Civil Best Practices Rules and Rule Amendments

1:1–2. Construction and Relaxation

The rules in Part I through Part VIII, inclusive, shall be construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. Unless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice. In the absence of rule, the court may proceed in any manner compatible with these purposes and, in civil cases, consistent with the case management/trial management guide lines set forth in Appendix XX of these rules.

Note: Source—R.R. 1:27A, 3:1–2, 3:11–9, 4:1–2, 4:121, 6:1–1 (second sentence), 6:1–2, 8:1–2. Amended June 20, 1979 to be effective July 1, 1979; amended July 5, 2000 to be effective September 5, 2000.

1:5-6.Filing

(a) ... no change

(b) ... no change

(c) Nonconforming Papers. The clerk shall file all papers presented for filing and may notify the person filing if such papers do not conform to these rules, except that [(1) if a paper is presented for filing without the Case Informa tion Statement required by R. 4:5-1 or without payment of the required filing fee, the clerk shall return the same stamped "Received but not Filed (date)" with notice that if the paper is retransmitted together with the Case Information Statement or filing fee, as appropriate, within ten days after the date of the clerk's notice, filing will be deemed to have been made on the stamped receipt date; and (2) except]

(1) the paper shall be returned stamped “Received but not Filed (date)” if it is presented for filing unaccompanied by any of the following:

(A) the required filing fee; or

(B) a completed Case Information Statement as required by R. 4:5-1 in the form set forth in Appendix XII to these rules; or

(C) in Family Part actions, the affidavit of insurance coverage required by R. 5:4-2(f) or the Parents Education Program registration fee required by N.J.S.A. 2A: 34-12.2.

If a paper is returned under this rule, it shall be accompanied by a notice advising that if the paper is retrans mitted together with the required document or fee, as appro priate, within ten days after the date of the clerk’s notice, filing will be deemed to have been made on the stamped receipt date.

(2) [in] In mortgage and tax foreclosure actions, if an answer is presented by a defendant against whom default has been entered, the clerk shall return the same stamped “Re ceived but not Filed (date)” with notice that the defendant may move to vacate the default.

(3) A demand for trial de novo may be rejected and returned if not filed within the time prescribed in R. 4:21A- 6.

(d) ... no change

(e) ... no change

Note: Source-R.R. 1:7-11, 1:12-3(b), 2:10, 3:11-4(d), 4:5-5(a), 4:5-6(a) (first and second sentence), 4:5-7 (first sentence), 5:5-1(a). Paragraphs (b) and (c) amended July 14, 1972 to be effective September 5, 1972; paragraph (c) amended November 27, 1974 to be effective April 1, 1975; paragraph (b) amended November 7, 1988 to be effective January 2, 1989; paragraph (b) amended June 29, 1990 to be effective September 4, 1990; paragraph (c) amended November 26, 1990 to be effective April 1, 1991; paragraphs (b) and (c) amended, new text substituted for paragraph (d) and former paragraph (d) redesignated paragraph (e) July 13, 1994 to be effective September 1, 1994; paragraph (b)(1) amended, new paragraph (b)(2), adopted, paragraphs (b)(2), (3), (4), (5) and (6) redesignated paragraphs (b)(3), (4), (5), (6) and (7), and newly designated paragraph (b)(4) amended July 13, 1994 to be effective January 1, 1995; paragraphs (b)(1),(3) and (4) amended June 28, 1996 to be effective September 1, 1996; paragraph (b)(4) amended July 10, 1998 to be effective September 1, 1998; paragraph (c) amended July 5, 2000 to be effective September 5, 2000.

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. 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 [date], 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) Civil and Family Part Motions-Oral Argument. Except as otherwise provided by R. 5:5-4 (family actions), no motion shall be listed for oral argument unless a party requests oral argument in the moving papers or in timely-filed answering or reply papers, or unless the court directs. A party requesting oral argument may, however, condition the request on the motion being contested. If the motion involves pretrial discovery or is directly addressed to the calendar, the request shall be considered only if accompanied by a statement of reasons and shall be deemed denied unless the court otherwise advises counsel prior to the return day. As to all other motions, the request shall be granted as of right. [Except as otherwise provided by paragraph (b) and insofar as is practicable, all subsequent motions in the cause, other than motions directly addressed to the trial or arbitration calendar, shall be heard by the same judge who heard the first motion in the cause.]

(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 para graph (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 (c) and (d) amended July 5, 2000 to be effective September 5, 2000.

1:6–5.Briefs

The moving party's brief in support of a motion shall, pursuant to R. 1:6–3, be served and submitted to the court with the moving papers [and submitted to the court as herein prescribed]. The respondent shall serve and submit an answering brief at least 8 days before the return date. A reply brief, if any, shall be served and submitted at least 4 days before the return date. [Briefs shall be submitted only to the judge assigned to hear the matter or, if no judge has been assigned, in accordance with R. 1:5-6(b).] Briefs may not be submitted after the time fixed by this rule or by court order, including the pretrial order, without leave of court, which may be applied for ex parte.

Note: Source—R.R. 4:5–5(b) (first sentence), 4:5–10(a) (b)(c)(e); paragraph (a) amended July 16, 1979 to be effec tive September 10, 1979; paragraphs (a) and (b) amended July 13, 1994 to be effective September 1, 1994; amended July 10, 1998 to be effective September 1, 1998; amended July 5, 2000 to be effective September 5, 2000.

1:8-7. Requests to Charge the Jury

(a) Generally. [At or before the commencement of the trial,] Either within the time provided by R. 4:25-7 or thereafter but before the close of the evidence, as to issues not anticipated prior to trial, any party may submit written requests that the court instruct the jury on the law as set forth in the requests. The requests shall make specific reference to the Model Civil Jury Charges, if applicable, or to applicable law. Copies of the requests shall be furnished all parties at the time they are submitted to the court. The court shall, on the record, rule on the requests prior to closing arguments to the jury. A verbatim record shall be made of any charge conference the court holds. Objections to the instructions to the jury shall be in accordance with R. 1:7-2.

(b) ...no change

Note: Source--R.R. 3:7-7(a), 4:52-1 (first and second sentences); amended July 21, 1980 to be effective September 8, 1980; paragraph (a) caption and new paragraph (b) added July 13, 1994 to be effective September 1, 1994; paragraph (a) amended July 10, 1998 to be effective September 1, 1998; paragraph (a) amended July 5, 2000 to be effective September 5, 2000.

