENTS TO R. 4:36-3 — TRIAL CALENDAR............................................ 56
P. PROPOSED AMENDMENTS TO R. 4:42-9 — COUNSEL FEES ................................................ 58
Q. PROPOSED AMENDMENTS TO R. 4:58 — OFFER OF JUDGMENT.......................................... 61
R. PROPOSED AMENDMENTS TO R. 4:59-1 ─ EXECUTION....................................................... 66
S. PROPOSED AMENDMENTS TO R. 4:74-3 — APPEALS FROM PENALTIES IMPOSED BY
MUNICIPAL COURTS .......................................................................................................... 72
ii
T. PROPOSED AMENDMENTS TO APPENDIX II INTERROGATORY FORMS A AND A(1)............. 75
U. PROPOSED AMENDMENTS TO APPENDIX XI-M ─ NOTICE OF MOTION ENFORCING
LITIGANT’S RIGHTS; AND APPENDIX XI-O ─ ORDER TO ENFORCE LITIGANT’S RIGHTS.... 80
V. HOUSEKEEPING AMENDMENTS .......................................................................................... 87
II. RULE AMENDMENTS CONSIDERED AND REJECTED ................................... 105
A. PROPOSED AMENDMENTS TO R. 1:6-2 — FORM OF MOTION; HEARING........................... 105
B. PROPOSED AMENDMENTS TO R. 1:11-2 ─ WITHDRAWAL OR SUBSTITUTION ................... 106
C. PROPOSED AMENDMENTS TO RULES 2:2-3 AND 2:2-4 — RE: INTERLOCUTORY APPEALS. 107
D. PROPOSED AMENDMENTS TO R. 2:6-2 — CONTENTS OF APPELLANT’S BRIEF ................. 108
E. PROPOSED AMENDMENTS TO R. 2:9-6 — SUPERSEDEAS BOND; EXCEPTIONS.................. 109
F. PROPOSED AMENDMENTS TO R. 2:12-10 — GRANTING OR DENIAL OF CERTIFICATION .. 112
G. PROPOSED AMENDMENTS TO RULES 4:10-3, 4:14-4, 4:22-1, 4:23-1, 4:23-2, 4:23-3, 4:23-4
AND 4:37-4 — RE: SANCTIONS........................................................................................ 114
H. PROPOSED AMENDMENTS TO R. 4:12-4 — DISQUALIFICATION FOR INTEREST................. 115
I. PROPOSED AMENDMENTS TO R. 4:14-6 — CERTIFICATION AND FILING BY OFFICER;
EXHIBITS; COPIES ............................................................................................................ 117
J. PROPOSED AMENDMENTS TO R. 4:23-5 — FAILURE TO MAKE DISCOVERY..................... 119
K. PROPOSED AMENDMENTS TO R. 4:24-1 — TIME FOR COMPLETION OF DISCOVERY......... 121
L. PROPOSED AMENDMENTS TO R. 4:38-1 — CONSOLIDATION............................................ 122
III. MATTERS HELD FOR CONSIDERATION............................................................ 123
A. PROPOSED AMENDMENTS TO RULES 4:74-7 AND 4:74-7A — RE: CIVIL COMMITMENTS. 123
iii
IV. MISCELLANEOUS MATTERS................................................................................. 125
A. PROPOSED AMENDMENTS TO R. 1:1-2 — CONSTRUCTION AND RELAXATION.................. 125
B. PROPOSED AMENDMENTS TO R. 1:6-2 — FORM OF MOTION; HEARING........................... 126
C. PROPOSED AMENDMENTS TO R. 7:7-8 — FORM OF SUBPOENA........................................ 127
D. PROPOSED LEGISLATION — S-2116— LIMITS AMOUNT OF SUPERSEDEAS BOND IN CIVIL
ACTIONS .......................................................................................................................... 128
— 1 —
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION
A. Proposed Amendments to Rules 1:5-2, 4:4-7, 4:64-1, and 4:65-2
The Supreme Court issued an order relaxing and supplementing Rules 1:5-2, 4:4-7, 4:64-
1, and 4:65-2 and asked the Committee to develop proposed conforming rule amendments. The
specifics of the order are as follows:
• Rule 1:5-2 — to provide that filing of papers with the clerk shall be
deemed to satisfy the service requirement of R. 1:5-1 and that there need
be no separate service upon the clerk.
• Rule 4:47 — to permit the filed printout of the electronic return receipt
provided by the U.S. Post Office to act as proof of service. N.B.: This
rule relaxation is intended to apply only to Law Division — Civil Part
matters and does not extend to Special Civil Part or General Equity.
• Rule 4:64-1 — to require that prior to entry of judgment in uncontested
foreclosure matters (other than in rem tax foreclosures), the plaintiff must
serve on all residential tenants the Notice to Residential Tenants of Rights
During Foreclosure as set forth in newly adopted Appendix XII-K.
• Rule 4:65-2 — to require that a notice of sale posted on foreclosed
premises be accompanied by the Notice to Residential Tenants of Rights
During Foreclosure as set forth in newly adopted Appendix XII-K.
The conforming amendments were developed by the Committee. In doing so, the
Committee also proposes a restructuring of R. 4:64-1.
See Section I.V. of this Report for a housekeeping amendment to R. 4:64-1 that the
Committee recommends.
The proposed amendments to Rules 1:5-2, 4:4-7, 4:64-1 and 4:65-2 follow.
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1:5-2. Manner of Service
Service upon an attorney of papers referred to in R. 1:5-1 shall be made by mailing a
copy to the attorney at his or her office by ordinary mail, by handing it to the attorney, or by
leaving it at the office with a person in the attorney's employ, or, if the office is closed or the
attorney has no office, in the same manner as service is made upon a party. Service upon a party
of such papers shall be made as provided in R. 4:4-4 or by registered or certified mail, return
receipt requested, and simultaneously by ordinary mail to the party's last known address[;]. [or
i]If no address is known, despite diligent effort, [by ordinary mail to the clerk of the court] the
filing of papers with the clerk shall be deemed to satisfy that service requirement and there need
be no separate service upon the clerk. Mail may be addressed to a post office box in lieu of a
street address only if the sender cannot by diligent effort determine the addressee's street address
or if the post office does not make street-address delivery to the addressee. The specific facts
underlying the diligent effort required by this rule shall be recited in the proof of service required
by R. 1:5-3. If, however, proof of diligent inquiry as to a party's whereabouts has already been
filed within six months prior to service under this rule, a new diligent inquiry need not be made
provided the proof of service required by R. 1:5-3 asserts that the party making service has no
knowledge of any facts different from those recited in the prior proof of diligent inquiry.
Note: Source — R R. 1:7-12(d), 1:10-10(b), 1:11-2(c), 2:11-2(c), 3:11-1(b), 4:5-2(a) (first
four sentences); amended July 16, 1981 to be effective September 14, 1981; amended July 13,
1994 to be effective September 1, 1994; amended July 28, 2004 to be effective September 1,
2004; amended to be effective .
— 3 —
4:4-7. Return
The person serving the process shall make proof of service thereof on the original process
and on the copy. Proof of service shall be promptly filed with the court within the time during
which the person served must respond thereto either by the person making service or by the party
on whose behalf service is made. The proof of service, which shall be in a form prescribed by
the Administrative Director of the Courts, shall state the name of the person served and the place,
mode and date of service, and a copy thereof shall be forthwith furnished plaintiff's attorney by
the person serving process. If service is made upon a member of the household pursuant to
R. 4:4-4 that person's name shall be stated in the proof or, if such name cannot be ascertained, the
proof shall contain a description of the person upon whom service was made. If service is made
by a person other than a sheriff or a court appointee, proof of service shall be by similar affidavit
which shall include the facts of the affiant's diligent inquiry regarding defendant's place of abode,
business or employment. If service is made by mail, the party making service shall make proof
thereof by affidavit which shall also include the facts of the failure to effect personal service and
the facts of the affiant's diligent inquiry to determine defendant's place of abode, business or
employment. With the proof shall be filed the affidavit or affidavits of inquiry, if any, required
by R. 4:4-4 and R. 4:4-5. Where service is made by registered or certified mail and
simultaneously by regular mail, the return receipt card, or the printout of the electronic
confirmation of delivery provided by the U.S. Postal Service, or the unclaimed registered or
certified mail shall be filed as part of the proof. Failure to make proof of service does not affect
the validity of service.
Note: Source — R.R. 4:4-7. Amended July 14, 1972 to be effective September 5, 1972;
amended June 29, 1990 to be effective September 4, 1990; amended July 14, 1992 to be effective
— 4 —
September 1, 1992; amended July 13, 1994 to be effective September 1, 1994; amended July 10,
1998 to be effective September 1, 1998; amended July 12, 2002 to be effective September 3,
2002; amended to be effective .
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4:64-1. Uncontested Judgment: Foreclosures Other Than In Rem Tax Foreclosures
(a) …no change.
(b) …no change.
(c) …no change.
(d) Procedure to Enter Judgment.
(1) Prejudgment notices; responses.
(A) Notice of motion for entry of judgment shall be served within the time prescribed
by subparagraph (d)(2) of this rule on mortgagors and all other named parties obligated on the
debt and all parties who have appeared in the action including defendants whose answers have
been stricken or rendered noncontesting. The notice shall have annexed a copy of the affidavit
of amount due filed with the court. If the premises are residential, the notice shall be served on
each tenant, by personal service or registered or certified mail, return receipt requested,
accompanied by the notice of tenants’ rights during foreclosure in the form prescribed by
Appendix XII-K of the rules of court. Said notice of tenants’ rights shall be contained in an
envelope with the following text in bold and in at least 14 point type: “Important Notice about
Tenants Rights.” If the name of the tenant is unknown, the notice may be addressed to Tenant.
Any party having the right of redemption who disputes the correctness of the affidavit may file
an objection stating with specificity the basis of the dispute and asking the court to fix the
amount due.
(B) Defaulting parties shall be noticed only if application for final judgment is not
made within six months of the entry of default.
(2) Application for judgment; entry.
— 6 —
If the action is uncontested as defined by paragraph (c) the court, on motion on 10 days
notice if there are no other encumbrancers and on 30 days notice if there are other
encumbrancers, and subject to paragraph (h) of this rule, may enter final judgment upon proof
establishing the amount due. The application for entry of judgment shall be accompanied by
proofs as required by R. 4:64-2 and in lieu of the filing otherwise required by R. 1:6-4 shall be
only filed with the Office of Foreclosure in the Administrative Office of the Courts. The Office
of Foreclosure may recommend entry of final judgment pursuant to R. 1:34-6.
(e) …no change.
(f) Tax Sale Foreclosure; Strict Mortgage Foreclosures. If an action to foreclose or
reforeclose a tax sale certificate in personam or to strictly foreclose a mortgage where provided
by law is uncontested as defined by paragraph (c), the court, subject to paragraph (h) of this rule,
shall enter an order fixing the amount, time and place for redemption upon proof establishing the
amount due. The order of redemption in tax foreclosure actions shall conform to the
requirements of N.J.S.A. 54:5-98 and R. 4:64-6(b). The order for redemption or notice of the
terms thereof shall be served by ordinary mail on each defendant whose address is known at least
10 days prior to the date fixed for redemption. Notice of the entry of the order of redemption,
directed to each defendant whose address is unknown, shall be published in accordance with
R. 4:4-5(c) at least 10 days prior to the redemption date and, in the case of an unknown owner in
a tax foreclosure action joined pursuant to R. 4:26-5, a copy of the order or notice shall be posted
on the subject premises at least 20 days prior to the redemption date in accordance with
N.J.S.A. 54:5-90. The court, on its own motion and on notice to all appearing parties including
parties whose answers have been stricken, may enter final judgment upon proof of service of the
order of redemption as herein required and the filing by plaintiff of an affidavit of non—
7 —
redemption. The Office of Foreclosure may, pursuant to R 1:34-6, recommend the entry of both
the order for redemption and final judgment.
(g) …no change.
(h) …no change.
(i) …no change.
Note: Source — R.R. 4:82-1, 4:82-2. Paragraph (b) amended July 14, 1972 to be
effective September 5, 1972; paragraphs (a) and (b) amended November 27, 1974 to be effective
April 1, 1975; paragraph (a) amended July 16, 1979 to be effective September 10, 1979;
paragraph (c) adopted November 1, 1985 to be effective January 2, 1986; caption amended,
paragraphs (a) and (b) caption and text amended, former paragraph (c) redesignated paragraph
(e), and paragraphs (c), (d) and (f) adopted November 7, 1988 to be effective January 2, 1989;
paragraphs (b) and (c) amended and paragraph (g) adopted July 14, 1992 to be effective
September 1, 1992; paragraphs (e) and (f) amended July 13, 1994 to be effective September 1,
1994; paragraph (b) amended July 5, 2000 to be effective September 5, 2000; paragraph (f)
caption and text amended July 12, 2002 to be effective September 3, 2002; new paragraphs (a)
and (b) adopted, and former paragraphs (a), (b), (c), (d), (e), (f), and (g) redesignated as
paragraphs (c), (d), (e), (f), (g), (h), and (i) July 27, 2006 to be effective September 1, 2006;
paragraph (b) caption and text amended September 11, 2006 to be effective immediately;
paragraphs (d) and (f) amended October 10, 2006 to be effective immediately; paragraph (d)
amended July 9, 2008 to be effective September 1, 2008; paragraph (d) amended and
restructured and (f) amended to be effective .
— 8 —
4:65-2. Notice of Sale; Posting and Mailing
If real or personal property is authorized by court order or writ of execution to be sold at
public sale, notice of the sale shall be posted in the office of the sheriff of the county or counties
where the property is located, and also, in the case of real property, on the premises to be sold,
but need not be posted in any other place. If the premises are residential, the notice of sale shall
have annexed thereto, in bold type of at least 14-point, the notice of tenants’ rights during
foreclosure in the form prescribed by Appendix XII-K of the rules of court. The party who
obtained the order or writ shall, at least 10 days prior to the date set for sale, serve a notice of
sale by registered or certified mail, return receipt requested, upon (1) every party who has
appeared in the action giving rise to the order or writ and (2) the owner of record of the property
as of the date of commencement of the action whether or not appearing in the action, and (3)
except in mortgage foreclosure actions, every other person having an ownership or lien interest
that is to be divested by the sale and is recorded in the office of the Superior Court Clerk, the
United States District Court Clerk or the county recording officer, and in the case of personal
property, recorded or filed in pertinent public records of security interests, provided, however,
that the name and address of the person in interest is reasonably ascertainable from the public
record in which the interest is noted. The notice of sale shall include notice that there may be
surplus money and the procedure for claiming it. The party obtaining the order or writ may also
file the notice of sale with the county recording officer in the county in which the real estate is
situate, pursuant to N.J.S.A. 46:16A-1 et seq., and such filing shall have the effect of the notice of
settlement as therein provided.
— 9 —
Note: Source — R.R. 4:83-2; caption and rule amended July 13, 1994 to be effective
September 1, 1994; amended July 3, 1995, to be effective immediately; amended July 9, 2008 to
be effective September 1, 2008; amended to be effective .
— 10 —
B. Proposed Amendments to R. 1:6-2 — re: Requests to Extend Discovery
Rule 4:24-1(c) was amended in the last rules cycle to require the attachment of “copies of
all previous orders granting or denying an extension of discovery” with a motion to extend the
time for discovery. For the sake of consistency, it was suggested that the language of R. 1:6-2(c)
be amended to mirror the requirement of R. 4:24-1(c). The Committee agreed with this
suggestion and recommends the rule amendment as proposed.
See Section II.A. of this Report for proposed amendments to R. 1:6-2 that the Committee
does not recommend.
The proposed amendments to R. 1:6-2 follow.
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1:6-2. Form of Motion; Hearing
(a) …no change.
(b) …no change.
(c) Civil and Family Part Discovery and Calendar Motions. Every motion in a civil
case or a case in the Chancery Division, Family Part, not governed by paragraph (b), involving
any aspect of pretrial discovery or the calendar, shall be listed for disposition only if
accompanied by a certification stating that the attorney for the moving party has either (1)
personally conferred orally or has made a specifically described good faith attempt to confer
orally with the attorney for the opposing party in order to resolve the issues raised by the motion
by agreement or consent order and that such effort at resolution has been unsuccessful, or (2)
advised the attorney for the opposing party by letter, after the default has occurred, that
continued non-compliance with a discovery obligation will result in an appropriate motion being
made without further attempt to resolve the matter. A motion to extend the time for discovery
shall have annexed thereto either a copy of all prior orders [extending] granting or denying an
extension of the discovery period or a certification that there have been no such prior orders.
The moving papers shall also set forth the date of any scheduled pretrial conference, arbitration
proceeding scheduled pursuant to R. 4:21A, calendar call or trial, or state that no such dates have
been fixed. Discovery and calendar motions shall be disposed of on the papers unless, on at least
two days notice, the court specifically directs oral argument on its own motion or, in its
discretion, on a party's request. A movant's request for oral argument shall be made either in the
moving papers or reply; a respondent's request for oral argument shall be made in the answering
papers.
(d) …no change.
— 12 —
(e) …no change.
(f) …no change.
Note: Source — R.R. 3:11-2, 4:8-5(a) (second sentence). Amended 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; former rule amended and
redesignated as paragraph (a) and paragraphs (b), (c), (d), and (e) adopted July 16, 1981 to be
effective September 14, 1981; paragraph (c) amended July 15, 1982 to be effective September
13, 1982; paragraph (c) amended July 22, 1983 to be effective September 12, 1983; paragraph
(b) amended December 20, 1983 to be effective December 31, 1983; paragraphs (a) and (c)
amended and paragraph (f) adopted November 1, 1985 to be effective January 2, 1986;
paragraph (a) amended November 7, 1988 to be effective January 2, 1989; paragraph (c)
amended and paragraph (d) caption and text amended June 29, 1990 to be effective September 4,
1990; paragraph (d) amended July 14, 1992 to be effective September 1, 1992; paragraph (c)
amended July 13, 1994 to be effective September 1, 1994; paragraph (a) amended July 13, 1994
to be effective January 1, 1995; paragraphs (a) and (f) amended January 21, 1999 to be effective
April 5, 1999; paragraphs (c) and (d) amended July 5, 2000 to be effective September 5, 2000;
paragraph (a) amended July 28, 2004 to be effective September 1, 2004; paragraphs (b), (c), and
(f) amended July 27, 2006 to be effective September 1, 2006; paragraph (b) caption amended,
former text of paragraph (b) captioned and redesignated as subparagraph (b)(1), and new
subparagraph (b)(2) adopted July 9, 2008 to be effective September 1, 2008; paragraph (c)
amended to become effective .
