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New Jersey Motion to Dismiss

In New Jersey you move to dismiss under Court Rule R. 4:6-2 with briefs in the 35-day answer window.

Introduction

In New Jersey, a defendant challenges a complaint before answering by filing a motion to dismiss under New Jersey Court Rule R. 4:6-2. The rule lists six defenses, lettered (a) through (f), that may, at the option of the pleader, be made by motion, with briefs: lack of jurisdiction over the subject matter or the person, insufficiency of process or of service of process, failure to state a claim upon which relief can be granted, and failure to join a needed party. The (e) failure-to-state-a-claim ground tracks the federal Rule 12(b)(6) test. The motion shares the answer window: a defendant must serve an answer within 35 days after service of the summons and complaint under R. 4:6-1(a), and R. 4:6-2 directs that the motion be made before pleading if a further pleading is to be made, so you file it within that window in lieu of answering. If the motion is denied in whole or part, or its disposition is postponed until trial, R. 4:6-1(b) gives you 10 days after notice of the court's action to serve your responsive pleading. New Jersey practice mandates briefing under R. 1:6-5, and R. 1:6-2(a) requires a proposed form of order with the motion. Motions are heard in the Superior Court, Law Division. DocDraft drafts a New Jersey-formatted motion from your facts, with attorney review available before you file.

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Key Things to Know

  1. 1

    The New Jersey vehicle is a motion to dismiss under New Jersey Court Rule R. 4:6-2, the pre-answer dismissal motion, not a demurrer (California, Virginia) or preliminary objections (Pennsylvania). The rule is permissive: the listed defenses may, at the option of the pleader, be made by motion, with briefs.

  2. 2

    R. 4:6-2 enumerates six grounds, lettered (a) through (f): (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, and (f) failure to join a party without whom the action cannot proceed under R. 4:28-1. Ground (e) is the analog to federal Rule 12(b)(6).

  3. 3

    The motion shares the answer window. A defendant must serve an answer within 35 days after service of the summons and complaint under R. 4:6-1(a), and R. 4:6-2 directs that the motion be made before pleading if a further pleading is to be made, so the pre-answer motion is filed within that 35-day window in lieu of answering.

  4. 4

    If the motion is denied in whole or part, or its disposition is postponed until trial, R. 4:6-1(b) gives the defendant 10 days after notice of the court's action to serve the responsive pleading. Filing the motion replaces the answer obligation until the court rules.

  5. 5

    The rule itself mandates a brief. R. 4:6-2 lets the defenses be raised by motion, with briefs, and R. 1:6-5 requires the moving party's brief to be served and submitted with the moving papers. No statewide page or word limit for a motion-to-dismiss brief is fixed by R. 1:6 or R. 4:6; any limit is set by the assigned judge or vicinage practice, so check your court's local rules.

  6. 6

    The most common ground is failure to state a claim upon which relief can be granted, R. 4:6-2(e). If, on a (e) motion, matters outside the pleading are presented to and not excluded by the court, the motion is treated as one for summary judgment and disposed of under R. 4:46, and all parties are given a reasonable opportunity to present pertinent material.

  7. 7

    You file in the Superior Court of New Jersey, Law Division, in the county or vicinage venue named in the summons where the action is pending. A distinctive New Jersey requirement is that R. 1:6-2(a) requires the motion to be accompanied by a proposed form of order in accordance with R. 3:1-4(a) or R. 4:42-1(e), as applicable.

Key Decisions

Choosing the Grounds for Dismissal

Timing and Strategy

Filing and Serving the Motion

Customize your Motion to Dismiss Template with DocDraft

SUPERIOR COURT OF NEW JERSEY LAW DIVISION, CIVIL PART [____________] COUNTY DOCKET NO. ____________________

[PLAINTIFF NAME], Plaintiff,

v.

[DEFENDANT NAME], Defendant.

NOTICE OF MOTION TO DISMISS THE COMPLAINT UNDER NEW JERSEY COURT RULE R. 4:6-2

TO: [PLAINTIFF / PLAINTIFF'S ATTORNEY], [ADDRESS]

PLEASE TAKE NOTICE that on [RETURN DATE], or as soon thereafter as counsel may be heard, the undersigned Defendant shall move before the Superior Court of New Jersey, Law Division, [____________] County, for an order dismissing the Complaint under New Jersey Court Rule R. 4:6-2.

This motion is made under R. 4:6-2 and is made before pleading. In support of the motion, Defendant relies on the accompanying brief and, where the motion relies on facts not of record, the accompanying affidavit. A proposed form of order is submitted with this motion.

GROUNDS FOR THE MOTION

Defendant moves to dismiss on the following ground(s) under R. 4:6-2:

[Select each applicable ground:] (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 under R. 4:28-1.

[State specifically the basis for each ground asserted.]

BRIEF IN SUPPORT

Under R. 4:6-2 the listed defenses may be made by motion, with briefs, and under R. 1:6-5 the moving party's brief is served and submitted with the moving papers.

I. STATEMENT OF FACTS

[Set out the facts relevant to the motion. If the motion relies on facts not of record or not subject to judicial notice, support them by affidavit made in compliance with R. 1:6-6.]

