| NEW JERSEY
RULES GOVERNING CIVIL PRACTICE IN THE SUPERIOR COURT |
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| Rule 4:4.
Process |
4:4-1. Summons:
Issuance
The plaintiff, the plaintiff's attorney or the clerk of the court may issue
the summons. If a summons is not issued within 10 days after the filing
of the complaint the action may be dismissed in accordance with R. 4:37-2(a).
Separate or additional summonses may issue against any defendants.
Note: Source - R.R. 4:4-1; amended July 13, 1994 to be effective September
1, 1994. |
4:4-2. Summons:
Form
Except as otherwise provided by R. 5:4-1(b) (summary proceedings in family
actions), the face of the summons shall be in the form prescribed by Appendix
XII-A to these Rules. It shall be in the name of the State, signed in the
name of the Superior Court Clerk and directed to the defendant. It shall
contain the name of the court and the plaintiff and the name and address
of the plaintiff's attorney, if any, otherwise the plaintiff's address,
and the time within which these rules require the defendant to serve an
answer upon the plaintiff or plaintiff's attorney, and shall notify the
defendant that if he or she fails to answer, judgment by default may be
rendered for the relief demanded in the complaint. It shall also inform
the defendant of the necessity to file an answer and proof of service thereof
with the deputy clerk of the Superior Court in the county of venue, except
in mortgage and tax foreclosure actions an answer shall be filed with the
Clerk of the Superior Court in Trenton unless and until the action is deemed
contested and the papers have been sent by the Clerk to the county of venue
in which event an answer shall be filed with the deputy clerk of the Superior
Court in the county of venue. If the defendant is an individual resident
in this state, the summons shall advise that if he or she is unable to obtain
an attorney, he or she may communicate with the Lawyer Referral Service
of the county of his or her residence, or the county in which the action
is pending, or, if there is none in either county, the Lawyer Referral Service
of an adjacent county. The summons shall also advise defendant that if he
or she cannot afford an attorney, he or she may communicate with the Legal
Services Office of the county of his or her residence or the county in which
the action is pending. If the defendant is an individual not resident in
this State, the summons shall similarly advise him or her, directing the
defendant, however, to the appropriate agency in the county in which the
action is pending. The reverse side or second page of the summons shall
contain a current listing, by county, of addresses and telephone numbers
of the Legal Services Office and the Lawyer Referral Office serving each
county, which list shall be updated regularly by the Administrative Office
of the Courts and made available to legal forms publishers and to any person
requesting such list.
Note: Source - R.R. 4:4-2; amended November 27, 1974 to be effective April
1, 1975; amended July 29, 1977 to be effective September 6, 1977; amended
July 21, 1980 to be effective September 8, 1980; amended July 16, 1981 to
be effective September 14, 1981; amended December 20, 1983 to be effective
December 31, 1983; amended June 29, 1990 to be effective September 4, 1990;
amended July 13, 1994 to be effective September 1, 1994; amended June 28,
1996 to be effective September 1, 1996; amended July 10, 1998 to be effective
September 1, 1998. |
| 4:4-3. By Whom
Served; Copies |
| (a) |
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Summons and Complaint. Summonses shall be served together with a
copy of the complaint, by the sheriff, or by a person specially appointed
by the court for that purpose, or by plaintiff's attorney or the attorney's
agent, or by any other competent adult not having a direct interest in the
litigation. If personal service cannot be effected after a reasonable
and good faith attempt, which shall be described with specificity in the
proof of service required by R. 4:4-7, service may be made by registered
or certified mail, return receipt requested, to the usual place of abode
of the defendant or a person authorized by rule of law to accept service
for the defendant or, with postal instructions to deliver to addressee only,
to defendant's place of business or employment. If the addressee refuses
to claim or accept delivery of registered or certified mail, service may
be made by ordinary mail addresed to the defendant's usual place of abode.
The party making service may, at the party's option, make service simultaneously
by registered or certified mail and ordinary mail, and if the addressee
refuses to claim or accept delivery of registered mail and if the ordinary
mailing is not returned, the simultaneous mailing shall constitute effective
service. Mail may be addressed to a post office box in lieu of a street
address only as provided by R. 1:5-2. Return of service shall be made as
provided by R. 4:4-7. |
| (b) |
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Writs. Unless the court otherwise
orders, all writs and process to enforce a judgment or order shall be served
by the sheriff.
