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After complaint served defendant must file an answer. Under R. 4:6-2, every defense, legal or equitable, in law or fact, to an affirmative claim must be asserted in the answer. Certain defenses, however, may at the option of the pleader be asserted by motion, with briefs. These defenses are (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, discussed above, and (f) failure to join a party without whom the action cannot proceed, as required by R. 4:28. Defenses (b), (c) and (d) are waived if they are not asserted in the answer and raised by the motion within 90 days after service of the Answer. R. 4:6-3; R. 4:6-7. This is designed to prevent a party from keeping such largely technical defenses in its “hip pocket” for presentation at a strategic point later in the case when the parties and the court have already invested substantial time, energy and resources in the case. If you believe that such defenses are available, they should be presented immediately.
The defenses of lack of subject matter jurisdiction, failure to state a claim, and failure to join a party required by R. 4:28 may be raised at any time before trial. These defenses go to the power of the court to hear the case or to the fundamental merits of the claims asserted. For that reason, these defenses are not waived if not immediately presented. Normally, however, there is no reason to withhold them once counsel learns of their possible existence. Neither clients, who may have paid substantial sums to litigate the case, nor the court, which will have invested its time in the matter, will be happy to see a motion to dismiss the case that could have been brought months or even years earlier. You are well-advised to evaluate the availability of dispositive defenses such as these at the outset of the case, and to re-evaluate these issues periodically prior to trial in order to avoid overlooking this resource.
Other threshold motions that must be evaluated are motions to change venue or to transfer the case to another court. If a change of venue within the Superior Court is to be sought, that must be done within ten days after the last permissible responsive pleading or objections to venue are waived. R. 4:3-3(b). The ten day time period may be enlarged in the rare case where there is “substantial doubt that a fair and impartial trial can be had in the county where venue is laid.” Id. Transfers other than between the Law and Chancery Division are covered by R. 4:3-4. Unlike R. 4:6-2 motions or a motion for a more definite statement, venue or transfer motions do not alter the time by which a responsive pleading is due.
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