RULE 4:6. Defenses And Objections: When And How Presented; By Pleading Or Motion; Motion For Judgment On Pleadings

4:6-1. When Presented

Note: Source - R.R. 4:12-1(a)(b)(c)(e), 4:96-2(c); paragraph (a) amended July 29, 1977 to be effective September 6, 1977; paragraph (a) amended November 1, 1985 to be effective January 2, 1986; paragraph (a) amended November 5, 1986 to be effective January 1, 1987; paragraph (a) amended June 29, 1990 to be effective September 4, 1990; paragraph (a) amended July 14, 1992 to be effective September 1, 1992; paragraphs (a) and (d) amended July 13, 1994 to be effective September 1, 1994; paragraphs (a) and (c) amended June 28, 1996 to be effective September 1, 1996; paragraph (c) amended July 12, 2002 to be effective September 3, 2002; paragraph (a) amended August 1, 2006 to be effective September 1, 2006.

4:6-2. How Presented

Every defense, legal or equitable, in law or fact, to a claim for relief in any complaint, counterclaim, cross-claim, or third-party complaint shall be asserted in the answer thereto, except that the following defenses, unless otherwise provided by R. 4:6-3, may at the option of the pleader be made by motion, with briefs: (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 upon which relief can be granted, (f) failure to join a party without whom the action cannot proceed, as provided by R. 4:28-1. If a motion is made raising any of these defenses, it shall be made before pleading if a further pleading is to be made. No defense or objection is waived by being joined with one or more other defenses in an answer or motion. Special appearances are superseded. If, on a motion to dismiss based on the defense numbered (e), matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46, and all parties shall be given reasonable opportunity to present all material pertinent to such a motion.

Source - R.R. 4:12-2 (first, second and fourth sentences); amended July 23, 2010 to be effective September 1, 2010.

4:6-3. Required Motions; Preliminary Hearings

Defenses (a) (e) and (f) in R. 4:6-2, whether made in an answer or by motion, shall be heard and determined before trial on application of any party, unless the court for good cause orders that the hearing and determination thereof be deferred until the trial. Defenses (b) (c) and (d) in R. 4:6-2 shall be raised by motion within 90 days after service of the answer, provided that defense has been asserted therein and provided, further, that no previous motion to which R. 4:6-6 is applicable has been made.

Note: Source-R.R. 4:12-4.

4:6-4. Motion for More Definite Statement or to Strike or Dismiss for Impropriety of Pleading

Note: Source-R.R. 4:12-5. Caption amended, former rule redesignated paragraph (a) caption provided and paragraph (b) adopted November 2, 1987 to be effective January 1, 1988; paragraph (a) amended July 13, 1994 to be effective September 1, 1994.

4:6-5. Motion to Strike for Insufficiency

On motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, on motion made within 20 days after the service of the pleading upon the party, or upon the court's own initiative at any time, the court may order stricken from any pleading any defense insufficient in law.

Note: Source-R.R. 4:12-6. Caption and text amended November 2, 1987 to be effective January 1, 1988; amended July 13, 1994 to be effective September 1, 1994.

4:6-6. Consolidation of Defenses

A party making a motion under R. 4:6 may join with it the other motions herein provided for and then available. If such motion omits therefrom any defense or objections then available which R. 4:6 permits to be raised by motion, the party shall not thereafter make a motion based on any such omitted defenses or objections, except as provided in R. 4:6-7.

Note: Source-R.R. 4:12-7; amended July 13, 1994 to be effective September 1, 1994.

4:6-7. Waiver or Preservation of Defenses

Defenses (b) (c) and (d) in R. 4:6-2 are waived if not raised by motion pursuant to R. 4:6-3 or if omitted from a previously made motion to which R. 4:6-6 is applicable. Defenses (e) and (f) and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered, or by motion for summary judgment or at the trial on the merits. Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the matter except as otherwise provided by R. 1:13-4.

Note: Source-R.R. 4:12-8.