The New Jersey motion to dismiss: thirty-five days to answer, ninety to move

New Jersey's dismissal practice has a structure no other state uses. Three of the six defenses must be pleaded in the answer and then brought on by motion within ninety days — pleading them alone is not enough, and moving without having pleaded them does not work either.

Both steps, in that order, within that window.

Thirty-five days — and sixty more by consent

N.J. R. 4:6-1(a):

Time; Presentation. Except as otherwise provided by Rules 4:7-5(c) (crossclaims), 4:8-1(b) (third-party joinder), 4:9-1 (answer to amended complaint), and 4:64-1(i) (governmental answer in foreclosure actions), the defendant shall serve an answer, including therein any counterclaim, within 35 days after service of the summons and complaint on that defendant.

Thirty-five days is among the most generous in the country. And R. 4:6-1(c) adds something rarer still:

Time; Extension by Consent. The time for service of a responsive pleading may be enlarged for a period not exceeding 60 days by the written consent of the parties, which shall be filed with the responsive pleading within said 60-day period. Further enlargements shall be allowed only on notice by court order, on good cause shown therefor.

Sixty additional days by written consent alone — no motion, no court order, no good-cause showing. The consent must be filed with the responsive pleading inside the 60-day period. Anything beyond that needs an order on good cause.

Between the two, a New Jersey defendant with a cooperative adversary can have nearly 95 days without ever asking a judge.

R. 4:6-1(b) handles the effect of a motion:

Time; Effect of Certain Motions. Unless the court fixes a different time period, the time periods prescribed in paragraph (a) of this rule are altered by the filing and service of a motion under R. 4:6 or for summary judgment under R. 4:46 or R. 4:69-2 as follows: (1) if the motion is denied in whole or part or its disposition postponed until trial, the responsive pleading shall be served within 10 days after notice of the court's action; (2) if a motion for a more definite statement is granted, the responsive pleadings shall be served within 10 days after the service of such statement.

The six defenses

R. 4:6-2:

Every defense, legal or equitable, in law or fact, to a claim for relief in any complaint, counterclaim, cross-claim, or third-party complaint shall be asserted in the answer thereto, except that the following defenses, unless otherwise provided by R. 4:6-3, may at the option of the pleader be made by motion, with briefs: (a) lack of jurisdiction over the subject matter, (b) lack of jurisdiction over the person, (c) insufficiency of process, (d) insufficiency of service of process, (e) failure to state a claim upon which relief can be granted, (f) failure to join a party without whom the action cannot proceed, as provided by R. 4:28-1.

Six grounds, lettered. Improper venue is not among them — New Jersey handles venue separately.

Two phrases in the opening are easy to skip. The rule reaches every defense "legal or equitable", and the motion must be made "with briefs" — a briefing requirement stated in the rule itself.

And note the qualifier "unless otherwise provided by R. 4:6-3", which is where the real timing lives.

The ninety-day rule

R. 4:6-3:

Required motions; preliminary hearings. Defenses (a) (e) and (f) in R. 4:6-2, whether made in an answer or by motion, shall be heard and determined before trial on application of any party, unless the court for good cause orders that the hearing and determination thereof be deferred until the trial. Defenses (b) (c) and (d) in R. 4:6-2 shall be raised by motion within 90 days after service of the answer, provided that defense has been asserted therein and provided, further, that no previous motion to which R. 4:6-6 is applicable has been made.

This splits the six into two groups that behave completely differently:

For (b), (c) and (d) there are three conditions, and all must hold:

1. The defense was asserted in the answer.
2. The motion is made within 90 days after service of the answer.
3. No previous R. 4:6-6 motion has been made.

That third condition is the consolidation rule biting. R. 4:6-6:

A party making a motion under R. 4:6 may join with it the other motions herein provided for and then available. If such motion omits therefrom any defense or objections then available which R. 4:6 permits to be raised by motion, the party shall not thereafter make a motion based on any such omitted defenses or objections, except as provided in R. 4:6-7.

