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When Can A Defendant Successfully File An Initial Motion To Dismiss Based Upon The Pleadings Versus A Motion For Summary Judgment?

By on December 28, 2018 in Litigation with 5 Comments

When a lawsuit is filed in New Jersey state court and the defendant believes that it has a strong defense against the claims asserted by the plaintiff, when is the best time to file a motion with the court asking for the lawsuit to be dismissed? Can the motion be filed immediately in lieu of an answer as the initial pleading or must it await the conclusion of discovery and be filed as a motion for summary judgment? The short answer is that it will depend upon whether the complaint states a claim based upon the facts as pled.

New Jersey is a “fact” rather than a “notice” pleading jurisdiction, which means that a plaintiff must allege facts to support his or her claim rather than merely reciting the elements of a cause of action. That means if a plaintiff fails to include enough facts in the complaint to set forth a viable cause of action, a defendant can file as an initial pleading a motion for failure to state a claim upon which relief may be granted pursuant to Rule 4:6-2(e).

But, a few considerations must be taken into account before expending the time and expense on a motion to dismiss for failure to state a claim. First, the motion must be entirely based upon the complaint and any documents referenced in the complaint. The defendant may not rely upon any other documents or certifications in support of the motion. If a motion is filed under Rule 4:6-2(e) and evidence outside the complaint is offered in support of the motion to dismiss, the court will convert the motion into a motion for summary judgment per Rule 4:6-2.

The second “but” is that the state court judges will view with great liberality the facts as pled and are loathe to grant a motion to dismiss unless there are no facts that would support a cause of action against the defendant. The case law is clear that “every reasonable inference will be accorded the plaintiff” in considering whether a complaint should be dismissed. A good example of a clear-cut motion to dismiss would be one based upon the statute of limitations.

Third, the plaintiff may respond by cross-moving to file an amended complaint, which does set forth additional facts to support a claim. That may or may not be strategically advantageous to a defendant in the long run.

Last, even if the defendant feels it has a strong defense, if it needs to submit any evidence to support its motion to dismiss, then it must file a motion for summary judgment. A motion for summary judgment, however, may also be filed as a first pleading. A defendant can file a motion for summary judgment any time, except they must be returnable at least 30 days before the scheduled trial date, unless the court orders otherwise or for good cause shown. (Rule 4:46-1).

But, should a motion for summary judgment be filed as an initial pleading? What is the likelihood of success? Under our court rules, summary judgment will be granted 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.” Rule 4:46-2(1).

Many of our state court judges generally do not favor the dismissal of cases via summary judgment and, particularly, before any discovery has taken place. If it is filed before discovery is complete, a plaintiff will likely oppose it on the basis that it is not “ripe” because the plaintiff has not yet conducted any discovery and been able to flesh out the allegations in the complaint.

Thus, unless the basis is very clear in support of a motion for summary judgment dismissal, such as the lack of jurisdiction or the failure to file a Tort Claims Act notice (if the claim is against a public entity), even the strongest defenses will unlikely result in a dismissal if the summary judgment motion is filed as an initial motion in lieu of an answer. However, it may be filed upon the conclusion of discovery when all pertinent facts have been “fleshed out.”

Whether it will be successful upon the conclusion of discovery will depend upon whether the defendant is able to persuade the trial judge that there are no material facts in dispute and the law on the claims pled is in favor of the defendant. Unfortunately, in New Jersey state court, it is often difficult to persuade a judges to dismiss a case before it goes to trial. Many judges will deny the motion because they do not want to throw a case out before trial and will “determine” that there are facts in dispute which must be decided by a jury.


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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 30 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020-2023, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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There Are 5 Brilliant Comments

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  1. Todd says:

    NJ is a notice pleading jurisdiction unlike PA. You State otherwise but cute no case law to support that. I have been practicing for 25 years and have always been told it’s a notice pleading state.

    • I had sent you an email that NJ actually is a fact pleading state but, in reality, the trial court judges treat NJ as if it was a notice pleading state. I can provide the case law if you are interested.

    • Beerfart lawyer says:

      “However, New Jersey is a “fact” rather than a “notice” pleading jurisdiction, which means that a plaintiff must allege facts to support his or her claim rather than merely reciting the elements of a cause of action.

      Nostrame v. Santiago, 420 N.J. Super. 427, 436, 22 A.3d 20, 26 (App. Div. 2011), aff’d as modified, 213 N.J. 109, 61 A.3d 893 (2013)

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