— 13 —
C. Proposed Amendments to R. 1:13-7 — Dismissal of Civil Cases for Lack of
Prosecution
The Committee considered two proposed amendments to R. 1:13-7:
1. In the 2006-2008 rules cycle, the Committee recommended and the Supreme
Court approved an amendment to subsection (a) of R. 1:13-7 to provide for
General Equity cases to receive dismissal notices after 60 days of inactivity, and
for the court to dismiss them 30 days thereafter if none of the required actions
listed in subsection (c) have been taken. Paragraph (c), however, in its
introductory sentence, refers to specific time periods that are applicable Civil Part
cases only (60 days in which to take one of the required actions). These time
periods, however, are not applicable to General Equity cases.
To remediate this drafting problem, the Committee determined that
paragraph (c) of R. 1:13-7 should be amended to eliminate the references to
specific time periods. The Committee agreed to the following language: “The
order for dismissal required by paragraph (a) shall not be entered if, during the
period following the notice of dismissal as therein prescribed, one of the
following actions is taken.”
2. A practitioner representing plaintiffs in personal injury cases pointed out a
situation that she has encountered with R. 1:13-7. In two separate cases in which
there were multiple defendants, the answers of one defendant were stricken based
on a motion by a co-defendant for failure to comply with discovery. The Order
striking the answer triggered a dismissal notice in each case for plaintiff’s failure
to prosecute, requiring the plaintiff’s attorney to file a motion to remove the case
— 14 —
from the dismissal list or to strike the defendant’s answer with prejudice. She
asked the Committee to review this issue as she does not believe that R. 1:13-7
was designed to penalize the plaintiff by placing the case on the dismissal list as a
result of co-defendants’ motion practice against each other.
The Committee was made aware that the automated docketing system is
not equipped to distinguish where a plaintiff in one case is a defendant in another
case that has been consolidated with the first case. The judges on the Committee
agreed that where it is clear that a case has been placed on the dismissal list in
error, a letter to the Presiding Judge should be sufficient and an ACMS error
could be corrected by an order reinstating the case. The Committee members
speculated that practitioners might not be aware of this procedure unless it was
captured in a court rule. The consensus was to add a provision to the rule, being
careful to draft it in such a way to avoid its being abused by those whose cases are
properly on the dismissal list.
The proposed amendments to R. 1:13-7 follow.
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1:13-7. Dismissal of Civil Cases for Lack of Prosecution
(a) …no change.
(b) …no change.
(c) [An] The order of dismissal [will enter 60 days from the date of the notice
referred to in subsection (a) unless one of the following actions is taken within said 60-day
period] required by paragraph (a) shall not be entered if, during the period following the notice
of dismissal as therein prescribed, one of the following actions is taken:
(1) a proof of service or acknowledgment of service is filed, if the required action not
timely taken was failure to file proof of service or acknowledgment of service with the court;
(2) an answer is filed or a default is requested, if the required action not timely taken
was failure to answer or enter default;
(3) a default judgment is obtained, if the required action not timely taken was failure
to convert a default request into a default judgment;
(4) a motion is filed by or with respect to a defendant noticed for dismissal. If a
motion to remove the defendant from the dismissal list is denied, the defendant will be dismissed
without further notice.
(d) …no change.
(e) Dismissal in error. A party who reasonably believes that the order of dismissal
was entered in error and who has either completed service of process on the dismissed defendant
or taken other steps of record to protect the viability of the action against that defendant may
seek an order of vacation of the dismissal by letter to the presiding judge of the vicinage in which
venue is laid explaining the circumstances and enclosing a form of order of vacation. All parties
— 16 —
shall be copied, and if there is no objection to the order of vacation, it shall be entered within 10
days after its receipt by the court.
Note: Source — R.R. 1:30-3(a) (b) (c) (d), 1:30-4. Amended July 7, 1971 to be effective
September 13, 1971; former rule redesignated as paragraph (a) and paragraph (b) adopted July
15, 1982 to be effective September 13, 1982; paragraph (b) amended November 5, 1986 to be
effective January 1, 1987; paragraph (a) amended June 28, 1996 to be effective September 1,
1996; caption and paragraph (a) amended July 5, 2000 to be effective September 5, 2000;
paragraphs (a) and (b) amended July 12, 2002 to be effective September 3, 2002; paragraph (a)
amended, former paragraph (b) deleted, and new paragraphs (b), (c), and (d) adopted July 28,
2004 to be effective September 1, 2004; paragraph (a) amended July 9, 2008 to be effective
September 1, 2008; paragraph (c) amended and new paragraph (e) added to be
effective .
— 17 —
D. Proposed Amendments to R. 1:21-1 — Who May Practice; Appearance in
Court
A Civil Division Manager asked whether a member of a church can file papers on behalf
of the church or if an attorney is required. With limited exceptions, R. 1:21-1(c) prohibits a
business entity from appearing or filing any paper in any court of this State except through an
attorney licensed to practice in New Jersey. The Committee determined that a church is an entity
for which representation by an attorney is required. The Committee agreed that the rule should
be amended to clarify that any entity regardless of its purpose or organization must be
represented in court by an attorney.
The proposed amendments to R. 1:21-1 follow.
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1:21-1. Who May Practice; Appearance in Court
(a) …no change.
(b) …no change.
(c) Prohibition on [Business] Entities. Except as otherwise provided by paragraph (d)
of this rule and by R. 1:21-1A (professional corporations), R. 1:21-1B (limited liability
companies), R. 1:21-1C (limited liability partnerships), R. 6:10 (appearances in landlord-tenant
actions), R. 6:11 (appearances in small claims actions), R. 7:6-2(a) (pleas in municipal court),
R. 7:8-7(a) (presence of defendant in municipal court) and by R. 7:12-4(d) (municipal court
violations bureau), an [business] entity, however formed and for whatever purpose, other than a
sole proprietorship shall neither appear nor file any paper in any action in any court of this State
except through an attorney authorized to practice in this State.
(d) …no change.
(e) …no change.
(f) …no change.
Note: Source — R.R. 1:12-4(a) (b) (c) (d) (e) (f). Paragraph (c) amended by order of
December 16, 1969 effective immediately; paragraphs (a) and (c) amended July 29, 1977 to be
effective September 6, 1977; paragraph (a) amended July 24, 1978 to be effective September 11,
1978; paragraph (a) amended September 21, 1981 to be effective immediately; paragraph (c)
amended and paragraph (d) adopted July 15, 1982 to be effective September 13, 1982; paragraph
(a) amended August 13, 1982 to be effective immediately; paragraph (e) adopted July 22, 1983
to be effective September 12, 1983; paragraph (c) amended November 1, 1985 to be effective
January 2, 1986; paragraph (a) amended November 5, 1986 to be effective January 1, 1987;
paragraph (a) amended November 7, 1988 to be effective January 2, 1989; paragraph (b)
amended and paragraph (d) caption and text amended June 29, 1990 to be effective September 4,
1990; paragraph (c) amended and paragraph (e)(8) adopted July 14, 1992 to be effective
September 1, 1992; paragraphs (c), (e), and (e)(7) amended, and paragraph (e)(9) added July 13,
1994 to be effective September 1, 1994; paragraphs (a) and (e) amended June 28, 1996 to be
effective September 1, 1996; paragraph (c) amended November 18, 1996 to be effective January
1, 1997; paragraph (c) amended January 5, 1998 to be effective February 1, 1998; paragraph (a)
amended, former paragraphs (d) and (e) redesignated as paragraphs (e) and (f), and new
— 19 —
paragraph (d) adopted July 10, 1998 to be effective September 1, 1998; closing paragraph
amended July 5, 2000 to be effective September 5, 2000; paragraph (f) amended and new
paragraph (f)(11) added July 12, 2002 to be effective September 3, 2002; paragraph (a) amended
November 17, 2003 to be effective January 1, 2004; paragraph (a) amended July 28, 2004 to be
effective September 1, 2004; paragraph (e) caption and text amended July 27, 2006 to be
effective September 1, 2006; paragraph (c) amended to become effective
.
— 20 —
E. Proposed Amendments to R. 1:36-3 — Unpublished Opinions
Two practitioners requested an amendment to R. 1:36-3 to limit the circumstances in
which unpublished opinions can be cited to a court. They asserted that the current requirement
of having to supply copies of an unpublished opinion and “of all other relevant unpublished
opinions known to counsel including those adverse to the position of the client” is unwieldy and
not reflective of the current world of unlimited Internet access to unpublished opinions. It was
suggested that the citation of unpublished opinions be limited to those situations where the
citation is absolutely necessary, such as those cases dealing with res judicata, the law of the case,
the single controversy doctrine, or the like. The Committee rejected this proposal, reasoning that
there were a great number of worthwhile unpublished opinions that can and should be cited to
the court. They did agree, however, that having to supply copies of all other relevant opinions
could be onerous. Accordingly, the Committee recommends that “relevant” should be replaced
with “contrary,” leaving the last sentence of the rule to read, “No unpublished opinion shall be
cited to any court by counsel unless the court and all other parties are served with a copy of the
opinion and of all contrary unpublished opinions known to counsel.”
The proposed amendments to R. 1:36-3 follow.
— 21 —
1:36-3 Unpublished Opinions
No unpublished opinion shall constitute precedent or be binding upon any court. Except
for appellate opinions not approved for publication that have been reported in an authorized
administrative law reporter, and except to the extent required by res judicata, collateral estoppel,
the single controversy doctrine or any other similar principle of law, no unpublished opinion
shall be cited by any court. No unpublished opinion shall be cited to any court by counsel unless
the court and all other parties are served with a copy of the opinion and of all [other relevant]
contrary unpublished opinions known to counsel [including those adverse to the position of the
client].
Note: Adopted July 16, 1981 to be effective September 14, 1981; caption and rule
amended July 13, 1994 to be effective September 1, 1994; amended July 12, 2002 to be effective
September 3, 2002; amended to be effective .
— 22 —
F. Proposed Amendments to R. 2:2-3 — Appeals to the Appellate Division from
Final Judgments, Decisions, Actions and from Rules; Tax Court
In Wein v. Morris, 194 N.J. 364 (2008), the Supreme Court held that an order compelling
arbitration is a final order appealable as of right, regardless of whether the judge stays the
underlying suit or dismisses it. The Court referred the matter to the Committee to prepare the
amendatory language necessary to bring R. 2:2-3 in line with the holding in Wein. Pursuant to
the Court’s direction the Committee recommends amendatory language to R. 2:2-3 to add an
order of the court compelling arbitration to the list of orders that shall be deemed final judgments
for appeal purposes. This proposed amendment was endorsed by the Appellate Rules
Committee.
See Section II.C. of this Report for proposed amendments to R. 2:2-3 that the Committee
does not recommend.
The proposed amendments to R. 2:2-3 follow.
— 23 —
2:2-3. Appeals to the Appellate Division from Final Judgments, Decisions, Actions and from
Rules; Tax Court
(a) As of Right. Except as otherwise provided by R. 2:2-1(a)(3) (final judgments
appeallable directly to the Supreme Court), and except for appeals from a denial by the State
Police of an application to make a gun purchase under a previously issued gun purchaser card,
which appeals shall be taken to the designated gun permit judge in the vicinage, appeals may be
taken to the Appellate Division as of right
(1) …no change.
(2) …no change.
(3) in such cases as are provided by law. Final judgments of a court, for appeal
purposes, shall also include those referred to by R. 3:28(f) (order enrolling defendant into the
pretrial intervention program over the objection of the prosecutor), R. 3:26-3 (material witness
order), R. 4:42-2 (certification of interlocutory order), R. 4:53-1 (order appointing statutory or
liquidating receiver), R. 5:8-6 (final custody determination in bifurcated matrimonial action), and
R. 5:10-6 (order on preliminary hearing in adoption action). An order granting or denying a
motion to extend the time to file a notice of tort claim pursuant to N.J.S.A. 59:8-9, whether
entered in the cause or by a separate action, and an order compelling arbitration, whether the
action is dismissed or stayed, shall also be deemed a final judgment of the court for appeal
purposes.
(b) …no change.
Note: Source — R.R. 2:2-1(a) (b) (c) (d) (f) (g), 2:2-4, 2:12-1, 3:10-11, 4:88-7, 4:88-8(a)
(first sentence), 4:88-10 (first sentence), 4:88-14, 6:3-11(a). Paragraph (a) amended July 14,
1972 to be effective September 5, 1972; paragraph (b) amended November 27, 1974 to be
effective April 1, 1975; caption and paragraph (a) amended June 20, 1979 to be effective July 1,
— 24 —
1979; paragraph (a) amended July 8, 1980 to be effective July 15, 1980; paragraph (a) amended
July 15, 1982 to be effective September 13, 1982; paragraph (a)(1) amended July 22, 1983 to be
effective September 12, 1983; paragraph (a) amended December 20, 1983 to be effective
December 31, 1983; paragraph (b) amended July 26, 1984 to be effective September 10, 1984;
paragraph (a) amended July 14, 1992 to be effective September 1, 1992; paragraph (a) amended
June 28, 1996 to be effective September 1, 1996; paragraph (a) amended July 10, 1998 to be
effective September 1, 1998; paragraph (a) amended July 5, 2000 to be effective September 5,
2000; paragraph (a) amended July 27, 2006 to be effective September 1, 2006; paragraph (a)(3)
amended to be effective .
— 25 —
G. Proposed Amendments to R. 2:5-6 — Appeals from Interlocutory Orders,
Decisions and Actions
A practitioner suggested that New Jersey adopt a rule similar to the Pennsylvania statute
that allows a court or agency to state in an interlocutory order that the appeal “involves a
controlling question of law as to which there is substantial ground for difference of opinion and
that an immediate appeal may materially advance the ultimate termination of the matter.” This
suggestion was referred to the Appellate Division Rules Committee (ADRC) for its
consideration. The ADRC noted that R. 2:5-6(c) already permits a trial court or agency to
comment on whether a motion for leave to appeal should be granted, thus obviating the need for
a rule amendment. However, the ADRC opined that it would not be averse to adding the specific
language from the Pennsylvania statute, if the Committee was inclined to recommend its
inclusion. The Committee concluded that adding the language would provide additional clarity
to the rule, but suggested that, where the Pennsylvania statute refers to “termination” of the
matter, the language of the proposed rule amendment should refer instead to “resolution.”
The proposed amendments to R. 2:5-6 follow.
— 26 —
2:5-6. Appeals From Interlocutory Orders, Decisions and Actions
(a) …no change.
(b) …no change.
(c) Notice to the Trial Judge or Officer; Findings. A party filing a motion for leave to
appeal from an interlocutory order shall serve a copy thereof on the trial judge or officer who
entered the order. If the judge or officer has not theretofore filed a written statement of reasons
or if no verbatim record was made of any oral statement of reasons, the judge or officer shall,
within 5 days after receiving the motion, file and transmit to the clerk of the Appellate Division
and the parties a written statement of reasons for the disposition [and may also, within said time,
comment on whether the motion for leave to appeal should be granted]. The statement may also
comment on whether the motion for leave to appeal should be granted on the ground, among
others, that a controlling question of law not theretofore addressed by an appellate court of this
state is involved and that the grant of leave to appeal may materially advance the ultimate
resolution of the matter. Any statement of reasons previously made may also be amplified.
Note: Source — R.R. 1:2-3(b), 2:2-3(a) (second sentence), 4:53-1 (sixth sentence), 4:61-
1(d). Paragraphs (a) and (c) amended July 7, 1971 to be effective September 13, 1971;
paragraphs (a) and (c) amended July 16, 1981 to be effective September 14, 1981; paragraph (c)
amended November 1, 1985 to be effective January 2, 1986; paragraph (c) amended July 13,
1994 to be effective September 1, 1994; paragraphs (a) and (b) amended July 5, 2000 to be
effective September 5, 2000; paragraph (c) amended to be effective .
— 27 —
H. Proposed Amendments to R. 4:3-2 — Venue in the Superior Court
In Rutgers v. Fogel, 403 N.J. Super. 389 (App. Div. 2008), the Appellate Division held
that the state court rule governing venue in the Superior Court, R. 4:3-2, was preempted by the
venue provision of the federal Fair Debt Collection Practices Act (the Act), 15 U.S.C.S. §1692i,
to the extent that actions subject to the Act must be brought in either the county of the
defendant’s residence or the county in which the contract was signed. The Committee discussed
whether R. 4:3-2 should be amended to include this provision. It recognized that there may be
other federal laws that preempt New Jersey’s rule governing venue and agreed accordingly to
recommend adding the following prefatory language to the rule — “Subject to contrary
provisions of federal law,..”
The proposed amendments to R. 4:3-2 follow.
— 28 —
4:3-2. Venue in the Superior Court
(a) Where Laid. Subject to contrary provisions of federal law, [V]venue shall be laid
by the plaintiff in Superior Court actions as follows: (1) actions affecting title to real property or
a possessory or other interest therein, or for damages thereto, or appeals from assessments for
improvements, in the county in which any affected property is situate; (2) actions not affecting
real property which are brought by or against municipal corporations, counties, public agencies
or officials, in the county in which the cause of action arose; (3) except as otherwise provided by
R. 4:44A-1 (structured settlements), R. 4:53-2 (receivership actions), R. 4:60-2 (attachments),
R. 5:2-1 (family actions), R. 4:83-4 (probate actions), and R. 6:1-3 (Special Civil Part actions),
the venue in all other actions in the Superior Court shall be laid in the county in which the cause
of action arose, or in which any party to the action resides at the time of its commencement, or in
which the summons was served on a nonresident defendant; and (4) actions on and objections to
certificates of debt for motor vehicle surcharges that have been docketed as judgments by the
Superior Court Clerk pursuant to N.J.S.A. 17:29A-35 shall be brought in the county of residence
of the judgment-debtor.
(b) …no change
(c) …no change.
Note: Source — R.R. 4:3-2. Paragraph (a) amended December 20, 1983 to be effective
December 31, 1983. Paragraph (c) adopted January 9, 1984 to be effective immediately;
paragraph (a) amended November 7, 1988 to be effective January 2, 1989; paragraph (a)
amended June 29, 1990 to be effective September 4, 1990; paragraph (a) amended June 28, 1996
to be effective September 1, 1996; paragraph (a) amended July 28, 2004 to be effective
September 1, 2004; paragraph (a) amended to be effective .