1:13–7.Dismissal of [Inactive] Civil Cases for Lack of Prosecution

(a) Except in receivership and liquidation proceedings, in condemnation and foreclosure actions as otherwise specified by R. 4:43-2(d), and except as otherwise provided by rule or court order, whenever any civil action shall have been pending in any court for [6] four months without any required proceed ing having been taken therein, [the Clerk of the Superior Court or the deputy clerk of the Superior Court in the county of venue, shall give to the parties or their attorneys written notice of a motion by the court to dismiss the same for want of prosecution. The notice shall advise that unless an affidavit is filed with the court at least 5 days prior to the return date explaining the delay and why the action should not be dismissed, the action will be dismissed without call. For purposes of this rule, adjournments, extensions of time, and applications, motions or hearings in connection therewith, shall not be considered a proceeding taken. Unless otherwise ordered by the court, a dismissal under this rule shall be without prejudice] the court shall issue written notice to the parties advising that the action as to any or all defendants will be dismissed without prejudice 60 days following the date of the notice unless, within said period, proof of service of process has been filed, or an answer has been filed, or a motion has been filed asserting that the failure of service or the filing of an answer is due to exceptional circumstances. If the plaintiff fails to respond as herein prescribed, the court shall enter an order of dismissal without prejudice as to any named party defendant who has not been served or has not answered and shall furnish the plaintiff with a copy thereof. Reinstatement of the action after dismissal may be permitted only on motion for good cause shown. The court may issue the written notice herein prescribed in any action pending on the effective date of this rule amendment, and this rule shall then apply.

(b) ... no change

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.

4:5–1.General Requirements for Pleadings

(a) ... no change

(b) Requirements for First Pleadings.

(1) Case Information Statement. Except in civil commit ment actions brought pursuant to R. 4:74-7 and in actions in probate, foreclosure and all other general equity actions, [A] a Case [i]Information [s]Statement in the form prescribed by Appendix XII to these rules shall be annexed as a cover sheet to each party's first pleading.

(2) ... no change

(c) ... no change

Note: Source—R.R.4:7–1; amended July 26, 1984 to be effective September 10, 1984; caption and text amended November 26, 1990 to be effective April 1, 1991; paragraph (c) added July 13, 1994 to be effective September 1, 1994; paragraph (b)(2) amended July 10, 1998 to be effective September 1, 1998; paragraph (b)(1) amended July 5, 2000 to be effective September 5, 2000.

RULE 4:5A. CASE TRACKS

4:5A-1. Tracks Defined

Every civil action filed in the Superior Court, except civil commitment actions brought pursuant to R. 4:74-7 and actions in probate, foreclosure and all other general equity actions, shall be assigned by case type as prescribed by the Case Information Statement in Appendix XII to these Rules to one of the four tracks as therein specified, namely, Track I, Track II, Track III, and Track IV. The court shall make the assignment at the time the complaint and Case Information Statement are filed. All summary actions commenced by order to show cause shall be assigned to Track I.

Note: Adopted July 5, 2000 to be effective September 5, 2000.

4:5A-2.Notice of Track Assignment; Change of Assignment

(a) Notice of Track Assignment; Change of Assignment for Good Cause Shown. Within ten days after the filing of the complaint, the court shall mail a notice of track assignment to the plaintiff. The plaintiff shall annex a copy of the notice to process served on each defendant. Within 30 days after receipt of the track assignment notice, plaintiff may apply to the court for a change of track assignment by filing a certification of good cause. Any party other than the plaintiff seeking a change of track assignment shall file and serve a certification of good cause with its first pleading and any objection thereto shall be made by responding certification filed and served within ten days. Any party aggrieved by the court’s determination on such application may seek relief therefrom by motion filed and served within 15 days thereafter.

(b) Change of Assignment for Exceptional Circumstances. A motion for change of track assignment made thereafter may be granted only on a showing of exceptional circumstances, except that the court may sua sponte at any time, on notice to the parties, order a change of track assignment for good cause, which shall be placed on the record.

Note: Adopted July 5, 2000 to be effective September 5, 2000.

4:5A-3.Applicability.

This rule shall be applicable to all actions filed on or after September 5, 2000.

Note: Adopted July 5, 2000 to be effective September 5, 2000.

RULE 4:5B. CASE MANAGEMENT; CONFERENCES

4:5B-1. Assignment for Case Management

At the time the complaint is filed, the action shall be assigned to a designated judge, who shall, except as otherwise provided by R. 4:24-1(c), preside over all pretrial motions and management conferences in the cause until filing of the Trial Information Statement (TIS) prescribed by R. 4:36-2. Any application made to the court after filing the TIS shall be made to the Civil Presiding Judge or designee. In Track IV cases, however, the designated pretrial judge shall, insofar as is practicable and absent exceptional circumstances, also preside at trial.

Note: Adopted July 5, 2000 to be effective September 5, 2000.

4:5B-2.Case Management Conferences

In cases assigned to Tracks I, II, and III, the desig nated pretrial judge may sua sponte or on a party's request conduct a case management conference if it appears that such a conference will assist discovery, narrow or define the issues to be tried, or otherwise promote the orderly and expeditious progress of the case. A case management confer ence shall not, however, ordinarily be conducted after the case is ready for trial. In Track IV cases, except for actions in lieu of prerogative writs and probate and general equity actions, an initial case management conference shall be conducted as soon as practicable after joinder and, absent exceptional circumstances, within 60 days thereafter. In actions in lieu of prerogative writs, case management con ferences shall be held pursuant to R. 4:69-4. In probate and general equity actions, case management conferences may be scheduled at the discretion of the judge. All decisions and directives issued at a case management conference shall be memorialized by order as required by R. 1:2-6.

Note: Adopted July 5, 2000 to be effective September 5, 2000.

4:5B-3.Settlement Conferences

The court may conduct a settlement conference or schedule any other settlement event in any civil action on its or a party's request. Except in Track IV cases, there shall be no more than one court-initiated or court-mandated settlement conference or other settlement event prior to the trial date. Notwithstanding the conduct of a settlement conference or other settlement event as herein provided, a second settlement conference may be conducted on the trial date and immediately prior to the commencement of trial, provided that trial shall then forthwith proceed if settlement is not reached. The settlement conference need not be conducted by the designated pretrial judge.

Note: Adopted July 5, 2000 to be effective September 5, 2000.

4:5B-4.Applicability

This rule shall be applicable to all actions filed on or after September 5, 2000.

Note: Adopted July 5, 2000 to be effective September 5, 2000.

4:8–1.Third Party Brought in by Defendant

(a) ... no change

(b) Procedure After Third Party Is Joined. The third-party defendant shall assert defenses to the third-party plaintiff's claim as provided by R. 4:6 and shall assert counterclaims against the third-party plaintiff and cross-claims against the other third-party defendants as provided by R. 4:7. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The plaintiff, within 45 days after being served with the third-party complaint, or, if the defendant has sought leave, within 45 days after being served with the order granting such leave, may amend the complaint to assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of plaintiff's claim against the third-party plaintiff; thereaf ter plaintiff may so amend the complaint only by leave of court on notice to the parties to the action. The third-party defendant thereupon shall assert defenses as provided by R. 4:6 and counterclaims and cross-claims as provided by R. 4:7. A third-party defendant may proceed under this rule against any person not a party to the action who is or may be liable to the third-party defendant for all or part of the claim made in the action against the third-party defendant. The manda tory joinder provisions of R. 4:30A shall apply to all affirmative claims assertible pursuant to this rule, and discovery shall proceed as provided by R. 4:24-1.

