New Jersey Motion to Dismiss

Introduction

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.

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.