— 29 —
I. Proposed Amendments to R. 4:4-2 and Appendix XII-A — re: Legal Services
Hotline
At the request of Legal Services of New Jersey (LSNJ), the Committee recommends the
inclusion of LSNJ’s Hotline number 1-888-LSNJ-LAW (1-888-576-5529) in the information
regarding the form of the summons in R. 4:4-2 and on the summons form itself, Appendix XII-A.
LSNJ proposed this amendment to provide more information to individuals needing their
services, especially to those facing foreclosure, as the hotline directs access to LSNJ’s Statewide
Anti-Predatory Lending Project, which provides a foreclosure defense to qualified victims of
predatory lending practices.
The proposed amendments to R. 4:4-2 and Appendix XII-A follow.
— 30 —
4:4-2. Summons: Form
Except as otherwise provided by R. 5:4-1(b) (summary proceedings in family actions),
the face of the summons shall be in the form prescribed by Appendix XII-A to these Rules. It
shall be in the name of the State, signed in the name of the Superior Court Clerk and directed to
the defendant. It shall contain the name of the court and the plaintiff and the name and address
of the plaintiff's attorney, if any, otherwise the plaintiff's address, and the time within which
these rules require the defendant to serve an answer upon the plaintiff or plaintiff's attorney, and
shall notify the defendant that if he or she fails to answer, judgment by default may be rendered
for the relief demanded in the complaint. It shall also inform the defendant of the necessity to
file an answer and proof of service thereof with the deputy clerk of the Superior Court in the
county of venue, except in mortgage and tax foreclosure actions an answer shall be filed with the
Clerk of the Superior Court in Trenton unless and until the action is deemed contested and the
papers have been sent by the Clerk to the county of venue in which event an answer shall be filed
with the deputy clerk of the Superior Court in the county of venue. If the defendant is an
individual resident in this state, the summons shall advise that if he or she is unable to obtain an
attorney, he or she may communicate with the Lawyer Referral Service of the county of his or
her residence, or the county in which the action is pending, or, if there is none in either county,
the Lawyer Referral Service of an adjacent county. The summons shall also advise defendant
that if he or she cannot afford an attorney, he or she may communicate with the Legal Services
Office of the county of his or her residence or the county in which the action is pending or the
Legal Services of New Jersey statewide toll free hotline at 1-888-LSNJ-LAW (1-888-576-5529).
If the defendant is an individual not resident in this State, the summons shall similarly advise
— 31 —
him or her, directing the defendant, however, to the appropriate agency in the county in which
the action is pending. The reverse side or second page of the summons shall contain a current
listing, by county, of telephone numbers of the Legal Services Office and the Lawyer Referral
Office serving each county and the Legal Services of New Jersey statewide toll free hotline at 1-
888-LSNJ-LAW (1-888-576-5529), which list shall be updated regularly by the Administrative
Office of the Courts and made available to legal forms publishers and to any person requesting
such list.
Note: Source — R.R. 4:4-2; amended November 27, 1974 to be effective April 1, 1975;
amended July 29, 1977 to be effective September 6, 1977; amended July 21, 1980 to be effective
September 8, 1980; amended July 16, 1981 to be effective September 14, 1981; amended
December 20, 1983 to be effective December 31, 1983; amended June 29, 1990 to be effective
September 4, 1990; amended July 13, 1994 to be effective September 1, 1994; amended June28,
1996 to be effective September 1, 1996; amended July 10, 1998 to be effective September 1,
1998; amended to be effective .
— 32 —
APPENDIX XII-A. SUMMONS
Attorney(s):
Office Address & Tel. No.:
Attorney(s) for Plaintiff(s)
________________________________________
SUPERIOR COURT OF NEW JERSEY
_________________COUNTY
________________DIVISION
Plaintiff(s) Docket No._____________
vs. CIVIL ACTION
Defendant(s) SUMMONS
________________________________________
From The State of New Jersey To The Defendant(s) Named Above:
The plaintiff, named above, has filed a lawsuit against you in the Superior Court of New Jersey. The
complaint attached to this summons states the basis for this lawsuit. If you dispute this complaint, you or
your attorney must file a written answer or motion and proof of service with the deputy clerk of the
Superior Court in the county listed above within 35 days from the date you received this summons, not
counting the date you received it. (The address of each deputy clerk of the Superior Court is provided.)
If the complaint is one in foreclosure, then you must file your written answer or motion and proof of
service with the Clerk of the Superior Court, Hughes Justice Complex, P.O. Box 971, Trenton, NJ 08625-
0971. A filing fee payable to the Treasurer, State of New Jersey and a completed Case Information
Statement (available from the deputy clerk of the Superior Court) must accompany your answer or motion
when it is filed. You must also send a copy of your answer or motion to plaintiff's attorney whose name
and address appear above, or to plaintiff, if no attorney is named above. A telephone call will not protect
your rights; you must file and serve a written answer or motion (with fee of $135.00 and completed Case
Information Statement) if you want the court to hear your defense.
If you do not file and serve a written answer or motion within 35 days, the court may enter a
judgment against you for the relief plaintiff demands, plus interest and costs of suit. If judgment is
entered against you, the Sheriff may seize your money, wages or property to pay all or part of the
judgment.
If you cannot afford an attorney, you may call the Legal Services office in the county where you live
or the Legal Services of New Jersey Statewide Hotline at 1-888-LSNJ-LAW (1-888-576-5529). A list of
these offices is provided. If you do not have an attorney and are not eligible for free legal assistance, you
may obtain a referral to an attorney by calling one of the Lawyer Referral Services. A list of these
numbers is also provided.
________________________________
Clerk of the Superior Court
DATED:
Name of Defendant to Be Served:
Address of Defendant to Be Served:
-------------------------------------------------------
— 33 —
ATLANTIC COUNTY:
Deputy Clerk of the Superior Court
Civil Division, Direct Filing
1201 Bacharach Blvd., First Fl.
Atlantic City, NJ 08401
LAWYER REFERRAL
(609) 345-3444
LEGAL SERVICES
(609) 348-4200
BERGEN COUNTY:
Deputy Clerk of the Superior Court
Case Processing Section, Room 119
Justice Center, 10 Main St.
Hackensack, NJ 07601-0769
LAWYER REFERRAL
(201) 488-0044
LEGAL SERVICES
(201) 487-2166
BURLINGTON COUNTY:
Deputy Clerk of the Superior Court
Central Processing Office
Attn: Judicial Intake
First Fl., Courts Facility
49 Rancocas Rd.
Mt. Holly, NJ 08060
LAWYER REFERRAL
(609) 261-4862
LEGAL SERVICES
(800) 496-4570
CAMDEN COUNTY:
Deputy Clerk of the Superior Court
Civil Processing Office
1st Fl., Hall of Records
101 S. Fifth St.
Camden, NJ 08103
LAWYER REFERRAL
(856) 964-4520
LEGAL SERVICES
(856) 964-2010
CAPE MAY COUNTY:
Deputy Clerk of the Superior Court
9 N. Main Street
Box DN-209
Cape May Court House, NJ 08210
LAWYER REFERRAL
(609) 463-0313
LEGAL SERVICES
(609) 465-3001
CUMBERLAND COUNTY:
Deputy Clerk of the Superior Court
— 34 —
Civil Case Management Office
Broad & Fayette Sts., P.O. Box 615
Bridgeton, NJ 08302
LAWYER REFERRAL
(856) 692-6207
LEGAL SERVICES
(856) 451-0003
ESSEX COUNTY:
Deputy Clerk of the Superior Court
50 West Market Street
Room 131
Newark, NJ 07102
LAWYER REFERRAL
(973) 622-6207
LEGAL SERVICES
(973) 624-4500
GLOUCESTER COUNTY:
Deputy Clerk of the Superior Court
Civil Case Management Office
Attn: Intake
First Fl., Court House
1 North Broad Street, P.O. Box 750
Woodbury, NJ 08096
LAWYER REFERRAL
(856) 848-4589
LEGAL SERVICES
(856) 848-5360
HUDSON COUNTY:
Deputy Clerk of the Superior Court
Superior Court, Civil Records Dept.
Brennan Court House--1st Floor
583 Newark Ave.
Jersey City, NJ 07306
LAWYER REFERRAL
(201) 798-2727
LEGAL SERVICES
(201) 792-6363
HUNTERDON COUNTY:
Deputy Clerk of the Superior Court
Civil Division
65 Park Avenue
Flemington, NJ 08822
LAWYER REFERRAL
(908) 263-6109
LEGAL SERVICES
(908) 782-7979
MERCER COUNTY:
Deputy Clerk of the Superior Court
Local Filing Office, Courthouse
175 S. Broad Street, P.O. Box 8068
Trenton, NJ 08650
— 35 —
LAWYER REFERRAL
(609) 585-6200
LEGAL SERVICES
(609) 695-6249
MIDDLESEX COUNTY:
Deputy Clerk of the Superior Court
Administration Building
Third Floor
1 Kennedy Sq., P.O. Box 2633
New Brunswick, NJ 08903-2633
LAWYER REFERRAL
(732) 828-0053
LEGAL SERVICES
(732) 249-7600
MONMOUTH COUNTY:
Deputy Clerk of the Superior Court
Court House
71 Monument Park
P.O. Box 1269
Freehold, NJ 07728-1269
LAWYER REFERRAL
(732) 431-5544
LEGAL SERVICES
(732) 866-0020
MORRIS COUNTY:
Deputy Clerk of the Superior Court
Civil Division
30 Schuyler Pl., P.O. Box 910
Morristown, NJ 07960-0910
LAWYER REFERRAL
(973) 267-5882
LEGAL SERVICES
(973) 285-6911
OCEAN COUNTY:
Deputy Clerk of the Superior Court
Court House, Room 119
118 Washington Street
Toms River, NJ 08754
LAWYER REFERRAL
(732) 240-3666
LEGAL SERVICES
(732) 341-2727
PASSAIC COUNTY:
Deputy Clerk of the Superior Court
Civil Division
Court House
77 Hamilton St.
Paterson, NJ 07505
LAWYER REFERRAL
(973) 278-9223
LEGAL SERVICES
— 36 —
(973) 523-2900
SALEM COUNTY:
Deputy Clerk of the Superior Court
92 Market St., P.O. Box 18
Salem, NJ 08079
LAWYER REFERRAL
(856) 678-8363
LEGAL SERVICES
(856) 451-0003
SOMERSET COUNTY:
Deputy Clerk of the Superior Court
Civil Division Office
New Court House, 3rd Fl.
P.O. Box 3000
Somerville, NJ 08876
LAWYER REFERRAL
(908) 685-2323
LEGAL SERVICES
(908) 231-0840
SUSSEX COUNTY:
Deputy Clerk of the Superior Court
Sussex County Judicial Center
43-47 High Street
Newton, NJ 07860
LAWYER REFERRAL
(973) 267-5882
LEGAL SERVICES
(973) 383-7400
UNION COUNTY:
Deputy Clerk of the Superior Court
1st Fl., Court House
2 Broad Street
Elizabeth, NJ 07207-6073
LAWYER REFERRAL
(908) 353-4715
LEGAL SERVICES
(908) 354-4340
WARREN COUNTY:
Deputy Clerk of the Superior Court
Civil Division Office
Court House
413 Second Street
Belvidere, NJ 07823-1500
LAWYER REFERRAL
(908) 387-1835
LEGAL SERVICES
(908) 475-2010
______________
— 37 —
Note: Adopted July 13, 1994, effective September 1, 1994; amended June 28, 1996,
effective September 1, 1996; address/phone information updated July 1, 1999, effective
September 1, 1999; amended July 12, 2002 to be effective September 3, 2002; amended July 27,
2006 to be effective September 1, 2006; address/phone information updated October 10, 2006 to
be effective immediately; address/phone information updated November 1, 2006 to be effective
immediately; address/phone information updated November 17, 2006 to be effective
immediately; amended to be effective .
— 38 —
J. Proposed Amendments to R. 4:4-3 — By Whom Served; Copies
Rule 4:4-3 states, “Summonses shall be served, together with a copy of the complaint, by
the sheriff, or by a person specially appointed by the court for that purpose, or by plaintiff’s
attorney or the attorney’s agent, or by any other competent adult not having a direct interest in
the litigation.” A practitioner questioned whether this language gives a sheriff the authority to
delegate his/her service of a summons and complaint to a private process server. Reportedly,
this practice is becoming widespread. The Committee agreed that a practitioner should be able
to choose whether the sheriff or a private process server should be used. If a practitioner chooses
to have the sheriff serve a summons in a case, it is generally because it is less expensive than a
private process server and because the practitioner wants the authority of the sheriff’s office
behind the case. The Committee recognized that time constraints and staffing inadequacies may
make it difficult for the sheriff to attend to the service of process requests, but was adamant that
the practitioner’s choice should be honored. Accordingly, the Committee recommends that the
rule be amended to prohibit a sheriff from delegating the service of process to a private process
server.
The proposed amendments to R. 4:4-3 follow.
— 39 —
4:4-3. By Whom Served; Copies
(a) Summons and Complaint. Summonses shall be served, together with a copy of
the complaint, by the sheriff, or by a person specially appointed by the court for that purpose, or
by plaintiff's attorney or the attorney's agent, or by any other competent adult not having a direct
interest in the litigation. If a party opts for service by the sheriff, service shall be made by a
sheriff’s officer, but if such service is not effected within 30 days, the party may request the
return of process and then elect private service. If personal service cannot be effected after a
reasonable and good faith attempt, which shall be described with specificity in the proof of
service required by R. 4:4-7, service may be made by mailing a copy of the summons and
complaint by registered or certified mail, return receipt requested, to the usual place of abode of
the defendant or a person authorized by rule of law to accept service for the defendant or, with
postal instructions to deliver to addressee only, to defendant's place of business or employment.
If the addressee refuses to claim or accept delivery of registered or certified mail, service may be
made by ordinary mail addressed to the defendant's usual place of abode. The party making
service may, at the party's option, make service simultaneously by registered or certified mail
and ordinary mail, and if the addressee refuses to claim or accept delivery of registered mail and
if the ordinary mailing is not returned, the simultaneous mailing shall constitute effective service.
Mail may be addressed to a post office box in lieu of a street address only as provided by R. 1:5-
2. Return of service shall be made as provided by R. 4:4-7.
(b) …no change.
(c) …no change.
Note: Source — R.R. 4:4-3, 5:5-1(c), 5:2-2; amended July 14, 1992 to be effective
September 1, 1992; paragraph (b) amended July 13, 1994 to be effective September 1, 1994;
— 40 —
captions and text of paragraphs (a) and (b) deleted and replaced with new captions and text July
5, 2000 to be effective September 5, 2000; paragraph (c) added July 12, 2002 to be effective
September 3, 2002; paragraph (a) amended to be effective .
— 41 —
K. Proposed Amendments to R. 4:12-4 — Disqualification for Interest
At its June 2009 meeting, the Committee rejected a proposal to amend R. 4:12-4
expressly to permit the use of in-house, rather than third-party, videographers to record video
depositions. The Committee was subsequently asked if the rule should be amended to expressly
prohibit this practice. The Committee agreed that the general prohibition against recording a
deposition by a certified shorthand reporter “who is a relative, employee or attorney of a party or
relative or employee of such attorney or is financially interested in the action” should apply to
videographers as well. Therefore, the Committee recommends adding the word “videographed”
to the opening sentence of the rule to accomplish this purpose.
See Section II.H. of this Report for proposed amendments to R. 4:12-4 that the
Committee does not recommend.
The proposed amendments to R. 4:12-4 follow.
— 42 —
4:12-4 Disqualification for Interest
No deposition shall be taken before or videographed or recorded by a person, whether or
not a certified shorthand reporter, who is a relative, employee or attorney of a party or a relative
or employee of such attorney or is financially interested in the action. Any regulations of the
State Board of Shorthand Reporters respecting disqualification of certified shorthand reporters
shall apply to all persons taking or recording a deposition.
Note: Source — R.R. 4:18-4. Amended July 17, 1975 to be effective September 8,
1975; amended July 12, 2002 to be effective September 3, 2002; amended to be
effective .
— 43 —
L. Proposed Amendments to R. 4:17-5 ─ Objections to Interrogatories
A plaintiff’s attorney had suggested that the discovery rules be amended to add a section
addressing the general objections found in the preamble to the answers to most interrogatories.
The practitioners on the Committee agreed overwhelmingly that the rule governing the manner
in which objections to interrogatory questions should be made is abused all the time. Because
the practice of stating boilerplate general objections is widespread and in seeming contradiction
to R. 4:17-4, which appears to contemplate that there should be nothing in the answers to
interrogatories but answers, not disclaimers, the matter was referred to the Discovery
Subcommittee. A majority of the subcommittee concluded that the routine practice of prefacing
all answers to interrogatories with a lengthy list of general objections that do not identify to
which of the numbered interrogatories they apply is implicitly prohibited by R. 4:17-5(a). They
agreed that this implicit prohibition is inadequate to address the problem and recommended that
the rule be amended to state that general objections are not permitted and that specific objections
to each question should be stated. The subcommittee further recommended that the provisions of
R. 4:23-1(c) (award of expenses of a motion for an order compelling discovery) should be made
applicable to R. 4:17-5 to complement the “good-faith effort to resolve” requirement of R. 1:6-
2(c) by providing an incentive for parties to thoroughly evaluate the merits of their positions
before resorting to motion practice. Such a rule change would provide an award of reasonable
expenses, including attorney’s fees, to a party prevailing on such a motion, unless the court finds
that the party’s conduct in making or opposing the motion was substantially justified or that an
award would be unjust in the circumstances presented. The Committee supported both
recommendations and further suggested that the rule be restructured to distinguish among the
— 44 —
three concepts — the prohibition against general objections, grounds for specific objections and
the award of expenses under R. 4:23-6(c).