Note: Source - R.R. 4:4-3, 5:5-1(c), 5:2-2; amended July 14, 1992 to be
effective September 1, 1992; paragraph (b) amended July 13, 1994 to be effective
September 1, 1994; captions and text of paragraphs (a) and (b) deleted and
replaced with new captions and text July 5, 2000 to be effective September
5, 2000. |
| 4:4-4. Summons;
Personal Service; In Personam Jurisdiction Service of summons, writs
and complaints shall be made as follows: |
| (a) |
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Primary Method of Obtaining In Personam
Jurisdiction. The primary method of obtaining in personam jurisdiction
over a defendant in this State is by causing the summons and complaint to
be personally served within this State pursuant to R. 4:4-3, as follows:
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(1) |
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Upon a competent individual of the age of 14 or over, by delivering
a copy of the summons and complaint to the individual personally, or by
leaving a copy thereof at the individual's dwelling place or usual place
of abode with a competent member of the household of the age of 14 or
over then residing therein, or by delivering a copy thereof to a person
authorized by appointment or by law to receive service of process on the
individual's behalf; |
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(2) |
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Upon a minor under the age of 14, by delivering
a copy of the summons and complaint personally to a parent or the guardian
of the minor's person or to a competent adult member of the household with
whom the minor resides; |
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(3) |
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Upon an incompetent, by delivering a copy
of the summons and complaint personally to the guardian of the incompetent's
person or to a competent adult member of the household with whom the incompetent
resides, or if the incompetent resides in an institution, to the director
or chief executive officer thereof; |
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(4) |
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Upon individual proprietors and real property
owners, provided the action arises out of a business in which the individual
is engaged within this State or out of any real property or interest in
real property in this State owned by the individual, by delivering a copy
of the summons and complaint to the individual if competent, or, whether
or not the individual proprietor or property owner is competent, to a managing
or general agent employed by the individual in such business or for the
management of such real property, or if service cannot be made in that manner,
then by delivering a copy of the summons and complaint to any employee or
agent of the individual within this State acting in the discharge of his
or her duties in connection with the business or the management of the real
property; |
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(5) |
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Upon partnerships and unincorporated associations
subject to suit under a recognized name, by serving a copy of the summons
and complaint in the manner prescribed by paragraph (a)(1) of this rule
on an officer or managing agent or, in the case of a partnership, a general
partner; |
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(6) |
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Upon a corporation, by serving a copy of the summons and complaint in the
manner prescribed by paragraph (a)(1) of this rule on any officer, director,
trustee or managing or general agent, or any person authorized by appointment
or by law to receive service of process on behalf of the corporation, or
on a person at the registered office of the corporation in charge thereof,
or, if service cannot be made on any of those persons, then on a person
at the principal place of business of the corporation in this State in charge
thereof, or if there is no place of business in this State, then on any
employee of the corporation within this State acting in the discharge of
his or her duties, provided, however, that a foreign corporation may be
served only as herein prescribed subject to due process of law; |
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(7) |
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Upon the State of New Jersey, by registered,
certified or ordinary mail of a copy of the summons and complaint or by
personal delivery of a copy of the summons and complaint to the Attorney
General or to the Attorney General's designee named in a writing filed with
the Clerk of the Superior Court. No default shall be entered for failure
to appear unless personal service has been made under this paragraph. In
an action under N.J.S.A. 2A:45-1 et seq. (lien or encumbrance held by the
State), the notice in lieu of summons shall be in the form, manner and substance
prescribed by N.J.S.A. 2A:45-2, and shall be served, together with a copy
of the complaint, on the Attorney General or designee as herein provided,
but if the lien or encumbrance arises by reason of a recognizance entered
into in connection with any proceeding in the Superior Court or any criminal
judgment rendered in such court, the notice, together with a copy of the
complaint, shall be served on the county prosecutor or the prosecutor's
designee named in a writing filed with the Clerk of the Superior Court;
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(8) |
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Upon other public bodies, by serving a copy
of the summons and complaint in the manner prescribed by paragraph (a)(1)
of this rule on the presiding officer or on the clerk or secretary thereof;
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| (b) |
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Obtaining In Personam Jurisdiction by
Substituted or Constructive Service. |
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(1) |
