Rule 4:26-1. Real Party in Interest
Every action may be prosecuted in the name of the real party in interest; but an executor, administrator, guardian of a person or property, trustee of an express trust or a party with whom or in whose name a contract has been made for the benefit of another may sue in the fiduciary's own name without joining the person for whose benefit the suit is brought. A trustee of an express trust may be sued without joining the beneficiaries of the trust unless it shall affirmatively appear in the action that a conflict of interest exists between the trustee and the beneficiaries.
Rule 4:26-2. Minor or Incapacitated Person
(a) Representation by Guardian. Except as otherwise provided by law or R. 4:26-3 (virtual representation), a minor or an adult who has been adjudicated incapacitated pursuant to R. 4:86-1 et seq, shall be represented in an action by the guardian of either the person or the property, appointed in this State. If no such guardian has been appointed, or if a conflict of interest exists between the guardian and the minor or adjudicated incapacitated person, or for other good cause, the minor or adjudicated incapacitated person shall be represented by a guardian ad litem appointed by the court in accordance with paragraph (b) of this rule.(b) Appointment of Guardian Ad Litem.(1) Appointment of Parent in Negligence Actions. In negligence actions, unless the court otherwise directs, a parent of a minor shall be deemed to be appointed guardian ad litem of the child without court order upon the filing of a pleading or certification signed by an attorney stating the parental relationship; the child's status and age; the parent's consent to act as guardian ad litem; and the absence of a conflict of interest between parent and child.(2) Appointment on Petition. The court may appoint a guardian ad litem upon the verified petition of a friend on behalf of a minor or an alleged or adjudicated incapacitated person. In an action in which the fiduciary seeks to have the account settled or has a personal interest in the matter, the petition shall state whether or not the proposed guardian ad litem was nominated by the fiduciary or the fiduciary's attorney. Each petition shall be accompanied by the sworn consent of the proposed guardian ad litem, stating the proposed guardian ad litem's relationship to the minor or alleged or adjudicated incapacitated person; certifying that setting forth the nature of any such interest; and certifying that the proposed guardian ad litem will perform the duties of guardian ad litem with undivided fidelity if appointed. The court shall appoint the proposed guardian ad litem unless it finds good cause for not doing so. In such case, a new petition seeking the appointment of another proposed guardian ad litem may be filed within 10 days of the rejection. If a new petition is not filed within 10 days or is not granted, the court shall state its reasons for rejecting petitioner's nominee on the record at the appointment of a guardian ad litem selected by the court. A conflict of interest between the petitioner and the minor or alleged or adjudicated incapacitated person shall be good cause for rejection of the petitioner's nominee. Only one guardian ad litem shall be appointed for all minors or alleged or adjudicated incapacitated persons unless a conflict of interest exists.(3) Appointment on Party's Motion. On motion by a party to a pending action, the court may appoint a guardian ad litem for a minor or alleged or adjudicated incapacitated person.(4) Appointment on Court's Motion. The court may appoint a guardian ad litem for a minor or alleged or adjudicated incapacitated person on its own motion.(5) Service. Notice of a petition or motion for appointment of a guardian ad litem pursuant to subparagraphs (2) through (4) above shall be served on an alleged or adjudicated incapacitated person personally, and on any other parties pursuant to R. 4:4-4(a)(1)(2)(3) or (c) either personally at the time of service of process or thereafter, or by registered or certified mail, return receipt requested. If notice cannot be served as set forth above, the court on exparte motion may determine the manner of service as it deems appropriate. Notice of a motion for appointment of a guardian ad litem shall be served at least 10 days before the return date.(c) Duties of Guardian Ad litem.(1) Guardian Ad litem of Minor or Adjudicated Incapacitated Person. A guardian Ad litem of a minor or adjudicated incapacitated person appointed pursuant to subparagraphs (b)(2) through (b)(4) above shall represent the minor or adjudicated incapacitated person in the action pursuant to paragraph (a) above.(2) Guardian Ad litem of Alleged Incapacitated Person. Except in foreclosure actions subject to subparagraph (c)(3) below, a guardian ad litem of an alleged incapacitated person appointed pursuant to subparagraphs (b)(2) through (b)(4) above shall conduct an independent investigation as to the alleged incapacity as defined in N.J.S.A. 3B:1-2. Following the investigation, the guardian ad litem shall submit a report to the court containing the results of the investigation and recommending whether the best interests of the alleged incapacitated person require the filing of an action for adjudication of incapacity and appointment of a guardian in the Superior Court, Chancery Division, Probate Part in accordance with R. 4:86-1. The guardian ad litem shall not have authority to make decisions on behalf of the alleged incapacitated person. To the extent feasible, the proceedings under this Rule shall be completed in a reasonably timely manner, as specified in a case management order or otherwise by the court.