An OSC is a court order which requires a party to "show cause" why the court should not take a particular action. This means that, on the return date specified in the order, the party that is the subject of the OSC (the "subject party") must justify, explain, and/or prove to the court why the relief requested by the filing party should not be granted. The court may also at its discretion grant temporary restraints or other interim relief, provided that the subject party is given notice of the action, or if it appears that immediate and irreparable harm will ensue in the absence of such relief, and before notice can be provided. Simply put, this means that the court can take immediate action and grant temporary relief to the filing party before the return date, and without notice to the subject party, in order to prevent immediate and irreparable harm to the filing party. An OSC can also be used to commence a "summary action," which does not require a formal trial and discovery.
Types of OSC
There are three general types of OSC that a party can file in New Jersey. One type is used to begin a summary action for a matter that is permitted by statute or rule to be decided in a prompt manner, without the need for traditional "plenary" review (meaning a full, formal trial or hearing, and lengthy discovery period). This method of filing a lawsuit can avoid some of the significant cost associated with traditional litigation; however, more often than not, a lawsuit will require a full plenary hearing and discovery period, so it is wise to consult with an attorney before attempting to file this type of OSC. The second type of OSC is used when seeking a preliminary injunction against the subject party, which would be issued on the return date to prevent the subject party from doing certain things that could cause harm or damage to the filing party. The third type is also used when seeking a preliminary injunction, but with the need for immediate temporary relief as well.
Components of an OSC
The OSC must include the actual "Order to Show Cause" to be signed by the judge, which will specify the return date for the parties to come back to court and present their arguments for, or against, the entry of a final order granting the relief requested (the date will be determined by the court), as well as the specific actions the filing party wishes the court to take on its behalf. Accompanying the OSC must be a "verified complaint" or "supporting affidavit(s)" which sets forth the specific facts upon which the filing party is basing its request, with a certification or affirmation as to the truth of the facts by an individual with personal knowledge of those facts. Any supporting evidence should also be attached as individually marked exhibits. Finally, a memorandum of law must be included, describing the legal basis for the OSC and relief requested. Due to the complicated legal nature of these documents, it is best to have a qualified attorney draft the documents for you.
When filing the initial OSC, before it is executed by the court and a return date is assigned, it is not necessary to provide notice to the subject party, unless the filing party is requesting immediate temporary relief prior to the return date. In that case, the subject party must be put on notice of the OSC prior to filing. The exception to this rule is where the filing party demonstrates that immediate and irreparable harm will be caused before notice can be given, if immediate relief is not granted. Once the OSC is signed by the judge, specifying the return date, a copy of the executed OSC and all accompanying documents and exhibits must be provided to the subject party (and/or its attorney, if known), by the method and deadline ordered by the court. Failure to properly adhere to the notice requirements may result in dismissal of your action, or other adverse consequences.
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