| By
Kenneth Vercammen, Esq.
Procedurally, the following events occur in most civil and personal
injury cases. First, your Attorney must complete the investigation.
This will involve the collection of information from the doctors,
employer, and investigation. We will need your Doctors to provide
us with copies of all bills, medical records and possibly a medical
report. When we feel that we have sufficient information to form
an opinion as to the financial extent of your damages, we will commence
negotiations with the opposition for a settlement. If the insurance
company will not make an adequate offer, then a Complaint and Case
Information Statement is prepared by your attorney. It is filed
in the Superior Court, Law Division. After the Complaint is filed
and court docket number assigned, Your attorney then will prepare
a Summons and have the defendants personally served with the Summons
and Complaint. The defendant, usually through their insurance company's
attorney, must file an "Answer" within 35 days. The following
is the procedures on Service of a Summons:
Court Rule 4:4-1. Summons; Issuance
The plaintiff, plaintiff's attorney or the clerk of the court may
issue the summons. If a summons is not issued within 15 days from
the date of the Track Assignment Notice, the action may be dismissed
in accordance with R. 4:37-2(a). Separate or additional summonses
may issue against any defendants.
Rule 4:4-2. Summons: Form
Except as otherwise provided by R. 5:4-1(b) (summary proceedings
in family actions), the face of the summons shall be in the form
prescribed by Appendix XII-A to these Rules. It shall be in the
name of the State, signed in the name of the Superior Court Clerk
and directed to the defendant. It shall contain the name of the
court and the plaintiff and the name and address of the plaintiff's
attorney, if any, otherwise the plaintiff's address, and the time
within which these rules require the defendant to serve an answer
upon the plaintiff or plaintiff's attorney, and shall notify the
defendant that if he or she fails to answer, judgment by default
may be rendered for the relief demanded in the complaint. It shall
also inform the defendant of the necessity to file an answer and
proof of service thereof with the deputy clerk of the Superior Court
in the county of venue, except in mortgage and tax foreclosure actions
an answer shall be filed with the Clerk of the Superior Court in
Trenton unless and until the action is deemed contested and the
papers have been sent by the Clerk to the county of venue in which
event an answer shall be filed with the deputy clerk of the Superior
Court in the county of venue. If the defendant is an individual
resident in this state, the summons shall advise that if he or she
is unable to obtain an attorney, he or she may communicate with
the Lawyer Referral Service of the county of his or her residence,
or the county in which the action is pending, or, if there is none
in either county, the Lawyer Referral Service of an adjacent county.
The summons shall also advise defendant that if he or she cannot
afford an attorney, he or she may communicate with the Legal Services
Office of the county of his or her residence or the county in which
the action is pending. If the defendant is an individual not resident
in this State, the summons shall similarly advise him or her, directing
the defendant, however, to the appropriate agency in the county
in which the action is pending. The reverse side or second page
of the summons shall contain a current listing, by county, of telephone
numbers of the Legal Services Office and the Lawyer Referral Office
serving each county, which list shall be updated regularly by the
Administrative Office of the Courts and made available to legal
forms publishers and to any person requesting such list.
Rule 4:4-3. By Whom Served; Copies (a) Summons and Complaint. Summonses
shall be served, together with a copy of the complaint, by the sheriff,
or by a person specially appointed by the court for that purpose,
or by plaintiff's attorney or the attorney's agent, or by any other
competent adult not having a direct interest in the litigation.
If personal service cannot be effected after a reasonable and good
faith attempt, which shall be described with specificity in the
proof of service required by R. 4:4-7, service may be made by mailing
a copy of the summons and complaint by registered or certified mail,
return receipt requested, to the usual place of abode of the defendant
or a person authorized by rule of law to accept service for the
defendant or, with postal instructions to deliver to addressee only,
to defendant's place of business or employment. If the addressee
refuses to claim or accept delivery of registered or certified mail,
service may be made by ordinary mail addressed to the defendant's
usual place of abode. The party making service may, at the party's
option, make service simultaneously by registered or certified mail
and ordinary mail, and if the addressee refuses to claim or accept
delivery of registered mail and if the ordinary mailing is not returned,
the simultaneous mailing shall constitute effective service. Mail
may be addressed to a post office box in lieu of a street address
only as provided by R. 1:5-2. Return of service shall be made as
provided by R. 4:4-7. (b) Writs. Unless the court otherwise orders,
all writs and process to enforce a judgment or order shall be served
by the sheriff. (c) Private Service; Costs. When service of process
pursuant to this rule has been made by any person other than the
sheriff, the allowance of taxed costs pursuant to R. 4:42-8 shall
include a cost of service not exceeding the fee and mileage expenses
allowable by law to the sheriff for that service.