(3) Guardian Ad litem in Foreclosure Actions. (a) The court shall limit the duties of a guardian ad litem appointed to represent the interests of a minor or an alleged or adjudicated incapacitated person in a foreclosure action to investigate whether the minor or alleged or adjudicated incapacitated person is entitled to raise an objection as to the right to foreclose or other valid claim or defense.(b) Following the investigation, the guardian ad litem shall submit a written report containing the results of the investigation. If the report raises no objection as to the right to foreclose or other valid claim or defense, it shall be filed with the Superior Court Clerk in Trenton. If the report raises an objection as to the right to foreclose or other valid claim or defense, it shall be filed with the court that appointed the guardian ad litem. (c) In matters in which a guardian ad litem is appointed to represent the interests of an alleged incapacitated person, and the report of the guardian ad litem raises an objection as to the right to foreclose or other valid claim or defense, the court shall discharge the guardian ad litem appointed in the foreclosure action and appoint a guardian ad litem pursuant to subparagraph (b)(4) above to perform the duties set forth in subparagraph (c)(2) above.(d) Action on Recommendation of Guardian Ad Litem of Alleged Incapacitated Person. On receipt of the report of the guardian ad litem pursuant to subparagraph (c)(2) above, the court shall make its own independent fact findings, with or without testimony, and exercise its discretion in determining whether an action for adjudication of incapacity and appointment of a guardian under R. 4:86-1 is required. Any action under R. 4:86-1 shall be filed by an interested party on behalf of the alleged incapacitated person or by the guardian ad litem, and shall be heard in the Superior Court, Chancery Division, Probate Part. Notice of the R. 4:86-1 action shall be provided to the court, which may stay the underlying matter pending adjudication of the action in the Probate Part.(e) Allowance of Fees. A guardian ad litem appointed pursuant to this rule or R. 4:26-3(c) (failure of virtual representation) who seeks allowance of a fee shall file a written notice with the courts The notice shall be served upon all parties at least 7 days before the hearing. The notice shall state the fee amount sought; that the report and affidavit of services have been filed, unless not required under R. 4:87-7; and that copies will be furnished on request.Rule 4:26-3. Virtual Representation of Future Interest
(a)Representation by Presumptive Taker. In an action affecting property in which any person in being or unborn has or may have a future interest other than a life or lesser estate, or where it is not known or is difficult to ascertain who is the person or class having such interest, it shall be necessary to join as parties to the action only the person or persons who would be entitled to such property if the event or contingency terminating all present estates and successive life or lesser estates therein had occurred on the date of the commencement of the action, and the judgment entered therein shall be binding upon all persons, whether in being or not, who may claim the future interest in the property, unless it shall affirmatively appear in the action that there exists a conflict of interest between the persons so joined and the persons not joined. Should such conflict exist, the court may, in its discretion, appoint from among the persons then next entitled upon the occurrence of the event or contingency, one person to represent all persons (whether in being or not) who may claim any future interest in the property.(b)Representation by Donee of Power of Appointment. Where a party to an action is the donee of a power of appointment of any type, it shall not be necessary to join the potential or permissible appointees of the power or takers in default, and the judgment entered therein shall be binding upon the appointees, unless it shall affirmatively appear in the action that there exists a conflict of interest between the donee of the power and the appointees.(c)Representation by Other Parties or Guardians. In an action in which the interests of a person not in being are or may be affected or in which it is not known or is difficult to ascertain who is the person or class affected thereby and as to which paragraphs (a) and (b) are inapplicable because of the lack of a representative as therein described or because of the nature of the interest involved, the court, in its discretion, may appoint a party to the action to represent such persons, and the judgment entered therein shall be binding upon the persons so represented. If, however, it shall appear that no party to the action adequately represents the interests of such persons, the court shall appoint a guardian ad litem to represent them.(d)Joinder of Additional Parties. Notwithstanding paragraphs (a), (b) and (c) hereof, the court, in its discretion, may require the joinder of additional persons.Rule 4:26-4. Fictitious Names; In Personam Actions
In any action, irrespective of the amount in controversy, other than an action governed by R. 4:4-5 (affecting specific property or a res), if the defendant's true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification. Plaintiff shall on motion, prior to judgment, amend the complaint to state defendant's true name, such motion to be accompanied by an affidavit stating the manner in which that information was obtained. If, however, defendant acknowledges his or her true name by written appearance or orally in open court, the complaint may be amended without notice and affidavit. No final judgment shall be entered against a person designated by a fictitious name.