The Sanctions Subcommittee, charged with making recommendations as to whether
attorney’s fees should be included as a sanction, also reviewed R. 4:17-5(d). It recommended
that the provisions of R. 4:23-1(c) apply to the award of expenses incurred in relation to motions
made pursuant to this rule — namely, that if the motion is granted, the court shall, after
opportunity for a hearing, require the party or defendant whose conduct necessitated the motion
to pay the moving party’s reasonable expenses, including attorney’s fee, unless the court finds
that the opposition to the motion was substantially justified or that other circumstances make an
award of expenses unjust; similarly, if the motion is denied, the objecting party would be
awarded expenses. Such an amendment would be consistent with other rules, specifically
R. 4:10-3, R. 4:14-4 and R. 4:22-1, which already incorporate the sanction provisions of R. 4:23-
1(c). The full Committee endorsed the recommendations of the Discovery and Sanctions
Subcommittee.
The proposed amendments to R. 4:17-5 follow.
— 45 —
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.]
General Objections. General objections to the interrogatories as a whole are not
permitted and shall be disregarded by the court and adverse parties.
(b) Specific Objections. A party served with interrogatories who objects to any
specific question propounded therein may either state with specificity the ground of objection
and answer the question subject to the stated objection, or, within 20 days after being served with
the interrogatories, serve a notice of motion returnable at the earliest possible time to strike any
question setting forth the grounds of the objection. The answering party shall, however, answer
all questions not objected to as herein provided. The propounder of the question objected to
may, within 20 days after service of the answer, move to strike the objection and compel an
answer. Questions not stricken or to which an answer is compelled shall be answered within the
time fixed by the court.
— 46 —
[(b)](c) …no change.
[(c)](d) …no change.
[(d)](e) [Costs and Fees] Award of Expenses 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.] The provisions of
R. 4:23-1(c) apply to expenses incurred on motions made pursuant to this rule.
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; paragraph (a) amended, new
paragraph (b) added, former paragraph (b) becomes new paragraph (c), former paragraph (c)
becomes new paragraph (d), and former paragraph (d) becomes new paragraph (e) as amended
to be effective .
— 47 —
M. Proposed Amendments to R. 4:18-1 ─ Production of Documents
In conjunction with its recommendation to recommend a prohibition against general
objections to interrogatories in R. 4:17-5, the Committee also agreed that the prohibition should
be included in R. 4:18-1 and that the rule should require a certification that all documents
relevant to the request were produced. This matter had been initially considered by the
Discovery Subcommittee, which unanimously recommended that R. 4:18-1(b) be restructured to
address four aspects of the procedure for production of documents: (1) the procedure for the
request; (2) the procedure for response to the request; (3) the continuing obligation with respect
to the request; and (4) the procedure for dealing with objections and the failure to respond. The
restructuring is intended to clarify and segregate the specific subparts of the rule. The
Committee endorsed this proposal. Additionally, the subcommittee drafted a form certification
to be completed by the person fulfilling the document request. The Committee rejected the
proposed form certification as being overly complicated. The Committee agreed that it would be
sufficient for the individual to certify that, as of that date, the production is complete and
accurate to the best of his/her knowledge and information, based on either personal knowledge or
information provided by others. The Committee proposes that the language of the certification
be included in the rule.
The proposed amendments to R. 4:18-1 follow.
— 48 —
4:18-1 Production of Documents, Electronically Stored Information, and Things and Entry Upon
Land for Inspection and Other Purposes; Pre-Litigation Discovery
(a) …no change.
(b) Procedure; Continuing Obligation; Failure to Respond; Objections; Motions.
(1) Procedure for Request. 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.
(2) Procedure for Response. 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
— 49 —
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.] shall be made by the
party upon whom it is served if an individual, or, if a governmental, commercial, or charitable
entity, by an officer or agent thereof. The person making the response shall swear or certify in
the form prescribed by paragraph (c) of this rule that it is complete and accurate based on
personal knowledge and/or upon information if provided by others, whose identity and source of
knowledge shall be disclosed. The written response shall be served on the requesting party and a
copy on all other parties. The written response shall either include the requested documents or
other material or state, with respect to each item or category, that inspection and related activities
will be permitted as requested. If the written response provides documents to the requesting
party, those documents shall be provided to or made available to any other party upon request.
Unless the parties otherwise agree, or the court otherwise orders:
[(1)](A) 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;
— 50 —
[(2)](B) 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)](C) a party need not produce the same electronically stored information in
more than one form.
(3) Continuing Obligation. 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, a supplemental written response
and production of such documents, as appropriate, shall be served promptly.
(4) Objections; Failure to Respond; Motions. General objections to the request as a
whole are not permitted and shall be disregarded by the court and adverse parties. The party
upon whom the request is served may, however, object to a request on specific grounds and, if on
the ground of privilege or accessibility of electronically stored information, the objection shall be
made in accordance with R. 4:10-2(e) and (f) respectively. The requesting party 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. The provisions of R. 4:23-1(c) apply to the award of expenses
incurred in relation to motions made pursuant to this rule.
(c) Certification or Affidavit of Completeness. The person responding to the request
shall submit with the response a certification stating or affidavit averring as follows:
I hereby certify (or aver) that I have reviewed the document production request and that I
have made or caused to be made a good faith search for documents responsive to the request. I
further certify (or aver) that as of this date, to the best of my knowledge and information, the
— 51 —
production is complete and accurate based on ( ) my personal knowledge and/or ( ) information
provided by others. The following is a list of the identity and source of knowledge of those who
provided information to me:
(d) 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; paragraph (b) amended, new paragraph (c)
added, and former paragraph (c) becomes new paragraph (d) to be effective .
— 52 —
N. Proposed Amendments to R. 4:24-1 — Time for Completion of Discovery
The Civil Presiding Judges and Civil Division Managers raised two issues concerning
rule amendments recommended and adopted during the last rules cycle:
1. In a prior iteration, R. 4:24-1(c) mandated that orders for an extension of
discovery describe the discovery to be completed. In the last rules cycle, the
Discovery Subcommittee recommended, the Committee endorsed and the
Supreme Court adopted an amendment to R. 4:24-1(c) to require the court to enter
an order extending discovery for good cause shown upon the restoration of a
pleading dismissed or suppressed pursuant to R. 1:13-7 or R. 4:23-5(a)(1), with
the order specifying the discovery to be completed and the time for completion.
As part of that rule amendment, the requirement that the order describe the
discovery to be completed was changed from the mandatory “shall” to the
permissive “may.” The Civil Presiding Judges and Civil Division Managers
requested that the language be changed back to mandate the inclusion of a
description of the discovery to be completed.
2. The amendments to R. 4:24-1(c) that were adopted in the last rules cycle address
the entry of an order extending discovery when a pleading has been restored. As
the rule currently reads, it appears that the last two sentences of subsection (c),
addressing the extension order and the prohibition of a further extension of
discovery unless exceptional circumstances are shown, apply only when a
pleading has been restored. It was requested that the rule be amended to clarify
that the contents of the extension order and the limitation on further extensions
apply to all cases, not just those where a pleading has been restored.
— 53 —
The Committee agreed with the suggestions but recognized that the drafting issue had to
address two situations — one in which the pleading is restored following a dismissal under
R. 1:13-7 or R. 4:23-5(a)(1) and where the extent and degree of outstanding discovery may not
be known by the restored party, and the other in which the pleading is restored following a
showing of good cause and where the outstanding discovery is known. In the first case, the
Committee agreed that the order extending discovery may specify the discovery to be completed.
In the second situation, the Committee determined that the order extending discovery must
specify the discovery to be completed. Accordingly, the Committee proposes amendments to
R. 4:24-1(c) to clarify what may and what must be contained in the order extending discovery in
both these situations.
The Committee further proposes to amend the rule to allow motions to extend discovery
to be filed and served prior to the discovery end date rather than to require such motions to be
made returnable before that date, as now.
See Section II.K. of this Report for proposed amendments to R. 4:24-1 that the
Committee does not recommend.
The proposed amendments to R. 4:24-1 follow.
— 54 —
4:24-1. Time for Completion of Discovery
(a) …no change
(b) …no change
(c) Extensions of Time. The parties may consent to extend the time for discovery for
an additional 60 days by stipulation filed 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] filed and served 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 R.[ule] 1:13-7 or R.[ule] 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 and may describe the discovery to be
completed. If the time for discovery is extended for other good cause, [T]the [extension] court’s
order [may] shall specify the date by which discovery shall be completed and describe the
discovery to be completed. Any order of extension may include [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) … no change.
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)
— 55 —
and (c) amended July 9, 2008 to be effective September 1, 2008; paragraph (c) amended
to be effective .
— 56 —
O. Proposed Amendments to R. 4:36-3 — Trial Calendar
An Assignment Judge pointed out that there may be some confusion with regard to how
this rule is read and applied. Subsection (b) — Adjournments, Generally — deals with an initial
request for an adjournment to accommodate a scheduling conflict or the unavailability of an
attorney, a party or a witness. Presumably, “witness” includes expert witnesses. Subsection (c)
— Adjournments, Expert Unavailability— deals only with expert witnesses. It states, “[i]f the
reason stated for the initial request for an adjournment was the unavailability of an expert
witness…”, and seems to imply that if the initial request for an adjournment was based on
something other than the unavailability of a witness, the rest of the sentence does not apply.
Thus, one could make a subsequent request for an adjournment, this time based on the
unavailability of a witness, and the exceptional circumstances standard as well as the
requirement that the expert appear would not apply. He suggested that the first sentence of (c) be
amended to read, “If the reason stated for a prior request for an adjournment was the
unavailability of an expert witness…” Such an amendment would then make any request for an
adjournment based on witness unavailability, not just the initial one, subject to the requirements
of subsection (c).
The Committee agreed with the proposal to change “initial” request to “prior” request for
an adjournment, thus eliminating an unintended loophole that would have allowed a party to
make subsequent requests for adjournments based on the unavailability of an expert witness and
circumvent the exceptional circumstances standard and the requirement that the witness appear if
the initial request for an adjournment was not based on the witness’s unavailability.
The proposed amendments to R. 4:36-3 follow.
— 57 —
4:36-3. Trial Calendar
(a) …no change.
(b) …no change.
(c) Adjournments, Expert Unavailability. If the reason stated for [the initial] a prior
request for an adjournment was the unavailability of an expert witness, no further adjournment
request based on that expert's unavailability shall be granted, except upon a showing of
exceptional circumstances, but rather that expert shall be required to appear in person or by
videotaped testimony taken pursuant to R. 4:14-9 or, provided all parties consent, the expert's de
bene esse deposition shall be read to the jury in lieu of the expert's appearance. If appropriate,
given the circumstances of the particular case, the court may order that no further adjournments
will be granted for the failure of any expert to appear.
Note: Adopted July 5, 2000 to be effective September 5, 2000; corrective amendment to
paragraph (c) adopted September 12, 2000 to be effective immediately; paragraph (c) amended
July 12, 2002 to be effective September 3, 2002; paragraph (a) amended July 27, 2006 to be
effective September 1, 2006; paragraph (c) amended to be effective .
— 58 —
P. Proposed Amendments to R. 4:42-9 — Counsel Fees
Judge Pressler brought the question of counsel fees for protesters in strategic litigation
against public participation (SLAPP) suits to the Committee’s attention. SLAPP suits are
employed by businesses to stifle the exercise by protesting citizens of First Amendment rights to
free speech and to petition government for redress. The lawsuits against protesters allege causes
of action sounding in defamation, various business torts, conspiracy and nuisance. Although
SLAPP suits are often dismissed on the ground that the activities of the protesters are protected
by the First Amendment, such suits are nonetheless effective to the extent that they typically
require the protester-defendants to incur very substantial counsel fees. Recently, the Supreme
Court held that SLAPP plaintiffs are protected if they brought the suit on advice of counsel and
that counsel giving the advice is protected unless proved to have been actuated by malice. See
LoBiondo v. Schwartz (LoBiondoII), 199 N.J. 62 (2009). The protester-defendants were
vindicated on the merits, but were left without a remedy for the litigation expenses and other
damages. Judge Pressler suggested that R. 4:49-9(a) be amended to provide that if a suit against
SLAPP defendants is dismissed on First Amendment grounds, the protesters will be entitled to
an award of all costs of suit, including attorney’s fees. The Committee agreed with the proposal.
See Section I.V. of this Report for a housekeeping amendment to R. 4:64-1 that the
Committee recommends.
The proposed amendments to R. 4:42-9 follow.
— 59 —
4:42-9 [Counsel] Attorney’s Fees
(a) Actions in Which Fee Is Allowable. No fee for legal services shall be allowed in
the taxed costs or otherwise, except
(1) …no change.
(2) …no change.
(3) …no change.
(4) …no change.
(5) In an action to foreclose a tax certificate or certificates, the court may award [a
counsel] attorney’s fees not exceeding $500 per tax sale certificate in any in rem or in personam
proceeding except for special cause shown by affidavit. If the plaintiff is other than a
municipality no [counsel] attorney’s fees shall be allowed unless prior to the filing of the
complaint the plaintiff shall have given not more than 120 nor fewer than 30 days' written notice
to all parties entitled to redeem whose interests appear of record at the time of the tax sale, by
registered or certified mail with postage prepaid thereon addressed to their last known addresses,
of intention to file such complaint. The notice shall also contain the amount due on the tax lien
as of the day of the notice. A copy of the notice shall be filed in the office of the municipal tax
collector.
(6) …no change.
(7) …no change.
(8) In all cases where [counsel] attorney’s fees are permitted by statute.
(9) In a SLAPP suit (strategic litigation against public participation) which terminates
in favor of the defendant on the ground that the activity complained of is protected by the free
— 60 —
speech clause or the right to petition clause of the First Amendment of the federal and state
constitutions.
(b) …no change.
(c) …no change.
(d) …no change.
Note: Source — R.R. 4:55-7(a) (b) (c) (d) (e) (f), 4:55-8, 4:98-4(c). Paragraphs (a) and
(b) amended July 7, 1971 to be effective September 13, 1971; paragraph (a) amended November
27, 1974 to be effective April 1, 1975; paragraph (a) amended July 16, 1981 to be effective
September 14, 1981; paragraph (a)(1) amended December 20, 1983 to be effective December 31,
1983; paragraphs (a)(1) and (b) amended November 1, 1985 to be effective January 2, 1986;
paragraph (b) amended January 19, 1989 to be effective February 1, 1989; paragraph (a)(4)
amended June 29, 1990 to be effective September 4, 1990; paragraph (a)(5) amended July 14,
1992 to be effective September 1, 1992; paragraphs (a)(1), (2) and (c) amended July 13, 1994 to
be effective September 1, 1994; paragraph (a)(5) amended June 28, 1996 to be effective
September 1, 1996; paragraph (a)(1) amended January 21, 1999 to be effective April 5, 1999;
paragraph (a)(5) amended July 28, 2004 to be effective September 1, 2004; paragraph (a)(3)
amended July 27, 2006 to be effective September 1, 2006; paragraphs (a)(5) and (8) amended,
and new paragraph (a)(9) added to be effective .
— 61 —
Q. Proposed Amendments to R. 4:58 — Offer of Judgment
The Offer of Judgment Subcommittee was reconstituted to consider several issues
regarding offer of judgment procedures:
1. The Committee asked the subcommittee to review the offer of judgment rule as it
applies to the situation where the offer meets the standard for relief when
compared to the jury verdict, but is less than the 120% threshold of the final
judgment when molded to the limit of an insurance policy. The subcommittee
determined that the issue arises most frequently in connection with UM/UIM
cases, and then only when the insured has made an offer of judgment at or below
policy limits. If the rule applies to the judgment, and not to the jury’s verdict, the
insurer has little incentive for settlement since its exposure cannot exceed the
molded judgment. The subcommittee agreed that the rule should be amended to
permit comparison of the jury award to the offer of judgment, but that the
remaining conditions for recovery of attorney’s fees set forth in R. 4:58-2 should
remain the same, including the 20% spread contained in that rule.
The Committee endorsed the recommendation of the subcommittee to
amend R. 4:58-2.
2. The subcommittee reviewed a proposal from a practitioner to clarify the
language of R. 4:58-2(a)(3) which requires, under specified circumstances, an
award of “a reasonable attorney’s fee, which shall belong to the client, for such
subsequent services as are compelled by the non-acceptance” of the offer of
judgment (emphasis added). Research revealed no reason for the phrase and the
subcommittee proposed to eliminate it, leaving the disposition of the funds up to
— 62 —
the discretion of the court or to negotiations between the parties and their
attorneys.
The Committee agreed with the subcommittee’s position.
3. The subcommittee discussed the issue raised in Negron v. Melchiorre, 389 N.J.
Super. 70 (2006), certif. denied, 190 N.J. 256 (2007) regarding the
application/survival of the offer of judgment when mistrials have occurred. In
that case, the Appellate Division held that the offer of judgment survived two
mistrials. A majority of the subcommittee was of the opinion that the rule should
be amended to require renewal of the offer in the event of a retrial and proposed a
rule amendment so requiring.
The Committee recognized that the passage of time and intervening events
between trials warrant the refiling of an offer to put parties on notice that an offer
extended but was not accepted. The Committee took the position that the onus
should be on the offeror to refile the offer with notice to the parties. The
Committee considered the situation where two offers were made and both met the
20% “fudge” factor when the final judgment was entered. It determined that, in
such a case, the award of fees should be retroactive to the first offer. Accordingly
the Committee proposes a new section to the rule to detail the effect of a new trial
on a previously tendered offer of judgment. Inserting the provisions relating to a
new trial requires the redesignation of current R. 4:58-5 as R. 4:58-6.
The proposed amendments to R. 4:58-2, new rule R. 4:58-5, and redesignated R. 4:58-6
follow.
— 63 —
4:58-2. Consequences of Non-Acceptance of Claimant's Offer
(a) If the offer of a claimant is not accepted and the claimant obtains a money
judgment, in an amount that is 120% of the offer or more, excluding allowable prejudgment
interest and counsel fees, the claimant shall be allowed, in addition to costs of suit: (1) all
reasonable litigation expenses incurred following non-acceptance; (2) prejudgment interest of
eight percent on the amount of any money recovery from the date of the offer or the date of
completion of discovery, whichever is later, but only to the extent that such prejudgment interest
exceeds the interest prescribed by R. 4:42-11(b), which also shall be allowable; and (3) a
reasonable attorney's fee[, which shall belong to the client,] for such subsequent services as are
compelled by the non-acceptance.
(b) …no change.
(c) In cases in which recovery, in the absence of bad faith, cannot exceed insurance
policy limits, including but not limited to UM/UIM disputes, recovery by the claimant as set
forth in paragraph (a) shall be measured by considering the difference between the jury's verdict
and the claimant's offer.
