3. Pleadings And Notice

Question 1

What is the rule for attorney certification for pleadings?

Answer 1

Every pleading filed by an attorney must be signed by at least one attorney of record, certifying that they have read it and it is not for the purpose of delay.

Question 2

In Georgia, must a corporation be represented by an attorney?

Answer 2

Yes, a corporation must be represented by an attorney.

Question 3

Is a verification or affidavit required to file a pleading?

Answer 3

Unless otherwise provided by rule or statute, no verification or affidavit is required.

Question 4

In what situations is a verification required to file a pleading?

Answer 4

Verification is required for:
* A plaintiff seeking equitable or injunctive relief
* Petitions for divorce or complaints on a divorce action

Question 5

What is the time requirement for filing papers after the complaint?

Answer 5

All papers after the complaint must be filed with the court within the time allowed for service.

Question 6

What happens if the last day of a filing period falls on a Saturday or Sunday in Georgia?

Answer 6

The period runs through the following Monday.

Question 7

How are holidays treated in filing periods?

Answer 7

When the last day is a holiday, the period runs through the next business day.

Question 8

When the period of time is less than 7 days, what is excluded from the computation?

Answer 8

Intermediate Saturdays, Sundays, and legal holidays are excluded.

Question 9

What must a complaint contain?

Answer 9

A complaint must contain:
1. Facts upon which venue is based
2. A short and plain statement of the claims showing that the plaintiff is entitled to relief
3. A demand for judgment for the requested relief.

Question 10

What is required for a complaint for medical malpractice seeking $10,000 or less?

Answer 10

A demand for judgment for a sum certain must be included.

Question 11

What is required for a complaint for medical malpractice seeking more than $10,000?

Answer 11

The complaint must state that the plaintiff ‘demands judgment in excess of $10,000’ with no further amount stated.

Question 12

What is required for an expert affidavit in medical malpractice cases?

Answer 12

An expert affidavit must accompany any pleading alleging professional malpractice against a licensed professional, entity, or healthcare facility. The expert must be competent to testify.

Question 13

What must the expert’s affidavit contain?

Answer 13

The affidavit must specify at least one negligent act or omission and its factual basis.

Question 14

When can the expert affidavit not be filed contemporaneously with the complaint?

Answer 14

The affidavit need not be filed with the complaint if:
* The attorney affirms retention within 90 days before the statute of limitations expires
* The statute of limitations expires within 10 days of filing.

Question 15

How long does the plaintiff have after filing to supplement with the expert’s affidavit?

Answer 15

The plaintiff has 45 days after filing to supplement with the expert’s affidavit.

Question 16

When will the defendant be required to answer after the plaintiff supplements with the expert’s affidavit?

Answer 16

The defendant will not be required to answer until 30 days after the affidavit is filed.

Question 17

What happens if the expert affidavit is not filed with the complaint?

Answer 17

If the affidavit is not filed, the complaint will be dismissed for failure to state a claim, which is on the merits and bars a later case by res judicata.

Question 18

What is the renewal privilege for medical malpractice action?

Answer 18

If the plaintiff fails to file the affidavit and the defendant moves to dismiss, resulting in dismissal, the plaintiff is entitled to the renewal privilege if:
* The affidavit was available at filing
* The failure was due to a mistake.

Question 19

What happens if the plaintiff files a defective affidavit?

Answer 19

If the plaintiff files a defective affidavit and the defendant alleges such with specificity in a motion to dismiss filed on or before the close of discovery, the plaintiff’s complaint may be dismissed for failure to state a claim.

Question 20

Can the plaintiff cure a defective affidavit? How?

Answer 20

The plaintiff can amend the defect within 30 days (or longer with court approval).

Question 21

Must the plaintiff file a medical authorization form with the complaint?

Answer 21

Yes, a plaintiff must file a medical authorization form contemporaneously with the complaint in any action alleging medical malpractice.

Question 22

What must the medical authorization form contain?

Answer 22

The authorization must:
* Provide that defendant’s attorney may obtain and disclose protected health information in medical records to facilitate the investigation, evaluation, and defense of the claims raised in plaintiff’s complaint
* Allow defendant’s attorney to discuss plaintiff’s care and treatment with all of plaintiff’s treating physicians.

Question 23

What are the special pleading rules?

Answer 23

Certain pleadings require additional information to be included:
* Actions for fraud or mistake
* A denial of the performance or occurrence of a condition precedent
* Items of special damages.

Question 24

What is the timing requirement for a defendant to answer a complaint in Georgia?

Answer 24

An answer must be served within 30 days after service of the summons and complaint upon the defendant.

Question 25

What is the exception to the timing requirement for answering if the complaint alleges professional malpractice?

