NJ Civ Pro

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RoughOne
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92346
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NJ Civ Pro
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2011-06-29 01:30:12
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NJ Civ Pro
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NJ Civ Pro
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  1. NJ court rules: citation
    the crt rules or r #
  2. NJ court rules: source, applicability and scope
    Nj SC= sets up rule committe consistent w/ NJ state constn and then approved by NJ SC

    *NJ law applies in state crt, not Fed crt
  3. NJ court rules: "The Weasel Rule"
    If interp of any rule conflics w/ policy, then rule should be dispensed/reinterp to ensure fair, just result
  4. Divisions of court and jurisdiction: Chancery division
    Crt of equity: Seeking primarily non-$ damages (has some authority to grant some legal relief too)

    *General equity part: if requesting injunction, the crt usually issue a covenant not to compete

    * Probate part: crt dealing w/ wills, estate, trust, guardianship and custodianships (also will contest)

    *Family related part: Matrimony related. All civil actions related to familial relationships (custody, restraining orders, divorce)

    *Counterclaims Triable in Law Division: when an action is properly brought in the Chancery division, a counterclaim that would be otherwise triable in the Law division will be retained by the Chancery and not severed or transfered to Law division
  5. Divisions of court and jurisdiction: Law division
    Seeking primarily $ damage. Usual cases include torts, k, civil rights and unqualified claims (atty must serve complaint)

    • *Special Civi Part: Optional if potential recovery is <$15k
    • *Benefits= shortend discovery (doc demands need & crt permission to conduct depos), economically R for smaller cases (speed/efficiency), filing to crt is usually 3-4 months, juris is limited to 15k even if 20k awarded

    *Small claims division: allows waiver of counsel for business entities (jurisdictional limit of $3k or less)

    *Law division: for potential recovery of $15k or more
  6. Transfer btw Chancery and Law Divisions
    • An action may be transfered in the following ways:
    • 1. Motion to transfer: w/in 10 days of the expiration date prescribed for service of last permissible responsive pleading

    2. Transfer by crt order: sua sponte on its own accord (because quality of case changes $$$)

    3. Objections to jurisdictions: transfer would resolve lack of jurisdiciton (by motion or crt order)

    4. Waiver: if party fails to request a transfer w/in 10 days, all objections to jurisdiction are deemed waived
  7. Personal jurisdiction
    In order for a crt to exert jurisdiction in an action, it must have smj & either tj or pj over parties involved.

    1. in personam: when D owns real property in NJ or personal property or sm of case occurred in NJ (jurisdiction over a particular person)

    2. in rem: jurisdiciton over a piece of property (state needs to provide constn 14thA DP--> proper notice must be provided to 1) parties to action and those w/ interest, and 2) individ involved in the action who reside, are domiciled, conduct busienss or visit w/in the state)

    3. Territorial jurisdiction: authority over a particular property w/in NJ (real or personal)
  8. Personal jurisdiction: Waiver of lack of PJ
    DP is maintained when D' waives, consents or maintains minimum contacts w/ the state

    • 1. Consent:
    • a. failing to object to lack of PJ
    • b. implied consent (operating vehicle, conducts business, present in state when COA arose)
    • [apppearing or filing in crt, UNLESS appearing in crt for a special appearance]
  9. Personal jurisdiction: Domicile
    If D resides in NJ w/ intent to reside indefinately
  10. Personal jurisdiction: Physical presence
    If party served w/ process while present n NJ, DP reqs are met and NJ has PJ over that party
  11. PJ: minimum contacts sufficient to constitue specific jurisdition
    If D has sufficient contacts w/ NJ, the jurisdiction on D

    *has to be suffient enough that exercising PJ over party wouldn't offend traditional notions of fair play and substantial justice

    *NJ has longarm statute if above satisfied
  12. PJ: Forum Non Conveniens
    Usuallly D's objection to long-arm jurisdiction will be combined w/ a claim of forum non coveniens (argues that NJ is not the most appropriate court for the action to be tried)

    • *NJ will usually reject a forum non conveniens challenge, unless:
    • 1. strong showing of great hardship and manifest inappropriateness of the forum (all items located in another state) (other forum better)