Note: Source—R.R. 4:14–1; paragraph (b) amended July 21, 1980 to be effective September 8, 1980; paragraph (a) amended July 15, 1982 to be effective September 13, 1982; paragraphs (a) and (b) amended July 13, 1994 to be effective September 1, 1994; paragraphs (a) and (b) amended June 28, 1996 to be effective September 1, 1996; paragraph (b) amended July 10, 1998 to be effective September 1, 1998; paragraph (b) amended July 5, 2000 to be effective September 5, 2000.4:17–1.Service, Scope of Interrogatories

(a) ... no change

(b) Uniform Interrogatories in Certain Actions.

[(i)] (1) Limitations on Interrogatories. In all actions seeking recovery for property damage to automobiles and in all personal injury cases other than wrongful death, toxic torts, cases involving issues of professional malprac tice other than medical malpractice, and those products liability cases either involving pharmaceuticals or giving rise to a toxic tort claim, the parties shall be limited to the interrogatories prescribed by Forms A, B and C of Appendix II, as appropriate, provided, however, that each party may propound ten supplemental questions, without subparts, without leave of court. Any additional interrogatories shall be permitted only by the court in its discretion on motion.

[(ii)] (2) [Demand in Lieu of Service. A party required or desiring to propound uniform interrogatories as provided for by this rule shall do so by a letter of demand served upon all adverse parties in lieu of service of the interrogatories themselves.] Automatic Service of Uniform Interrogatories. A party defendant served with a complaint in an action subject to uniform interrogatories as prescribed by subparagraph b(1) of this rule shall be deemed to have been simultaneously served with such interrogatories. The defendant shall serve answers to the appropriate uniform interrogatories within 60 days after service by that defendant of the answer to the complaint. The plaintiff in such an action shall be deemed to have been served with uniform interrogatories simultaneously with service of defendant's answer to the complaint and shall serve answers to the interrogatories within 30 days after service of the answer to the complaint. In all commenced prior to September 5, 2000, however, answers to uniform interrogatories shall be demanded by letter of demand served upon all adverse parties within the time prescribed by R. 4:17-2, and answers shall be served within the time prescribed by R. 4:17-4(b).

[(iii)] (3) Claims of Privilege, Protection. Privileged information need not be disclosed provided the [nature of the privilege is identified] claim of privilege is made pursuant to R. 4:10-2(e). Nor need information be disclosed if it is the subject of an identified protective order issued pursuant to R. [4:10–2] 4:10-3.

(4) Except as otherwise provided in subparagraph (b)(3) of this rule, every question propounded by a uniform interrog atory must be answered unless the court has otherwise ordered.

Note: Source—R.R. 4:23–1, 4:23–9. Last clause of second sentence and third and fourth sentences deleted (see R. 4:10B2(d) and R. 4:17B3) July 14, 1972 to be effective September 5, 1972; new caption for paragraph (a) and new paragraphs (b)(i) and (ii) adopted July 13, 1994 to be effective September 1, 1994; paragraph (b)(i) amended and paragraph (b)(iii) added June 28, 1996 to be effective September 1, 1996; paragraph (b)(i) amended July 10, 1998 to be effective September 1, 1998; paragraphs (b)(i), (b)(ii), and (b)(iii) redesignated as paragraphs (b)(1), (b)(2), and (b)(3), redesignated paragraphs (b)(2) and (b)(3) amended, and new paragraph (b)(4) adopted July 5, 2000 to be effective September 5, 2000.

4:17–2.Time to Serve Interrogatories

Interrogatories may, without leave of court, be served upon the plaintiff or answers demanded pursuant to R. 4:17–1(b) after commencement of the action and served upon or demanded from any other party with or after service of the summons and complaint upon that party. Except as provided in R. 4:17-1(b)(2), [I]initial interrogatories shall be served [or answers to uniform interrogatories demanded] by plaintiff as to each defendant within 40 days after [the expiration of the time allowed for] service of [the last permissible responsive pleading as to each defendant] that defendant’s answer and each defendant shall serve initial interrogatories within said 40-day period.

Note: Source—R.R. 4:23–2(a)(b)(c). Amended and last two sentences deleted July 14, 1972 to be effective September 5, 1972; amended July 13, 1994 to be effective September 1, 1994; amended July 5, 2000 to be effective September 5, 2000. 4:17–4.Form, Service and Time of Answers

(a) ... no change

(b) Service of Answers; Time; Enlargement of Time. [The] Except as otherwise provided by R. 4:17-1(b)(2), the party served with interrogatories shall serve answers thereto upon the party propounding them within 60 days after being served with the interrogatories. For good cause shown the court may enlarge or shorten such time upon motion on notice made within the 60–day period. Consent orders enlarging the time are prohibited.

(c) ... no change

(d) ... no change

(e) ... no change

Note: Source—R.R. 4:23–4, 4:23–5, 4:23–6(a)(b)(c)(d). Paragraph (a) amended and paragraph (d) adopted July 14, 1972 to be effective September 5, 1972; paragraph (a) amended September 13, 1976 to be effective September 13, 1976; paragraph (a) amended and paragraph (e) adopted July 29, 1977 to be effective September 6, 1977; paragraph (a) amended July 16, 1981 to be effective September 14, 1981; paragraph (a) amended July 26, 1984 to be effective September 10, 1984; paragraph (a) amended November 2, 1987 to be effective January 1, 1988; paragraph (a) amended November 7, 1988 to be effective January 2, 1989; paragraph (c) amended June 29, 1990 to be effective September 4, 1990; paragraphs (a), (b) and (e) amended July 13, 1994 to be effective September 1, 1994; paragraph (c) amended June 28, 1996 to be effective September 1, 1996; paragraph (b) amended July 5, 2000 to be effective September 5, 2000.

4:17­7. Amendment of Answers

Except as otherwise provided by R. 4:17­4(e), if a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the [first date fixed for trial] end of the discovery period, as fixed by the track assignment or sub sequent order. Thereafter amendments may be allowed only [for extraordinary or compelling reasons and to prevent manifest injustice, and upon such terms as the court directs. In no case shall amendments be allowed at trial where it appears that the evidence sought to be introduced was known to the party seeking such leave, more than 10 days prior to trial] if the party seeking to amend certifies therein that the informa tion requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date.

Note: Source­R.R. 4:23­12; amended July 29, 1977 to be effective September 6, 1977; amended September 9, 1982 to be effective September 14, 1982; amended July 22, 1983 to be effective September 12, 1983; amended June 29, 1990 to be effective September 4, 1990; amended July 5, 2000 to be effective September 5, 2000. 4:18–1.Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes; Pre-litigation Discovery

(a) ... no change

(b) Procedure. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon 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 party upon whom the request is served shall serve a written response within [30] 35 days after the service of the request, except that a defendant may serve a response within [45] 35 days after service of the summons and complaint upon that defen dant. 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 upon 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, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. [The party submitting the request may move for an order under R. 4:23 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.] 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. The party submitting the request may move for an order of dismissal or suppression 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.

