NJ Civ Pro

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NJ Civ Pro
2011-07-10 15:35:53
NJ Civ Pro

NJ Civ Pro
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  1. NJ Court Structure
    • •NJ Supreme Court
    • •NJ Superior Court Appellate Division
    • •NJ Superior Court Law and Chancery Divisions

    • oLaw Division has civil and criminal part
    • oChancery has general equity, family part, and probate part
  2. Difference between Law Division and Chancery division?
    Law Division deals with legal relief (money damages)

    Chancery deals with equitable relief (injunction, specific performance)
  3. Is joinder of legal and equitable relief allowed in NJ?
  4. Why does a plaintiff benefit from seeking a jury trial in state court as opposed to federal court?
    NJ rules only require verdicts to be met by 5/6 of the jurors while federal court requires unanimity
  5. Is removal jurisdiction allowed?
    Generally YES if the requirements for filing in federal court are present.

    However, for diversity cases, removal is prohibited if any defendant is an NJ citizen
  6. Erie Doctrine in NJ?

    When federal court is adjudicating claim based on state law (e.g. diversity)

    Apply state substantive law but federal procedural law
  7. Reverse Erie doctrine in NJ?

    When state court is adjudicating claim based on federal law

    Apply federal substantive law but NJ rules of court
  8. How do you acquire PJ in NJ? (5 ways)
    •Valid personal service while physically present in NJ (No immunity for judicial proceedings)

    •General appearance/waiver (Can have “special appearance” to assert lack of PJ)

    •Consent/forum selection clause


    • •Long arm – minimal contacts (International Shoe - certain minimal contacts with form state, suit does not offend traditional notions of
    • fair play and substantial justice)
  9. Minimum contacts analysis for long arm jurisdiction
    Purposeful availment

    In stream of commerce cases, open

    Relation of contacts

    Fairness factors
  10. What is the “relation of contacts” analysis under International Shoe?
    General J: when the P’s COA doesn’t “arise out of or relate to”, PJ over D is proper to all claims

    Specific J: when the P’s COA does “arise out of or relate to”, PJ over D is limited to those specific claims
  11. What is the analysis of fairness factors under International Shoe?
    1. Burden on D

    2. Forum state’s interest in the case

    3. P’s interest in obtaining convenient and effective relief in the forum
  12. Forum non conveniens
    •Nonresident D who objects to PJ in NJ

    •Balance “public interests” vs. “private interests” of parties

    •Must show trial in NJ is “oppressive” or “manifestly inappropriate”
  13. In rem/quasi in rem jurisdiction
    Owning property is a “minimum contact” under International Shoe

    BUT: for can’t get general J just by owning property
  14. What may happen once proper personal jurisdiction is found over a defendant?
    •J may be satisfied out of any property owned by D

    •Res judicata and collateral estoppel applies

    •J is entitled to full faith and credit in all other states
  15. Types of actions for determining venue in civil cases
    1. Actions affecting title to real property

    2. Actions against municipal corporations/counties

    3. All other actions
  16. Venue for actions affecting title to real property
    County where the property is
  17. Venue for actions against municipal corporations/counties
    County in which the COA arose
  18. Venue for all other actions
    County in which the COA arose

    County in which any party resides

    County in which summons was served on nonresident D
  19. Waiver of venue
    Must be timely asserted by D (no more than 10 days after service of last responsive pleading)
  20. Commencement of action procedure
    1. P files complaint (not when summons is served on D)

    2. P must then prepare and issue a summons in the name of the court (w/in 15 days)
  21. Service of process contents
    1. Summons

    2. Copy of the complaint
  22. Who may serve process?

    •P’s attorney or agent

    •“Any other competent adult” not having direct interest in the matter
  23. Methods of service inside NJ
    •Individual (at usual place of abode with D or competent household member)

    •Corporations (person in charge at principal office/place of business)

    •Partnerships (any partner residing in NJ)

    •Cities/Towns/Govt. Entities (clerk, manager, etc.)

    •State of NJ (mail to AG’s office in Trenton)
  24. Service outside NJ
    Follow that state’s law
  25. What type of pleading does NJ use?

    Purpose is to fairly apprise adverse party of the nature of the claim

    Need plain and concise statement of material facts, divided into paragraphs
  26. Good faith pleading rule?

    Have 28 days “safe harbor” period for withdrawal of offending paper
  27. Damages claim in a complaint: general or specific amount?
    GENERAL. No specifics.
  28. Special matters pleading?
    Fraud, mistake, denial of performance must be done with particularity
  29. What do you also have to file for some professional malpractice cases?
    Affidavit of merit, within 60 days of the answer

    Expert says P's claim is meritorious
  30. Liberal joinder of claims?

    P may join as many claims as P has against D
  31. Answer requirements
    Pleader's defenses to each claim

    Must admit or deny each claim
  32. Affirmative defenses requirements
    Must be set forth specifically and separately in the answer
  33. Defenses permitted to be raised in preanswer motion (6)
    •Lack of SMJ

    •Lack of PJ

    •Insufficiency of process

    •Insufficiency of service of process

    •Failure to state a claim

    •Failure to join a necessary party
  34. Waiver of certain defenses
    For lack of PJ, insufficiency of process, and insufficiency of service of process

    •Party must file a follow up motion within 90 days of service of the answer

    •Otherwise, the defense is waived
  35. Counterclaims and cross-claims
    •Counterclaims OK whether mandatory (related) or permissive (unrelated)

    •Cross-claims can be permissive (different than FRCP)

    Can be legal, equitable, or both
  36. What is the "fictitious party" relation back rule?
    •Party may sue unknown party under a fictitious name and then substitute correct party name after discovering it

    •SoL doesn’t stop this
  37. Procedure for making “Fictitious party” relation designation
    1. File as John Doe before SoL expires

    2. Due diligence to learn true identity of party

    3. Promptly move to substitute true party and join it

    4. Show joined party will not suffer prejudice as a result of late joinder
  38. Supplemental vs. amended pleadings
    Supplemental sets forth transactions/occurrences that took place after date of pleading

    Amended just changes the pleadings
  39. Types of joinder of parties


    •Impleader (3d party)


    •Class actions
  40. Does NJ have permissive joinder of parties?

