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NJ Civil Procedure Outline

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NJ Civil Procedure Outline Powered By Docstoc
					                        NEW JERSEY CIVIL PROCEDURE

I.    COURTS
      a. The trial court in New Jersey is the New Jersey Superior court.
      b. It has two divisions – the Law Division and the Chancery Division.
               i. The Law Division has two parts – the Civil Part and the Criminal Part.
                      1. EX: NJ Superior Court, Law Division, Civil Part, X County.
              ii. The Chancery Division has several parts, but the only part that we care
                  about for the bar exam is General Equity.
                      1. EX: NJ Superior Court, Chancery Division, General Equity, X
                          County.
             iii. Legal and equitable claims may be joined as a single case and brought in
                  either Division. But there’s no right to a jury trial on equitable claims.
II.   PERSONAL JURISDICTION
      a. NJ doesn’t have a long-arm statute, but it has a rule of court that effectively works
         the same way. Personal jurisdiction is legal so long as it comports with
         Constitutional Due Process (pursuant to the Fifth and Fourteenth Amendments of
         the U.S. Constitution).
      b. There are five bases for personal jurisdiction in NJ:
              i. Personal service while present in New Jersey
                     1. Unless you come to the state through fraud or force
                     2. No exception for court appearances
             ii. Domicile
            iii. Waiver (General Appearance)
                     1. To make a special appearance to argue lack of personal
                         jurisdiction, you must assert it in your Answer and make a special
                         motion within the 90 days that follow filing.
            iv. Consent
             v. Minimum Contacts.
                     1. Follows federal analysis – MPF—FRCS.
                     2. Stream of Commerce cases: the NJ Supreme Court follows Justice
                         Brennan’s plurality opinion from Asahi: putting products into the
                         stream of commerce, expecting that they would be purchased in
                         NJ, is sufficient.
      c. Be sure to differentiate general and specific jurisdiction.
              i. Ownership of property in NJ, alone, does not confer general jurisdiction.
      d. FORUM NON CONVENIENS: Δ may argue that NJ should transfer the case to
         another state’s court. The NJ court must balance NJ’s ―public interests‖ against
         Δ’s ―private interests‖ (interests of Δ, witnesses, etc). NJ will only transfer the
         case is if would be oppressive to Δ or otherwise manifestly inappropriate.
III.   VENUE
       a. May transfer venue for convenience, or because there is ―substantial doubt‖ that
          the chosen county can offer a fair trial.
       b. Objection to venue is waived if not timely raised—
          10 days after service or last responsive pleading.

IV.    COMMENCING THE CIVIL ACTION
       a. Any competent non-party – including the attorneys involved – may serve process.
       b. Methods of Service:
               i. Individuals: personal service at his abode, or service on another competent
                  household member at his abode.
              ii. Domestic Corporations: personal service on an officer, director, agent, or
                  PIC of the office at its principal office or principal place of business.
             iii. Foreign Corporations: personal service on the corporation’s agent.
             iv. Partnerships: personal service to any partner residing in New Jersey.
              v. Persons or Entities subject to jurisdiction in New Jersey may be served
                  outside of New Jersey in the same manners, by persons authorized by
                  local law, or by qualified attorneys in that jurisdiction.
       c. Pleadings:
               i. Complaint:
                      1. NJ is a notice pleading jurisdiction.
                      2. Non-liquidated money damages must be specifically pled.
                      3. Other special matters – namely, fraud, mistake, or denial of
                          performance – must be pled with particularity.
              ii. Pre-Answer Motions;
                      1. Bases:
                              a. Lack of Subject Matter Jurisdiction
                              b. Lack of Personal Jurisdiction
                              c. Insufficiency of Process
                              d. Insufficiency of Service of Process
                              e. Failure to state a claim on which relief can be granted
                              f. Failure to Join a necessary party
                      2. Those in bold, above, are waived if not raised by pre-answer
                          motion or in the Answer.
                      3. If raised in the Answer, a basis for a motion for preliminary
                          judgment must be separately briefed and filed with the court within
                          90 days of filing the Answer. If not, it is waived.
             iii. Answer:
                      1. General denials are not permitted. All denials must be specific.
                      2. Affirmative defenses must be set forth separately in the Answer.
V.     JOINDER
       a. NJ courts follow most federal rules for counterclaims and cross-claims
          (see RES JUDICATA AND COLLATERAL ESTOPPEL, below).
       b. NJ courts follow the federal rules for permissive joinder of multiple πs and Δs
          (impleader, interpleader).
       c. NJ courts also follow the federal rule for compulsory joinder of parties – but NJ
          calls the ―parties needed for just adjudication.‖