Rule 4:4-4. Summons; Personal Service; In Personam Jurisdiction
Service of summons, writs and complaints shall be made as follows:
(a) Primary Method of Obtaining In Personam Jurisdiction. The primary
method of obtaining in personam jurisdiction over a defendant in
this State is by causing the summons and complaint to be personally
served within this State pursuant to R. 4:4-3, as follows: (1) Upon
a competent individual of the age of 14 or over, by delivering a
copy of the summons and complaint to the individual personally,
or by leaving a copy thereof at the individual's dwelling place
or usual place of abode with a competent member of the household
of the age of 14 or over then residing therein, or by delivering
a copy thereof to a person authorized by appointment or by law to
receive service of process on the individual's behalf; (2) Upon
a minor under the age of 14, by delivering a copy of the summons
and complaint personally to a parent or the guardian of the minor's
person or to a competent adult member of the household with whom
the minor resides; (3) Upon a mentally incapacitated person, by
delivering a copy of the summons and complaint personally to the
guardian of the person of the mentally incapacitated individual
or to a competent adult member of the household with whom the mentally
incapacitated person resides, or if the mentally incapacitated person
resides in an institution, to the director or chief executive officer
thereof; (4) Upon individual proprietors and real property owners,
provided the action arises out of a business in which the individual
is engaged within this State or out of any real property or interest
in real property in this State owned by the individual, by delivering
a copy of the summons and complaint to the individual if competent,
or, whether or not the individual proprietor or property owner is
competent, to a managing or general agent employed by the individual
in such business or for the management of such real property, or
if service cannot be made in that manner, then by delivering a copy
of the summons and complaint to any employee or agent of the individual
within this State acting in the discharge of his or her duties in
connection with the business or the management of the real property;
(5) Upon partnerships and unincorporated associations subject to
suit under a recognized name, by serving a copy of the summons and
complaint in the manner prescribed by paragraph (a)(1) of this rule
on an officer or managing agent or, in the case of a partnership,
a general partner; (6) Upon a corporation, by serving a copy of
the summons and complaint in the manner prescribed by paragraph
(a)(1) of this rule on any officer, director, trustee or managing
or general agent, or any person authorized by appointment or by
law to receive service of process on behalf of the corporation,
or on a person at the registered office of the corporation in charge
thereof, or, if service cannot be made on any of those persons,
then on a person at the principal place of business of the corporation
in this State in charge thereof, or if there is no place of business
in this State, then on any employee of the corporation within this
State acting in the discharge of his or her duties, provided, however,
that a foreign corporation may be served only as herein prescribed
subject to due process of law; (7) Upon the State of New Jersey,
by registered, certified or ordinary mail of a copy of the summons
and complaint or by personal delivery of a copy of the summons and
complaint to the Attorney General or to the Attorney General's designee
named in a writing filed with the Clerk of the Superior Court. No
default shall be entered for failure to appear unless personal service
has been made under this paragraph. In an action under N.J.S.A.