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By mail or personal service outside the
State. If it appears by affidavit satisfying the requirements of R. 4:4-5(c)(2)
that despite diligent effort and inquiry personal service cannot be made
in accordance with paragraph (a) of this rule, then, consistent with due
process of law, in personam jurisdiction may be obtained over any defendant
as follows: |
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(A) |
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personal service in a state of the United
States or the District of Columbia, in the same manner as if service were
made within this State, except that service shall be made by a public official
having authority to serve civil process in the jurisdiction in which the
service is made or by a person qualified to practice law in this State or
in the jurisdiction in which service is made or by a person specially appointed
by the court for that purpose; or |
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(B) |
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personal service outside the territorial
jurisdiction of the United States, in accordance with any governing international
treaty or convention to the extent required thereby, and if none, in the
same manner as if service were made within the United States, except that
service shall be made by a person specially appointed by the court for that
purpose; or |
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(C) |
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mailing a copy of the summons and complaint
by registered or certified mail, return receipt requested, and, simultaneously,
by ordinary mail to: |
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(i) |
a competent individual of the age of 14
or over, addressed to the individual's dwelling house or usual place of
abode; |
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(ii) |
a minor under the age of 14 or an incompetent,
addressed to the person or persons on whom service is authorized by paragraphs
(a)(2) and (a)(3) of this rule; |
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(iii) |
a corporation, partnership or unincorporated
association that is subject to suit under a recognized name, addressed to
a registered agent for service, or to its principal place of business, or
to its registered office. Mail may be addressed to a post office box in
lieu of a street address only as provided by R. 1:5-2. |
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(2) |
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As provided by law. Any defendant may be
served as provided by law. |
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(3) |
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By court order. If service can be made by
any of the modes provided by this rule, no court order shall be necessary.
If service cannot be made by any of the modes provided by this rule, any
defendant may be served as provided by court order, consistent with due
process of law. |
| (c) |
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Optional Mailed Service. In lieu
of personal service prescribed by paragraph (a)(1) of this rule, service
may be made by registered, certified or ordinary mail, provided, however,
that such service shall be effective for obtaining in personam jurisdiction
only if the defendant answers the complaint or otherwise appears in response
thereto. If defendant does not answer or appear within 60 days following
mailed service, service shall be made as is otherwise prescribed by this
rule, and the time prescribed by R. 4:4-1 for issuance of the summons shall
then begin to run anew.
Note: Source - R.R. 4:4-4. Paragraph (a) amended July 7, 1971 to be effective
September 13, 1971; paragraphs (a) and (b) amended July 14, 1972 to be effective
September 5, 1972; paragraph (f) amended July 15, 1982 to be effective September
13, 1982; paragraph (e) amended July 26, 1984 to be effective September
10, 1984; paragraph (a) amended November 1, 1985 to be effective January
2, 1986; paragraphs (a), (f) and (g) amended November 5, 1986 to be effective
January 1, 1987; paragraph (i) amended November 2, 1987 to be effective
January 1, 1988; paragraph (e) amended November 7, 1988 to be effective
January 2, 1989; paragraphs (a) and (b) amended July 14, 1992 to be effective
September 1, 1992; text deleted and new text substituted July 13, 1994 to
be effective September 1, 1994. |
4:4-5. Summons;
Service on Absent Defendants; In Rem or Quasi In Rem Jurisdiction
Whenever, in actions affecting specific property, or any interest therein,
or any res within the jurisdiction of the court, or in matrimonial actions
over which the court has jurisdiction, wherein it shall appear by affidavit
of the plaintiff's attorney or other person having knowledge of the facts,
that a defendant cannot, after diligent inquiry, be served within the State,
service may, consistent with due process of law, be made by any of the following
4 methods: |
| (a) |
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personal service outside this State as prescribed
by R. 4:4-4(b)(1)(A) and (B): or |
| (b) |
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service by mail as prescribed by R. 4:4-4(b)(1)(C);
or |
| (c) |
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by publication of a notice once in a newspaper
published or of general circulation in the county in which the venue is
laid; and also by mailing, within 7 days after publication, a copy of the
notice as herein provided and the complaint to the defendant, prepaid, to
the defendant's residence or the place where the defendant usually receives
mail, unless it shall appear by affidavit that such residence or place is
unknown, and cannot be ascertained after inquiry as herein provided or unless
the defendants are proceeded against as unknown owners or claimants pursuant
to R. 4:26-5(c). But if defendants are proceeded against pursuant to R.
