Civil Procedure Flashcards
Subject Matter Jurisdiction
Federal courts require diversity of citizenship or federal question jurisdiction.
Subject matter jurisdiction cannot be waived.
The parties’ agreement or consent cannot give a court jurisdiction over a case if the court does not have jurisdiction by law.
The appellate courts review records of cases tried in other courts to determine if there were any procedural errors or errors of law
Personal Jurisdiction
Refers to a court’s authority over a particular person or piece of property.
In personam jurisdiction can be based on presence, consent (by waiver or contract), or domicile.
Personal Jurisdiction for Corporations in Georgia
Corporation - authorized to do business in GA - if not, PJ must arise under the GA long arm statute
Pleadings
Federal courts use notice pleading requiring a short and plain statement of the claim.
Georgia uses fact pleading, requiring more detailed allegations of the claim, including facts to establish the claim’s basis.
Statues of Limitations
Georgia’s statute of limitations includes: 2 years for personal injury, 4 years for property damage, and 6 years for written contracts.
SOL for Contracts, Trespass, Injury to Property
4 years
SOL for Personal Injury, Breach of Restrictive Covenant, Med. Mal., Products Liability Claims
2 years, but not including any statutes of repose.
SOL for Childhood Sexual Abuse
Within 5 years of the Plaintiff turning 18
Discovery
Parties may discover anything “reasonably calculated to lead to admissible evidence”. Must be reasonable + proportional.
What is the Discovery period in GA?
The discovery period general begins upon filing of a defendant’s answer and lasts for six months (although the court has discretion to shorten, extend, or reopen the discovery period).
When are discovery responses due?
Deadline: must serve responses within 30 days of service of requests (with three plus dates of electronic service).
Depositions
Unlimited! No time limit.
Can subpoena a deponent in their county or within 30 miles.
Must be done within 30 days of service or with leave of court.
Can be used for impeachment and if the witness is out of the country.
Interrogatories
Limit of 50 and can only be served on parties.
Must be answered within 30 days.
If seeking more than 50 interrogatories, must show complex litigation or undue hardship.
Requests for Production/Admission
Must be responded/objected to within 30 days, or 45 days from service for the ∆.
A party may motion to compel if not answered, which they court will grant for “good cause”.
Service of Process
Federal rules allow service of process by any non-party over 18 years old or by waiver.
Georgia requires personal service by a sheriff or court-appointed process server unless waived.
Georgia allows for service by personal delivery, publication, or by leaving copies at the defendant’s usual residence.
Must serve within 5 days of filing summons/complaint.
If service is waived, you typically have 60 days from the date the waiver request was sent to file an answer to the complaint; if the waiver is sent to an address outside the United States, you have 90 days to respond.
Georgia Civil Practice Act (CPA)
Governs civil procedure in Georgia courts, including pleadings, discovery, and motions.
Venue
In Georgia, venue is generally proper where the defendant resides at the time the action is filed.
For corporations, venue is proper where the registered office is located or where the corporation does business.
Title to land = the county where the land sits, unless divided by county lines, in which case, either county.
Equitable relief = county of the residence of at least 1 ∆.
In a claim against the government = where the actions giving rise to the claim occurred or where the gov’t employee who caused the suit resides.
Direct Action Statute
In Georgia, plaintiffs may bring a direct action against an insurer in motor vehicle accident cases without naming the insured driver or owner as a defendant.
Statute of Repose
Georgia law sets specific time limits on certain claims, such as a 10-year statute of repose for defective products or improvements to real property, regardless of when the injury occurs.
When does the statute of repose apply?
Product liability
The statute of repose applies to product liability claims within 10 years of the first sale of the product
Construction defects
The statute of repose applies to construction defect claims within eight years of the project’s substantial completion
Medical malpractice
The statute of repose applies to medical malpractice claims within five years, except in cases of fraud, concealment, or misrepresentation
GA’s Renewal Statute
Georgia allows a plaintiff to dismiss voluntarily and refile a case within six months of dismissal, even if the statute of limitations has expired, provided the original filing was timely.