2A:45-1 et seq. (lien or encumbrance held by the State), the notice
in lieu of summons shall be in the form, manner and substance prescribed
by N.J.S.A. 2A:45-2, and shall be served, together with a copy of
the complaint, on the Attorney General or designee as herein provided,
but if the lien or encumbrance arises by reason of a recognizance
entered into in connection with any proceeding in the Superior Court
or any criminal judgment rendered in such court, the notice, together
with a copy of the complaint, shall be served on the county prosecutor
or the prosecutor's designee named in a writing filed with the Clerk
of the Superior Court; (8) Upon other public bodies, by serving
a copy of the summons and complaint in the manner prescribed by
paragraph (a)(1) of this rule on the presiding officer or on the
clerk or secretary thereof; (b) Obtaining In Personam Jurisdiction
by Substituted or Constructive Service. (1) By Mail or Personal
Service Outside the State. If it appears by affidavit satisfying
the requirements of R. 4:4-5(c)(2) that despite diligent effort
and inquiry personal service cannot be made in accordance with paragraph
(a) of this rule, then, consistent with due process of law, in personam
jurisdiction may be obtained over any defendant as follows:
(A) personal service in a state of the United States or the District
of Columbia, in the same manner as if service were made within this
State or by a public official having authority to serve civil process
in the jurisdiction in which the service is made or by a person
qualified to practice law in this State or in the jurisdiction in
which service is made; or (B) personal service outside the territorial
jurisdiction of the United States, in accordance with any governing
international treaty or convention to the extent required thereby,
and if none, in the same manner as if service were made within the
United States, except that service shall be made by a person specially
appointed by the court for that purpose; or (C) mailing a copy of
the summons and complaint by registered or certified mail, return
receipt requested, and, simultaneously, by ordinary mail to: (1)
a competent individual of the age of 14 or over, addressed to the
individual's dwelling house or usual place of abode; (2) a minor
under the age of 14 or a mentally incapacitated person, addressed
to the person or persons on whom service is authorized by paragraphs
(a)(2)and (a)(3) of this rule; (3) a corporation, partnership or
unincorporated association that is subject to suit under a recognized
name, addressed to a registered agent for service, or to its principal
place of business, or to its registered office. Mail may be addressed
to a post office box in lieu of a street address only as provided
by R. 1:5-2. (2) As Provided by Law. Any defendant may be served
as provided by law. (3) By Court Order. If service can be made by
any of the modes provided by this rule, no court order shall be
necessary. If service cannot be made by any of the modes provided
by this rule, any defendant may be served as provided by court order,
consistent with due process of law. (c) Optional Mailed Service.
Where personal service is required to be made pursuant to paragraph
(a) of this rule, service, in lieu of personal service, may be made
by registered, certified or ordinary mail, provided, however, that
such service shall be effective for obtaining in personam jurisdiction
only if the defendant answers the complaint or otherwise appears
in response thereto, and provided further that default shall not
be entered against a defendant who fails to answer or appear in
response thereto. This prohibition against entry of default shall
not apply to mailed service authorized by any other provision of
these rules. If defendant does not answer or appear within 60 days
following mailed service, service shall be made as is otherwise
prescribed by this rule, and the time prescribed by R. 4:4-1 for
issuance of the summons shall then begin to run anew.
Rule 4:4-5. Summons; Service on Absent Defendants; In Rem or Quasi
In Rem Jurisdiction
Whenever, in actions affecting specific property, or any interest
therein, or any res within the jurisdiction of the court, or in
matrimonial actions over which the court has jurisdiction, wherein
it shall appear by affidavit of the plaintiff's attorney or other
person having knowledge of the facts, that a defendant cannot, after
diligent inquiry, be served within the State, service may, consistent
with due process of law, be made by any of the following 4 methods:
(a) personal service outside this State as prescribed by R. 4:4-4(b)(1)(A)
and (B); or (b) service by mail as prescribed by R. 4:4-4(b)(1)(C);
or (c) by publication of a notice once in a newspaper published
or of general circulation in the county in which the venue is laid;
and also by mailing, within 7 days after publication, a copy of
the notice as herein provided and the complaint to the defendant,
prepaid, to the defendant's residence or the place where the defendant
usually receives mail, unless it shall appear by affidavit that
such residence or place is unknown, and cannot be ascertained after
inquiry as herein provided or unless the defendants are proceeded
against as unknown owners or claimants pursuant to R. 4:26-5(c).
But if defendants are proceeded against pursuant to R. 4:26-5(c),
a copy of the notice shall be posted upon the lands affected by
the action within 7 days after publication; (1) The notice required
by this rule shall be in the form of a summons, without a caption,
and shall state briefly (1) the object of the action and the name
of the person to whom it is addressed and why such person is made
a defendant; and (2) where the action concerns real estate, the
municipality in which and the street on which the real estate is
situate, and, if the property is improved, the street number of
the same, if any, and if a mortgage is to be foreclosed, the parties
thereto and the date thereof; (2) The inquiry required by this rule
shall be made by the plaintiff, plaintiff's attorney actually entrusted
with the conduct of the action, or by the agent of the attorney;
it shall be made of any person who the inquirer has reason to believe
possesses knowledge or information as to the defendant's residence
or address or the matter inquired of; the inquiry shall be undertaken
in person or by letter enclosing sufficient postage for the return
of an answer; and the inquirer shall state that an action has been
or is about to be commenced against the person inquired for, and
that the object of the inquiry is to give notice of the action in
order that the person may appear and defend it. The affidavit of
inquiry shall be made by the inquirer fully specifying the inquiry
made, of what persons and in what manner, so that by the facts stated
therein it may appear that diligent inquiry has been made for the
purpose of effecting actual notice; or (d) as may be provided by
court order.