So a defendant who files an early motion on failure to state a claim, and leaves out a service objection, cannot come back to the service objection within the ninety days. The earlier motion has closed it.

Special appearances are gone

A short sentence in R. 4:6-2 disposes of a device several states still use:

Special appearances are superseded.

There is no way in New Jersey to appear for the limited purpose of contesting jurisdiction. You answer, assert the defense, and move within ninety days.

A motion to dismiss runs on summary judgment time

Also in R. 4:6-2:

A motion to dismiss based on defense (e), and any opposition thereto, shall be filed and served in accordance with the time frames set forth in R. 4:46-1.

A failure-to-state-a-claim motion is calendared on the summary judgment timetable, not on ordinary motion time. That is a longer runway than most motions get, and both the motion and the opposition are governed by it. See New Jersey summary judgment for those dates.

Conversion

If, on a motion to dismiss based on defense (e), matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46, and all parties shall be given reasonable notice of the court's intention to treat the motion as one for summary judgment and a reasonable opportunity to present all material pertinent to such a motion.

New Jersey adds a protection several states omit: the parties get "reasonable notice of the court's intention" to convert, not merely an opportunity to respond afterwards.

Dismissal for an improper pleading — with a fee condition

R. 4:6-4(b) is unusual enough to be worth knowing:

Impropriety of Pleading. On the court's or a party's motion, the court may either (1) dismiss any pleading that is, overall, scandalous, impertinent, or, considering the nature of the cause of action, abusive of the court or another person; or (2) strike any such part of a pleading or any part thereof that is immaterial or redundant. The order of dismissal shall comply with R. 4:37-2(a) and may expressly require, as a condition of the refiling of a pleading asserting a claim or defense based on the same transaction, the payment by the pleading party of attorney's fees and costs incurred by the party who moved for dismissal.

The court may dismiss an entire pleading that is "overall, scandalous, impertinent, or … abusive" — and may condition any refiling on payment of the moving party's fees and costs.

R. 4:6-4(a) covers the more definite statement, requiring the motion to "point out the defects complained of and the details desired", with 10 days to comply before the pleading may be stricken. The statement then "shall become a part of the pleading which it supplements."

Where this sits in a New Jersey case

New Jersey assigns cases to discovery tracks at the outset, and the track sets the discovery period — so a motion filed late in the ninety days lands in a case that is already moving. See New Jersey's discovery track assignment and New Jersey discovery deadlines.

If the claim is professional malpractice, the affidavit of merit carries its own deadline and its own dismissal consequence, quite apart from R. 4:6-2. See the New Jersey affidavit of merit.

How New Jersey compares

A short checklist

1. Diarise 35 days from service.
2. Ask for consent if you need more time. Sixty extra days needs only written consent, filed with the responsive pleading.
3. For a jurisdiction, process or service objection, do both things. Assert it in the answer, then move within 90 days of service of the answer.
4. Do not file an early R. 4:6 motion that omits it. That closes the door under R. 4:6-6.
5. Forget special appearances. The rule abolishes them.
6. Brief the motion. R. 4:6-2 requires motions "with briefs".
7. Calendar a defense (e) motion on R. 4:46-1 time, not ordinary motion time.
8. Expect notice before any conversion to summary judgment.
9. Apply under R. 4:6-3 to have (a), (e) or (f) heard before trial; deferral requires good cause.

Where these rules live

• N.J. R. 4:6-1 — Time to plead
• N.J. R. 4:6-2 — How presented
• N.J. R. 4:6-3 — Required motions; preliminary hearings
• N.J. R. 4:6-4 — Motion for more definite statement or to strike
• N.J. R. 4:6-6 — Consolidation of defenses

This page explains what the rules say. It isn't legal advice, and the standard for dismissal under R. 4:6-2(e) is developed in case law this site doesn't cover.