We filed a Motion to Dismiss our case in NJ. The plaintiffs failed to comply with an order compelling discovery and failed to comply with an order to replace counsel after 30 days.
Am I interpreting this correctly? That under Rule 1:6 they have to file an opposition to the motion to dismiss within 8 days before the return date? If I am correct, does that mean dismissal is automatic if they don't oppose it? What if they file an opposition 2 days before?
The moving party's brief in support of a motion shall, pursuant to R. 1:6-3, be served and submitted to the court with the moving papers. The respondent shall serve and submit an answering brief at least 8 days before the return date. A reply brief, if any, shall be served and submitted at least 4 days before the return dat
I ask a question in California and get 10 answers. NJ? Crickets!
Education Law Attorney
Motions to dismiss are not granted readily. However, it seems that the plaintiffs have violated a court order. That makes your motion stronger because no judge wants their orders disregarded. However, the judge may give them another chance to comply with the order and move the case forward.
Further, motions to dismiss are not granted automatically. It is up to the judge's sound discretion. Plaintiffs may show up at the court hearing date and argue their position then. I'm not saying that one side definitely loses or wins, but judges do not like to dismiss cases on motions like this because the appellate courts routinely overturn them. It is a high standard to dismiss a case on a motion like this, even when the rules and law are seemingly on your side.
I would just wait out the date, show up for the court hearing, and be prepared to argue your motion then. See what the judge decides. Remember, if you feel that the judge rules incorrectly, you can always appeal that decision later.
I assume that you were sued by the plaintiff and served interrogatories and/or discovery requests upon the plaintiff that were not answered in the time permitted by rules of court. I further assume that your motion to dismiss the plaintiff's case was based on plaintiff's failure to answer your interrogatories and/or discovery requests. The only defense to your motion will be for the plaintiff to provide answers to your interrogatories. If the plaintiff provides answers to your interrogatories and/or discovery requests prior to the return date of your motion to dismiss, you will be required to withdraw your motion and the case will proceed.
However, if the plaintiff does not provide these answers before the return date, the court will enter an order dismissing the plaintiff's case, WITHOUTprejudice.. Once the plaintiff's case is dismissed without prejudice, he must file a motion to vacate the dismissal order before the entry of an order of dismissal with prejudice. The plaintiff's motion must be supported by affidavit reciting that the discovery asserted to have been withheld has been fully and responsively provided and shall be accompanied by payment of a $100 restoration fee to the Clerk of the Superior Court, if his motion to vacate is made within 30 days after entry of the order of dismissal, or a $300 restoration fee if the motion is made thereafter. If, however, the motion is not made within 90 days after entry of the order of dismissal, the court may also order the delinquent party to pay sanctions or counsel fees and costs, or both, as a condition of restoration.
If the plaintiff fails to comply with this order to dismiss without prejudice within 60 days, then you will have to file another motion, seeking a dismissal of the plaintiff's case WITH Prejudice. That will end your case. See Rule 4:23-5 which outlines what I have said. Good luck!