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Legal Memorandum: Service and Court's Discretion in NJ

Issue: Under New Jersey law, when will a court be held to have abused its discretion by dismissing a defendant’s answer where good faith efforts to effect service were inadequate?

Area of Law: Litigation & Procedure
Keywords: Abuse of discretion; Service
Jurisdiction: New Jersey
Cited Cases: 367 N.J. Super. 17; 266 A.2d 316; 198 N.J. Super. 370; 411 A.2d 1167; 543 A.2d 1043; 226 N.J. Super. 244; 842 A.2d 179; 487 A.2d 331; 171 N.J. 502; 575 A.2d 908; 241 N.J. Super. 614; 110 N.J. Super. 565
Cited Statutes: N.J. Ct. R. 1:5-2, Rule 1:5-3
Date: 11/01/2008

The grant or denial of a motion to vacate a dismissal is in the trial court’s sound discretion and will not be interfered with absent a mistaken exercise of that discretion causing an injustice.  Georgis v. Scarpa, 226 N.J. Super. 244, 249, 543 A.2d 1043, 1046 (App. Div. 1988) TA s "Georgis v. Scarpa (App. Div. 1988)" .

In Zoning Board of Adjustment v. Service Electric Cable Television of New Jersey, Inc., 198 N.J. Super. 370, 487 A.2d 331 (App. Div. 1985) TA l "Zoning Board of Adjustment v. Service Electric Cable Television of New Jersey, Inc., 198 N.J. Super. 370, 487 A.2d 331 (App. Div. 1985)" s "Zoning Board of Adjustment v. Service Electric Cable  (App. Div. 1985)" c 1 , the court reversed an order of the law division staying administrative proceedings, because the defendant “was never properly served with the notice of motion.”  Id. at 378, 487 A.2d at 335 TA s "Zoning Board of Adjustment v. Service Electric Cable  (App. Div. 1985)" .  “It is fundamental that with certain exceptions, a party making a motion in a civil matter must serve all parties who had appeared [and f]ailure to comply with this requirement may result in dismissal of the motion.”  Id. TA s "Zoning Board of Adjustment v. Service Electric Cable  (App. Div. 1985)"   But, in Service Electric, the record was undisputed that the defendant never received the notice […]

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