(c) ... no change

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. RULE 4:19. PHYSICAL AND MENTAL EXAMINATION OF PERSONS

In an action [to] in which a claim is asserted by a party for personal injuries or in which the mental or physical condition of a party is in controversy, [the court in which the action is pending may from time to time order the party to submit to a physical or mental examination by a medical or other expert. Such examination may include the taking of X-rays and other tests of physical or mental condition. The order may be made only on motion for good cause shown, supported by affidavit stating the party's refusal to submit to an examination upon the movant's request, and upon notice to the party to be examined and to all other parties. The order shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. The court, upon application showing good cause, may permit subsequent reexaminations, provided the same will not delay the trial.] the adverse party may require the party whose physical or mental condition is in controversy to submit to a physical or mental examination by a medical or other expert by serving upon that party a notice stating with specificity when, where, and by whom the examination will be conducted and advising, to the extent practicable, as to the nature of the examination and any proposed tests. The time for the examination stated in the notice shall not be sched uled to take place prior to 45 days following the service of the notice, and a party who receives such notice and who seeks a protective order shall file a motion therefor, returnable within said 45-day period. The court may, on motion pursuant to R. 4:23-5, dismiss the pleading of a party who fails to submit to the examination, to timely move for a protective order, or to reschedule the date of and submit to the examina tion within a reasonable time following the originally scheduled date. A court order shall, however, be required for a reexamination by the adverse party's expert if the examined party does not consent thereto. This rule shall be applicable to all actions, whenever commenced, in which a physical or mental examination has not yet been conducted.

Note: Source—R.R. 4:25–1; amended July 13, 1994 to be effective September 1, 1994; amended July 5, 2000 to be effective September 5, 2000. 4:21A–1.Actions Subject to Arbitration; Notice and Schedul ing of Arbitration

(a) Mandatory Arbitration. Arbitration pursuant to this rule is mandatory for applicable cases on Tracks I, II, and III, and only as required by the managing judge for cases on Track IV.

(1) Automobile Negligence Actions. All tort actions arising out of the operation, ownership, maintenance or use of an automobile [in which the amount in controversy, as hereaf ter defined, does not exceed $15,000] shall be submitted to arbitration in accordance with these rules. [For purposes of these rules, the amount in controversy includes non-economic loss and uncompensated economic loss, except uncompensated property damage claims. The amount in controversy shall be presumed to be less than $15,000 if plaintiff's total medical expenses, as reported by his or her attorney in accordance with case management or screening procedures in the vicinage of venue, do not exceed $4,500.]

(2) Other Personal Injury Actions. Except for profes sional malpractice actions, [A]all actions for personal injury not arising out of the operation, ownership, maintenance or use of an automobile [in which the amount in controversy, as hereafter defined, does not exceed $20,000] shall be submitted to arbitration in accordance with these rules. [For purposes of these rules, the amount in controversy includes non-economic loss and uncompensated economic loss, except uncompensated property damage claims. The amount in contro versy shall be presumed to exceed $20,000 if the cause of action involves medical malpractice, products liability, a toxic tort or intentional tort or if the plaintiff's total medical expenses, as reported by plaintiff's attorney in accordance with case management or screening procedures in the vicinage of venue, exceed $4,500.]

(3) Other Non-Personal Injury Actions. All actions on a book account or instrument of obligation, all personal injury protection claims against plaintiff’s insurer, and all other contract and commercial actions that have been screened and identified as appropriate for arbitration shall be submitted to arbitration in accordance with these rules.

(b) Voluntary Arbitration. Any [automobile tort action or personal injury] action not subject to mandatory arbitra tion pursuant to subsections (1), [or] (2), or (3) of para graph (a) of this rule may be submitted to arbitration on written stipulation of all parties filed with the civil division manager.

(c) Removal From Arbitration. An action assigned to arbitration may be removed therefrom as follows:

(1) Prior to the [case being scheduled for, and the attorneys noticed of an arbitration hearing, the case] notice of the scheduling of the case for arbitration or within 15 days thereafter, the case may be removed from arbitration upon submission to the arbitration administrator of a certification stating with specificity that [the medicals exceed $4,500 or providing other reasons why the value of the case is greater than the applicable monetary limitations set forth in subsec tions (1) or (2) of paragraph (a) of this rule or why] the controversy involves novel legal or [unduly] unusually complex factual issues or is otherwise ineligible for arbitration pursuant to [subsection (2) of] paragraph (a). A copy of this certification must be provided to all other parties. A party who objects to removal [should] shall so notify the arbitra tion administrator within ten [(10)] days after the receipt of the certification, and the matter will then be referred to a judge for determination. [If no objection is made and the reasons for removal certified to are sufficient, the case will be removed. If the certification for removal contains a representation that all parties consent, and the matter otherwise qualifies for removal, it will be removed.] The arbitration administrator shall, however, remove the case from arbitration if no objection is made and the reasons for removal certified to are sufficient. The failure of a prior court-ordered mediation may be considered a sufficient reason for removal.

[(2) Once a case has been scheduled and noticed for a hearing, it may be removed within 15 days of the notice on the certification of either party stating that the medicals exceed $4,500 or providing other reasons why the value of the case is greater than the applicable monetary limitations set forth in subsections (1) or (2) of paragraph (a) of this rule or setting forth specific reasons why the controversy involves novel legal or unduly complex factual issues or is otherwise ineligible for arbitration pursuant to subsection (2) of paragraph (a). The same provisions as noted in subparagraph (1) will apply.]

[(3)] (2) If either party seeks to remove a case from arbitration subsequent to 15 days after the notice of hearing, a formal motion must be made to the [Assignment Judge or] Civil Presiding Judge or designee.

(d) Notice of Arbitration; Scheduling; Adjournment. The notice to the parties that the action has been assigned to arbitration shall also specify the time and place of the arbitration hearing and its date, which shall not be earlier than 45 days following the date of the notice. Unless the parties otherwise consent in writing, the hearing shall not be scheduled [sooner than 160 days after the service of the complaint on all parties-defendants] for a date prior to the end of the applicable discovery period, including any exten sion thereof. The hearing shall take place, however, no later than 60 days following the expiration of that period, includ ing any extension. Adjournments of the scheduled date shall be [granted by the civil division manager for good cause shown] permitted only as provided by R. 4:36-2(c).

(e) ... no change

Note: Adopted November 1, 1985 to be effective January 2, 1986; paragraph (c) amended November 5, 1986 to be effective January 1, 1987; caption amended and former paragraph (a) redesignated paragraph (a)(1) and new paragraph (a)(2) adopted, paragraphs (b) and (c) amended November 7, 1988 to be effective January 2, 1989; paragraphs (a)(1) and (2) and (c)(1) and (2) amended July 14, 1992 to be effective September 1, 1992; paragraphs (a)(2) and (c)(1) amended July 13, 1994 to be effective September 1, 1994; paragraphs (b) and (d) amended July 10, 1998 to be effective September 1, 1998; new text added to paragraph (a), paragraphs (a)(1) and (2) amended, new paragraph (a)(3) adopted, and paragraphs (c) and (d) amended July 5, 2000 to be effective September 5, 2000. 4:21A–2.Qualification, Selection [and], Assignment and Compensation of Arbitrators

(a) ... no change

(b) ... no change

(c) Number of Arbitrators. All arbitration proceedings [in each vicinage shall be conducted by that number of arbitrators determined by the Assignment Judge for the vicinage. The Assignment Judge's determination shall not, however, apply to selection of arbitrators by stipulation pursuant to paragraph (a) of this rule] in which the number and names of the arbitrators are not stipulated by the parties pursuant to paragraph (a) of this rule shall be conducted by a single arbitrator appointed pursuant to paragraph (b).