Rule 4:4-6. General Appearance; Acknowledgment of Service A general
appearance or an acceptance of the service of a summons, signed
by the defendant's attorney or signed and acknowledged by the defendant
(other than an infant or mentally incapacitated person), shall have
the same effect as if the defendant had been properly served.
Rule 4:4-7. Return The person serving the process shall make proof
of service thereof on the original process and on the copy. Proof
of service shall be promptly filed with the court within the time
during which the person served must respond thereto either by the
person making service or by the party on whose behalf service is
made. The proof of service, which shall be in a form prescribed
by the Administrative Director of the Courts, shall state the name
of the person served and the place, mode and date of service, and
a copy thereof shall be forthwith furnished plaintiff's attorney
by the person serving process. If service is made upon a member
of the household pursuant to R. 4:4-4 that person's name shall be
stated in the proof or, if such name cannot be ascertained, the
proof shall contain a description of the person upon whom service
was made. If service is made by a person other than a sheriff or
a court appointee, proof of service shall be by similar affidavit
which shall include the facts of the affiant's diligent inquiry
regarding defendant's place of abode, business or employment. If
service is made by mail, the party making service shall make proof
thereof by affidavit which shall also include the facts of the failure
to effect personal service and the facts of the affiant's diligent
inquiry to determine defendant's place of abode, business or employment.
With the proof shall be filed the affidavit or affidavits of inquiry,
if any, required by R. 4:4-4 and R. 4:4-5. Where service is made
by registered or certified mail and simultaneously by regular mail,
the return receipt card or the unclaimed registered or certified
mail shall be filed as part of the proof. Failure to make proof
of service does not affect the validity of service.
Rule 4:4-8. Amendment The person serving the process may file an
additional or amended proof of service within the time provided
by R. 4:4-7. The court may thereafter allow any process or proof
of service thereof to be amended upon such terms as it deems appropriate
unless such amendment would materially prejudice the rights of the
party against whom process issued. Cases under $15,000 in Special
Civil Part
RULE 6:2. PROCESS 6:2-1. Form of Summons
The form of the summons shall conform with the requirements of
R. 4:4-2 and shall be in the form set forth in Appendix XI-A(1)
to these Rules or, for small claims, in the form set forth in Appendix
XI-A(2) or, for tenancy actions, in the form set forth in Appendix
XI-B. However in landlord and tenant actions for the recovery of
premises, unlawful entry and detainer actions, and actions in the
Small Claims Section, in lieu of directing the defendant to file
an answer, the summons shall require the defendant to appear and
state a defense at a certain time and place, to be therein specified,
which time shall be not less than 10 days in summary dispossess
actions and not less than 5 days in small claims, nor more than
30 days from the date of service of the summons, and shall notify
the defendant that upon failure to do so, judgment by default may
be rendered for the relief demanded in the complaint.
6:2-2. Process; Filing and Issuance
(a) Delivery to Clerk; Issuance. The plaintiff shall, when filing
the complaint, furnish the clerk in tenancy actions with the summons
to be issued and in all other actions with page 2 of the summons
as set forth in Appendices XI-A(1) and (2) to these Rules, and two
copies with the complaint annexed for each defendant, together with
two additional copies for each incompetent defendant. The clerk
shall issue the summons except as otherwise provided by law and,
in tenancy actions, shall attach to the summons and complaint for
service on each defendant English and Spanish copies of the announcement
contained in Appendix XI-S to these rules. Original process shall
issue out of the court and shall require an answer or an appearance
at a specific time. (b) Non-resident Defendants; Filing. If no defendant
can be served with process within this State, the plaintiff may
file the complaint with the clerk of the Special Civil Part of the
county in which the subject transaction or occurrence took place.
6:2-3. Service of Process
(a) By Whom Served. Personal service of process within this State
may be made by Special Civil Part Officers and such other persons
authorized by law to serve such process as the Assignment Judge
designates. Persons so designated shall receive in payment for their
services the fees allowed therefor by statute. Service of all process
outside this State may be made in accordance with R. 4:4-4 and R.
