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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 filing the complaint, the action may be dismissed according to 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 Superior Court Clerk’s name, and directed to the defendant. It shall contain the court’s name and the plaintiff and the plaintiff’s attorney’s name and address, 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. The Clerk has sent the papers 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 the defendant that if he or she cannot afford an attorney, they 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 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) 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 the 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 addressed to the defendant’s usual place of abode. At the party’s option, the party making service may do service simultaneously by registered or certified mail and ordinary mail. If the addressee refuses to claim or accept deregistered mail delivery if the ordinary mailing is not returned, the simultaneous mailing shall constitute effective service. Mail may be addressed to a post office box instead 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) 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) Primary Method of Obtaining In Personam Jurisdiction. The primary method of obtaining personal jurisdiction over a defendant in this State is by causing the summons and complaint to be personally served within this State under R. 4:4-3, as follows:
(1) 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;
(2) 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;
(3) 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;
(4) 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;
(5) 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;
(6) 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 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;
(7) 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 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 action under N.J.S.A. 2A:45-1 et seq. (lien or encumbrance held by the State), the notice instead 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 because 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 writing filed with the Clerk of the Superior Court;
(8) 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 the clerk or secretary thereof; (b) Obtaining In Personam Jurisdiction by Substituted or Constructive Service. (1) 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 the diligent effort and inquiry, personal service cannot be made by paragraph (a) of this rule, then, consistent with due process of law, in personam jurisdiction may be obtained over any defendant as follows:
(A) 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
(B) personal service outside the territorial jurisdiction of the United States, by 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
(C) mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, and, simultaneously, by ordinary mail to:
(i) a competent individual of the age of 14 or over, addressed to the individual’s dwelling house or usual place of abode;
(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;
(iii) a corporation, partnership, or unincorporated association that is subject to suit under a recognized name, addressed to a registered agent for service, its principal place of business, or its registered office. Mail may be addressed to a post office box instead of a street address only as provided by R. 1:5-2.
(2) As provided by law. Any defendant may be served as provided by law.
(3) By court order. If any can make service of the modes provided by this rule, no court order shall be necessary. If any cannot make service of the modes provided by this rule, any defendant may be served as provided by court order, consistent with due process of law.
Optional Mailed Service. Instead 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 the 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 the 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 knowing 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) personal service outside this State as prescribed by R. 4:4-4(b)(1)(A) and (B): or
(b) service by mail as prescribed by R. 4:4-4(b)(1)(C); or
(c) by the 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 under R. 4:26-5(c). But if defendants are proceeded against under 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;
(1) 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 situated, 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;
(2) 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 so 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 to effect actual notice; or
(d) 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 a summons’ service, 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. In Superior Court actions also on the copy, and shall promptly file such process with the court within the time 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 household member under 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 a similar affidavit which shall include the facts of the affiant’s diligent inquiry regarding the defendant’s place of abode, business, or employment. If service is made by mail, the party making service shall make proof thereof by an 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 the 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 the 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 party’s rights against whom process issued.
Note Source – R.R. 4:4-8.
4:14-7. Subpoena for Taking Depositions
(a) 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) Time and Place of Examination by Subpoena; Witness’ Expenses. (1) 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 may 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. (2) 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) 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 taking 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 before 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 the 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 an attorney under 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. Another party attends in person or by an 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.