II. LEGAL ARGUMENT

[Set out the legal argument and authorities supporting dismissal. For a motion under R. 4:6-2(e), failure to state a claim upon which relief can be granted, address the legal sufficiency of the complaint. Note: if matters outside the pleading are presented to and not excluded by the court, the motion is treated as one for summary judgment under R. 4:46.]

CONCLUSION

For the foregoing reasons, Defendant respectfully requests that the Court grant this motion and dismiss the Complaint, and grant such other relief as the Court deems just.

Respectfully submitted,

[ATTORNEY / PRO SE NAME] [NJ Attorney ID No., if attorney] [Address] [Telephone / Email] [Attorney for Defendant / Defendant Pro Se]

Dated: [DATE]

CERTIFICATION OF SERVICE

I certify that on [DATE] a true copy of the within Notice of Motion, supporting brief, [affidavit, if any,] and proposed form of order was served on all parties of record in accordance with the New Jersey Court Rules.

[NAME]

New Jersey Requirements for Motion to Dismiss

File within the 35-day answer window, before pleading

Under R. 4:6-1(a) a defendant must serve an answer within 35 days after service of the summons and complaint, and R. 4:6-2 directs that the motion be made before pleading if a further pleading is to be made. File the pre-answer motion within that 35-day window in lieu of answering.

If the motion is denied, answer within 10 days

Under R. 4:6-1(b), if the motion is denied in whole or part, or its disposition is postponed until trial, the responsive pleading must be served within 10 days after notice of the court's action.

Identify each R. 4:6-2 ground that applies

R. 4:6-2 enumerates six grounds: (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; and (f) failure to join a party without whom the action cannot proceed under R. 4:28-1. Identify which apply.

Watch for conversion of a (e) motion to summary judgment

If, on a motion to dismiss under the (e) ground (failure to state a claim), matters outside the pleading are presented to and not excluded by the court, R. 4:6-2 directs that the motion be treated as one for summary judgment and disposed of under R. 4:46, with all parties given a reasonable opportunity to present pertinent material.

Serve and submit a supporting brief with the moving papers

R. 4:6-2 lets the listed defenses be made by motion, with briefs, and R. 1:6-5 requires the moving party's brief to be served and submitted with the moving papers. The motion is made by notice of motion in writing under R. 1:6-2(a). No statewide page or word limit is fixed by R. 1:6 or R. 4:6; any limit is per the assigned judge or vicinage, so check your court's local rules.

Support out-of-record facts by affidavit

Under R. 1:6-2(a), if the motion or the response relies on facts not of record or not subject to judicial notice, it must be supported by an affidavit made in compliance with R. 1:6-6.

Submit a proposed form of order with the motion

R. 1:6-2(a) requires the motion to be accompanied by a proposed form of order in accordance with R. 3:1-4(a) or R. 4:42-1(e), as applicable. R. 4:42-1 governs the form and contents of the order, including a designation of the subject and a separate numbered paragraph for each substantive provision.

File in the Superior Court, Law Division, and serve all parties

File in the Superior Court of New Jersey, Law Division, Civil Part, in the county or vicinage venue named in the summons where the action is pending, and serve all parties of record under the New Jersey Court Rules. Special Civil Part handles claims up to $20,000 and the Small Claims Section up to $5,000 as Law Division dockets.

Frequently Asked Questions

File a motion to dismiss under New Jersey Court Rule R. 4:6-2 in the Superior Court, Law Division, where the action is pending. The motion is made by notice of motion in writing under R. 1:6-2(a), supported by a brief served with the moving papers under R. 1:6-5, and accompanied by a proposed form of order. If it relies on facts not of record, it must be supported by an affidavit under R. 1:6-6.

The motion shares the answer window. A defendant must respond within 35 days after service of the summons and complaint under R. 4:6-1(a), and R. 4:6-2 directs that the motion be made before pleading if a further pleading is to be made. So you file the pre-answer motion within that 35-day window in lieu of answering.

New Jersey brings the motion under R. 4:6-2, which labels its six defenses by letter rather than number. Subsection (e), failure to state a claim upon which relief can be granted, is the one that mirrors the federal Rule 12(b)(6) standard. The other five cover lack of jurisdiction over the subject matter, lack of jurisdiction over the person, insufficiency of process, insufficiency of service of process, and failure to join an indispensable party under R. 4:28-1.

No statewide meet-and-confer requirement applies as a prerequisite to filing a R. 4:6-2 motion to dismiss. New Jersey has no California-style statutory conferral step for dismissal motions; the motion is filed and briefed directly. Individual vicinage or assigned-judge practices are not a statewide rule, so check your court's local rules.

Under R. 4:6-1(b), if the motion is denied in whole or part, or its disposition is postponed until trial, the responsive pleading must be served within 10 days after notice of the court's action. Separately, if a failure-to-state-a-claim motion under R. 4:6-2(e) relies on matters outside the pleading, the court may treat it as a summary judgment motion under R. 4:46.

File in the Superior Court of New Jersey, Law Division, Civil Part, in the county or vicinage venue named in the summons where the action is pending. The Part IV rules, including R. 4:6-2, govern practice in the Law Division. Special Civil Part handles claims up to $20,000 and the Small Claims Section up to $5,000 as dockets within the Law Division.