5. Pretrial Procedure/Early Deposition COPY Flashcards
What is the motion for summary judgment?
Summary judgment is a procedural tool that allows a court to resolve a case without a trial when there are no genuine issues of material fact and one party is entitled to judgment as a matter of law.
What is a genuinely disputed issue of material fact?
one that is backed by evidence on both sides of the issue.
if a party fails to properly support an assertion of fact or fail to properly address the other party’s assertion of fact, the court may find the fact:
undisputed.
The moving party can make the argument for summary judgment by either:
i.) pointing out HOLES in the opposing party’s claims or defenses;
OR
ii.) adducing NEW evidence demonstrating that the claim or defense CANNOT be true.
To survive summary judgment, the non-moving party must:
i.) adduce evidence sufficient to show a dispute exists;
ii.)Discovery is Incomplete –discovery is ongoing and material evidence may emerge.
iii.) Conflicting Evidence – If both parties submit contradictory affidavits or depositions, summary judgment is inappropriate.
When can a claimant move for summary judgment in Georgia?
A claimant can file for summary judgment:
Plaintiff’s Motion: May be filed 30 days after the start of the action
Defendant’s Motion: May be filed at any time before trial.
If summary judgment is granted, is it appealable?
Yes
If summary judgment is denied, is it appealable?
Only under special circumstances.
What is a discretionary appeal in Georgia?
An order is so important that immediate review should be available.
The trial court certifies the order for the losing party to apply for a review.
What is spoliation?
Spoliation occurs when a party destroys, alters, or fails to preserve evidence that is material to ongoing or anticipated litigation.
The destruction can be intentional or negligent.
What happens when spoliation is proven?
If spoliation occurs, the court may presume that the lost evidence would have been unfavorable to the destroying party.
When is Summary judgment following a spoilation finding valid?
Summary judgment following a spoliation finding is valid only if the party alleging spoliation cannot demonstrate a significant connection between the spoliation and the underlying claims.
Does Georgia require a discovery scheduling conference?
No. Georgia does not require a discovery scheduling conference as in FRCP 26(f).
Georgia’s equivalent to FRCP 16 allows courts to hold a conference, either on their own initiative or at a party’s request, to discuss:
1. Simplifying issues;
2. Amending pleadings;
3. Limiting expert witnesses;
4. Other matters to expedite the case.
What is the effect of a pre-trial order in Georgia?
Sets the course of the action unless modified at trial to prevent clear injustice.
It dictates the proceedings unless there is a compelling reason to change it.
Can a court allow testimony from an expert not listed in the pre-trial order?
Yes, at the court’s discretion.
If allowed, opposing parties will have reasonable time to depose the expert.
What is voluntary dismissal by notice in Georgia?
A plaintiff can dismiss all claims against a defendant without a court order BEFORE the first witness is sworn.
After the first witness is sworn, a court order is required.
What must a plaintiff pay if they dismiss a case and later file the same claim against the same defendant?
They must first pay the court costs from the previously dismissed action.
.
How can a defendant move to dismiss a case during a bench trial in Georgia?
After the plaintiff presents their evidence, based on facts and law showing the plaintiff isn’t entitled to relief.
The court can render judgment against the plaintiff immediately or wait until all evidence is presented.
What happens to a case in Georgia without a written order for 5 years?
It will be automatically dismissed.
The plaintiff has a brief period to reactivate the case.
What is the renewal privilege in Georgia?
The renewal privilege in Georgia allows a plaintiff to refile a lawsuit that has been previously dismissed, without the claim being barred by the statute of limitations.
Filing Deadline for Renewal
A plaintiff must refile the case within six months of the dismissal, regardless of whether the original statute of limitations has expired.
The original case must have been filed within the applicable statute of limitations for the renewal privilege to apply.
Effect of Renewal
A renewed action is treated as if it were filed on the same date as the original action, preserving the timeliness of the claim.
The renewal must be for the same cause of action against the same parties as the original case.
Requirements for Renewal
The plaintiff must pay all applicable court costs from the original case before filing the renewed action.
The renewed complaint should state that it is being refiled under the renewal statute.
Limitations on Use of Renewal Privilege
The renewal privilege can be exercised only once for the same claim.
The dismissal must not have been caused by willful delay or intentional neglect by the plaintiff.
What must be attached to the renewed complaint in Georgia?
- A copy of the original complaint
- The date of the dismissal
- The date of the original filing
What can the party against whom a claim is alleged do if pleading requirements are not met?
They may move to dismiss for failure to state a claim for which relief can be granted
This dismissal is decided on the pleadings rather than the merits of the evidence.