4:26-5(c), a copy of the notice shall be posted upon the lands affected
by the action within 7 days after publication; |
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(1) |
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The notice required by this rule shall be
in the form of a summons, without a caption, and shall state briefly (1)
the object of the action and the name of the person to whom it is addressed
and why such person is made a defendant; and (2) where the action concerns
real estate, the municipality in which and the street on which the real
estate is situate, and, if the property is improved, the street number of
the same, if any, and if a mortgage is to be foreclosed, the parties thereto
and the date thereof; |
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(2) |
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The inquiry required by this rule shall
be made by the plaintiff, plaintiff's attorney actually entrusted with the
conduct of the action, or by the agent of the attorney; it shall be made
of any person who the inquirer has reason to believe possesses knowledge
or information as to the defendant's residence or address or the matter
inquired of; the inquiry shall be undertaken in person or by letter enclosing
sufficient postage for the return of an answer; and the inquirer shall state
that an action has been or is about to be commenced against the person inquired
for, and that the object of the inquiry is to give notice of the action
in order that the person may appear and defend it. The affidavit of inquiry
shall be made by the inquirer fully specifying the inquiry made, of what
persons and in what manner, so that by the facts stated therein it may appear
that diligent inquiry has been made for the purpose of effecting actual
notice; or |
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as may be provided by court order.
Note: Source - R.R. 4:4-5(a)(b)(c)(d), 4:30-41(b) (second sentence). Paragraph
(c) amended July 7, 1971 to be effective September 13, 1971; paragraph (c)
amended July 14, 1972 to be effective September 5, 1972; amended July 24,
1978 to be effective September 11, 1978; paragraph (b) amended November
7, 1988 to be effective January 2, 1989; paragraphs (a) (b) (c) (d) amended
July 13, 1994 to be effective September 1, 1994; paragraph (c) amended June
28, 1996 to be effective September 1, 1996. |
4:4-6. General
Appearance; Acknowledgment of Service
A general appearance or an acceptance of the service of a summons, signed
by the defendant's attorney or signed and acknowledged by the defendant
(other than an infant or incompetent), shall have the same effect as if
the defendant had been properly served.
Note: Source - R.R. 4:4-6; amended July 17, 1975 to be effective September
8, 1975. |
4:4-7. Return
The person serving the process shall make proof of service thereof on
the original process, and in Superior Court actions also on the copy, and
shall promptly file such process with the court within the time during which
the person served must respond thereto. The proof of service shall state
the name of the person served and the place, mode and date of service, and
a copy thereof shall be forthwith furnished plaintiff's attorney by the
person serving process. If service is made upon a member of the household
pursuant to R. 4:4-4 that person's name shall be stated in the proof or,
if such name cannot be ascertained, the proof shall contain a description
of the person upon whom service was made. If service is made by a person
other than a sheriff or a court appointee, proof of service shall be by
similar affidavit which shall include the facts of the affiant's diligent
inquiry regarding defendant's place of abode, business or employment. If
service is made by mail, the party making service shall make proof thereof
by affidavit which shall also include the facts of the failure to effect
personal service and the facts of the affiant's diligent inquiry to determine
defendant's place of abode, business or employment. With the proof shall
be filed the affidavit or affidavits of inquiry, if any, required by R.
4:4-4 and R. 4:4-5. Where service is made by registered or certified mail
and simultaneously by regular mail, the return receipt card or the unclaimed
registered or certified mail shall be filed as part of the proof. Failure
to make proof of service does not affect the validity of service.
Note: Source R.R. 4:4-7. Amended July 14, 1972 to be effective September
5, 1972; amended June 29, 1990 to be effective September 4, 1990; amended
July 14, 1992 to be effective September 1, 1992; amended July 13, 1994 to
be effective September 1, 1994; amended July 10, 1998 to be effective September
1, 1998. |
4:4-8. Amendment
The person serving the process may file an additional or amended proof of
service within the time provided by R. 4:4-7. The court may thereafter allow
any process or proof of service thereof to be amended upon such terms as
it deems appropriate unless such amendment would materially prejudice the
rights of the party against whom process issued.
