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March 31, 2016Download PDF

2016 Proposed Amendments to the New Jersey Court Rules - An Ad Hoc Look at What the Civil Bar Needs to Know

In January, the New Jersey Supreme Court issued the 2016 Report of the Supreme Court Civil Practice Committee, which proposes amendments to the New Jersey Court Rules (the “Proposed Amendments”). The report is available here.

My colleague, Bruce Greenberg, provides a perfect summary of the proposed revisions to the appellate rules, which you can find here. This post focuses on amendments to other rules. For civil litigators, the 2016 Amendments, if adopted, have real-world implications for municipal court practice, motion practice in state court (a new page limit maybe coming to briefs in your cases!), service of subpoena demanding production of documents, pleading affirmative defenses, making requests under the Open Public Records Act or Freedom of Information Act, and for auto accident cases.

Below is a quick synopsis of some of the Proposed Amendments. For those who want to see all the Proposed Amendments, they are available in the 2016 Report (link above).

Proposed Amendments to Rules 1:5-1, 1:5-6 and 1:21-2 — re: Reference to Municipal Court Presiding Judge, Municipal Division Manager and Municipal Courts

The Committee proposed changes to ensure that the Rules greater reflect municipal court practice. The Proposed Amendments provide that all filings in municipal court (except ex parte) be served on all parties, pro se litigants, and relevant government agencies (including in municipal actions), see Proposed Rule 1:5-1; that filings in municipal courts comply with Part VII of the Rules, see Proposed Rule 1:5-6; and out-of-state attorneys seek pro hac vice admission in municipal court as well, see Proposed Rule 1:21-2.

Proposed Amendments to R. 1:6-5 — re: Page Limitations for Trial Court Motion Briefs in Civil Matters

Page limits are coming to a trial court near you! No doubt, if adopted, it will be welcome news to the civil judiciary (and its law clerks): 40 pages for principal briefs and 15 pages on reply. Do not fudge the margins, because you get 26 lines per page and 65 characters per line. Not enough? Not to worry. Make an “application” for additional length before the brief is due, and the court can permit or disallow “at its discretion” without waiting for the other parties to respond to the request. Be warned: “No over-length briefs may be filed without advance permission to do so.”

Proposed Amendments to R. 1:9-3 — re: Service of Subpoenas

During the last cycle of proposed rule changes, the Administrative Director of the Constables Office of New Jersey’s Bureau of Process Service contended that subpoenas were being improperly served by mail in violation of R. 1:9-3. The Committee was split on the issue, and the Advisory Committee on Professional Ethics issued an opinion concluding “that attorneys cannot threaten contempt for failure to comply to a subpoena served by mail because the current Rule 1:9 does not authorize service of subpoenas by mail.” The Proposed Amendment would permit service by mail for subpoenas duces tecum (production of documents or records) only.

Proposed Amendments to R. 4:5-4 — Affirmative Defenses; Misdesignation of Defense and Counterclaim

Failing to plead an affirmative defense can have severe consequences. Just look at the decision in JB Pool Management, LLC v. Four Seasons at Smithville Homeowners Ass’n, Inc., 431 N.J. Super. 233 (App. Div. 2013). The defendant there did not plead frustration and impossibility in a breach of contract case. Nonetheless, the defendant received a jury verdict in its favor after the trial court instructed the jury on frustration at the jury charge conference.

The Appellate Division reversed on the breach of contract claim. In doing so, the panel did not place the blame on the defendant because neither the Court Rules nor case law required frustration of purpose to be pleaded as an affirmative defense. The decision mandated that: “in future cases, the defense of frustration of purpose, or impossibility of performance, be raised in a responsive pleading, unless exceptional circumstances excuse that oversight.”

This case sparked concern for the Supreme Court over the current Rule governing affirmative defenses. The Court rejected a first proposed revision of the Rule that would have just added frustration of purpose and impossibility of performance to those defenses written into the Rule. The Court referred the former revision back to the Committee and requested that the Committee modernize the Rule to include a list of all affirmative defenses. The Committee formed a subcommittee which “determined that ‘modernizing’ the rule would only confuse the bar.” The Committee agreed with the subcommittee and proposed that responsive pleadings need to “set forth” affirmative defenses “including but not limited to … frustration of purpose, …, impossibility of performance….” We will have to wait to see how the Supreme Court reacts to the Committee’s revised proposal.

Proposed Amendments to R. 4:18-1 — re: FOIA and OPRA Requests for Information

(Disclosure: Lite DePalma Greenberg Afanador represents public entities in OPRA matters)

If a party makes a public records request pursuant to the Freedom of Information Act, 5 U.S.C.A. § 552 (“FOIA”) or the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (“OPRA”), that is “relevant to a pending litigation,” the requestor needs to provide notice to all other parties in that litigation, or so the Proposed Amendment would require.

There is a confusing limitation, however, to the Proposed Amendment. Does the Proposed Amendment apply to OPRA/FOIA requests made to “nonparties” if relevant to a pending litigation, or only to those relevant OPRA/FOIA requests made “from another party in the same litigation”? A plain reading of the Proposed Amendment would suggest the latter, but the analogy offered in the Committee notes suggests the former:

“[A]n attorney suggests a rule amendment requiring the propounder of [FOIA and OPRA] requests to provide copies of the FOIA and OPRA requests to all counsel in pending litigation. The attorney analogizes this situation to the propounder of subpoena on a nonparty being required to provide notice and copies of the subpoena to all counsel in pending litigation.”

A subcommittee recommended amending the Rule “to require that a party requesting records under FOIA and OPRA to provide a copy of the request to all counsel,” which would allow parties to assert that the requests seek privileged or confidential records. The Committee’s only caveat to the subcommittee’s proposal was that the proposed language clarify that the “request must be relevant to pending litigation.” The Committee Notes only confuse the issue. Hopefully, public comment can clarify this issue.

Proposed Amendments to R. 4:46-2 — re: Summary Judgment Motions Statement of Material Facts

If accepted, the Rule would mirror Local Civil Rule 56.1 of the United States District Court for the District Court of New Jersey that requires the statement of material facts to be filed as a separate document from the summary judgment brief.