(d) Compensation of Arbitrators.

(1) Designated Arbitrators. Except as provided by subparagraphs (2) and (3) hereof, an arbitrator designated by the civil division manager shall be paid a per diem fee of $350.

(2) Stipulated Arbitrators. Arbitrators stipulated to by the parties pursuant to R. 4:21A-2(a) shall be compensated at the rate of $70 per hour but not exceeding a maximum of $350 per day. If more than one stipulated arbitrator hears the matter, the fee shall be $70 per hour but not exceeding $350 per day, to be divided equally between or among them. The parties may, however, stipulate in writing to the payment of additional fees, such stipulation to specify the amount of the additional fees and the party or parties paying the additional fees.

(3) Retired Judges. Retired judges who are not on recall shall be paid at the rate in effect for judges on recall service.

Note: Adopted November 1, 1985 to be effective January 2, 1986; paragraph (a) amended November 7, 1988 to be effective January 2, 1989; paragraphs (a) and (b) amended July 10, 1998 to be effective September 1, 1998; caption amended, paragraph (c) amended, and new paragraph (d) adopted July 5, 2000 to be effective September 5, 2000. 4:21A–4.Conduct of Hearing

(a) Prehearing Submissions. At least 10 days prior to the scheduled hearing each party shall exchange [and submit to the civil division manager] a concise statement of the factual and legal issues, in the form set forth in Appendix XXII-A or XXII-B to these rules, and may exchange [and submit] relevant documentary evidence. A copy of all documents exchanged shall be submitted to the arbitrator for review on the day of the hearing.

(b) ... no change

(c) ... no change

(d) General Provisions for Hearing. Arbitration hearings shall be conducted in court facilities and no verbatim record shall be made thereof. [The appearance of attorneys and parties at all hearings is required.] Witness fees shall be paid as provided for trials in the Superior Court.

(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 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 (d) amended, and new paragraph (f) adopted July 5, 2000 to be effective September 5, 2000. 4:21A–5.Arbitration Award

[(a) Form; Filing. Within 10] No later than ten days after the completion of the arbitration hearing, the arbitra tor shall file the written award with the civil division manager. [and] The court shall [mail] provide a copy thereof to each of the parties. The award shall include a notice of the right to request a trial de novo and the consequences of such a request as provided by R. 4:21A-6.

[(b) Amount of Award; Interest. The arbitration award may exceed the monetary limitations set forth in R. 4:21A–1(a)(1) or (2). It shall also include pre-judgment interest pursuant to R. 4:42–11(b). Pre-judgment interest shall run until the action is terminated by an order confirm ing the award or dismissing the action pursuant to R. 4:21A–6(b).

(c) Compensation of Arbitrators.

(1) Designated Arbitrators. Except as provided by subparagraph (3) hereof, a single arbitrator designated by the civil division manager shall be paid a per diem fee of $350. If an arbitration panel consists of more than one arbitrator, that panel shall receive a per diem fee of $450 to be divided equally between or among panel members.

(2) Stipulated Arbitrators. Stipulated arbitrators shall be compensated at the rate of $70 per hour but not exceeding a maximum of $350 per diem. If more than one stipulated arbitrator hears the matter, the fee shall be $90 per hour but not exceeding $450 per day, to be divided equally between or among them. The parties may, however, stipulate in writing to the payment of additional fees, such stipulation to specify the amount of the additional fees and the party or parties paying the additional fees.

(3) ... no change]

Note: Adopted November 1, 1985 to be effective January 2, 1986; paragraph (c) amended November 5, 1986 to be effective January 1, 1987; paragraphs (a) and (b) amended November 7, 1988 to be effective January 2, 1989; paragraph (a) amended July 13, 1994 to be effective September 1, 1994; paragraphs (a) and (c)(1) amended July 10, 1998 to be effec tive September 1, 1998; paragraph (a) caption deleted and text amended, and paragraphs (b) and (c) deleted July 5, 2000 to be effective September 5, 2000. 4:21A–6.Entry of Judgment; Trial De Novo

(a) ... no change

(b) Dismissal. An order shall be entered dismissing the action following the filing of the arbitrator's award unless:

(1) within 30 days after filing of the arbitration award, a party thereto files with the civil division manager and serves on all other parties a notice of rejection of the award and demand for a trial de novo and pays a trial de novo fee as set forth in paragraph (c) of this rule; or

(2) within 50 days after the filing of the arbitration award, the parties submit a consent order to the court detailing the terms of settlement and providing for dismissal of the action or for entry of judgment; or

(3) within 50 days after the filing of the arbitration award, any party moves for confirmation of the arbitration award and entry of judgment thereon. The judgment of confir mation shall include prejudgment interest pursuant to R. 4:42- 11(b).

(c) Trial De Novo. An action in which a timely trial de novo has been demanded by any party shall be returned, as to all parties, to the trial calendar for disposition. A trial de novo shall be held within 90 days after the filing and service of the request therefor. A party demanding a trial de novo must tender with the trial de novo request a check payable to the "Treasurer, State of New Jersey" in the amount of $200 towards the arbitrator's fee and may be liable to pay the reasonable costs, including attorney's fees, incurred after rejection of the award by those parties not demanding a trial de novo. Reasonable costs shall be awarded on motion sup ported by detailed certifications subject to the following limitations:

(1) If a monetary award has been rejected, no costs shall be awarded if the party demanding the trial de novo has obtained a verdict at least 20 percent more favorable than the award.

(2) If the rejected arbitration award denied money damages, no costs shall be awarded if the party demanding the trial de novo has obtained a verdict of at least $250.

(3) The award of attorney's fees shall not exceed $750 in total nor $250 per day.

(4) Compensation for witness costs, including expert witnesses, shall not exceed $500.

(5) If the [Assignment Judge] court in [his or her] its discretion is satisfied that an award of reasonable costs will result in substantial economic hardship, [he or she] it may deny an application for costs or award reduced costs.

