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Can an Amendment to Answer and Counter Claim be filed at any time before a trial date in New Jersey Superior Court?
Anonymous4 views3 answers
We filed an amendment to answer and counter complaint two months ago with the New Jersey Superior Court clerk. The plaintiff's attorney failed to answer the counter complaint after two months. We proceed with a request for default. In response, the plaintiff's attorney acknowledged receipt of the aforementioned documents and said he didn't have to answer because he wasn't served with a filed copy. He argued that rule 4:9-4 requires an Amendment be made only by way of motion and reasonable notice. Rule 4:9-1 states a party may amend any pleading as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is to be served, and the action has not been placed upon the trial calendar. We believe we followed court process.
As a general rule, the courts do not like to enter default but prefer to allow parties to have their day in court. So, although you have the right to move to default the plaintiff on your counterclaim, the end result is that the court is going to permit the plaintiff to answer the counterclaim.
So, it is assumed that a complaint was filed against you in the Superior Court of NJ, Law Division. You then filed an answer to the complaint. An "answer" is a "pleading to which no responsive pleading is to be served." (R. 4:9-1). Therefore, R. 4:9-1 would permit an amendment to the answer if it was made within 90 days of service, and the matter had not been placed on the trial calendar.
That being said, did the court enter default? If not, why not? If you want to make sure that your counter-claim is filed, make an application to the Court - leave to file an amended pleading "shall be freely given in the interest of justice." Good luck.