Answer 25

If the complaint does not attach the required expert affidavit, the defendant’s time to file an answer is extended until 30 days after the filing of the affidavit.

Question 26

When must a motion to strike be served?

Answer 26

A motion to strike must be served within 30 days after service of the pleading.

Question 27

What happens if a motion for a more definite statement is granted and not obeyed?

Answer 27

A court may strike a pleading if the motion is granted and not obeyed within 15 days.

Question 28

Where must affirmative defenses be raised?

Answer 28

Affirmative defenses must be raised in a responsive pleading, motion to dismiss, a motion for judgment on the pleadings, or a motion for summary judgment.

Question 29

What four affirmative defenses must the defendant raise in the answer or motion to dismiss?

Answer 29

The following affirmative defenses must be raised or they are deemed waived:
1. Lack of personal jurisdiction
2. Improper venue
3. Insufficiency of process
4. Insufficiency of service of process

Question 30

What three affirmative defenses are not waived if not included in the defendant’s answer or motion to dismiss?

Answer 30

The following defenses are not waived if not included in defendant’s answer or motion to dismiss, and may be made up until the time of trial:
1. Failure to state a claim upon which relief can be granted
2. Failure to join an indispensable party
3. Failure to state a legal defense to a claim.

Question 31

Can a filing of a pre-answer motion extend the time to answer the complaint?

Answer 31

No, filing a pre-answer motion does not extend the time to answer.

Question 32

What is the rule for cross-claims under Georgia law?

Answer 32

A proper crossclaim must:
1. Have arisen out of the same transaction or occurrence as the original action
2. Ask for actual relief from the co-party.

Question 33

What is a counterclaim under Georgia law?

Answer 33

A counterclaim may be brought by any party against any other opposing party and can be compulsory or permissive.

Question 34

When is a counterclaim compulsory under Georgia law?

Answer 34

A counterclaim is compulsory if it:
1. Exists at the time of serving the answer
2. Arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim
3. Does not require the presence of third parties who cannot be joined.

Question 35

Do cross-claims and counterclaims require a reply?

Answer 35

No, they do not require a reply and automatically stand denied unless required by order of the court.

Question 36

When may a party amend their pleading in Georgia?

Thereafter…….

If there is no-pre-trial conference order,

Answer 36

A party may amend their pleading as a matter of right without leave of court at any time before the entry of a pretrial conference order.

Thereafter the party may amend their pleading only by leave of court or by written consent of the adverse party.

If there is no pre-trial conference order, a party may amend their pleading at any time until the commencement of trial.

Question 37

What is the relation back of amendments?

Answer 37

An amended complaint arising from the same transaction or events as the original claim will relate back for statute of limitations purposes to the date of the original filing.

Question 38

What is required for a motion for substitution of parties in Georgia?

Answer 38

A motion for substitution of parties must be made within 180 days after the death of a party.

Question 39

What does impleader allow a defendant to do?

Answer 39

Impleader allows a defendant to serve a third-party complaint on a new party who may be liable for part or all of the claim against it.

Question 40

When can a defendant implead a third party?

Answer 40

The original defendant may implead a third party:
i.) in its answer to the original complaint or;
ii.) file a third-party complaint separately within 10 days after serving the answer.

Question 41

What is interpleader?

Answer 41

Interpleader is when a plaintiff takes a fund or property to court and wants to join all parties who have a claim to that fund or property in a single action.

Question 42

What are the requirements for equitable interpleader in Georgia?

Answer 42

Equitable interpleader requires:
1. All claimants must claim the same thing
2. All adverse claims derive from a common source
3. Plaintiff has no interest in the subject matter
4. Plaintiff is merely a stakeholder.

Question 43

What are the requirements for maintaining a class action in Georgia?

Answer 43

A class action may be maintained if:
1. Numerosity: The class is so large that individual joinder is impracticable.
2. Commonality: Class members share common issues and the same injury, allowing for a single resolution.
3. Typicality: The representative’s claims or defenses are typical of the class.
4. Adequacy: The representative can fairly and adequately protect the class’s interests.

Question 44

What additional rules regarding class certification does Georgia have?

Answer 44

The court must:
* Hold a conference to establish a discovery schedule
* Set a hearing date for class certification
* Stay all merits discovery until the issue of class certification is decided.

Question 45

What is the Class Action Fairness Act (CAFA)?

Answer 45

CAFA governs class actions based on diversity jurisdiction and expands federal subject-matter jurisdiction to include classes with more than 100 persons, at least one diverse member, and over $5 million in controversy.

Question 46

What is a key difference between Georgia and federal rules regarding class counsel?

Answer 46

The Georgia rule does not require the appointment of class counsel.