Note: Source - R.R. 4:4-8. |
| 4:14-7. Subpoena
for Taking Depositions |
| (a) |
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Form; Contents; Scope. The attendance
of a witness at the taking of depositions may be compelled by subpoena,
issued and served as prescribed by R. 1:9 insofar as applicable, and subject
to the protective provisions of R. 1:9-2 and R. 4:10-3. The subpoena may
command the person to whom is directed to produce designated books, papers,
documents or other objects which constitute or contain evidence relating
to all matters within the scope of examination permitted by R. 4:10-2. |
| (b) |
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Time and Place of Examination by Subpoena;
Witness' Expenses. |
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(1) |
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Fact Witnesses. A resident of this State
subpoenaed for the taking of a deposition may be required to attend an examination
only at a reasonably convenient time and only in the county of this State
in which he or she resides, is employed or transacts business in person,
or at such other convenient place fixed by court order. A nonresident of
this State subpoenaed within this State my be required to attend only at
a reasonably convenient time and only in the county in which he or she is
served at a place within this State not more than 40 miles from the place
of service, or at such other convenient place fixed by court order. The
party subpoenaing a witness, other than one subject to deposition on notice,
shall reimburse the witness for the out-of-pocket expenses and loss of pay,
if any, incurred in attending at the taking of depositions. |
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(2) |
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Expert Witnesses and Treating Physicians.
If the expert or treating resides or works in New Jersey, but the deposition
is taken at a place other than the witness' residence or place of business,
the party taking the shall pay for the witness' travel time and expenses,
unless otherwise ordered by the court. If the expert or treating physician
does not reside or work in New Jersey, the proponent of the witness shall
either (A) produce the witness, at the proponent's expense, in the county
in which the action is pending or at such other place in New Jersey upon
which all parties shall agree, or (B) pay all reasonable travel and lodging
expenses incurred by all parties in attending the witness' out-of-state
deposition, unless otherwise ordered by the court. |
| (c) |
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Notice; Limitations. A subpoena commanding
a person to produce evidence for discovery purposes may be issued only to
a person whose attendance at a designated time and place for the taking
of a deposition is simultaneously compelled. The subpoena shall state that
the subpoenaed evidence shall not be produced or released until the date
specified for the taking of the deposition and that if the deponent is notified
that a motion to quash the subpoena has been filed, the deponent shall not
produce or release the subpoenaed evidence until ordered to do so by the
court or the release is consented to by all parties to the action. The subpoena
shall be simultaneously served no less than 10 days prior to the date therein
scheduled on the witness and on all parties, who shall have the right at
the taking of the deposition to inspect and copy the subpoenaed evidence
produced. If evidence is produced by a subpoenaed witness who does not attend
taking of the deposition, the parties to whom the evidence is so furnished
shall forthwith provide notice to all other parties of the receipt thereof
and of its specific nature and contents and shall make it available to all
other parties for inspection and copying.
Note: Source - R.R. 4:20-1 (last sentence), 4:46-4(a) (b). Paragraphs (a)
and (b) amended July 14, 1972, to be effective September 5, 1972; paragraph
(c) adopted November 5, 1986 to be effective January 1, 1987; paragraph
(b) recaptioned paragraph (b)(1) and amended paragraph (b)(2) adopted and
paragraph (c) amended July 14, 1992 to be effective September 1, 1992. |
4:14-8. Failure
to Attend or Serve Subpoena; Expenses
If the party giving notice of the taking of a deposition fails to attend
and proceed therewith and another party attends in person or by attorney
pursuant to the notice, or if the party giving the notice fails to serve
a subpoena upon a witness who because of such failure does not attend and
another party attends in person or by attorney because that party expects
the deposition of that witness to be taken, the court may order the party
giving the notice to pay to such other party the reasonable expenses incurred
as a result of attendance either by the attending party or that party's
attorney, including reasonable attorney's fees.
Note: Source - R.R 4:20-7(a)(b). Amended July 14, 1972 to be effective September
5, 1972; amended July 13, 1994 to be effective September 1, 1994. |