Pleading Your Case: A Practical Guide to New Jersey Civil Practice Requirements

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LITIGATION PLEADING YOUR CASE: A PRACTICAL GUIDE TO NEW JERSEY CIVIL PRACTICE REQUIREMENTS BY: Brian J. Molloy (Printed in New Jersey LAWYER, April, 1993) Special acknowledgment and thanks to Maureen S. Binetti for the able assistance and valuable contributions in preparing this article. Drafting and filing a complaint and answer in state court is a basic requirement of any trial attorney.1 What follows are suggestions to enhance the effectiveness of these pleadings beyond the satisfaction of minimal pleading requirements. THE COMPLAINT Pre-Drafting Considerations Before drafting the complaint, counsel must consider several important, and potentially critical, threshold issues. Counsel should analyze the facts to determine (1) whether there is an actual case or controversy; (2) if the client has standing to bring the claim; and (3) whether the dispute has become moot. Assuming there is a justiciable dispute, counsel must then determine the appropriate forum, focusing on jurisdiction over the subject matter and the parties. Although federal courts are courts of limited jurisdiction, they have exclusive subject matter jurisdiction over certain claims, such as private citizens' claims under the Resource Conservation and Recovery Act,2 federal anti-trust claims and tort actions against the United States. Apart from claims which must be brought in the federal court, counsel should determine whether it is advisable to bring the claim in federal court. Jurisdiction in federal court must be based on either the presence of a federal question or diversity jurisdiction with an amount in controversy in excess of $50,000. The doctrine of pendent jurisdiction permits the federal court to hear related state law claims. The case backlog in each court should be considered, as well as the likelihood of applications for injunctive relief or summary judgment, since the two courts may treat such applications differently. Additionally, the use of John Doe defendants is permitted in all state court proceedings and tolls the statute of limitations, but this pleading practice may defeat federal diversity jurisdiction and, although permitted in federal question cases, may not necessarily have such a tolling effect.3 If there is no basis for federal court jurisdiction, the case must be brought in state court. Of course, whether New Jersey state courts have personal jurisdiction over the parties depends on the nature and extent of their contacts with the state. Where state court jurisdiction is required or preferred, counsel must select the appropriate division of the superior court (law, chancery, family, special civil part, probate or appellate) and the county of venue.4 There are special venue considerations for actions involving real property, public entities, family cases and small claims.5 Drafting the Complaint After going through this checklist counsel can begin drafting the complaint. It is advisable to first outline the elements of each intended cause of action, along with the pertinent facts in the case supporting each element. This outline provides the framework for a clear and concise presentation of the plaintiff's claims, as well as confirming the presence of the necessary elements for each claim. It is helpful to use defined terms in the complaint for easy reference and identification, like "contract," "premises," "landlord," or "buyer." In addition to using defined terms, sub-headings are particularly helpful in organizing your

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thoughts and introducing the reader to the next subject matter. A useful guide is to number all paragraphs of the complaint consecutively instead of renumbering the paragraphs with each count. This facilitates easy reference to a particular paragraph of the complaint and avoids confusion. Each separate cause of action must be set forth in a separate count, making sure that the requisite elements and factual allegations are present to support the claim.6 Although not required, it is often useful to identify the cause of action at the beginning of each count (i.e., breach of contract, fraud, negligence). Note, however, that New Jersey is a "fact" pleading state. Since pleadings "are essentially fact-based, the jury may be instructed as to a legal theory not expressly alleged if all of the underlying facts have been pleaded and proved."7 While pleadings are to be liberally construed, allegations of misrepresentation, fraud, mistake, breach of trust, willful default or undue influence must be set forth with specificity.8 It is the preferred practice to set forth separate requests for relief after each cause of action, especially where the various causes of action may require different forms of relief. Where the claim is made for unliquidated damages, the complaint cannot specify the amount of damages, except if it is filed in the special civil part.9 Format The cover page must contain the full caption including the name of the court, the division and part, as well as the county of venue, and the designation "Civil Action." Complete identification of all parties is mandatory.10 Utilization of the "et al." designation is inappropriate in the initial pleading, although it may be utilized in all subsequent filings with the trial court.11 To the extent fictitious names are used in the caption (i.e., John Doe defendants), it is necessary that the caption indicate that the names are fictitious, along with an appropriate description sufficient to identify the unnamed party.12 The cover page must also contain a designation of the type of document being filed (i.e., complaint and jury demand, answer and affirmative defenses, etc.). Complaints in lieu of prerogative writs, or medical malpractice cases, must be designated as such in the caption.13 The name, address and telephone number of the attorney or pro se party must appear at the left-hand margin above the caption. An attorney must indicate below this listing the party being represented (i.e., Attorney for Plaintiff, William Jones). Papers filed by an attorney cannot bear an out-of-state address or a post office box number in lieu of a street address.14 The plaintiff's address or principal place of business must be set forth in the paragraph immediately before the allegations. All pleading are to be signed and dated by counsel of by a pro se party.15 If a jury trial is available and desired, demand for a jury trial must be set forth in the pleading and the caption on the cover page should reflect the jury demand. Once the party has demanded a jury trial, it cannot be withdrawn without the approval of all of the parties even if they have not separately made such a demand.16 Counsel should consult the applicable court rule or statute to determine whether the type of complaint being filed must be verified. If the complaint is verified, that designation should appear in the caption. Generally, pleadings need not be verified unless ex parte relief is sought or a specific rule or statute otherwise provides.17 The complaint must have a case information statement, in the form prescribed by appendix XII to the court rules, annexed as a cover page, and a certification as to whether the matter in controversy is the subject of any other pending proceeding, or whether any other parties should be joined in the action.18

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If counsel wishes to designate a particular trial attorney, it is advisable to do so in the initial pleading.19 Filing All complaints are filed in the county of venue, accompanied with the filing fee, which is presently $130. After the complaint is filed and a docket number assigned, service of the complaint and summons must be made in accordance with R. 4:4-4(a),20 with proof of service being supplied as required by R. 4:4-7. THE ANSWER Pre-Drafting Considerations The procedure and analysis counsel must go through prior to drafting and filing an answer is similar to that of a complaint, with a few significant additions. Defense counsel must analyze the complaint to verify that it satisfies the case or controversy, standing and ripeness requirements, and that the forum, court and venue are appropriate for the court to exercise both subject matter and personal jurisdiction. If the case is in state court, counsel should consider whether the action should be removed to the federal court, keeping in mind that such applications must be made within 30 days after defendant receives notice of the claim.21 Upon receipt of the complaint, defense counsel should outline the causes of action asserted, setting forth the elements of each claim to ascertain whether the complaint satisfied the required elements. Wh

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