Note: Adopted November 1, 1985 to be effective January 2, 1986; paragraph (c) amended November 5, 1986 to be effective January 1, 1987; paragraphs (b)(1) and (c) amended November 2, 1987 to be effective January 1, 1988; paragraph (c)(5) amended November 7, 1988 to be effective January 2, 1989; paragraphs (b)(1) and (c) amended July 14, 1992 to be effective September 1, 1992; paragraph (c) amended May 3, 1994 to be effective July 1, 1994; paragraph (b)(1) amended July 10, 1998 to be effective September 1, 1998; paragraphs (b) and (c) amended July 5, 2000 to be effective September 5, 2000. 4:21A–6.Entry of Judgment; Trial De Novo

(a) ... no change

(b) Dismissal. An order shall be entered dismissing the action following the filing of the arbitrator's award unless:

(1) within 30 days after filing of the arbitration award, a party thereto files with the civil division manager and serves on all other parties a notice of rejection of the award and demand for a trial de novo and pays a trial de novo fee as set forth in paragraph (c) of this rule; or

(2) within 50 days after the filing of the arbitration award, the parties submit a consent order to the court detailing the terms of settlement and providing for dismissal of the action or for entry of judgment; or

(3) within 50 days after the filing of the arbitration award, any party moves for confirmation of the arbitration award and entry of judgment thereon. The judgment of confir mation shall include prejudgment interest pursuant to R. 4:42- 11(b).

(c) Trial De Novo. An action in which a timely trial de novo has been demanded by any party shall be returned, as to all parties, to the trial calendar for disposition. A trial de novo shall be held within 90 days after the filing and service of the request therefor. A party demanding a trial de novo must tender with the trial de novo request a check payable to the "Treasurer, State of New Jersey" in the amount of $200 towards the arbitrator's fee and may be liable to pay the reasonable costs, including attorney's fees, incurred after rejection of the award by those parties not demanding a trial de novo. Reasonable costs shall be awarded on motion sup ported by detailed certifications subject to the following limitations:

(1) If a monetary award has been rejected, no costs shall be awarded if the party demanding the trial de novo has obtained a verdict at least 20 percent more favorable than the award.

(2) If the rejected arbitration award denied money damages, no costs shall be awarded if the party demanding the trial de novo has obtained a verdict of at least $250.

(3) The award of attorney's fees shall not exceed $750 in total nor $250 per day.

(4) Compensation for witness costs, including expert witnesses, shall not exceed $500.

(5) If the [Assignment Judge] court in [his or her] its discretion is satisfied that an award of reasonable costs will result in substantial economic hardship, [he or she] it may deny an application for costs or award reduced costs.

Note: Adopted November 1, 1985 to be effective January 2, 1986; paragraph (c) amended November 5, 1986 to be effective January 1, 1987; paragraphs (b)(1) and (c) amended November 2, 1987 to be effective January 1, 1988; paragraph (c)(5) amended November 7, 1988 to be effective January 2, 1989; paragraphs (b)(1) and (c) amended July 14, 1992 to be effective September 1, 1992; paragraph (c) amended May 3, 1994 to be effective July 1, 1994; paragraph (b)(1) amended July 10, 1998 to be effective September 1, 1998; paragraphs (b) and (c) amended July 5, 2000 to be effective September 5, 2000. 4:21A–8.Administration

(a) ... no change

(b) ... no change

(c) Civil Division Manager. The civil division manager for the vicinage or designee shall perform all of the func tions specified by these rules and shall serve as arbitration administrator to perform all required non-judicial functions implementing the arbitration programs.

Note: Adopted November 1, 1985 to be effective January 2, 1986; paragraph (a) amended November 7, 1988 to be effective January 2, 1989; paragraphs (a), (b) and (c) amended June 29, 1990 to be effective September 4, 1990; paragraph (c) amended July 10, 1998 to be effective September 1, 1998; paragraph (c) amended July 5, 2000 to be effective September 5, 2000.

4:21A-9.Applicability

The July 5, 2000 amendments to R. 4:21A shall apply to all actions commenced on or after September 5, 2000 and to all actions pending as of September 5, 2000 in which notice of arbitration hearing has not yet been sent.

Note: Adopted July 5, 2000 to be effective September 5, 2000.

4:23-1. Motion for Order Compelling Discovery

A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:

(a) Motion. If a deponent fails to answer a question propounded or submitted under R. 4:14 or 4:15, or a corpora tion or other entity fails to make a designation under R. 4:14-2(c) or 4:15-1, [or a party fails to answer an interrogatory submitted under R. 4:17, or if a party, in response to a request for inspection submitted under R. 4:18, fails to respond that inspection will be permitted as re quested or fails to permit inspection as requested,] the discovering party may move for an order compelling an an swer[,] or designation[, or an order compelling inspection] in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion pursuant to R. 4:10-3.

(b) ...no change

(c) ...no change

Note: Source--R.R. 4:27-1. Former rule deleted and new R. 4:23-1 adopted July 14, 1972 to be effective September 5, 1972; paragraphs (a) and (c) amended July 13, 1994 to be effective September 1, 1994; paragraph (a) amended July 5, 2000 to be effective September 5, 2000.

4:23-2.Failure to Comply With Order

(a) ...no change

(b) Other Matters. If a party or an officer, director, or managing or authorized agent of a party or a person designated under R. 4:14-2(c) or 4:15-1 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under R. 4:23-1 [or 4:19 (to submit to a physical or mental examination)], the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibit ing the introduction of designated matters in evidence;

(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders [except an order to submit to a physical or mental examination].

In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circum stances make an award of expenses unjust.

Note: Source--R.R. 4:27-2(a)(b). Former rule deleted and new R. 4:23-2 adopted July 14, 1972 to be effective September 5, 1972; paragraph (b)(2) amended July 13, 1994 to be effective September 1, 1994; paragraph (b) amended July 5, 2000 to be effective September 5, 2000. 4:23-4. Failure of Party to Attend at Own Deposition or Comply With Demand or Respond to Request for In spection

If a party or an officer, director, or managing agent of a party or a person designated under R. 4:14-2(c) or 4:15-1 to testify on behalf of a party fails to appear before the officer within this State who is to take his deposition, after being served with a proper notice, [or fails to serve a written response to a request for inspection submitted under R. 4:18-1, after proper service of the request, or fails to comply with a demand for a copy of a document made pursuant to R. 4:18-2,] the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under para graphs (1), (2) and (3) of R. 4:23-2(b). In lieu of any order or in addition thereto the court shall require the party failing to act to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this rule may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by R. 4:10-3.

Note: Source-R.R. 4:27-4. Former rule deleted and new R. 4:23-4 adopted July 14, 1972 to be effective September 5, 1972; amended July 5, 2000 to be effective September 5, 2000. 4:23–5.Failure to Serve [Answers to Interrogatories] Make Discovery

(a) Dismissal.

(1) Without Prejudice. [If timely answers to interrogato ries are not served and no motion for an extension has been made pursuant to R. 4:17–4(b),] If a demand for discovery authorized by these rules is not complied with and no timely motion for an extension or a protective order has been made, the party entitled to [the answers] discovery may 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 [answering, pursuant to R. 4:17–4(a), any interrogatories served by] 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–F of these rules, specifically explaining the consequences of failure to [serve fully responsive and certified answers to interrogatories] 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 [fully responsive and certified answers to interrogatories have been served] 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 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 of the order of dismissal or suppression, the court may also order the delinquent party to pay sanctions or counsel fees and costs, or both, as a condition of restoration.