Note: Amended July 7, 1971 to be effective September 13, 1971; amended July 14,
1972 to be effective September 5, 1972; amended July 17, 1975 to be effective September 8,
1975; amended July 13, 1994 to be effective September 1, 1994; amended July 5, 2000 to be
effective September 5, 2000; amended July 28, 2004 to be effective September 1, 2004; text
amended and designated as paragraph (a), new paragraph (b) adopted July 27, 2006 to be
effective September 1, 2006; paragraph (a) amended and new paragraph (c) added
to be effective .
— 64 —
4:58-5. New Trial
If an action is required to be retried, a party who made a rejected offer of judgment in the
original trial may, within 10 days after the fixing of the first date for the retrial, serve a notice on
the offeree that the offer then made is renewed and, if the offeror prevails, the renewed offer will
be effective as of the date of the original offer. If the offeror elects not to so renew the original
offer, a new offer may be made under this rule, which will be effective as of the date of the new
offer.
Note: Adopted July 27, 2006 to be effective September 1, 2006; new caption and text to
R. 4:58-5 adopted to be effective .
— 65 —
4:58-[5]6. Application for Fee; Limitations
Applications for allowances pursuant to R. 4:58 shall be made in accordance with the
provisions of R. 4:42-9(b) within 20 days after entry of final judgment. A party who is awarded
counsel fees, costs, or interest as a prevailing party pursuant to a fee-shifting statute, rule of
court, contractual provision, or decisional law shall not be allowed to recover duplicative fees,
costs, or interest under this rule.
Note: Adopted July 27, 2006 to be effective September 1, 2006; former R. 4:58-5
redesignated as R. 4:58-6 to be effective .
— 66 —
R. Proposed Amendments to R. 4:59-1 ─ Execution
The Committee considered several proposals to amend this rule:
1. In the last rules cycle, the Committee had recommended an amendment to
R. 4:59-1 to indicate that the Notice to Debtor should be mailed to the debtor’s
residence or, if the debtor is an entity, to the debtor’s principal place of business.
The purpose of this proposed amendment was to clarify to whom the Notice to
Debtor should be mailed when the debtor is a corporation. During the comment
period, it was pointed out that, although the due process concerns of Finberg v.
Sullivan, 634 F.2d 93 (3d Cir. 1981) regarding notice and an opportunity to be
heard must be considered, the exemptions identified with the Notice to Debtor are
not applicable to corporate entities pursuant to N.J.S.A. 2A:17-19. The proposed
amendment was withdrawn from consideration by the Supreme Court and referred
back to both this Committee and the Special Civil Part Practice Committee for
further review.
The Committee revisited the issue and reiterated its concern that all
debtors should be noticed of a pending execution, regardless of whether they were
entitled to an exemption or not. Accordingly, the Committee recommends the
inclusion of language so stating in R. 4:59-1.
2. A judge reported that she was receiving motions in which a judgment creditor
seeks an Order that will compel a judgment debtor to permit a sheriff’s officer to
enter the debtor’s residence to conduct an inventory of non-exempt personal
property that might be available to satisfy the judgment. The judge asserted that
R. 4:59-1 does not authorize this practice and that it is contrary to the procedure
— 67 —
identified in Spiegel, Inc. v. Taylor, 148 N.J. Super. 79 (Cty. Ct. 1977) that
imposes a burden on the judgment creditor to identify property subject to the levy
and to establish a reasonable basis for the belief that such property is actually
present before an order allowing an inventory will issue. N.J.S.A. 2A: 17-1
requires that personal property must be levied upon before the judgment creditor
can look to real estate to satisfy a judgment. The problem arises when the
judgment debtor has failed to cooperate with discovery requests and the creditor
needs to know what non-exempt personal property may be available before going
after real estate.
The Committee members agreed that there is no authority for the sheriff to
enter a debtor’s residence merely to see if there is any personal property that
might be sold to satisfy the judgment. On the other hand, they realized that if the
debtor refuses to cooperate with discovery, it becomes impossible for the creditor
to determine what property might be available to satisfy the judgment. They were
of the opinion that the debtor’s lack of cooperation with the post-judgment
discovery process should have a consequence.
Initially, the Committee considered whether the lack of cooperation could
itself be deemed a waiver of N.J.S.A. 2A: 17-1. Legal Services of New Jersey
objected strongly to this, asserting that there is no authority that would allow a
court rule to provide a waiver to a statutory provision requiring judgment
creditors to exhaust the personalty of judgment debtors before executing on real
estate. Legal Services alleged that virtually every other state has a statutory
homestead exemption that applies to judgment executions and that N.J.S.A.
— 68 —
2A:17-1 has functioned as a de facto homestead exemption from collection in
New Jersey. The Committee agreed with arguments advanced by Legal Services.
In considering the same issue, the Conference of Civil Presiding Judges
had suggested that R. 4:59-1 be amended to require a motion to execute on real
property accompanied by a certification listing in detail the steps taken to satisfy
the debt by other means. The Committee endorsed this proposal, reasoning that
such a procedure would act as an incentive to encourage the debtor’s cooperation
while providing a measure of protection against having a home sold for the
payment of what might well be a relatively small credit card debt. Legal Services
requested that the notice of motion be required to include a statement that failure
to respond to the motion may result in the loss of a home and a listing of Legal
Services Offices and Lawyer Referral Offices, as required by R. 4:4-2. The
Committee supported this position and recommends that the rule be amended
accordingly.
The proposed amendments to R. 4:59-1 follow.
— 69 —
4:59-1. Execution
(a) …no change.
(b) …no change.
(c) [Execution First Made Out of Property of Party Primarily Liable] Order of
Property Subject to Execution; Required Motion.
(1) Execution First Made Out of Personal Property; Motion. The execution shall be
made out of the judgment debtor’s personal property before the judgment creditor may have
recourse to the debtor’s real property. If the debtor’s personal property is insufficient or cannot
be located, the judgment creditor shall file a motion, on notice, for an order permitting execution
to be made out of real property. The motion, which shall not be joined with any other
application for relief, shall be supported by a certification specifying in detail the actions taken
by the judgment creditor to locate and proceed against personal property. The notice of motion
shall state that if the motion is not successfully defended, the judgment debtor’s real property
will be subject to execution and sale. The notice shall have annexed the listing of Legal Services
Offices and Lawyer Referral Offices as required by R. 4:4-2. No execution out of real property
shall proceed unless an order granting the motion has been entered.
(2) Execution First Made Out of Property of Party Primarily Liable. If a writ of
execution is issued against several parties, some liable after the others, the court before or after
the levy may, on application of any of them and on notice to the others and the execution
creditor, direct the sheriff or other officer that, after levying upon the property liable to
execution, he or she raise the money, if possible, out of the property of the parties in a designated
sequence.
(d) …no change.
— 70 —
(e) …no change.
(f) …no change.
(g) Notice to Debtor. Every court officer or other person levying on a debtor's
property shall, on the day the levy is made, mail a notice to the last known address of the person
whose assets are to be levied on stating that a levy has been made and describing exemptions
from levy and how such exemptions may be claimed. The notice shall be in the form prescribed
by Appendix VI to these rules and copies thereof shall be promptly filed by the levying officer
with the clerk of the court and mailed to the person who requested the levy. If the clerk or the
court receives a claim of exemption, whether formal or informal, it shall hold a hearing thereon
within 7 days after the claim is made. If an exemption claim is made to the levying officer, it
shall be forthwith forwarded to the clerk of the court and no further action shall be taken with
respect to the levy pending the outcome of the exemption hearing. No turnover of funds or sale
of assets may be made, in any case, until 20 days after the date of the levy and the court has
received a copy of the properly completed notice to debtor.
(h) …no change.
Note: Source — R.R. 4:74-1, 4:74-2, 4:74-3, 4:74-4. Paragraph (c) amended November
17, 1970 effective immediately; paragraph (d) amended July 17, 1975 to be effective September
8, 1975; paragraph (a) amended, new paragraph (b) adopted and former paragraphs (b), (c), (d),
and (e) redesignated (c), (d), (e) and (f) respectively, July 24, 1978 to be effective September 11,
1978; paragraph (b) amended July 21, 1980 to be effective September 8, 1980; paragraphs (a)
and (b) amended July 15, 1982 to be effective September 13, 1982; paragraph (d) amended July
22, 1983 to be effective September 12, 1983; paragraph (b) amended and paragraph (g) adopted
November 1, 1985 to be effective January 2, 1986; paragraph (d) amended June 29, 1990 to be
effective September 4, 1990; paragraph (e) amended July 14, 1992 to be effective September 1,
1992; paragraphs (a), (c), (e), (f), and (g) amended July 13, 1994 to be effective September 1,
1994; paragraph (b) amended June 28, 1996 to be effective June 28, 1996; paragraph (d)
amended June 28, 1996 to be effective September 1, 1996; paragraph (e) amended July 10, 1998
to be effective September 1, 1998; paragraphs (a), (e), and (g) amended July 5, 2000 to be
effective September 5, 2000; paragraph (d) amended July 12, 2002 to be effective September 3,
— 71 —
2002; paragraph (d) amended July 28, 2004 to be effective September 1, 2004; paragraphs (a)
and (d) amended, and new paragraph (h) adopted July 27, 2006 to be effective September 1,
2006; paragraphs (a) and (f) amended July 9, 2008 to be effective September 1, 2008; paragraphs
(c) and (g) amended to be effective .
— 72 —
S. Proposed Amendments to R. 4:74-3 — Appeals from Penalties Imposed by
Municipal Courts
The Committee was asked to consider whether the provision of R. 4:74-3 requiring, on
appeal from a penalty imposed by the municipal court, the posting of cash or a bond in double
the amount of the penalty was penal in nature. The Committee agreed that it appeared to be an
onerous requirement. Research disclosed that the doubling requirement was in the rule (R. 5:2-6)
at the time it was originally adopted in 1948 and, at that time, derived from a statute, R.S. 2:72A-
25, part of the penalty enforcement statute. The doubling provision was not, however, carried
over into the 2A revision, which replaced the Title 2 penalty enforcement act with N.J.S.A.
2A:58-1 et seq. That statute was repealed in 1999 and was in turn replaced by N.J.S.A. 2A: 58-
10 to -12, which also makes no reference to a double deposit. Accordingly, there being no
statutory impediment and it appearing that the doubling provision is both unfair and unnecessary,
the Committee voted unanimously to replace that provision with the requirement of a deposit on
appeal in the amount of the municipal court judgment plus costs.
The proposed amendments to R. 4:74-3 follow.
— 73 —
4:74-3. Appeals From Penalties Imposed by Municipal Courts
(a) Notice of Appeal; Bond or Deposit. A party appealing from a judgment of a
municipal court imposing a penalty shall file a notice of appeal with the clerk of the municipal
court describing the judgment, stating that an appeal is being taken therefrom to the Law
Division of the Superior Court in the county of venue and stating whether or not a verbatim
record was made in the municipal court. A copy of the notice of appeal shall be served upon the
opposing party, and a copy filed with the deputy clerk of the Superior Court in the county of
venue. On appeal from a judgment imposing a penalty, appellant shall deliver to the municipal
court a deposit in cash or a bond with at least one sufficient surety, [in double the amount of the
judgment;] in the amount of the judgment plus costs or if the judgment imposes no money
penalty or imposes imprisonment with a money penalty, then in such sum as the court fixes,
conditioned upon the prosecution of the appeal and compliance with such further order or
judgment as may be entered. If the bond is forfeited, it may be prosecuted by the obligee, and if
the obligee is the State, then by the State at the relation of the person authorized by law to
prosecute the penalty proceeding. The appeal shall be deemed perfected upon service and filing
of the notice of appeal and the delivery of the cash deposit or bond.
(b) …no change.
(c) …no change.
(d) …no change.
(e) ...no change.
(f) …no change.
(g) …no change.
— 74 —
Note: Source — R.R. 5:2-6(b). Paragraphs (a) and (d) amended July 7, 1971 to be
effective September 13, 1971; paragraphs (a)(c)(e) and (g) amended November 22, 1978 to be
effective December 7, 1978; paragraphs (a) (c) and (e) amended July 11, 1979 to be effective
September 10, 1979; paragraphs (a) (b) and (g) amended July 13, 1994 to be effective September
1, 1994; paragraphs (a) (c) and (d) amended June 28, 1996 to be effective September 1, 1996;
paragraph (a) amended to be effective .
— 75 —
T. Proposed Amendments to Appendix II Interrogatory Forms A and A(1)
A practitioner alleged that the requirements of Uniform Interrogatories A and A(1)are
duplicative and unnecessary relative to medical malpractice cases. He noted that the
introductory heading to Appendix II provides that Form A uniform interrogatories are to
answered by plaintiffs in all personal injury cases. At the conclusion of Form A is a statement
that for medical malpractice cases, Form A(1) interrogatories must also be answered, thus
requiring plaintiffs in medical malpractice cases to answer both Form A and A(1), despite the
fact that all the information sought in Form A is included in A(1). The only area where there is a
difference is in Form A, No.6, which asks for diagnostic tests while Form A(1) asks in question
No. 19 for the dates of every treatment and examination and the nature of the medical treatment.
He suggested that Form A(1) Interrogatory No. 19 could be amended to include diagnostic tests,
thus eliminating the only item in Form A that is not in Form A(1). The Discovery Subcommittee
considered this suggestion, agreed with the proposal and recommended amendments to the
Interrogatory forms. The Committee endorsed the proposed changes. Accordingly, it is
recommended that Appendix A be amended to exempt medical malpractice cases from the
requirement to complete Form A currently applicable to all personal injury actions.
Additionally, it is recommended that Form A(1) Interrogatory No. 19 be amended to include a
new subpart regarding diagnostic tests. With that change, medical malpractice plaintiffs would
be required to answer only Form A(1) interrogatories.
Proposed amendments to Appendix II Interrogatory Forms A and A(1) follow.
— 76 —
APPENDIX II. — INTERROGATORY FORMS
Form A. Uniform Interrogatories to be Answered by Plaintiff in All Personal Injury
Cases (Except Medical Malpractice Cases): Superior Court
All questions must be answered unless the court otherwise orders or unless a claim of
privilege or protective order is made in accordance with R. 4:17-1(b)(3).
(Caption)
1. …no change.
2. …no change.
3. …no change.
5. …no change.
6. …no change.
7. …no change.
8. …no change.
9. …no change.
10. …no change.
11. …no change.
12. …no change.
13. …no change.
14. …no change.
15. …no change.
16. …no change.
17. …no change.
18. …no change.
— 77 —
19. …no change.
20. …no change.
21. …no change.
22. …no change.
23. …no change.
24. …no change.
TO BE ANSWERED ONLY IN AUTOMOBILE ACCIDENT CASES
25. …no change.
[FOR MEDICAL MALPRACTICE CASES, ALSO ANSWER FORM A(1)]
FOR PRODUCT LIABILITY CASES (OTHER THAN PHARMACEUTICAL AND
TOXIC TORT CASES), ALSO ANSWER A(2)
CERTIFICATION
…no change.
Note: Amended July 17, 1975 to be effective September 8, 1975; entire text deleted and
new text added July 13, 1994 to be effective September 1, 1994; amended June 28, 1996 to be
effective September 1, 1996; amended July 10, 1998 to be effective September 1, 1998; new
introductory paragraph added July 5, 2000 to be effective September 5, 2000; interrogatory 23
and certification amended July 28, 2004 to be effective September 1, 2004; caption and final
instruction amended to be effective .
— 78 —
APPENDIX II. — INTERROGATORY FORMS
Form A(1). Uniform Interrogatories to be Answered by Plaintiff in Medical Malpractice
Cases Only: Superior Court
All questions must be answered unless the court otherwise orders or unless a claim of
privilege or protective order is made in accordance with R. 4:17-1(b)(3).
(Caption)
1. …no change.
2. …no change.
3. …no change.
4. …no change.
5. …no change.
6. …no change.
7. …no change.
8. …no change.
9. …no change.
10. …no change.
11. …no change.
12. …no change.
13. …no change.
14. …no change.
15. …no change.
16. …no change.
17. …no change.
— 79 —
18. …no change.
19. If you were treated, attended or examined by any physician(s) or others for the
injuries identified in response to Question 18, state:
(a) …no change.
(b) …no change.
(c) …no change.
(d) …no change.
(e) If any diagnostic tests were performed, state the type of test performed, name and
address of place where performed, date each test was performed and what each test disclosed.
Attach a copy of the test results.
20. …no change.
21. …no change.
CERTIFICATION
…no change.
Note: New form interrogatory adopted June 28, 1996 to be effective September 1, 1996;
new introductory paragraph added July 5, 2000 to be effective September 5, 2000; interrogatory
9 and certification amended July 28, 2004 to be effective September 1, 2004; new paragraph 19.
(e) added to be effective .
— 80 —
U. Proposed Amendments to Appendix XI-M ─ Notice of Motion Enforcing
Litigant’s Rights; and Appendix XI-O ─ Order to Enforce Litigant’s Rights
A practitioner reported to the Committee that judges were changing the mandatory
“shall” to the permissive “may” with respect to the issuance of an arrest warrant in the Order in
Aid of Litigant’s Rights in Appendix XI─O. This appeared to violate R. 6:7-2(f) which
mandates that the Order be in the form set forth in the Appendix. Rule 4:59-1(e) states, however,
that “[t]he court may make any appropriate order in aid of execution,” appearing to give judges
discretion to change the form orders in the Appendix. It was the consensus of the Committee
that “may” is more appropriate than “shall,” as there were situations in which mandatory
issuance of an arrest warrant would be inappropriate, such as if the defendant were in the
hospital and unable to comply with the discovery request. Accordingly, the Committee voted
overwhelmingly in favor of changing the language of the Order in Appendix XI-O and also in
the Notice of Motion for Order Enforcing Litigant’s Rights in Appendix XI-M. Proposed
changes were drafted and endorsed and forwarded to the Special Civil Part (SCP) Practice
Committee for its review.
In considering the Civil Practice Committee’s recommendations, the SCP Practice
Committee recognized that although there may be times when substitution of the word “may” for
“shall” is appropriate, a change in the verbiage for every case would weaken the court’s position
that answers to the Information Subpoena must be provided and would result in inconsistent
practices from county to county. It was pointed out that a battery of protections for the
judgment-debtor were built into the process so that by the time the arrest warrant is actually
issued it is the last resort to force compliance with the information subpoena and the court’s
order to enforce it. These protections include:
— 81 —
• A statement in the required form of the Information Subpoena itself
(Appendix XI-L) warning the judgment-debtor that failure to comply with
it “may result in your arrest and incarceration.”
