It's not easy to prove a negative fact, but that's what you must do in New Jersey if you want to take a default judgement against someone you sue who doesn't show up in court. Active members of the military are not subject to the same default rules, so before you proceed you have to prove that the defendant is not in the military.
Answering a Complaint
A lawsuit in New Jersey begins with a summons and complaint. You file those documents, then arrange to have a copy delivered to the other party, the defendant. The complaint sets out the reasons for the suit and what you seek in damages. The summons advises the defendant that he has 35 days to answer the complaint and that the time begins running the day after he receives the document. It also mentions that, if he does not answer, the other party may get a judgment against him in his absence, termed a default judgment.
Different Rules for the Military
Men and women who are active members of the military have their schedules set by others and may be sent out of state or even out of the country for years at a time. For that reason, federal law provides that they are not subject to the default judgment procedure that applies to other defendants when they fail to answer complaints within the allowed time limit. Before you ask a New Jersey judge to award a default judgment against the person you sued, you must prove that he is not an active member of the military.
Certification of Non-Military Service
New Jersey law requires that you prepare and sign a document entitled Certification of Non-Military Service or Certification of Proof and file it with your request for a default judgment. If you have personal knowledge that the defendant is not in the military -- for example, if he is your cousin and you see him every day working at the donut shop -- you write it on the Certification of Proof. If you don't have personal knowledge, you must obtain the facts from the military.
Read More: What Does an Affidavit of Non-Military Service Mean?
Obtaining Proof From the Department of Defense
The easiest way to determine whether someone is on active duty in the military is to go to the website of the Department of Defense Manpower Data Center. You connect with the website, obtain a one-time-use Department of Defense certificate from that website, then use that to connect with the search engine. You enter the defendant's last name and either his date of birth or his Social Security number. The website will state whether that person is an active member of the military.
Obtaining Proof From the Military
If you do not have the requisite information for that search, you must contact each of the five branches of the armed services. Provide as much information as you can about the defendant, such as his last known address, specify the reason for the request, and enclose the required fee. Contact information for the different branches is available on the New Jersey default judgment instructions.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.