    Claims of P's must arise from same transaction or series of transactions.

    P's claims must share at least one common question of law or fact
  41. What is impleader?

    1. D serves summons and complaint on person who is not a party

    2. That person is or may be liable to him for all or part of P’s claim (indeminity or contribution)

    3. Then D becomes a 3d party P

    4. Impleaded party becomes 3d party D

    5. 3d party permitted all remedies of original D
  42. What is interpleader?
    Allows person in possession of $$ or property claimed by 2+ persons to joint adverse claimants in a single action
  43. What is the NJ rule for mandatory disclosures?
    No requirement

    BUT: NJ has form interrogatories for both parties

    oFor car damage, personal injury (not wrongful death), toxic torts, nonmedical professional malpractice
  44. What’s the standard for obtaining the other party’s work product?
    •Substantial need for the materials

    •Unable to obtain equivalent without undue hardship
  45. Types of Discovery

    •Inspection of documents and land

    •Physical and mental exams

    •Admissions (judicial admission)

    •Oral depositions

    •Depositions on written questions
  46. What are the rules for using depositions at trial?
    •Party deposition: May be used as substantive evidence against that party as an admission

    •Unavailable deponent: May be used in lieu of live testimony (former testimony exception)

    •Available deponent: May be used for contradiction/impeachment purposes
  47. Discovery sanctions?
    •Strike pleadings, dismiss claim, enter default judgment

    •Establish the info based on seeking party’s info•Prohibit disobedient party form introducing matters into evidence

    •Contempt of court
  48. Termination without trial methods
    •Default judgment

    •Involuntary dismissal

    •Voluntary dismissal

    •Summary judgment
  49. When is a default judgment appropriate?
    Failure to plead, defend, or appear
  50. NJ right to a jury trial?
    Legal claims only.
  51. Can you get a jury if you have mixed legal/equitable claims?
    Only for the legal claims!
  52. Have long do you have to demand a jury trial?
    10 days or you waive your right
  53. What is the general standard of proof (burden of persuasion) in NJ civil actions?
    Preponderance of the evidenceNote: sometimes “clear and convincing” like for fraud
  54. Types of verdicts
    •General verdict: J finds for P or D, awards damages

    •Specific verdict: J makes special written findings upon each issue of fact

    •General verdict w/written interrogatories: J finds for P or D but also answers questions
  55. What is a motion for involuntary dismissal?
    D moves with prejudice for failure to state a claim after P’s case-in-chief
  56. What are the procedure and standard for a motion for directed verdict?
    What are the procedure and standard for a motion for directed verdict?

    • Procedure:
    • After opponent’s evidence or all evidence, before case is submitted to jury

    • Standard:
    • Could reasonable J return verdict of other party? Must find no legally sufficient basis for a reasonable J to find in favor of nonmoving party
  57. What are the procedure and standard for a JNOV?
    • Procedure:
    • Must make motion for DV before case submitted to jury. Ct reserves or denies DV motion, then rules on JNOV

    Standard:All inferences in favor of nonmoving party.Must find no legally sufficient basis for a reasonable J to find in favor of nonmoving party
  58. What are the procedure and standard for a motion for new trial or motion for relief from judgment or order?
    •Legally sufficient jury verdict, still screwy

    • •Bad jury instructions or evidentiary rulings, misconduct, new evidence,
    • bad jury verdict, excessive or inadequate damage awards
  59. What are remittur and additur?
    Remittur is reduction of jury’s damages award

    Additur is increase in jury’s damages award
  60. What are P’s remedies if D fails to pay judgment?
    Seize, levy on, garnish D’s assets
  61. Res judicata (claim preclusion) in NJ

    All parties joined in an action must assert all related claims against all other parties in the action

    If claims are not asserted, they are barred in subsequent litigation

    Requires joinder of claims, not parties
  62. Preliminary injunctions and TRO
    Preliminary injunction:Granted after adversarial court hearing. Remains in effect unless court dissolves it

    • TRO:
    • Emergency order imposed until an adversarial hearing can be held.

    • Moving party must show:
    • 1. Irreparable injury, loss, or damage if injunction not granted
    • 2. Likelihood of success on the merits at trial
  63. What is declaratory relief?
    NJ court can provide judgment declaring rights and duties of parties

    Avoids future litigation
  64. What is charitable immunity in NJ? Standard?
    Definition: Tort immunity to nonprofit org.’s and agents and employees for acts of negligence

    • Standard:
    • 1. Only to claims by beneficiaries of the nonprofit

    2. No immunity when there is willful, wanton, or gross negligence

    3. Caps negligence claims for hospitals at $250,000
  65. What is the inquiry for appellate review?
    1. Was the alleged error preserved for appeal? (Exception where there is “plain error” in fundamental rights cases)

    2. Does the challenged action constitute error under the appropriate standard of review?

    3. Does the error constitute reversible or prejudicial error?
  66. What are the standards of review in NJ?
    Legal rulings: de novo

    Discretionary rulings: abuse of discretion (must be manifestly unjust)

    Factual findings: deferential standard (clearly erroneous)