• A requirement in R. 6:7-2 that the Information Subpoena be served
personally or simultaneously by regular and certified mail return-receipt
requested.
• Requirements in R. 6:7-2(e) that the notice of motion to enforce litigant’s
rights (a) be in the form set forth in Appendix XI-M, (b) warn the debtor
that s/he may be arrested and held until s/he has complied with the
Information Subpoena, (c) state that a court appearance can be avoided by
compliance with the Information Subpoena and (d) be served either
personally or simultaneously by regular and certified mail return-receiptrequested.
• Requirements in R. 6:7-2 that the order to enforce litigant’s rights be in the
form set forth in Appendix XI-O, be served personally or simultaneously
by regular and certified mail return-receipt-requested and warn the debtor
that upon failure to comply with the Information Subpoena within 10 days,
“the court will issue an arrest warrant.”
• Requirements in R. 6:7-2(g) that in order to get an arrest warrant, the
judgment-creditor must certify that the debtor has not complied with the
order to enforce litigant’s rights, that the warrant be executed only
between the hours of 7:30 and 3:00 p.m. on a day when court is in session,
that if the debtor was served with the notice of motion and order by mail
the warrant must be executed only at the address to which they were sent
and that the debtor be brought before a judge forthwith and released
immediately upon the completion of the Information Subpoena. The SCP
Practice Committee voted overwhelmingly not to support the Civil
Practice Committee’s recommendations and to leave the forms as
currently constituted.
The Committee discussed this issue at length. The judges on the Committee were
unanimously in favor of the change to the permissive “may.” Several judges indicated that they
routinely change the “shall” to “may” in an exercise of their discretion under R. 1:1-2. The
judges felt that use of the mandatory “shall” was a clear impingement on their judicial discretion.
Practitioners noted that not every post-judgment effort to collect a debt begins with the
Information Subpoena. Some creditors already have information about bank accounts and go
— 82 —
right for the bank levy. In so doing, many of the protections cited by the SCP Practice
Committee would not come into play. The Committee members, with few exceptions, agreed to
reaffirm their recommendation to change the language from mandatory to permissive in both
appendices.
The proposed recommendations to Appendices XI-M and XI-O follow.
— 83 —
Appendix XI-M
NOTICE OF MOTION FOR ORDER ENFORCING LITIGANT'S RIGHTS
Name: SUPERIOR COURT OF NEW JERSEY
Address: LAW DIVISION: SPECIAL CIVIL PART
Telephone No.: ___________ COUNTY
DOCKET NO __________
Plaintiff, CIVIL ACTION
v. Notice of Motion for Order
Defendant. Enforcing Litigant’s Rights
TO: ___________________________________. Defendant
PLEASE TAKE NOTICE that on __________. 19___ at ______ __.m, I will apply to the
above-named court, located at ___________________, New Jersey, for and Order:
(1) Adjudicating that you have violated the litigant's rights of the plaintiff by failure to
comply with the (check one) □ order for discovery, □ information subpoena served upon
you;
(2) Compelling you to immediately furnish answers as required by the (check one) □ order
for discovery, □ information subpoena;
(3) Directing that, if you fail to appear in court on the date written above, you [shall] may be
arrested by an Officer of the Special Civil Part or the Sheriff and confined in the county
jail until you comply with the (check one) □ order for discovery, □ information
subpoena;
(4) Directing that, if you fail to appear in court on the date written above, you [shall] may be
held liable to pay the plaintiff's attorney fees in connection with this motion;
(5) Granting such other relief as may be appropriate.
If you have been served with an information subpoena, you may avoid having to appear
in court by sending written answers to the questions attached to the information subpoena to me
no later than three (3) days before the court date.
I will rely on the certification attached hereto.
Date:_________________
Attorney for Plaintiff or Plaintiff, Pro Se
— 84 —
Former Appendix XI-L adopted July 14, 1992, effective September 1, 1992; redesignated
as Appendix XI-M July 13, 1994, effective September 1, 1994; amended to be effective
.
— 85 —
APPENDIX XI-O
ORDER TO ENFORCE LITIGANT’S RIGHTS
FAILURE TO COMPLY WITH THIS ORDER MAY RESULT IN YOUR ARREST
Name: _________________________
SUPERIOR COURT OF NEW JERSEY
Address: _____________________ LAW DIVISION, SPECIAL CIVIL PART
Telephone No. ___________________
County
Docket No. _____________________
________________, Plaintiff
CIVIL ACTION
v. ORDER TO ENFORCE LITIGANT’S
RIGHTS
___________________, Defendant
This matter being opened to the court by ____________________ on plaintiff's motion for an
order enforcing litigant's rights and the defendant having failed to appear on the return date and
having failed to comply with the (check one) G order for discovery previously entered in this
case, G information subpoena;
It is on the ____________ day of ____________, 20_____, ORDERED and adjudged:
1. Defendant _______________________ has violated plaintiff's rights as a litigant;
2. Defendant _______________________ shall immediately furnish answers as required by
the (check one) G order for discovery, G information subpoena;
3. If defendant ______________________ fails to comply with the (check one) G order for
discovery, G information subpoena within ten (10) days of the certified date of personal service
or mailing of this order, a warrant for the defendant's arrest [shall] may issue out of this Court
without further notice;
4. Defendant shall pay plaintiff’s attorney fees in connection with this motion, in the
amount of $ __________.
____________________________, J.S.C.
— 86 —
PROOF OF SERVICE
On ____________, 20___, I served a true copy of this Order on defendant _______________
(check one) _____ personally, ______ by sending it simultaneously by regular and certified mail,
return receipt requested to: (Set forth address)
______________________________________________________________________________
______________________________________________________________________________
I certify that the foregoing statements made by me are true. I am aware that if any of the
foregoing statements made by me are willfully false, I am subject to punishment.
Date: _______________________
Note: Former Appendix XI-N adopted July 14, 1992, effective September 1, 1992;
redesignated as Appendix XI-O July 13, 1994, effective September 1, 1994; amended July 12,
2002 to be effective September 3, 2002; amended July 28, 2004 to be effective September 1,
2004; amended to be effective .
— 87 —
V. Housekeeping Amendments
R. 4:4-4 — to correct an incorrect citation to the rule referencing the affidavit of diligent
inquiry.
R. 4:4-5 — to correct the internal numbering of the subsections of the rule.
R. 4:6-2 — to clarify that some defenses must first be asserted in an answer before they
can be raised in a motion.
R. 4:64-1(f) — to clarify that the notice to parties must be in the form of a notice of
motion.
Appendix XII-D — Writ of Execution — to replace outdated references to “CR” with
current court rule citations.
Rules 4:21A-4(f), 4:23-5(a)(1), 4:23-5(a)(3), 4:32-2(h), 4:42-9(a)(5), 4:42-9(a)(8) and
4:42-11(a) to replace the terms “counsel fees” with “attorney’s fees” for clarity and uniformity
and to mirror the federal rules, as recommended by the Sanctions Subcommittee.
The proposed amendments to Rules 4:4-4, 4:4-5, 4:6-2, 4:64-1(f) and Appendix XII-D,
and to Rules 4:21A-4(f), 4:23-5(a)(1), 4:23-5(a)(3), 4:32-2(h), 4:42-9(a)(5), 4:42-9(a)(8), and
4:42-11(a) follow.
— 88 —
4:4-4. Summons; Personal Service; In Personam Jurisdiction
Service of summons, writs and complaints shall be made as follows:
(a) …no change.
(b) Obtaining In Personam Jurisdiction by Substituted or Constructive Service.
(1) By Mail or Personal Service Outside the State. If it appears by affidavit satisfying
the requirements of R. 4:4-5[(c)(2)](b) that despite diligent effort and inquiry personal service
cannot be made in accordance with paragraph (a) of this rule, then, consistent with due process
of law, in personam jurisdiction may be obtained over any defendant as follows:
(A) …no change.
(B) …no change.
(C) …no change.
(2) … no change.
(3) …no change.
(c) …no change.
Note: Source — R.R. 4:4-4. Paragraph (a) amended July 7, 1971 to be effective
September 13, 1971; paragraphs (a) and (b) amended July 14, 1972 to be effective September 5,
1972; paragraph (f) amended July 15, 1982 to be effective September 13, 1982; paragraph (e)
amended July 26, 1984 to be effective September 10, 1984; paragraph (a) amended November 1,
1985 to be effective January 2, 1986; paragraphs (a), (f) and (g) amended November 5, 1986 to
be effective January 1, 1987; paragraph (i) amended November 2, 1987 to be effective January 1,
1988; paragraph (e) amended November 7, 1988 to be effective January 2, 1989; paragraphs (a)
and (b) amended July 14, 1992 to be effective September 1, 1992; text deleted and new text
substituted July 13, 1994 to be effective September 1, 1994; paragraph (c) amended July 5, 2000
to be effective September 5, 2000; paragraphs (a)(3), (b)(1)(A), (b)(1)(C), and (c) amended July
12, 2002 to be effective September 3, 2002; paragraph (a) amended July 9, 2008 to be effective
September 1, 2008; paragraph (b)(1) amended to be effective .
— 89 —
4:4-5. Summons; Service on Absent Defendants; In Rem or Quasi In Rem Jurisdiction
(a) Methods of Obtaining In Rem Jurisdiction. Whenever, in actions affecting
specific property, or any interest therein, or any res within the jurisdiction of the court, or in
matrimonial actions over which the court has jurisdiction, wherein it shall appear by affidavit of
the plaintiff's attorney or other person having knowledge of the facts, that a defendant cannot,
after diligent inquiry as required by this rule, be served within the State, service may, consistent
with due process of law, be made by any of the following four methods:
[(a)](1) personal service outside this State as prescribed by R. 4:4-4(b)(1)(A) and (B); or
[(b)](2) service by mail as prescribed by R. 4:4-4(b)(1)(C); or
[(c)](3) by publication of a notice to absent defendants once in a newspaper published or
of general circulation in the county in which the venue is laid; and also by mailing, within 7 days
after publication, a copy of the notice as herein provided and the complaint to the defendant,
prepaid, to the defendant's residence or the place where the defendant usually receives mail,
unless it shall appear by affidavit that such residence or place is unknown, and cannot be
ascertained after inquiry as herein provided or unless the defendants are proceeded against as
unknown owners or claimants pursuant to R. 4:26-5(c). If defendants are proceeded against
pursuant to R. 4:26-5(c), a copy of the notice shall be posted upon the lands affected by the
action within 7 days after publication. The notice of publication to absent defendants required by
this rule shall be in the form of a summons, without a caption. The top of the notice shall include
the docket number of the action, the court, and county of venue. The notice shall state briefly:
[(1)](A) the object of the action the name of the plaintiff and defendant followed by et
al., if there are additional parties, the name of the person or persons to whom the notice is
addressed, and the basis for joining such person as a defendant; and
— 90 —
[(2)](B) if the action concerns real estate, the municipality in which the property is
located, its street address, if improved, or the street on which it is located, if unimproved, and its
tax map lot and block numbers; and
[(3)](C) if the action is to foreclose a mortgage, tax sale certificate, or lien of a
condominium or homeowners association, the parties to the instrument and the date thereof, and
the recording date and book and page of a recorded instrument; and
[(4)](D) the information required by R. 4:4-2 regarding the availability of Legal
Services and Lawyer Referral Services together with telephone numbers of the pertinent offices
in the vicinage in which the action is pending or the property is located; or
[(d)](4) as may be provided by court order.
(b) Contents of Affidavit of Inquiry. The inquiry required by this rule shall be made
by the plaintiff, plaintiff's attorney actually entrusted with the conduct of the action, or by the
agent of the attorney; it shall be made of any person who the inquirer has reason to believe
possesses knowledge or information as to the defendant's residence or address or the matter
inquired of; the inquiry shall be undertaken in person or by letter enclosing sufficient postage for
the return of an answer; and the inquirer shall state that an action has been or is about to be
commenced against the person inquired for, and that the object of the inquiry is to give notice of
the action in order that the person may appear and defend it. The affidavit of inquiry shall be
made by the inquirer fully specifying the inquiry made, of what persons and in what manner, so
that by the facts stated therein it may appear that diligent inquiry has been made for the purpose
of effecting actual notice.
Note: Source — R.R. 4:4-5(a)(b)(c)(d), 4:30-4(b) (second sentence). Paragraph (c)
amended July 7, 1971 to be effective September 13, 1971; paragraph (c) amended July 14, 1972
— 91 —
to be effective September 5, 1972; amended July 24, 1978 to be effective September 11, 1978;
paragraph (b) amended November 7, 1988 to be effective January 2, 1989; paragraphs (a) (b) (c)
(d) amended July 13, 1994 to be effective September 1, 1994; paragraph (c) amended June 28,
1996 to be effective September 1, 1996; introductory paragraph amended, paragraph (c)
amended, and portion of paragraph (c) relocated as closing paragraph of rule July 9, 2008 to be
effective September 1, 2008; text reorganized and new captions given to be effective
.
— 92 —
4:6-2. How Presented
Every defense, legal or equitable, in law or fact, to a claim for relief in any complaint,
counterclaim, cross-claim, or third-party complaint shall be asserted in the answer thereto, except
that the following defenses, unless otherwise provided by R. 4:6-3, may at the option of the
pleader be made by motion, with briefs: (a) lack of jurisdiction over the subject matter, (b) lack
of jurisdiction over the person, (c) insufficiency of process, (d) insufficiency of service of
process, (e) failure to state a claim upon which relief can be granted, (f) failure to join a party
without whom the action cannot proceed, as provided by R. 4:28-1. If a motion is made raising
any of these defenses, it shall be made before pleading if a further pleading is to be made. No
defense or objection is waived by being joined with one or more other defenses in an answer or
motion. Special appearances are superseded. If, on a motion to dismiss based on the defense
numbered (e), matters outside the pleading are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46,
and all parties shall be given reasonable opportunity to present all material pertinent to such a
motion.
Note: Source — R.R. 4:12-2 (first, second and fourth sentences); amended
to be effective .
— 93 —
4:64-1. Uncontested Judgment: Foreclosures Other Than In Rem Tax Foreclosures
(a) …no change.
(b) …no change.
(c) …no change.
(d) …no change.
(e) …no change.
(f) Tax Sale Foreclosure; Strict Mortgage Foreclosures. If an action to foreclose or
reforeclose a tax sale certificate in personam or to strictly foreclose a mortgage where provided
by law is uncontested as defined by paragraph (c), the court, subject to paragraph (h) of this rule,
shall enter an order fixing the amount, time and place for redemption upon proof establishing the
amount due. The order of redemption in tax foreclosure actions shall conform to the
requirements of N.J.S.A. 54:5-98 and R. 4:64-6(b). The order for redemption or notice of the
terms thereof shall be served by ordinary mail on each defendant whose address is known at least
10 days prior to the date fixed for redemption. Notice of the entry of the order of redemption,
directed to each defendant whose address is unknown, shall be published in accordance with
R. 4:4-5(c) at least 10 days prior to the redemption date and, in the case of an unknown owner in
a tax foreclosure action joined pursuant to R. 4:26-5, a copy of the order or notice shall be posted
on the subject premises at least 20 days prior to the redemption date in accordance with
N.J.S.A. 54:5-90. The court, on notice of motion to all appearing parties including parties whose
answers have been stricken, may enter final judgment upon proof of service of the order of
redemption as herein required and the filing by plaintiff of an affidavit of non-redemption. The
Office of Foreclosure may, pursuant to R 1:34-6, recommend the entry of both the order for
redemption and final judgment.
— 94 —
(g) …no change.
(h) …no change.
(i) …no change.
Note: Source — R.R. 4:82-1, 4:82-2. Paragraph (b) amended July 14, 1972 to be
effective September 5, 1972; paragraphs (a) and (b) amended November 27, 1974 to be effective
April 1, 1975; paragraph (a) amended July 16, 1979 to be effective September 10, 1979;
paragraph (c) adopted November 1, 1985 to be effective January 2, 1986; caption amended,
paragraphs (a) and (b) caption and text amended, former paragraph (c) redesignated paragraph
(e), and paragraphs (c), (d) and (f) adopted November 7, 1988 to be effective January 2, 1989;
paragraphs (b) and (c) amended and paragraph (g) adopted July 14, 1992 to be effective
September 1, 1992; paragraphs (e) and (f) amended July 13, 1994 to be effective September 1,
1994; paragraph (b) amended July 5, 2000 to be effective September 5, 2000; paragraph (f)
caption and text amended July 12, 2002 to be effective September 3, 2002; new paragraphs (a)
and (b) adopted, and former paragraphs (a), (b), (c), (d), (e), (f), and (g) redesignated as
paragraphs (c), (d), (e), (f), (g), (h), and (i) July 27, 2006 to be effective September 1, 2006;
paragraph (b) caption and text amended September 11, 2006 to be effective immediately;
paragraphs (d) and (f) amended October 10, 2006 to be effective immediately; paragraph (d)
amended July 9, 2008 to be effective September 1, 2008; paragraph (f) amended
to be effective .
— 95 —
Appendix XII-D
Attorney for Plaintiff SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
COUNTY
Plaintiff
DOCKET NO:
Vs
Defendant
WRIT OF EXECUTION
THE STATE OF NEW JERSEY
TO THE SHERIFF OF _______________________________
WHEREAS, on the day of judgment was recovered by
Plaintiff, in an action in the Superior Court of New Jersey, Law
Division, County, against Defendant, for damages of
$ and costs of $ ; and
WHEREAS, on , the judgment was entered in the civil docket of
the Clerk of the Superior Court, and there remains due thereon $________________________.
THEREFORE, WE COMMAND YOU that you satisfy the said Judgment out of the
personal property of the said Judgment debtor within your County; and if sufficient personal
property cannot be found then out of the real property in your County belonging to the judgment
debtor(s) at the time when the judgment was entered or docketed in the office of the Clerk of this
Court or at any time thereafter, in whosesoever hands the same may be, and you pay the said
monies realized by you from such property to , Esq., attorney in this
action; and that within twenty-four months after the date of its issuance you return this execution
and your proceedings thereon to the Clerk of the Superior Court of New Jersey at Trenton.
