3. Pleadings And Notice COPY Flashcards

1
Q

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

A

Yes, a corporation must be represented by an attorney.

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2
Q

What must a complaint contain?

A

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.

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3
Q

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

A

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

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4
Q

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

A

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

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5
Q

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

A

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.

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6
Q

What must the expert’s affidavit contain?

A

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

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7
Q

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

A

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.

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8
Q

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

A

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

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9
Q

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

A

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

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10
Q

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

A

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.

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11
Q

What is the renewal privilege for medical malpractice action?

A

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.

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12
Q

What happens if the plaintiff files a defective affidavit?

A

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.

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13
Q

Can the plaintiff cure a defective affidavit? How?

A

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

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14
Q

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

A

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

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15
Q

What must the medical authorization form contain?

A

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.

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16
Q

What are the special pleading rules?

A

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.

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17
Q

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

A

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

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18
Q

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

A

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.

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19
Q

When must a motion to strike be served?

A

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

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20
Q

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

A

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

21
Q

Where must affirmative defenses be raised?

A

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.

22
Q

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

A

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

23
Q

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

A

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.

24
Q

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

A

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

25
Q

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

A

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.

26
Q

What is a counterclaim under Georgia law?

A

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

27
Q

When is a counterclaim compulsory under Georgia law?

A

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.

28
Q

Do cross-claims and counterclaims require a reply?

A

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

29
Q

When may a party amend their pleading in Georgia?

Thereafter…….

If there is no-pre-trial conference order,

A

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.

30
Q

What is the relation back of amendments?

A

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.

31
Q

What is Joinder?

A

Joinder is the process by which parties are joined to a lawsuit as plaintiffs or defendants.

32
Q

Joinder of Claims

A

Georgia rule on the joinder of claim is the same as the Federal rule. A party asserting a claim, counterclaim, crossclaim, or a third-party claim, “may join, as independent or alternative claims, as many claims as it has against an opposing party.”

33
Q

Compulsory Joinder of Parties

A

Joinder is REQUIRED for any person who either:

  1. is needed for the court to provide complete relief among existing parties, or

(2. has such an important interest in the case such that NOT joining them will either:
(a) impair their ability to protect that interest
or
(b) expose an existing party to substantial risk of multiple or inconsistent liability.

34
Q

if a party is deemed “required” or “necessary”, the joinder is “compulsory” meaning…

However, the court must also ensure that joinder of the required party….

A

the required party should be joined.

will not destroy its jurisdiction

35
Q

If the required party cannot be joined for any reason, such as because their joinder will destroy jurisdiction, the court
must make a choice:

A
  1. whether “in equity and good conscience,” the case should proceed without the required party.

OR;

  1. if the absent (required) party is actually “INDISPENSABLE,” meaning without them, the court should dismiss the
    case entirely.
36
Q

To determine whether the absent (required) party is INDISPENSABLE, warranting a dismissal, the court examines
the following factors:

A
  1. the extent of any prejudice to the absent party or existing parties following a judgment;
  2. whether such prejudice may be reduced or abated by provisions in the judgment, relief offered, or other avenues;
  3. whether a judgment issued without the absent party will be adequate; AND
  4. if the case is dismissed for nonjoinder, whether the plaintiff will have an adequate alternative remedy.
37
Q
A
38
Q

Permissive Joinder of Parties

A

Multiple plaintiffs can join one suit or multiple defendants can be sued in one suit, as long as:
(i) some claim against each defendant relates to or arises out of the same series of occurrences or transactions; AND
(ii) there is a question of fact or law common to all parties.

39
Q

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

A

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

40
Q

What does impleader allow a defendant to do?

A

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.

41
Q

When can a defendant implead a third party?

A

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.

42
Q

What is interpleader?

A

Under Georgia Law, 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.

43
Q

What are the requirements for equitable interpleader in Georgia?

A

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.

44
Q

What is a class action?

A

A class action is a procedure through which a single person or small group of co-parties may represent a larger group,
or a “class” of persons sharing a common interest.

45
Q

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

A

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.

Additionally, at least one of these must be true:

  1. Separate lawsuits could lead to conflicting rulings, making it unclear how the defendant should act.
  2. Individual lawsuits might harm other class members’ ability to protect their rights.
  3. The case involves mostly common issues among the group, and handling it as a class action is the best way to resolve the dispute.
46
Q

Factors used to determine whether there are common questions include:

A
  1. pending individual litigation;
  2. the interests of class members in individually controlling litigation of claims or defenses;
  3. the desirability of concentrating litigation in the forum; and
  4. the difficulties of managing the class action.
47
Q

What additional rules regarding class certification does Georgia have?

A

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.

48
Q

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

A

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