In New Jersey, one powerful tool in litigators’ arsenals are motions to dismiss under Rule 4:6-2. These motions, which are usually filed early in the case, can dispose of some or all of the plaintiff’s claims with finality.

When a defendant is confronted with claims that are frivolous or have no plausible legal basis, the best method of attack to avoid lengthy and costly litigation is often a motion to dismiss under Rule 4:6-2, subpart (e). A Rule 4:6-2(e) motion asks the Court to dismiss the case based on the plaintiff’s failure to state a claim upon which relief may be granted. These motions do not contest the facts, but instead ask the Court to dismiss the claims because they cannot succeed even if the plaintiff’s allegations of fact are assumed true.

While Rule 4:6-2(e) motions are powerful tools, they must be filed at the correct point in the case to be successful. A plain reading of the Rule indicates that motions to dismiss under Rule 4:6-2(e) must be filed before the defendant answers the complaint. This has long been the understanding of New Jersey litigators. However, a recent opinion by the New Jersey Appellate Division holds otherwise and expands the time in which Rule 4:6-2(e) motions may be filed.

In Bank v. Lee, Docket No. A-0315-23, 2025 WL 967380 (App. Div. 2025), the Appellate Division held, in what it deemed a matter of first impression, that a motion to dismiss under Rule 4:6-2(e) is timely even if it is filed after the answer is served, provided that the answer itself raises the defense. To reach this conclusion, the Appellate Division cited Rule 4:6-3, which permits certain defenses to be raised by motion after service of an answer, as indicative that Rule 4:6-2(e) motions may be filed post-answer. The Appellate Division further cited to the September 1, 2020 amendment to Rule 4:6-2(e), which enlarged the motion cycle from 16 to 28 days to accommodate the complexity and consequential nature of these motions, as evidence that the motion may be filed even after an answer.

The decision in Bank thus takes a liberal approach to the timeliness of motions filed under Rule 4:6-2(e) and blazes new procedural ground in New Jersey. Interestingly, Bank runs contrary to an unpublished decision of the Appellate Division from just a year earlier. In Wells Fargo Bank, N.A. as Tr. for Banc of Am. Funding Corp. Mortgage Pass-Through Certificates, Series 2007-5 v. Anthony, Docket No. A-0395-22, 2024 WL 2235524 (App. Div. 2024) (unpublished), the Appellate Division held that motions to dismiss under Rule 4:6-2(e) must be brought before an answer is filed. Notably, in Wells Fargo, the defendant had raised the defense of failure to state a claim in its answer, but the defendant’s Rule 4:6-2(e) motion was still deemed untimely because it was filed after the answer.

Because Bank is a published decision, and Wells Fargo is not, it appears that the holding in Bank is controlling law in New Jersey. Legal practitioners should be aware, however, that Bank requires the assertion of the defense of failure to state a claim in the answer to permit a post-answer motion to dismiss. It is therefore imperative that defendants who elect to answer the complaint as a first pleading clearly raise the defense of failure to state a claim in their answer.

Parties involved in civil litigation in New Jersey are best served by counsel with deep knowledge of the state’s complex procedural landscape. The commercial litigation team at A.Y. Strauss is highly regarded for its depth of experience and strategic approach to resolving disputes. Learn more about how our team can help you move forward with confidence.