Forum Non Conveniens
Georgia courts may dismiss or transfer a case if the forum is inconvenient for the parties and witnesses, and another forum is more appropriate.
On motion, the court can transfer the case in the interests of justice + for the convenience of the parties and evidence.
If the more proper venue is in another state, the court MUST dismiss.
If the more proper venue is elsewhere in Georgia, the court MAY transfer.
Factors considered include: the ease of access to the source of proof, any unnecessary expense to the ∆, local interests in deciding the case locally, and access to the premises, if needed.
The ∆ must stipulate to a SOL waiver before dismissal for forum non conveniens.
Summary Judgement
**Georgia courts strictly interpret the “no genuine issue of material fact” standard for granting summary judgment.
May be brought at least 30 days before the hearing.
Impleader
A stakeholder, or party holding property, initiates a lawsuit to bring all claimants into the same action.
How does it work?
1. The defendant files a third-party complaint against the third party.
-The third party becomes a third-party defendant.
2. The third-party complaint alleges that the third party is liable for some or all of the damages the plaintiff may win.
Why is it used?
1. It can help avoid multiple lawsuits over the same issue.
2. It can help ensure justice is done more efficiently.
For example, an insurance company might handle a deceased person’s life insurance benefits, and multiple parties claim the benefits.
A ∆ can bring in a 3rd party for indemnity within 10 days of service of an answer. If the impleading party (original ∆) is dismissed, the impleaded parties are as well.
When can 3rd Party complaints be filed in GA?
third‐party complaints may be filed in state court without leave of court within 10 days after filing of the initial answer; otherwise, leave of court is required.
Interpleader
An interpleader is a legal procedure that allows a person or entity to force multiple claimants to settle their dispute between themselves. The procedure protects the stakeholder from the risk of inconsistent judgments and the burden of defending multiple claims.
***How it works
-A stakeholder, such as a person or company, holds property or money that is claimed by multiple parties
The stakeholder initiates an interpleader action in court
-The stakeholder deposits the disputed property or money with the court
-The claimants litigate their claims against each other
***When it’s used
-When a bank has possession of gold that multiple people claim to own
-When a buyer and seller can’t agree on who should receive a deposit on a property that didn’t close
-When someone is unknowingly named as a beneficiary of a life insurance policy
***Why it’s important
-Interpleader protects the stakeholder from the risk of inconsistent judgments
-Interpleader protects the stakeholder from the burden of defending multiple claims in different courts
-Interpleader protects claimants from the uncertainty and expense of separate legal proceedings
GA Long Arm Statute
“Georgia’s long arm statute will grant a Georgia court personal jurisdiction over an out of state defendant if they have such minimum contacts with the state such that jurisdiction would not offend the traditional notions of fair play and substantial justice.”
Georgia’s long-arm statute, O.C.G.A. § 9-10-91, allows courts to exercise personal jurisdiction over nonresidents in certain circumstances.
These circumstances include:
*Doing business in Georgia: The nonresident transacts business in Georgia
*Committing a tort: The nonresident commits a tort in Georgia, except for defamation of character
*Causing injury in Georgia: The nonresident causes an injury in Georgia through an act or omission outside of Georgia, and regularly does business in Georgia
*Owning real property in Georgia: The nonresident owns real property in Georgia
Superior Courts in GA
Have jurisdiction over felony offenses, divorce cases, and civil matters
Magisterial Courts in GA
Have limited jurisdiction over legal claims not exceeding $15,000
Special Rules for Divorce Venue
If the ∆ is a Georgia resident = the county of the ∆’s residence.
If the ∆ is a non-Georgia resident = the county of the π’s residence.
If the ∆ has moved from the marital residence within 6 months = the county of the marital residence.
If the ∆ is a resident of a U.S. Army post for at least one year up to the filing = any adjacent county to the post.
Venue for a Non-Resident Defendant
Where the ∆ is at the time the action is brought.
Where a substantial part of the business was transacted.
Where the tortious act/omission occurred.