Rule 4:26-5. Unknown Defendants: In Rem Actions
(a)Applicability.R. 4:26-5 applies only to actions governed by R. 4:4-5 (actions affecting specific property or a res).(b)Description of Unknown Defendants. When it shall appear by the affidavit of inquiry required by R. 4:4-5(a)(3) that the affiant has been unable to ascertain whether or not any person who is a proper party defendant is married, or, if married, the given name of the wife of such male defendant or the surname and either the given name or initial thereof of the husband of such female defendant, or that the affiant has been unable to ascertain whether or not any person who is a proper party defendant is still the owner of the specific property or res or any interest therein, and has been unable to ascertain the names and residences of any of the person's successors in right, title and interest in the same, or that the affiant has been unable to ascertain whether or not such person is still alive, or if such person is known or believed to be dead, that the affiant has been unable, in either case, to ascertain the names and residences of such person's heirs, devisees or personal representatives or his, hers, their, or any of their, successors in right, title or interest in the property or res or interest therein, or of such of them as may be proper parties defendant in the action, any such person or unknown person or persons may be made a party defendant by such of the following designations as may be appropriate: (1) As to any such male person and such wife, if he has any, by designating such male person by his proper given name and surname, as it appears of record or otherwise, and by designating such wife by the given name and surname of such male person, as it so appears, with "Mrs." prefixed thereto; or(2) As to any such female person and such husband, if she has any, by designating such female person by her proper given name and surname, as it appears, of record or otherwise, and by designating such husband either (i) By the name of such female, as it so appears, as "Mr. ..., husband of ..." using such surname of such female person in the first blank and such given name and such surname of such female person in the second blank; or(ii) By the name "John Doe, husband of ..., said name of John Doe being fictitious," using the given name and surname of such female person in the blank; or(3) As to any such person, whether such person is still alive or whether it is not known whether such person is alive or dead, or if such person is known or is believed to be dead, and as to any such person's unknown heirs, devisees or personal representatives or his, hers, their, or any of their successors in right, title and interest in such specific property or interest therein or such res, thus: "..., his or her heirs, devisees and personal representatives and his, hers, their, or any of their, successors in right, title and interest," using the name of such person in the blank.(c)Designation of Unknown Owner or Claimant. When it shall appear by the affidavit of inquiry required by R. 4:4-5(a)(3) that the affiant has been unable to ascertain the name or names of any unknown owner or claimant, such unknown owner or claimant may be made a party defendant and shall be sufficiently described for all purposes including service of process by the designation "Unknown Owner (or Unknown Claimant), his or her heirs, devisees and personal representatives, and his, hers, their or any of their successors in right, title and interest." Where title to real property or an interest therein or a lien or encumbrance thereon is involved, the inquiry shall include, and the affidavit of inquiry shall recite, reasonable diligence in searching the title, or having it searched, for a period of 60 years immediately prior to the commencement of the action. If such search does not disclose the name of a person who it is alleged or claimed owns the same or a part thereof, or some interest therein, or holds a lien or encumbrance thereon, the action may proceed against unknown owners or unknown claimants.(d)Other Designations. Where the manner of joining or designating an unknown defendant is not specifically fixed by this rule, the court may on motion with or without notice order the action to proceed against such defendant by fixing the manner and the designation by which the person shall be made a party defendant, adding a description of the person's interest in the action and stating so much of the person's name as is known.(e)Effect of Designation. The person or persons designated as set forth in R. 4:26-5 shall be deemed as a party defendant to the action and as sufficiently described for all purposes, including service of process.Rule 4:26-6. Initials or Contractions of First Name or Names; Effect on Filing of Complaints; Entry of Judgment; Notice or Certificate of Indebtedness
Actions may be instituted against defendants designated by an initial letter or letters or a contraction of a given first name or names. Neither final judgment nor notice or certificate of indebtedness shall, however, be entered or filed against a defendant so designated unless either the defendant has been designated as provided by R. 4:26-5 or the plaintiff amends the complaint to state at least one full given name of the defendant or the court otherwise orders.
Rule 4:26-7. Public Officers
A public officer suing or being sued in an official capacity may be described by the official title without the use of the officer's name.
Note: Source - R.R. 4:30-2(a)(b)(c), 7:12-6; paragraph (b) amended July 16, 1981 to be effective 9/14/1981; paragraphs (a), (b) and (c) amended July 14, 1992 to be effective 9/1/1992; paragraph (b)(3) amended July 13, 1994 to be effective 9/1/1994; caption amended, and paragraphs (a), (b)(1), (b)(2), (b)(3), and (b)(4) amended July 12, 2002 to be effective 9/3/2002; new paragraph (d) added7/9/2008 to be effective 9/1/2008; paragraphs (a). and (b) amended, paragraph (c) amended and renumbered as paragraph (e), paragraph (d) deleted, and new paragraphs (c) and (d) adopted August 5, 2022 to be effective 9/1/2022.