    2. P will not be seriously inconveinenced by being denied NJ crt
  13. Personal jurisdiction by personal service: personal service of summons w/in NJ
    Traditionally, the sheriff must serve, if failed attempt, atty may try after 40 days

    *Modernally, sheriff is optional, atty must serve

    • *Minors under 14: summons and complaint must be delivered:
    • 1. personally to a parent or guardian of the minor, or
    • 2. to a competent adult member of the household where the minor resides

    • *Mentally Incapacitated: summons and complaint must be delivered:
    • 1. personally to person's guardian
    • 2. to a competent adult member of the household where person resides
    • 3. director or chief of institution where resides
  14. Personal jurisdiction by personal service: Individual proprietors and property owners
    • The following are considerd sufficient personal service:
    • 1. serve proprietor personally
    • 2. agent of the proprietor
    • 3. EE or agent of individual prop owner acting w/in the state (acting w/in the scope of employment)

    • *Actions related to NJ property: where the action arises out of any interest in real property owned by the individual, personal service can be obtained by delivering the summons or complaints to:
    • 1. property owner
    • 2. agent acting w/in the scope of management of real property
  15. Personal jurisdiction by personal service: Business Entities
    1. Partnerships & Unincorporated Associations: by serving GP/"the boss" or managing officer/agent

    2. Corporations: By serving director, officer, agent or person authorized by law
  16. Personal jurisdiction by personal service: State of NJ
    • Personal service can be affected via:
    • 1. Registered, certified or ordinary mail to atty gen: mail to atty general. First class ok, but certify is best (personal service to atty or office)

    2. Personal delivery to atty gen and filing w/ the clerk of the Superior crt: Filing writngs w/ crt specifically naming atty general

    *Other public bodies= in-hand to her clerk
  17. Personal jurisdiction by personal service: Business entities- Substitued or constructive service
    If can't effectively process in any of the other ways, after good faith-diligent attempt, then you can motion crt for permission to mail or post notice on property or publication

    *Foreign bodies= as req by treaty or court order
  18. In rem and quasi in rem jurisdiction: In rem jurisdiction
    In actions involving real property, the crt in the county and state in which the property is located has in rem jurisdiction
  19. In rem and quasi in rem jurisdiction: Quasi in rem
    In actions involving attachment of real or personal property as part of the relief requested, the crt has quasi in rem jurisdiction over the real and personal property being attached (i.e a lien placed on property to satisfy damages or relief after a lawsuit)

    *Doesn't establish PJ over the owner of the property, which must be obtained separately
  20. In rem and quasi in rem jurisdiction: Failure of service of process
    • Where D cannot be served, after diligent inquiry, service may be made in the following ways:
    • 1. personal service outside of state

    2. By mail

    3. Publication (general circulation)

    4. By crt order
  21. Service of process: Summons
    Included w/ complaint, info doc that informs person being sued- what he has to do now (purpose is to educate the person of rules i.e. get atty, consequences, cost)

    *Issuance: w/in 15 days of filing complaint (may only be issued to P, P's atty and court clerk)

    *Necessary info: atty, consequences, cost
  22. Service of process: Proof of service
    • Sufficient service of process reqs:
    • 1. proof of service
    • 2. which must be filed w/ crt
    • 3. and must be filed w/in the time allowed for response to service

    Affidavit of service (especially important if seeking default judgment)
  23. Service of process: Sufficient proof of service
    • Suffient proof of service must include: (affidavit of service)
    • 1. Name of person served
    • 2. place and date of service
    • 3. mode of service
  24. Service of Writs and process to enforce judgment
    Must be made by sheriff

    ex: sheriff apprehends D who failed to pay court orderd child support
  25. Venue:
    • In NJ, venue is determined by:
    • 1. County of residence (resident or domicile of any party or where COA took place)

    • 2. Residence of D Corp: A corp is deemed to reside in any county in which:
    • a. the corp does business
    • b. registered office or principal place of business
  26. Venue: Action against public entity
    Venue is proper in any county where @ least one party resides at the commencement of action
  27. Venue: Domicile of mentally incapacitated person
    In action involving appointment of guardian or conservator for an alleged mentally incapacitated person, their domicile is proper for venue
  28. Venue: For Chancery Dvision, Family Related part actions
    1. Child welfare/status actions: child's domicile