(2) With Prejudice. If an order of dismissal or suppres sion without prejudice has been entered pursuant to paragraph (a)(1) of this rule and not thereafter vacated, the party entitled to the [answers] discovery may, after the expiration of 90 days from the date of the order, move on notice for an order of dismissal or suppression with prejudice. The attorney for the delinquent party shall, not later than 7 days prior to the return date of the motion, file and serve an affidavit reciting that the client was previously served as required by subparagraph (a)(1) and has been served with an additional notification, in the form prescribed by Appendix II–G, of the pendency of the motion to dismiss or suppress with prejudice. In lieu thereof, the attorney for the delinquent party may certify that despite diligent inquiry, which shall be detailed in the affidavit, the client's whereabouts have not been able to be determined and such service on the client was therefore not made. If the delin quent party is appearing pro se, the moving party shall attach to the motion a similar affidavit of service of the order and notices or, in lieu thereof, a certification as to why service was not made. Appearance on the return date of the motion shall be mandatory for the attorney for the delinquent party or the delinquent pro se party. The moving party need not appear but may be required to do so by the court. The motion to dismiss or suppress with prejudice shall be granted unless a motion to vacate the previously entered order of dismissal or suppression without prejudice has been filed by the delinquent party and either [fully responsive and certified answers to interrogatories have been served] the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated.

(3) ... no change

(4) Applicability. The July 5, 2000 amendments to paragraphs (a)(1) and (a)(2) of this rule shall be applicable to all actions, whenever commenced, in which a party seeks relief from a failure of an adverse party to make discovery that has been demanded.

(b) ... no change

Note: Source—R.R. 4:23–6(c)(f), 4:25–2 (fourth sen tence); 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. 4:24–1.[Completion Within 150 Days; Exceptions] Time for Completion of Discovery

(a) Originally Named Parties. [Except as otherwise provided by R. 5:5-1(e) (civil family actions), all proceed ings referred to in R. 4:10–1 to R. 4:23–4 inclusive, e]Except for proceedings under R. 4:11 (depositions before action or pending appeal), [R. 4:20 (impartial medical examinations), R. 4:21 (professional liability claims)] and R. 4:22 (request for admissions) and except as otherwise provided by R. 5:5-1(e) (civil family actions), all proceedings referred to in R. 4:10-1 to R. 4:23-4 inclusive shall be completed [as to each defendant within 150 days of the date of service of the original complaint on the defendant, unless on motion and notice, and for good cause shown, an order is entered before the expiration of said period enlarging the time for such proceedings to a date specified in said order] within the time for each Track as hereafter prescribed counting from the date the first answer is filed or from 90 days after the first defendant is served, whichever occurs first: Track I – 150 days; Track II – 300 days; and Tracks III and IV, except as otherwise provided by R. 4:69-4 – 450 days. If an originally named party has been unable to be timely served, an extension of discovery may be sought pursuant to paragraph (c) of this rule.

(b) Added Parties. A party filing a pleading that joins a new party to the action shall serve a copy of all discovery materials upon or otherwise make them available to such new party within 20 days after service of the new party's initial pleading. The joinder of a new party shall extend the period for discovery for 60 days, which may be reduced or enlarged by the court for good cause shown.

(c) Extensions of Time. The parties may by written and filed consent extend the time for discovery for an additional 60 days. 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 prior to the conclusion of the applicable discovery period. The court may, for good cause shown, enter an order extending discovery for a stated period, and specifying the date by which discovery shall be completed. The extension order shall also describe the discovery to be engaged in and such other terms and conditions as may be appropriate. Absent exceptional circumstances, no extension of the discovery period may be permitted after an arbitration or trial date is fixed.

(d) Applicability. This rule shall be applicable to all actions commenced on or after September 5, 2000. In all actions commenced prior to said date, the time for completion of discovery shall be 150 days from the date of service of the complaint on each defendant or as otherwise prescribed by the applicable differentiated case management rule or by court order. In any pending action, however, the parties may agree and, in appropriate cases, the court may on notice direct sua sponte that further discovery shall be limited or extensions granted consistent with this amended rule.

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.

4:25–1. Pretrial Conferences

(a) Actions to Be Pretried. Pretrial conferences shall be held in all contested actions in the Chancery Division, General Equity [and in all actions brought in lieu of Preroga tive Writs]. Pretrial conferences in other causes may be held in the discretion of the court either on its own motion or upon a party's written request. The request of a party for a pretrial conference shall include a statement of the facts and reasons supporting the request. The court may also hold a case management conference in any family action and may issue an appropriate case management order at the conclusion thereof.

(b) ... no change

(c) ... no change

(d) ... no change

Note: Source—R.R. 4:29–1(a)(b)(d)(e), 4:29–6. Paragraph (a) amended July 7, 1971 to be effective September 13, 1971; paragraph (a) amended July 14, 1972 to be effective September 5, 1972; paragraph (a), and paragraph (b)(7) amended July 17, 1975 to be effective September 8, 1975; paragraph (a) amended July 24, 1978 to be effective September 11, 1978; paragraph (a) amended December 20, 1983 to be effective December 31, 1983; paragraph (a) amended November 7, 1988 to be effective January 2, 1989; paragraphs (c) and (d) amended July 13, 1994 to be effective September 1, 1994; paragraph (a) amended July 5, 2000 to be effective September 5, 2000. 4:25–4.[When No Pretrial Conference Held;] Designation of Trial Counsel

[If no pretrial conference is held, c] Counsel shall, either in the first pleading or in [a writing submitted prior to the weekly call] the Trial Information Statement (TIS) required by R. 4:36-2, notify or confirm with the [Assignment Judge] court that [a member or associate, or outside] desig nated counsel is to try the case, and set forth the name specifically. If trial counsel is neither identified nor confirmed in the TIS, the right to designate trial counsel shall be deemed waived, even if a designation had previously been made. No change in such designated counsel shall be made without leave of court if such change will interfere with the trial schedule. In tort cases pending for more than [3] three years, however, the court, on such notice to the parties as it deems adequate in the circumstances, may disregard the designation if the unavailability of designated counsel will delay trial. If the name of trial counsel is not specifically set forth, the court and opposing counsel shall have the right to expect any partner or associate to proceed with the trial of the case, when reached on the calendar.

Note: Source—R.R. 4:29–3A(a); amended July 13, 1994 to be effective September 1, 1994; amended July 10, 1998 to be effective September 1, 1998; caption and text amended July 5, 2000 to be effective Septemeber 5, 2000. 4:25–5.Scheduling of Pretrial Conferences

[The Assignment Judge, and in actions in the Chancery Division, the judge thereof,] In cases to be pretried, the court shall schedule pretrial conferences at such times as may be necessary to maintain a full trial calendar [and to utilize fully the services of available judges]. Not more than [2] two actions shall be noticed for pretrial conferences within the same hour before the same judge. The court shall prepare and mail pretrial conference notices, and to the extent possible, shall notice all cases of the same attorney or firm before the same judge and consecutively.

