Bill Text: NJ S2340 | 2012-2013 | Regular Session | Introduced
Bill Title: Expands ability of the court to order payment of attorney fees and costs by parties who file frivolous lawsuits.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-11-29 - Introduced in the Senate, Referred to Senate Judiciary Committee [S2340 Detail]
Download: New_Jersey-2012-S2340-Introduced.html
Sponsored by:
Senator RONALD L. RICE
District 28 (Essex)
SYNOPSIS
Expands ability of the court to order payment of attorney fees and costs by parties who file frivolous lawsuits.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning frivolous lawsuits and amending P.L.1988, c.46.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 1 of P.L.1988, c.46 (C.2A:15-59.1) is amended to read as follows:
1. a. [A party who prevails in a civil action, either as plaintiff or defendant, against any other party may be awarded all reasonable litigation costs and reasonable attorney fees,] Reasonable attorneys' fees and costs may be assessed against an attorney or litigant if the judge finds at any time during the proceedings or upon judgment that a complaint, claim, counterclaim, cross-claim, [or] defense, motion, pre-trial application, affidavit or other pleading, or any portion thereof, of the [nonprevailing person] litigant or attorney was frivolous. Reasonable attorneys' fees and costs shall include, but shall not be limited to, litigation costs, including expenses for experts and counsel fees, and prejudgment interest, and any consequential damages that are proximately related to the frivolous action.
b. In order to find that a complaint, claim, counterclaim, cross-claim, [or] defense, motion, affidavit, or other pleading, or any portion thereof [of the nonprevailing party] was frivolous, the judge shall find on the basis of the pleadings, discovery, or the evidence presented that [either]:
(1) The complaint, counterclaim, cross-claim, [or] defense, motion, pre-trial application, affidavit, or other pleading, or any portion thereof was commenced, used or continued in bad faith, solely for the purpose of harassment, delay, [or] malicious injury, retaliation against the assertion of a legitimate claim or to attack individuals or organizations who in good faith communicate information to any public entity on any issue that is reasonably of concern to the individual, to the public or to the organization; or
(2) The [nonprevailing] party knew, or should have known, that the complaint, counterclaim, cross-claim, [or] defense, motion, pre-trial application, affidavit, or other pleading, or any portion thereof was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law; or
(3) The allegations and other factual contentions in the complaint, counterclaim, cross-claim, defense, motion, pre-trial application, affidavit, or other pleading, or any portion thereof, did not have evidentiary support or were not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; or
(4) The denials of factual contentions in the defense or other pleadings are not warranted on the evidence or are not reasonably based on a lack of information or belief.
c. In addition to assessing reasonable attorneys' fees and costs for a violation of this section, the court may issue directives of a non-monetary nature which are intended to deter repetition of the conduct which resulted in the violation.
d. (1) A notice of intent to file a motion for attorneys' fees and costs, describing the specific conduct alleged to violate this section, shall be served on the party alleged to have committed the violation at least 21 days prior to service of the motion for attorneys' fees and costs. The notice of intent to file the motion shall not be filed with the court. If the challenged pleading is not withdrawn or appropriately modified within the 21-day period, the motion for attorneys' fees and costs may then be served on the party and filed with the court. The court may award to the party prevailing on the motion the reasonable attorneys' fees and costs incurred in filing or defending the motion.
(2) The court may, on its own initiative, enter an order describing the specific conduct alleged to violate this section and directing an attorney or party to show cause why it has not violated the provisions of this section.
(3) When imposing attorneys' fees or other sanctions, the court shall place its findings on the record describing the conduct determined to constitute a violation of this section and explaining the basis for the sanctions imposed.
e. A party seeking an award under this section shall make application to the court which heard the matter. The application shall be supported by an affidavit stating in detail:
(1) The nature of the services rendered, the responsibility assumed, the results obtained, the amount of time spent by the attorney, any particular novelty or difficulty, the time spent and services rendered by secretaries and staff, other factors pertinent in the evaluation of the services rendered, the amount of the allowance applied for, an itemization of the disbursements for which reimbursement is sought, and any other factors relevant in evaluating fees and costs; and
(2) How much has been paid to the attorney and what provision, if any, has been made for the payment of these fees in the future.
(cf: P.L.1995, c.13, s.1)
2. This act shall take effect immediately.
STATEMENT
This bill would expand the provisions of current law concerning frivolous lawsuits. Presently, N.J.S.A.2A:15-59.1 provides that a party who prevails in a civil action against any other party may be awarded all reasonable litigation costs and attorneys' fees if the judge finds that a pleading of the nonprevailing person was "frivolous."
A "frivolous" pleading is currently defined as one that was commenced, used, or continued in bad faith, solely for the purpose of harassment, delay or malicious injury, or a pleading filed when the nonprevailing party knew, or should have known, that it was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.
Under the bill, the definition of "frivolous" pleadings would be expanded to also include any pleading which was commenced, used, or continued for the purpose of retaliation against the assertion of a legitimate claim or to attack individuals or organizations who in good faith communicate information to any public entity on any issue that is reasonably of concern to the individual, to the public, or to the organization. The bill would also include as "frivolous" any pleading which did not have evidentiary support or was not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
In addition, the bill expands the types of pleadings which would be encompassed by the statute, adding claims, motions, pre-trial affidavits or other pleadings, or portions of these, to the list. Currently, the statute only covers complaints, counterclaims, cross-claims, and defenses.
Under the bill, the definition of reasonable attorneys' fees and costs would be clarified to include expenses for experts and counsel fees, and prejudgment interest, and any consequential damages that are proximately related to the frivolous action.
The bill also expands the category of persons covered by the statute, allowing any party or attorney (rather than just the non-prevailing party) to be sanctioned for frivolous pleadings.
The bill also allows the court to order non-monetary sanctions in appropriate cases. The sanctions would be intended to deter the type of conduct which resulted in the frivolous pleading.
Finally, the bill specifies procedures to be followed in filing claims against parties under the statute, requiring a 21-day notice to the party before a formal motion would be filed with the court. The 21-day period would give the party an opportunity to withdraw or modify the inappropriate pleading.