VI.    RES JUDICATA AND COLLATERAL ESTOPPEL
       a. Res Judicata – Claim Preclusion
              i. In Federal Court: once Party1 asserts a claim against Party2, Party1 must
                 assert all transactionally related claims against Party2. And Party2 must
                 assert all transactionally related counterclaims.
             ii. In NJ Courts: The Entire Controversy Doctrine.
                 All parties to a case (regardless of party status as π, Δ, or third party) must
                 assert all transactionally related claims. Any transactionally related claims
                 against any other party to the action are compulsory as res judicata, and if
                 not established are waived.
                      1. But: the Entire Controversy Doctrine requires joinder of claims—
                         not joinder of parties. Parties must assert claims against all other
                         joined parties, but need not implead or otherwise assert claims
                         against as-yet-unjoined third parties.
       b. Collateral Estoppel
              i. Same as the federal rule – a defendant who is bound by a judgment
                 favoring P1 will be bound by that judgment (if transactionally related) in a
                 case brought by P2.
             ii. Classic example: P1 and P2 are driving together when D slams into their
                 car. P1 sues D on a theory of negligence and wins. Now, D is
                 presumptively negligent when P2 brings his case – D is collaterally
                 estopped from denying his negligence in that case.

VII.   AMENDING THE PLEADINGS
       a. NJ courts follow the Federal rules for amending the pleadings, with one very
          important addition:
       b. ―The Fictitious Party Relation Back Rule:‖
          π may sue an unknown party under a fictitious name and, after discovering the
          unknown party’s true identity, substitute the name of the true party and join him
          to the action—even if the Statute of Limitations has run. The π amending must:
               i. File the action with a specific ―John Doe‖ designation before the
                  expiration of the Statute of Limitations;
               ii. Exercise due diligence in seeking to learn Doe’s true identity;
              iii. Promptly move thereafter to substitute and join the true party to the action;
                   and
              iv. Show that the joined party will not suffer prejudice as a result of the late
                   joinder to the action.
        c. Supplemental Pleadings: used to set forth occurrences that took place after the
           date of the pleading sought to be supplemented.

VIII.   DISCOVERY
        a. No mandatory disclosure.
                i. Except: NJ requires mandatory uniform interrogatories in cases of
                   property damage to automobiles and personal injury cases.
                       1. Except: NJ does not require mandatory uniform interrogatories in
                           PI cases dealing with wrongful death, toxic tort, and nonmedical
                           professional malpractice.
        b. No express limit on discovery.
                i. Exception: mandatory uniform interrogatories.
        c. Parties may, through interrogatories, inquire as to the identity of expert witnesses
           who will testify at trial. Parties may also compel disclosure of the basis of the
           experts’ opinions.
        d. Depositions
                i. Party depositions may be used as substantive evidence, as admissions.
              ii. Other witness depositions may be used to impeach, or in lieu of trial
                   testimony when the deponent is unavailable at trial.
        e. ―e‖ is for E-Discovery
                i. There’s a back-and-forth for e-Discovery:
                   π says: I want discovery.
                   Δ says: it’s in electronic format and not readily accessible.
                   π responds: Prove it.
                   Δ proves it.
                   π may argue why, despite undue burden or cost, π is entitled to it.

IX.     EQUITABLE CLEAN UP DOCTRINE
        a. When an action is primarily equitable, the court may handle any ancillary or
           incidental legal issues without violating the parties’ rights to a jury trial.
        b. (This rule isn’t followed by Federal Courts.)

X.      STANDARD OF PROOF
        a. In a NJ Civil case, the standard of proof is ―preponderance of the evidence.‖
XI.   Motion Practice
      a. Motion for Involuntary Dismissal –
             i. Made after π has presented her case.
            ii. Standard: even accepting π’s evidence as true, π failed to establish a claim
                for relief.
      b. Motion for Judgment at Trial – Motion for Judgment as a Matter of Law
             i. Made either at the close of π’s evidence or at the close of all evidence.
            ii. Standard: accepting all of the non-moving party’s evidence as true, no
                reasonable jury could find for the non-moving party.
      c. Motion for Judgment JNOV – Renewed Motion for Judgment as a Matter of Law
             i. Made after the jury returns its verdict.
            ii. Standard: same as motion for Judgment at Trial.
      d. Motion for New Trial
             i. Made after the jury returns its verdict.
            ii. Typically premised on some error of law at trial – erroneous rulings on
                evidence, bad jury instructions, etc.
           iii. In lieu of a new trial, the court may allow the plaintiff to reduce damages
                (Remittur) or may allow the defendant to increase damages (Additur).
                This is fairly unusual – the federal courts don’t recognize Additur.

				
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Description: This is a bar review outline that I created. It's direct and to the point. (You can rely on this. As a point of reference, I was about 3 points from the highest essay score in PA. These served me well.)