Note: Source—R.R. 4:29–4(a) (b) (c); amended June 28, 1996 to be effective September 1, 1996; amended July 5, 2000 to be effective September 5, 2000. 4:25–7.Attorney Conferences; Exchange of Information

(a) ... no change

(b) [Prior to Trial.] Exchange of Information. [Whether or not the case has been pretried, the attorneys shall confer as close to the commencement of trial as is practical for the purpose of premarking exhibits and portions of deposition transcripts intended to be read into evidence and for the purpose of reaching stipulations on contested procedural, evidential and substantive matters. The trial judge shall afford the attorneys the opportunity to conduct such a conference prior to the commencement of trial and to place on the record the premarking information and all stipulations reached. The attorneys shall have the ongoing obligation during trial to attempt to stipulate to specific matters remaining in dispute.] In cases that have not been pretried, attorneys shall confer and, seven days prior to the initial trial date, exchange the pretrial information as prescribed by Appendix XXIII to these rules. At trial and prior to opening statements, the parties shall submit to the court the follow ing in writing: (1) copies of any Pretrial Information Exchange materials that have been exchanged pursuant to this rule, and any objections made thereto; and (2) stipulations reached on contested procedural, evidentiary, and substantive issues. In addition, in jury trials, the parties shall also exchange and submit (1) any proposed voir dire questions, (2) a list of proposed jury instructions pursuant to R. 1:8-7, with specific reference either to the Model Civil Jury Charges, if applicable, or to applicable legal authority, and (3) a proposed jury verdict form that includes all possible verdicts the jury may return. Failure to exchange and submit all the information required by this rule may result in sanctions as determined by the trial judge.

(c) Continuing Obligation. Attorneys shall have the continuing obligation to report to the court any stipulations reached during the course of the trial.

Note: Source of paragraph (a)—R. 4:25–3(a). New rule adopted July 13, 1994 to be effective September 1, 1994; caption amended, paragraph (b) amended, and new paragraph (c) adopted July 5, 2000 to be effective September 5, 2000. 4:35-4.Continuous Trials

Insofar as practicable, all jury and non-jury trials should be continuous and uninterrupted, and should run for the full day as fixed by R. 1:30-3.

Note: Adopted July 5, 2000 to be effective September 5, 2000.

4:36–2.[Trial Calendar] Trial Information Statement (TIS)

[In Superior Court actions the deputy clerk of the Superior Court in the county in which the action is to be tried shall, when the first answer is filed, place the action upon the trial calendar of the appropriate part according to the caption of the complaint, unless the court otherwise orders. The actions shall be listed on the calendar in chronological order in accordance with the date the complaint was filed. Family actions to which R. 5:5–2 are applicable shall be listed for trial only after compliance therewith. Foreclosure actions shall be listed for trial only if the answer disputes the validity or priority of the plaintiff's mortgage or lien and creates an issue with respect thereto. No civil action which has been pending more than 6 months without reaching issue shall thereafter be placed upon any trial calendar in the Superior Court except upon order of the court in which such action is pending.]

(a) When Filed. Each party shall file and serve a Trial Information Statement (TIS) within ten days following the end of the discovery period, including any extension thereof. The court shall send a notice to each party of the date for filing and serving the TIS 30 days before the end of the discovery period. Said notice shall be sent in all actions pending on September 5, 2000 or commenced thereafter.

(b) Contents. The TIS shall be in the form prescribed in Appendix XXIV of these rules, shall certify that discovery is complete and shall identify designated trial counsel or confirm an earlier designation of trial counsel, pursuant to R. 4:25-4. If such designation is neither made nor confirmed, the right to designate trial counsel shall be deemed waived.

(c) Failure to File Trial Information Statement. If a party fails to file and serve a Trial Information Statement (TIS) as herein required, that party will be deemed to have waived any previously made designation of trial counsel; the court will assume that discovery is complete and will schedule the case for an arbitration hearing or for trial; and, absent exceptional circumstances, no adjournment of the arbitration or trial date for incomplete discovery will be granted.

Note: Adopted July 5, 2000 to be effective September 5, 2000 (and former Rule 4:36-2 deleted).

4:36-3.Trial Calendar

(a) Notice of Trial. The court shall advise all parties of the initial trial date no less than eight weeks prior thereto. Cases scheduled for trial shall be ready to proceed on the initial trial date. If a case is not reached during the week in which the trial date falls, it shall be forthwith scheduled for a date certain after consultation with counsel provided, however, that no case shall be relisted for trial sooner than four weeks from the initial trial date without agreement by all counsel. The court shall issue written notice confirming the new trial date. This provision shall be applicable to all cases noticed for trial after September 5, 2000.

(b) Adjournments, Generally. An initial request for an adjournment for a reasonable period of time to accommodate a scheduling conflict or the unavailability of an attorney, a party, or a witness shall be granted if made timely in accordance with this rule. The request shall be made in writing stating the reason for the request and that all parties have consented thereto. The written adjournment request, which shall be submitted to the civil division manager, shall also include a proposed trial date, agreed upon by all parties, to occur as soon as possible after the problem requiring the adjournment is resolved. If consent cannot be obtained or if a second request is made, the court shall determine the matter by conference call with all parties. Requests for adjournment should be made as soon as the need is known but in no event, absent exceptional circumstances, shall such request be made later than the close of business on the Wednesday preceding the Monday of the trial week. No adjourn ments shall be granted to accommodate dispositive motions returnable on or after the scheduled trial date.

(c) Adjournments, Expert Unavailability. If the reason stated for the initial request for an adjournment was the unavailability of an expert witness, no further adjournment request based on that expert’s unavailability shall be granted, but rather that expert shall be required to appear in person or by videotaped testimony taken pursuant to R. 4:14-9. 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.

4:64–1.Uncontested Judgment: Foreclosures Other Than In Rem Tax Foreclosures

(a) .....no change

(b) Procedure to Enter Judgment. If the action is uncontested as defined by paragraph (a) 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 (f) of this rule, may enter final judgment upon proof establishing the amount due. Notice shall be served on all parties who have appeared in the action including defen dants whose answers have been stricken or rendered noncontesting. Defaulting parties shall be noticed only if [required by R. 4:43–2(d)] application for final judgment is not made within six months of the entry of default. 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.

(c) .....no change

(d) .....no change

(e) .....no change

(f) .....no change

(g) .....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.

4:69-4.Filing and Management of Actions in Lieu of Prerogative Writs

The filing of the complaint shall be accompanied by a certification that all necessary transcripts of local agency proceedings in the cause have been ordered. All actions in lieu of prerogative writs will be assigned to Track IV. Within 30 days after joinder and in order to expedite the disposition of the action the managing judge shall conduct a conference, in person or by telephone, with all parties to determine the factual and legal disputes, to mark exhibits and to establish a briefing schedule and, if necessary, a discovery schedule. At least five days in advance of the conference, each party shall submit to the managing judge a statement of factual and legal issues and an exhibit list.

Note: Source—R.R. 4:88-13. Deleted November 27, 1974 to be effective April 1, 1975; new caption and rule adopted July 5, 2000 to be effective September 5, 2000.


Notices to the Bar Re Best Practices