4:4-5. After the filing of a complaint and receipt of a docket number,
service may be made by mail pursuant to either R. 4:4-4(c) by plaintiff
or, pursuant to R. 6:2-3(d), by the clerk, without the payment of
mileage fees. (b) Manner of Service. Service of process within this
State shall be made in accordance with R. 6:2-3(d) or as otherwise
provided by court order consistent with due process of law, or in
accordance with R. 4:4-5, except that, in landlord and tenant actions,
service of process shall be by ordinary mail and by either delivery
personally pursuant to R. 4:4-4 or by affixing a copy of the summons
and complaint on the door of the subject premises. Substituted service
within this State shall be made pursuant to R. 6:2-3(d). Substituted
or constructive service outside this State may be made pursuant
to the applicable provisions in R. 4:4-4 or R. 4:4-5. (c) Notice
of Service. Except in landlord and tenant actions for recovery of
the premises and actions in the Small Claims Section, upon the return
of service of original process, the clerk shall inform the plaintiff
or attorney of the date of service. (d) Service by Mail Program.
If the process is to be served in this State, or if substituted
service of process is to be made within this state: (1) Initial
Service. The clerk of the court shall simultaneously mail such process
by both certified and ordinary mail. Attorneys shall submit to the
clerk the mailing addresses of parties to be served and the appropriate
number of copies of the summons and complaint. The clerk shall furnish
postage, envelopes, and return receipts and shall address same.
Mail service on each defendant shall be placed in separate envelopes
by the clerk regardless of marital status or address. Process shall
be mailed within 12 days of the filing of the complaint. The clerk
thereafter shall send a postcard to plaintiff or the attorney showing
the docket number, date of mailing and a statement that, unless
the plaintiff is otherwise notified, default will be entered on
the date shown. If service cannot be effected by mail, the clerk
shall send a second card to the plaintiff or attorney stating the
reasons for incomplete service and requesting instructions for reservice.
(2) Reservice. Where initial service by mail is not effected, plaintiff
or the attorney may request reservice by mail or by court officer
personally pursuant to R. 4:4-4. If reservice by mail at the same
address is requested the plaintiff or attorney shall be required
to provide a postal verification or other proof satisfactory to
the court that the party to be served receives mail at that address.
(3) Fees. The fees for service by mail shall be as provided by N.J.S.A.
22A:2-37.1. (4) Effective Service. Consistent with due process of
law, service by mail pursuant to this rule shall have the same effect
as personal service, and the simultaneous mailing shall constitute
effective service unless the mail is returned to the court by the
postal service marked "moved, unable to forward," "addressee
not known," "no such number/street," "insufficient
address," "forwarding order expired," or the court
has other reason to believe that service was not effected. Process
served by mail may be addressed to a post office box. Service shall
be effective when forwarded by the postal service to an address
outside the county in which the action is instituted. Where process
is addressed to the defendant at a place of business or employment,
with postal instructions to deliver to addressee only, service will
be deemed effective only if the signature on the return receipt
appears to be that of the defendant to whom process was mailed.
(5) Vacation of Defaults. If process is returned to the court by
the postal service subsequent to entry of default and displays any
of the notations listed in the preceding paragraph, or other reason
exists to believe that service was not effected, the clerk shall
vacate the default or default judgment and shall immediately notify
the plaintiff or attorney of the action taken. (e) General Appearance;
Acknowledgment of Service. A general appearance or an acceptance
of the service of a summons, signed by the defendant's attorney
or signed and acknowledged by the defendant (other than a minor
or mentally incapacitated person), shall have the same effect as
if the defendant had been properly served.
6:2-4. Issuance and Signing of Process
All process shall be issued in the name of the State and signed
by or in the name of the clerk. The clerk may designate subordinates
to sign the clerk's name to such process
CONCLUSION
Our office helps people in Personal Injury and Civil cases. We
provide representation throughout New Jersey. Our Law Office can
provide experienced attorney representation for trials. Our website
www.njlaws.com provides information on litigation matters we can
be retained to represent people. If injured or involved in a possible
litigation matter, immediately schedule an appointment with a litigation
attorney. Don't rely on a real estate attorney, public defender
or a family member who took a law class in school. When your life
and future is on the line, hire the best attorney available.
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