— 96 —
WE FURTHER COMMAND YOU, that in case of a sale, you make your return of this
Writ with your proceedings thereon before this Court and you pay to the Clerk thereof any
surplus in your hands within thirty days after the sale.
WITNESS, HONORABLE a Judge of the Superior
Court, at this day of , 20 .
__________________________,CLERK
ENDORSEMENT
Judgment Amount*: $___________
Additional Costs: $___________
Interest thereon: $___________
Credits: $___________
Sheriff’s Fees: $___________
Sheriff’s Commissions: $___________
TOTAL $___________
*“Judgment Amount” includes amount of verdict or settlement, plus pre-judgment court
costs, plus any applicable statutory attorney’s fee.
Post Judgment Interest applied pursuant to R 4:42-11 has been calculated as simple
interest. As required by R 4:59-1, attached is the method by which interest has been calculated,
taking into account all partial payments made by the defendant.
_______________________________
Attorney for Plaintiff
Dated: , 200
Note: Form adopted as Appendix XII-D July 27, 2006 to be effective September 1, 2006;
amended September 11, 2006 to be effective immediately; amended July 9, 2008 to be effective
September 1, 2008; amended to be effective .
— 97 —
4:21A-4 Conduct of Hearing
(a) ...no change.
(b) ...no change.
(c) ...no change.
(d) ...no change.
(e) ...no change.
(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] attorney’s fees incurred for
services directly related to the non-appearance.
Note: Adopted November 1, 1985 to be effective January 2, 1986; paragraph (a)
amended July 10, 1998 to be effective September 1, 1998; paragraphs (a) and (b) amended, and
new paragraph (f) adopted July 5, 2000 to be effective September 5, 2000; paragraph (f)
amended to be effective .
— 98 —
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
— 99 —
of the order of dismissal or suppression, the court may also order the delinquent party to pay
sanctions or [counsel] attorney’s fees and costs, or both, as a condition of restoration.
(2) …no change.
(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] attorney’s fees and costs, or both. An order of dismissal or suppression shall be
entered only in favor of the moving party.
(b) …no change.
(c) …no change.
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)
— 100 —
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; paragraphs
(a)(1) and (3) amended to be effective .
— 101 —
4:32-2 Determining by Order Whether to Certify a Class Action; Appointing Class Counsel;
Notice and Membership in the Class; Multiple Classes and Subclasses
(a) …no change.
(b) …no change.
(c) …no change.
(d) …no change.
(f) …no change.
(g) …no change.
(h) [Counsel] Attorney’s Fees and Litigation Expenses. In an action certified as a
class action, an application for the award of [counsel] attorney’s fees and litigation expenses, if
fees and costs are authorized by law, rule, or the parties’ agreement, shall be made in accordance
with R. 4:42-9. Notice of the motion shall be served on all parties. A motion by class counsel
shall be directed to class members in a reasonable manner. A party from whom payment is
sought as well as any class member may object to the motion.
Note: Effective September 8, 1969; paragraphs (b) and (c) amended November 27, 1974
to be effective April 1, 1975; paragraph (b) amended July 13, 1994 to be effective September 1,
1994; caption amended, paragraphs (a) and (d) caption and text amended, paragraph (b)
amended, former R. 4:32-4 deleted and readopted as amended as new paragraph (e), former R.
4:32-3 deleted and adopted as reformatted as new paragraph (f), and new paragraphs (g) and (h)
adopted July 27, 2006 to be effective September 1, 2006, paragraph (a) amended October 9,
2007, to be effective immediately; paragraph (e)(4) amended July 9, 2008 to be effective
September 1, 2008; paragraph (h) amended to be effective .
— 102 —
4:42-9 [Counsel] Attorney’s Fees
(a) Actions in Which Fee Is Allowable. No fee for legal services shall be allowed in
the taxed costs or otherwise, except
(1) …no change.
(2) …no change.
(3) …no change.
(4) …no change.
(5) In an action to foreclose a tax certificate or certificates, the court may award [a
counsel] attorney’s fees not exceeding $500 per tax sale certificate in any in rem or in personam
proceeding except for special cause shown by affidavit. If the plaintiff is other than a
municipality no [counsel] attorney’s fees shall be allowed unless prior to the filing of the
complaint the plaintiff shall have given not more than 120 nor fewer than 30 days' written notice
to all parties entitled to redeem whose interests appear of record at the time of the tax sale, by
registered or certified mail with postage prepaid thereon addressed to their last known addresses,
of intention to file such complaint. The notice shall also contain the amount due on the tax lien
as of the day of the notice. A copy of the notice shall be filed in the office of the municipal tax
collector.
(6) …no change.
(7) …no change.
(8) In all cases where [counsel] attorney’s fees are permitted by statute.
(9) In a SLAPP suit (strategic litigation against public participation) which terminates
in favor of the defendant on the ground that the activity complained of is protected by the free
speech clause or the right to petition clause of the First Amendment of the Constitution.
— 103 —
(b) …no change.
(c) …no change.
(d) …no change.
Note: Source — R.R. 4:55-7(a) (b) (c) (d) (e) (f), 4:55-8, 4:98-4(c). Paragraphs (a) and
(b) amended July 7, 1971 to be effective September 13, 1971; paragraph (a) amended November
27, 1974 to be effective April 1, 1975; paragraph (a) amended July 16, 1981 to be effective
September 14, 1981; paragraph (a)(1) amended December 20, 1983 to be effective December 31,
1983; paragraphs (a)(1) and (b) amended November 1, 1985 to be effective January 2, 1986;
paragraph (b) amended January 19, 1989 to be effective February 1, 1989; paragraph (a)(4)
amended June 29, 1990 to be effective September 4, 1990; paragraph (a)(5) amended July 14,
1992 to be effective September 1, 1992; paragraphs (a)(1), (2) and (c) amended July 13, 1994 to
be effective September 1, 1994; paragraph (a)(5) amended June 28, 1996 to be effective
September 1, 1996; paragraph (a)(1) amended January 21, 1999 to be effective April 5, 1999;
paragraph (a)(5) amended July 28, 2004 to be effective September 1, 2004; paragraph (a)(3)
amended July 27, 2006 to be effective September 1, 2006; paragraphs (a)(5) and (8) amended,
and new paragraph (a)(9) added to be effective .
— 104 —
4:42–11 Interest; Rate on Judgments; in Tort Actions
(a) Post Judgment Interest. Except as otherwise ordered by the court or provided by
law, judgments, awards and orders for the payment of money, taxed costs and [counsel]
attorney’s fees shall bear simple interest as follows:
(i) …no change.
(ii) …no change.
(iii) …no change.
(b) …no change.
Note: Adopted December 21, 1971 to be effective January 31, 1972. Paragraph (b)
amended June 29, 1973 to be effective September 10, 1973; paragraphs (a) and (b) amended
November 27, 1974 to be effective April 1, 1975; paragraphs (a) and (b) amended July 29, 1977
to be effective September 6, 1977; paragraphs (a) and (b) amended July 16, 1981 to be effective
September 14, 1981; paragraph (a) amended July 15, 1982 to be effective September 13, 1982;
paragraph (a) amended July 26, 1984 to be effective September 10, 1984; paragraph (a) amended
November 1, 1985 to be effective January 2, 1986; paragraph (b) amended November 2, 1987 to
be effective January 1, 1988; paragraph (a)(ii) amended and paragraph (a)(iii) added June 28,
1996 to be effective September 1, 1996; paragraph (b) amended April 28, 2003 to be effective
July 1, 2003; paragraph (a) amended to be effective .
— 105 —
II. RULE AMENDMENTS CONSIDERED AND REJECTED
A. Proposed Amendments to R. 1:6-2 — Form of Motion; Hearing
An attorney noted that judges often add clauses or otherwise change the language of
proposed forms of order submitted with an uncontested motion. He suggested that language be
added to R. 1:6-2 to prohibit judges from adding additional relief to the order either absent
extraordinary circumstances or on notice to the parties that additional relief is being
contemplated, thereby providing the non-moving party an opportunity to oppose the motion
and/or to be heard at oral argument. The Committee acknowledged that, while many of the
additions or alterations to a proposed form of order are innocuous, the non-moving party
nonetheless might object to the terms of an order as changed by the court. The members agreed
that if such an amendment were to be proposed, it should be limited to substantive changes to the
proposed form of order. In further discussions, however, the Committee recognized that the
problem of a changed form of order occurs almost exclusively in discovery motions, suggesting
that the issue is idiosyncratic rather than systemic, and concluded that a rule amendment was not
the most appropriate way to address the issue.
See Section IV.B. of this Report for a discussion of the Committee’s alternate
recommendation.
See Section I.B. of this Report for proposed amendments to R. 1:6-2 that the Committee
recommends.
— 106 —
B. Proposed Amendments to R. 1:11-2 ─ Withdrawal or Substitution
A practitioner requested that R. 1:11-2(a) be amended to eliminate the requirement of
filing a substitution of attorney for post-judgment applications that are handled by an attorney
other than the one who handled the matter to judgment. He noted that parties often change
attorneys subsequent to final judgment for purposes of post-judgment applications or responses,
especially in family matters and probate situations. He suggested that a new subsection be added
to the rule eliminating the requirement of filing a substitution of attorney after the time for filing
an appeal from the final judgment had passed or a post-judgment order in the matter had expired.
The Committee declined to endorse this proposal, noting that the automated docketing system
could not enter the name of the new attorney without a filed substitution and that the rule as
currently constituted does not impose an onerous obligation on attorneys by requiring the filing
of a substitution.
— 107 —
C. Proposed Amendments to Rules 2:2-3 and 2:2-4 — re: Interlocutory Appeals
A practitioner requested that R. 2:2-3 be amended to add a standard for granting leave to
appeal from an interlocutory order in order to provide uniformity and guard against decisions
that cause the parties to incur increased costs and waste of judicial resources as a result of
duplicative and unnecessary trials. He suggested that language be added to permit appeals “from
interlocutory orders or judgments of the Superior Court trial divisions where decision on an issue
presented may substantially assist in the processing or termination of the case.” He further
suggested that the language of R. 2:2-4 be incorporated into R. 2:2-3. This matter was referred to
the Appellate Division Rules Committee (ADRC) which concluded that there was no need to
deviate from the long standing “interests of justice” standard of review, especially since that
standard has been interpreted in a substantial body of case law. The Committee endorsed the
position of the ADRC. No amendments to Rules 2:2-3 and 2:2-4 are recommended.
See Section I.F. of this report for proposed amendments to R. 2:2-3 that the Committee
recommends.
— 108 —
D. Proposed Amendments to R. 2:6-2 — Contents of Appellant’s Brief
In footnote 7 of Grow Company, Inc v. Chokshi, 403 N.J. Super. 443, 463(App. Div.
2008), the Appellate Division asked the Civil Practice Committee to consider a mechanism by
which attorneys would be obligated to bring to the appellate court’s attention any questions or
uncertainties about its jurisdiction over a matter currently on appeal. In the Chokshi case, the
trial judge had granted partial summary judgment to the defendants and held that the defendant
was entitled to attorney’s fees. He did not quantify the amount due, however, and dismissed the
claim without prejudice to its being renewed at a subsequent proceeding. Both parties appealed.
The Appellate Division concluded that the disposition of the claim for attorney’s fees was an
interlocutory, not final, order and commented that the circumstances of the case should have
been brought to its attention. In the footnote, the court notes that as officers of the court
attorneys are obligated to inform the court of any jurisdictional irregularities and suggests that it
might be beneficial to amend the rules to require litigants to provide a statement of appellate
jurisdiction, mirroring the provisions of the Federal Rules of Appellate Procedure, R. 2:8(a)(4).
This issue was referred to the Appellate Division Rules Committee (ADRC). The ADRC
expressed its ongoing concern with litigants’ attempts to pursue appeals from orders which are
not final without seeking leave. It concluded, however, that this issue was being adequately
addressed by the revised Appellate Division Case Information Statement and by the internal
review procedures by the Appellate Division clerk’s office. The Committee agreed with the
ADRC’s position and, accordingly, does not recommend an amendment to R. 2:6-2.
— 109 —
E. Proposed Amendments to R. 2:9-6 — Supersedeas Bond; Exceptions
The Committee was presented with several issues regarding supersedeas bonds:
1. An attorney posed two questions on the rules governing supersedeas bonds. First,
he asked if R. 2:9-6 should be amended to state the purpose of a supersedeas
bond, i.e. to stay proceedings during the pendency of an appeal. He asserted that
clarification is needed to explain that the stay, especially of collection processes,
is to protect judgment-creditors from situations in which, during the period of
appellate review, a judgment-debtor may transfer assets or grant a security interest
in its assets or in which another of the judgment-debtor’s creditors secures an
attachment, execution, or judgment lien on the judgment-debtor’s property that
outranks that of the judgment-creditor. The Committee considered this
proposition, but determined it to be unnecessary. The Committee looked to
R. 2:9-5 which states clearly that a supersedeas bond, pursuant to R. 2:9-6, acts to
stay the judgment or order in a civil action adjudicating liability for a specified
sum of money during appeal proceedings. Accordingly, it found there was no
need to further amend R. 2:9-6 to include this provision.
The attorney’s second question was whether the requirement of R. 2:9-6 to
condition the supersedeas bond on satisfaction of the judgment in full, including
post-judgment interest, is too harsh, possibly forestalling some legitimate appeals
because the cash amount or surety bond premium is too costly. He suggested that
some flexibility should be built into the supersedeas bond amounts. In
considering this suggestion, the Committee noted that the rule already provides
the court with discretion to fix the amount of the bond after notice on good cause
— 110 —
shown. Furthermore, an appellant always has the option to move to be relieved
from the full amount of the bond. The Committee concluded that there was
sufficient discretion built into the current rule to allow for flexibility in the fixing
of the amount of the bond. The Committee took the position that a plaintiff
clearly is entitled to have the judgment protected during the appeal process by the
posting of a supersedeas bond, but concluded that the rule, as currently
constituted, is sufficiently clear and contains adequate protections. Accordingly,
no amendment is recommend.
2. The Committee was asked to review proposed bill S-2116 and provide comments
on an expedited basis. S-2116 was designed to limit the amount of an appeal
bond in civil actions. The Committee members expressed concern that the
proposed legislation intruded on the exclusive rule-making authority of the Court
to dictate its practices and procedures, in violation of Winberry v. Salisbury, 5
N.J. 240, 255 (1950), cert. denied 340 U.S. 877(1950). The Committee further
noted that such a cap is unnecessary as the court rules already give a judge the
discretion to fix the amount of the supersedeas bond.
Subsequent to the Committee’s stated opposition to the proposed
legislation, Judge Grant, Acting Director of the AOC, requested the Committee to
revisit a proposal to amend R. 2:9-6 in order to provide more guidance as to when
and how the judge’s discretion might be applied in setting a bond amount and also
to specify what forms of security may be presented to protect the interests of the
judgment creditor during appeal. Illinois has a court rule embodying these
concepts. Judge Grant asked the Committee to consider amending R. 2:9-6 to
— 111 —
incorporate some of the provisions of the Illinois rule. The Committee discussed
this issue thoroughly and concluded that because the rule as currently constituted
vests sufficient discretion with the court, there is no need to include the issues
specifically detailed in the Illinois rule. Recognizing that the intent of a proposed
rule amendment was to protect a litigant from having to forego an appeal because
of the high cost of the supersedeas bond, the Committee nonetheless took the
position that adequate relief is available under the language of the current rule to
address issues of acceptable forms and amounts of security. Further, the
Committee took the position that it is both unnecessary and unwise to attempt to
delineate the judge’s discretion with specificity. Additionally, the members
agreed that it would be difficult to draft a rule amendment that would address all
the situations in which discretion could or should be exercised. It was also noted
that the interest in capping the amount of a supersedeas bond was driven by large
entities such as the tobacco companies facing large judgments and the Committee
was opposed to drafting a court rule in response to verdicts in specific lawsuits.
The Committee was unanimous in its opposition to proposing an amendment to
R. 2:9-6.
See Section IV.D. of this Report for a discussion of the Committee’s review of S-2116.
— 112 —
F. Proposed Amendments to R. 2:12-10 — Granting or Denial of Certification
In the last rules cycle, the Committee considered a submission from a practitioner
questioning why more justices were required to grant a motion for reconsideration of a denial of
a petition for certification than were required to grant the petition in the first place. He pointed
out that R. 2:12-10 allows a petition for certification to be granted on the affirmative vote of
three or more justices, whereas R. 2:11-6 provides that a majority of the Court must agree to
grant a motion for reconsideration of a denial of a petition for certification. The Committee took
the position that it is intellectually consistent to require more justices to approve a motion for
reconsideration of a denial of a petition for certification than to grant a petition for certification,
reasoning that if three justices voted to grant the petition on a motion for reconsideration, those
same three justices would have voted to grant the petition in the first place. The Committee also
found it logical to require more votes to overturn a matter than to grant it. Accordingly, the
Committee declined to amend the rule.
The same practitioner, taking exception to the Committee’s decision not to recommend
the proposed amendment and to the reasoning behind that position, requested the Committee to
revisit the issue. He suggested that the Committee’s statement that the same three judges would
have voted to grant the petition in the first place does not take into consideration that a justice
may change his or her mind either on further reflection or because the facts and law of the case
are cast in a new light. He also objected to the Committee’s finding it logical to require more
votes to overturn a matter than to grant it. He asserted that the requirement has no basis in logic
and lacks consistency. Consequently, he asked the Committee to consider the issue anew.
The Committee revisited the question, acknowledging that there were merits to both sides
of the argument. The rule requires only three votes to grant a petition for certification and that is
— 113 —
the only situation in the rules where less than a majority vote is required. A majority is required
to deny a motion for reconsideration. The thought was expressed that if three votes were good
enough to grant the petition, only three votes should be required to grant the motion for
reconsideration. On the other hand, the Committee recognized that motions for reconsideration
are generally disapproved of and are to be discouraged. Making it easier for a petitioner to
succeed on a second try for certification on a motion for reconsideration does not make sense.
The Committee was also of the opinion that lessening the requirement to pursue a motion for
reconsideration would encourage petitioners to file a motion automatically if their petitions were
denied. In consideration of these points and in deference to the Court’s preference for the rule as
currently constituted, the Committee reaffirmed its prior decision not to recommend an
amendment to R. 2:12-10.