    2. Adoption Action: P's domicile

    3. Juvenile Delinquency Actions: juv's domicile

    4. Termination of Parental Rights: where agency has ppb, unles action w/ child started elsewhere

    5. Divorce/Separation/Annulments: P's domicile
  29. Venue: Special Civil Part
    Where D domicile (so incentive not to file w/ this part)
  30. Venue:County where service was effected
    The county where service was effected on a non-resident D is the proper venue
  31. Venue: In rem and Quasi in rem actions
    1. Quasi in rem: the county where that real or personal property is located is the proper county of venue

    2. In rem: county where the real property of venue is proper for actions involving title, possessory interest or other property related issues
  32. Change of venue
    • Change of venue is permitted only in the following situations:
    • 1. P applies prior to filing of 1st answer: P can dismiss own complaint b4 answer if filed. (dismissed w/out prejudice or ex parte motion to change venue) new filing fee

    2. Any party applies w/in 10 days of: experation of last responsive pleading (if not then waived)

    • 3. Standard: the crt may order a change of venue:
    • a. venue improper originally

    b. substantial argument that there can't be a fair impartial trial held in county where venue is @

    c. In the interest of justice (Weasle rule)
  33. Pleadings permitted in NJ State Courts: Complaints and claims of relief
    • 1. Complaints: notice pleading (starts case w/ P's filing)
    • 2. Counter: D may add her own COA

    3. Cross: D can sue new party (contribution/indemnity)

    4. 3rd party complaint: D brings another into suit
  34. Pleadings permitted in NJ State Courts: Answers
    1. Answer to complaint

    2. Answer to counter claim

    3. Answer to cross (new party must answer)

    4. Answer to 3rd party ( 3rd party must answer)
  35. Pleadings permitted in NJ State Courts: Determination of Track
    • NJ uses the track system. W/in 10 days of the date the complaint if filed, the court will send the P a track assignment notice. Case assigned to 1 of 4 tracks depending on:
    • 1. type of case
    • 2. length of time it should take to complete discovery

    *track assignment must be served w/ the summons on all parties
  36. First pleadings: Case info statements (CIS)
    Crt wants info about case. Diff case have diff needs/timing

    *track 1= 150 days discovery to track 4=unlimited time for discovery (period w/ lots of judge supervision
  37. First pleadings: Certification as to other actions pending
    • First pleading must also contain a certification (R451) stating:
    • 1. that no other case pending/arbitration

    2. all parties joined

    3. any relevant info

    *any time fixed by the crt doesnt include the date of the act or event. last day included unless last day is a weekend day or holiday
  38. Motions
    • All defenses must be stated in answer, excep the following ( may be made by motion w/ supporting brief prior to filing answer):
    • 1. lack of smj
    • 2. pj
    • 3. insuff of process
    • 4. insuff service of process
    • 5. failure to state a claim
    • 6. failure to join an idispensable party
    • 7. motion for more definate statement (so vague, no notice/reasonable understanding) - party can't reasonably frame a responsive pleading
  39. Motions for failure to state claim (demurrer)
    "so what" motion. it's all true, but I'm not liable

    *separate claims= motion to dismiss can be directed at specific portions or all of complaint
  40. General pleading reqs
    NJ is a notice pleading state- all pleadings must fairly apprise the adverse party of the claims and issues raised against the party

    *Consistency not required: alternative pleading allowed (on legal/equitable grounds)
  41. Special pleading
    • the following must be specifically pleaded w/ details:
    • Claims of fraud, mistake or condition of mine must be specifically plead w/ details (who, what, why, when)
    • * must contain particulars of wrong including dates and items if necessary)

    • *EXCEPTIONS: claims of malice, intent, knowledge and other conditions may be alleged generally
    • 2. Condition precednt
    • 3. judgments
    • 4. time and place
    • 5. special damages (out of pocket cost directing resulting from D's wrongful acts)
  42. Timing of amendments to pleadings:
    • A party may amend as follows:
    • 1. any time before responsive pleading is served (if no response required, any time w/in 90 days of service)

    2. After 90 days has past date of service, only w/ written consent of adverse party or leave of crt
  43. Response to amended pleading
    W/in time remaining for response to original pleading or w/in 20 days after service of adverse party

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