New Jersey summary judgment: 28/10/4, and a statement of material facts that decides the motion

New Jersey's summary judgment practice is unusually mechanical, and that is good news: almost everything that decides these motions is written down in Rule 4:46.

Two things do most of the work. The 28/10/4 briefing cycle, which is shorter than it looks. And the statement of material facts, where a paragraph you fail to dispute properly is simply treated as true.

Who can move, and when

R. 4:46-1 is asymmetric:

A party seeking any affirmative relief may, at any time after the expiration of 35 days from the service of the pleading claiming such relief, move for a summary judgment or order on all or any part thereof or as to any defense. A party against whom a claim for such affirmative relief is asserted may move at any time for a summary judgment or order as to all or any part thereof.

A claimant must wait 35 days from service of the pleading. A defending party may move at any time — there is no waiting period at all.

The outer limit, and the trial date

The same rule ties everything to the trial date:

All motions for summary judgment shall be returnable no later than 30 days before the scheduled trial date, unless the court otherwise orders for good cause shown, and if the decision is not communicated to the parties at least 10 days prior to the scheduled trial date, an application for adjournment shall be liberally granted.

Returnable — not filed — no later than 30 days before trial. And there is a built-in protection: if the decision does not reach the parties at least 10 days before trial, an adjournment application "shall be liberally granted."

28 / 10 / 4

The briefing cycle, from the same rule:

Except as otherwise provided by R. 6:3-3 (motion practice in Special Civil Part) or unless the court otherwise orders, a motion for summary judgment shall be served and filed not later than 28 days before the time specified for the return date; opposing affidavits, certifications, briefs, and cross-motions for summary judgment, if any, shall be served and filed not later than 10 days before the return date; and answers or responses to such opposing papers or to cross-motions shall be served and filed not later than four days before the return date. No other papers may be filed without leave of court.

Note that a cross-motion for summary judgment rides on the 10-day opposition deadline — it does not get its own 28 days. And "No other papers may be filed without leave of court" means sur-replies are not available as of right.

Note too that the Special Civil Part runs on R. 6:3-3 instead, so these dates are not universal.

The statement of material facts

This is where New Jersey differs most from a generic summary judgment practice. R. 4:46-2(a):

Requirements in Support of Motion. The motion for summary judgment shall be served with a brief and a separate statement of material facts with or without supporting affidavits. The statement of material facts shall set forth in separately numbered paragraphs a concise statement of each material fact as to which the movant contends there is no genuine issue together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted. The citation shall identify the document and shall specify the pages and paragraphs or lines thereof or the specific portions of exhibits relied on. A motion for summary judgment may be denied without prejudice for failure to file the required statement of material facts.

Four requirements, and a sanction. Separately numbered paragraphs. A concise statement per fact. A citation to the motion record. And the citation must be specific — pages and paragraphs or lines, not a document-wide reference. A motion without the statement may be denied without prejudice.

Then R. 4:46-2(b) puts the mirror obligation on the opponent, with a much sharper consequence:

Requirements in Opposition to Motion. A party opposing the motion shall file a responding statement either admitting or disputing each of the facts in the movant's statement. Subject to R. 4:46-5(a), all material facts in the movant's statement which are sufficiently supported will be deemed admitted for purposes of the motion only, unless specifically disputed by citation conforming to the requirements of paragraph (a) demonstrating the existence of a genuine issue as to the fact. An opposing party may also include in the responding statement additional facts that the party contends are material and as to which there exists a genuine issue. Each such fact shall be stated in separately numbered paragraphs together with citations to the motion record.

Deemed admitted. Not "may be treated as undisputed" — deemed admitted, unless you dispute the fact specifically, with a citation meeting the same standard the movant had to meet.

A brief that argues the facts without a paragraph-by-paragraph responding statement therefore concedes the movant's facts. That single mechanic decides a large share of these motions.

The opponent can also add its own numbered material facts in the same document.

The standard

R. 4:46-2(c) states it, and then defines "genuine" in a way worth reading closely:

The judgment or order sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact. The court shall find the facts and state its conclusions in accordance with R. 1:7-4.

The test imports the burden of persuasion at trial and asks whether the issue would require submission to the trier of fact — not merely whether the parties disagree.

The same subsection allows partial relief: a summary judgment "interlocutory in character, may be rendered on any issue in the action (including the issue of liability) although there is a genuine factual dispute as to any other issue (including any issue as to the amount of damages)."

Opposing without evidence

R. 4:46-5(a) closes the door on resting on the pleadings, and opens one for genuine unavailability:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the pleading, but must respond by affidavits meeting the requirements of R. 1:6-6 or as otherwise provided in this rule and by R. 4:46-2(b), setting forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered unless it appears from the affidavits submitted, for reasons therein stated, that the party was unable to present by affidavit facts essential to justify opposition, in which case the court may deny the motion, may order a continuance to permit additional affidavits to be obtained, depositions to be taken or discovery to be had, or may make such other order as may be appropriate.

The relief valve is itself an affidavit requirement — the reasons must appear "from the affidavits submitted." Asking for more discovery in a brief does not engage it.

And R. 4:46-5(b) attaches a cost to abuse:

If the court is satisfied, at any time, that any of the affidavits submitted pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses resulting from the filing of the affidavits, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.

Note "shall" — the fee award is mandatory once the court is satisfied, and contempt is available on top.

How New Jersey compares

A short checklist

1. If you are the claimant, count 35 days from service of the pleading before moving. A defending party has no waiting period.
2. Fix the return date first, then count back 28, 10 and 4.
3. Make sure the return date is at least 30 days before trial, or be ready to show good cause.
4. File the separate statement of material facts. Without it the motion may be denied without prejudice.
5. Cite specifically — document, pages, and paragraphs or lines. A whole-exhibit citation does not meet the rule.
6. Answer the statement paragraph by paragraph. Anything not specifically disputed with a conforming citation is deemed admitted.
7. Put your own material facts in the responding statement, numbered, with citations.
8. If you are cross-moving, remember it is due on the 10-day opposition date, not on its own 28-day track.
9. If you need discovery, put the reasons in an affidavit — R. 4:46-5(a) will not be engaged by a brief.
10. Do not pad the record with weak affidavits. Fees are mandatory if the court finds bad faith or delay.

Where these rules live

• N.J. Ct. R. 4:42-2 — Judgment upon multiple claims
• N.J. Ct. R. 4:46-1 — Time for Making, Filing, and Serving Motion
• N.J. Ct. R. 4:46-2 — Motion and Proceedings Thereon
• N.J. Ct. R. 4:46-5 — Affidavits

This page explains what the rules say. It isn't legal advice, and the summary judgment standard under R. 4:46-2(c) is developed further in case law this site doesn't cover. R. 1:6-6 (affidavits) and R. 1:7-4 (findings by the court) sit in Part I of the Rules of Court, outside this site's New Jersey corpus, which covers Part IV.