— 114 —
G. Proposed Amendments to Rules 4:10-3, 4:14-4, 4:22-1, 4:23-1, 4:23-2, 4:23-3,
4:23-4 and 4:37-4 — re: Sanctions
As part of its mandate, the Sanctions Subcommittee reviewed each of the Part IV Rules
that provide for attorney’s fees or sanctions. Rules 4:10-3, 4:14-4, 4:22-1, 4:23-1, 4:23-2, 4:23-
3, 4:23-4 and 4:37-4 contain provisions for the award of reasonable expenses to the prevailing
party. The subcommittee determined, and the full Committee agreed, that these rules contain
adequate provisions for recompense and that no changes are necessary.
— 115 —
H. Proposed Amendments to R. 4:12-4 — Disqualification for Interest
An attorney proposed amendments to R. 4:12-4 expressly to permit what he characterized
as a growing practice among attorneys to record video depositions themselves, i.e. without a
third-party videographer. He indicated that the presence of a certified court reporter to take the
deposition precludes any question of the veracity or accuracy of the video. He further claimed
that the use of the video is cost-efficient and simple and any objection to the video can be
resolved by motion to edit or bar the video, similar to de bene esse testimony on video. The
Committee was divided on this issue. Some members felt that requiring a third-party
videographer was an antiquated provision that failed to recognize the technological advances
made since the rule was adopted. Similarly, members in favor of attorneys’ videoing the
proceeding cited the cost advantages of doing it in-house. They also claimed that having the
transcript made by a certified shorthand reporter is a safeguard against any mischaracterization
of the proceeding and that with ten days notice the adversary could produce a videographer of its
own as well. On the other side, some members claimed that using in-house videoing presents a
greater risk leading to problems and objections as to accuracy and veracity, and saw no reason to
change the rule. They suggested that in-house videographers would have a built-in bias and
could (even if inadvertently) film in such a way that would adversely prejudice the party being
deposed. Further, they noted that the current rule is working well and that there is no need to
amend it. Moreover, if it were to be amended, they feared there would be an onslaught of
motions on the admissibility, veracity, prejudicial value, etc. of the videotapes. On the question
of whether the rule should be amended to permit attorneys to use in-house personnel to
videotape, the Committee voted 8 in favor and 13 against. Accordingly, the Committee does not
recommend amending R. 4:12-4 at this time.
— 116 —
See Section I.K. of this Report for proposed amendments to R. 4:12-4 that the Committee
recommends.
— 117 —
I. Proposed Amendments to R. 4:14-6 — Certification and Filing by Officer;
Exhibits; Copies
An attorney requested on behalf of a New Jersey based court reporting service that
R. 4:14-6(c) be amended to provide that each party pay for its own copy of a deposition
transcript. The rule, as currently constituted, states that the party taking the deposition must
furnish a copy of the transcript to the witness or adverse party. This provision, as asserted by the
attorney, is contrary to the federal rule [F.R. Civ.P. 30(f)(3)] and to the rules of other states,
which provide that any party ordering a copy of the transcript shall pay for that copy. The
attorney cited several reasons why the rule should be amended:
• The rule dates back to 1948 and, while originally proposed to conform to the
federal rule, was revised without apparent explanation or rationale for the change.
• There is no good reason to diverge from federal practice; allocation of costs of
depositions should not depend upon whether an action was filed at the federal
courthouse or the state courthouse.
• Modern litigation with its multiplicity of lengthy depositions can represent a huge
expense and a huge burden on the party seeking the discovery.
• New Jersey is in a small minority of states that place the burden on the party
taking the deposition.
• The rule is inequitable when one side takes more depositions than the other and
superfluous if both sides take approximately the same number of depositions.
• The rule encourages waste because, even if the deposition yields nothing relevant
or worthwhile, the adversary is not likely to decline a free copy.
• The rule is not a fair or effective means of controlling litigation cost because the
“free” copy is reflected either in direct billing, absorbed by the court reporter, or
incorporated in the per page rate that court reporters charge their clients.
The attorney suggested that R. 4:14-6(c) be amended to mirror the federal rule, i.e.
“When paid reasonable charges, the officer must furnish a copy of the transcript or recording to
— 118 —
any party or the deponent.” Appended to the letter requesting the change were letters from outof-
state court reporting services submitted in support of the proposed rule amendment.
In discussing this suggestion, the Committee acknowledged that New Jersey’s rule
differed from the federal rule but expressed concern that the proposed amendment would create
an imbalance of power in that a party with deeper pockets could order many depositions thus
burdening the poorer party with the financial obligation of obtaining the transcripts at its own
expense. The Committee was of the opinion that it was fairer to make the party ordering the
depositions pay for them and provide a copy to the adversary at no cost. It was recognized that
the court reporters were being paid to provide the adversary’s copy and thus were not being
adversely affected financially. The Committee further acknowledged that there is a variation in
the practice of providing a copy of the transcript of a deposition to the party deposed. Some
attorneys provide the copy themselves; others have the transcriber send the copy directly to the
individual deposed. In either case, the copy provided to the person deposed is paid for and is
thus “provided” by the party requesting the deposition. As long as the transcriber is being paid
for the copies it provides by the party taking the deposition and the deposed party is being
provided with a copy of the transcript at no expense to him/her, the rule is being complied with.
Practitioners on the Committee saw no reason to change the current practice, which is working
well. On the question of whether the rule should be changed to mirror the federal rule, the
Committee voted overwhelmingly in favor of keeping the rule as is.
— 119 —
J. Proposed Amendments to R. 4:23-5 — Failure to Make Discovery
Two issues were considered:
1. The Sanctions Subcommittee recommended that R. 4:23-5 be amended to require
the payment of reasonable expenses, including attorney’s fees, to compensate the
party who engages in motion practice to obtain discovery to which it is entitled
under the rules, even if the sought-after discovery is provided before the date on
which opposition to the motion is due. The subcommittee reasoned that noncompliance
with the rules to the point where the adversary is compelled to make a
motion increases the cost of litigation both in time and money. As a precondition
to filing a motion, a party must make a good-faith effort to resolve the dispute.
Often, R. 4:23-5(a)(1) motions are unopposed and a pleading is dismissed or
stricken without prejudice. Frequently, a delinquent party responds to the motion
by serving the requested discovery a day before the return date of the motion.
Then, before the requesting party has the opportunity to determine whether the
discovery produced is fully responsive, the producing party seeks to have the
motion withdrawn or denied, based on the fact that the discovery request has
(finally) been complied with. The moving party has incurred additional expense
and fees on the motion. The subcommittee was of the opinion that it was better
practice to award reasonable expenses, including fees, to the moving party when
discovery is provided after the motion has been filed.
The Committee rejected this recommendation, adopting the reasoning of a
minority of the subcommittee, namely, that R. 4:23-5 motions are a routine part of
litigation practice and to shift the expenses and fees of such motions is not fair or
— 120 —
practical. There was concern that a single practitioner with a lower hourly rate
than a lawyer with a large firm may be forced to pay the expenses of a large firm
if the larger firm files a discovery motion. Furthermore, it was noted that the
proposed amendments would be likely to decrease civility among practitioners
and increase judicial workload on non-substantive matters, while not improving
the practice of law to any significant degree.
2. A Committee member suggested that R. 4:23-5(a)(2) be amended to provide that a
plaintiff be permitted to enter default judgment at the same time the motion to
strike an answer is filed, similar to the procedure wherein a complaint is
dismissed with prejudice for failure to answer interrogatories and the entry of the
order granting the motion ends the case. Such an amendment would avoid the
necessity of having to file additional motion or other papers to enter default
judgment, but would be limited to cases where the sum due and owing is
liquidated. The Committee rejected this proposal, explaining that a motion to
strike an answer is the first step in obtaining a default judgment. Pursuant to
R. 4:43-1, if an answer is stricken with prejudice, the clerk shall enter a default
against the delinquent party. A final judgment by default cannot be entered
simultaneously, R. 4:43-2. The Committee recognized that the existing court
rules have contemplated the situation where an answer is stricken and have
provided the process whereby a final judgment may be entered. Accordingly, the
Committee does not endorse the proposal.
— 121 —
K. Proposed Amendments to R. 4:24-1 — Time for Completion of Discovery
An attorney proposed that all discovery end dates be consistent with motion days. Such a
change, he argued, would benefit both the bar and the Judiciary. He claimed that under his
proposal, the longest a discovery end date would be extended would be 13 days, but most
extensions would not be more than a day or two. The Committee discussed this issue, noting
that the different tracks for discovery may complicate what the attorney characterized as a simple
calculation and that if this suggestion were adopted many cases actually be getting longer
discovery periods than now provided for. The members agreed that the current system is
working well and should not be altered. Accordingly, they rejected the proposal to make all
discovery end dates consistent with motion days.
See Section I.N. of this Report for proposed amendments to R. 4:24-1 that the Committee
recommends.
— 122 —
L. Proposed Amendments to R. 4:38-1 — Consolidation
The Conference of Civil Presiding Judges proposed that R. 4:38-1 be amended to make it
clear that when cases are consolidated, the docket numbers of all the individual cases (not just
the one number denoting the consolidation) should appear on all pleadings so that the court can
track all the cases. In response, the Committee noted that paragraph (c) requires that, unless
otherwise directed in the order for consolidation, all papers filed in the consolidated action shall
include the caption and docket number of each separate action, with the earliest instituted action
to be listed first. Accordingly, the Committee determined that no amendment to the rules is
needed.
— 123 —
III. MATTERS HELD FOR CONSIDERATION
A. Proposed Amendments to Rules 4:74-7 and 4:74-7A — re: Civil
Commitments
The Public Advocate had asked for an in-depth review and revision of the existing court
rules governing the commitment of adults and children and for the development of rules
governing the commitment of individuals designated as sexually violent predators. He noted that
the rules have not been revised comprehensively since 1988 and that there have been case law
and statutory developments since that time that should be incorporated into the court rules. He
also suggested certain procedural issues that should be addressed, such as the procedures for
review hearings for patients on Conditional Extension Pending Placement (CEPP). A
subcommittee, chaired by Judge Allison Accurso, was established in March 2009. It is
composed of Committee members and representatives from the Office of the Public Advocate,
the County Adjusters, the Division of Mental Health, the Office of the Attorney General, the
Division of Criminal Justice and other interested parties. The subcommittee met and began to
address the issues raised by the Public Advocate.
Two events subsequently occurred that have caused the subcommittee to pause in its
deliberations. The first is the signing of a settlement agreement between Disability Rights of
New Jersey, Inc. (formerly, New Jersey Protection and Advocacy, Inc.) and Jennifer Velez,
Commissioner of the Department of Human Services. The settlement agreement aims to ensure
that individuals who are on CEPP status will be placed in the community within a defined time
period. The goal is that, at the end of five years, 93% of the individuals placed on CEPP will be
in that status for four months or less. The settlement was designed with the current court rule,
R. 4:74-7, in place. The consensus was that there is no need to recommend rule changes to
— 124 —
incorporate the terms of the settlement agreement, although the hope is that with the changes to
CEPP status, the time values in the court rule will become meaningless.
The second event was the signing into law of S-735, now P.L. 2009, c. 112, creating a
new commitment status, namely, involuntary commitment to outpatient treatment. This law will
go into effect incrementally, with seven as yet unidentified counties piloting the new, as yet
undeveloped procedures, in August 2010. The legislation does not contemplate any changes to
the hearing process, but substantial changes to the regulations, especially those dealing with the
screening centers, will have to be made. These will, of necessity, affect the judicial hearing
process. The Division of Mental Health is responsible for drafting regulations to implement the
new law. The subcommittee determined that there is nothing in the legislation that would
necessitate an immediate rule change and recognized that the process of drafting and adopting
new regulations must precede any rule changes. Accordingly, it was agreed that no amendments
to R. 4:74-7 should be proposed during this rules cycle. Instead, the matter should be carried
forward and, if necessary, any future proposed rule amendments could be presented to the
Supreme Court out-of-cycle.
The subcommittee will continue to work on a recommendation regarding rules governing
the commitment of Sexually Violent Predators, as neither the settlement agreement nor the new
legislation affects this issue. The subcommittee will also address the question of whether the
electronic transfer of commitment papers to a judge should be permitted in lieu of the current
requirement of R. 4:74-7 that originals of the application and clinical certificates be filed with the
court.
— 125 —
IV. MISCELLANEOUS MATTERS
A. Proposed Amendments to R. 1:1-2 — Construction and Relaxation
In the last rules cycle, the Committee proposed amendments to Part I, Part II and Part IV
rules to take into account the existence of civil unions and domestic partnerships. The
Committee recommended use of the term “statutory union” to reflect those two statutorily
authorized relationships and “statutory partner” to refer to an individual in such a relationship.
The Committee intended that these terms would be used in conjunction with the words
“marriage” and “spouse” when those words appear in the rules. The Professional Responsibility
Rules Committee made a similar recommendation in its report for amendments to RPC 1.8.
The Supreme Court in discussing the proposed amendments considered whether it might
be preferable to have one definitional rule in Part I of the Rules, rather than having to amend
every rule that uses the terms “marriage” or “spouse.” The Court determined to defer any action
on these particular recommendations until the next rules cycle, since the Family Practice
Committee was in the process of amending its rules to address civil unions and domestic
partnerships.
In a memo dated 7/15/08, Judge Carchman directed staff to all the rules committees “to
advise those committees of the Court’s desire to address any and all such amendments to their
rules at one time as part of the 2009 rules cycle.” Pursuant to that mandate, staff to the various
rules committees met and developed a proposed amendment to R. 1:1-2 and presented it to their
respective rules committees. This Committee endorsed the proposed amendment
overwhelmingly. This result was reported to the Family Practice Committee which presented
their proposed rule amendment to the Supreme Court. The Court adopted the proposed rule
amendment on July 16, 2009 and it became effective September 1, 2009.
— 126 —
B. Proposed Amendments to R. 1:6-2 — Form of Motion; Hearing
The Committee had rejected a proposal to amend R. 1:6-2 to prohibit judges from
amending attorneys’ proposed form orders so as to provide additional relief, absent extraordinary
circumstances or on notice to the parties that additional relief is being contemplated. The
Committee recognized that the problem of a changed form of order occurs almost exclusively in
discovery motions, suggesting that the issue is idiosyncratic rather than systemic, and concluded
that a rule amendment may not be the most appropriate way to address the issue. Judge Pressler
indicated that she would address the issue in her comments to R. 1:6-2. The Committee endorsed
this approach.
See Section I.B. of this Report for proposed amendments to R. 1:6-2 that the Committee
recommends.
See Section II.A. of this Report for proposed amendments to R. 1:6-2 that the Committee
does not recommend.
— 127 —
C. Proposed Amendments to R. 7:7-8 — Form of Subpoena
The Municipal Court Practice Committee proposed amendments to R. 7:7-8 to provide a
degree of uniformity in the process of issuing subpoenas from municipal courts. That
Committee asked the Civil Practice Committee to review and comment on the proposed
amendments. The Committee recognized that the proposed amendments generally track R. 1:9-1
and were a direct consequence of the Court’s decision in State v. Reid, 389 N.J. Super. 563 (App.
Div. 207), aff’d in part, modified in part, 194 N.J. 386 (2008). Judge Pressler forwarded the
comments of the Committee to the Municipal Court Practice Committee. The proposed
amendments were subsequently adopted by the Supreme Court and became effective September
1, 2009.
— 128 —
D. Proposed Legislation — S-2116— Limits Amount of Supersedeas Bond in
Civil Actions
At the request of the Administrative Office of the Courts, the Committee reviewed
proposed legislation intended to limit the total amount of an appeal bond or other form of
security required of all appellants collectively in a civil action to the lesser of the total value of
the monetary judgment or $50 million, in addition to trial costs. The bill also provided that it
shall not be construed to eliminate the discretion of the court to lower the amount of the appeal
bond, after notice and hearing and upon a showing of good cause. Further, the bill also provided
that if the judgment creditor proves by a preponderance of the evidence that an appellant is
concealing assets or is dissipating or diverting assets outside the ordinary course of business to
avoid payment of the judgment, a court may enter orders to protect the respondent and require
the appellant to post a supersedeas bond in an amount up to the total amount of the judgment.
The Committee members expressed concern that the proposed legislation intruded on the
exclusive rule-making authority of the Court to dictate its practices and procedures, in violation
of Winberry v. Salisbury, 5 N.J. 240, 255(1950), cert. denied 340 U.S. 877(1950). The
Committee further noted that such a cap was unnecessary as the court rules already give a judge
the discretion to fix the amount of the supersedeas bond. Rule 2:9-6, as currently constituted,
provides that with few exceptions the amount of the supersedeas bond shall be fixed by the court
and shall be presented for approval to the court or agency from which the appeal is taken.
The Committee was unanimous in its strong opposition to this proposed legislation.
See Section II.E. of this Report for proposed amendments to R. 2:9-6 regarding
supersedeas bonds that the Committee rejected.
— 129 —
Respectfully submitted,
Hon. Sylvia B. Pressler (Ret.), Chair
Hon. Stephen Skillman, P.J.A.D., Vice-Chair
Hon. Allison E. Accurso, P.J.Cv.
Dean John S. Beckerman
Hon. Eugene J. Codey, Jr., P.J.Cv.
Risa M. David, Esq.
Dawn M. DuVerney, Esq.
Hon. Faustino J. Fernandez-Vina, P.J.Cv.
Stacy A. Fols, Esq.
Amos Gern, Esq.
William S. Greenberg, Esq.
Robert B. Hille, Esq.
Craig S. Hilliard, Esq.
Kenneth S. Javerbaum, Esq.
Hon. John C. Kennedy, J.S.C.
Linda Lashbrook, Esq.
Gary J. Lesneski, Esq.
Howard J. McCoach, Esq.
Hon. Anne McDonnell, P.J.Cv.
Melville D. Miller, Esq.
Hon. Elijah L. Miller, Jr., P.J.Cv.
Vincent J. Nolan, III, Esq.
Hon. Thomas P. Olivieri, P.J.Ch.
John R. Parker, Esq.
Hon. Edith K. Payne, J.A.D.
Gary Potters, Esq.
Arthur J. Raimon, Esq.
Dean Andrew J. Rothman
James A. Schragger, Esq.
Willard C. Shih, Esq.
Jonathan D. Weiner, Esq.
Jane F. Castner, Esq., AOC Staff
Mary F. Rubinstein, Esq., AOC Staff
Dated: January 25, 2010
LMJG
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