Where the real property is located.
Venue for Corporations
a
The county where the corporation has an office + transacts business.
The county where the contract was made and enforced if the corporation has an office there.
The county where the tort occurred if the corporation has an office there.
If the corporation has no office and transacts no business in the county where the case is filed, they can remove within 45 days.
Vanishing Venue
If venue is based on a resident ∆’s county and that ∆ is dismissed before trial, the proper venue is lost and must be transferred.
Out-of-State Tortious Act Causing Injury in Georgia
If a non-resident commits an out of state tort that causes in injury in Georgia, Georgia will have personal jurisdiction over the non-resident if:
- They regularly conduct or solicit business in Georgia;
- They engage in a persistent course of conduct or derive substantial revenue from Georgia.
Service on Special Parties
Minors — must be served personally + to a guardian.
Corporations — must serve the president, officer, any agent, or the Secretary of State of Georgia.
Nonresident Motorist — Secretary of State + mail.
Tolling of Statute of Limitations - for special individuals
Minority: SOL is tolled until the plaintiff turns 18.
Incapacity: SOL is tolled until the disability is removed.
Attorney Certification
Every pleading must be signed by at least one attorney. Only verifies that they read it and are not interposed for delay.
Complaints in GA
Georgia requires “notice pleading”. Which includes:
(1) the basis for venue,
(2) a demand for judgment/prayer for relief, and
(3) enough facts to put the ∆ on notice of the claim and would entitle the plaintiff to relief.
Pleadings are to be simple, concise, and direct; technical forms are not required.
Parties are permitted to plead claims or defenses in the alternative.
Pleadings are to be construed so as to do “substantial justice”.
Rule for Special Pleadings in GA
Allegations of fraud/mistake, medical malpractice claims, denial of performance or absence of a condition precedent, and special damages must all be plead with particularity.
Medical malpractice claims must either state a sum certain if seeking damages under $10k or state that they are seeking damages in excess of $10k. ALL MED. MAL. COMPLAINTS MUST INCLUDE AN EXPERT AFFIDAVIT. (Establishing the negligent act and the factual basis for the claim)
Affirmative Defenses & Waiver
Must be brought within 30 days of receiving summons + complaint.
The following affirmative defenses MUST be included in the answer or MTD, or they are deemed waived —
- Lack of personal jurisdiction;
- Improper venue;
- Insufficient process or service.
The following defenses are not waivable + can be asserted at any time—
- Failure to state a claim upon which relief can be granted.
- Failure to join an indispensable party.
- Failure to state a legal defense.
- Lack of subject-matter jurisdiction can never be waived.
Compulsory Counterclaim
Must be brought by the ∆ or it is waived.
A compulsory counterclaim is a legal claim that a defendant must raise in a lawsuit against a plaintiff. It’s a claim that arises from the same event or transaction as the plaintiff’s claim. If the defendant doesn’t raise the counterclaim, they can’t raise it in the future.
Example
If a plaintiff sues a defendant for breach of contract, the defendant may have a compulsory counterclaim for breach of the same contract.
Cross-claim
A cross-claim is a claim made by a party in a lawsuit against another party on the same side of the case. Cross-claims are also called cross-complaints.
When are cross-claims made?
-A cross-claim can be made by a plaintiff against a co-plaintiff or by a defendant against a co-defendant.
-A cross-claim can be made if the claim is related to the same transaction or occurrence as the original claim.
A cross-claim can be made if the claim is related to property that is the subject of the original claim.
Example of a cross-claim
If a pedestrian is injured in a car accident, the defendant driver can file a cross-claim against the defendant owner of the car.
If a buyer receives damaged goods, the buyer can file a cross-claim against the transportation company that delivered the goods.
Amendment of Pleadings
May amend as a matter of right at any time before the pretrial conference order.
After the pretrial conference order, must either (1) get leave of court or (2) written consent by the adverse party. Leave will be freely given by the court when justice so requires.
Relation Back Doctrine: Adding a new claim will relate back to the time of the original filing if it arose from the same transaction or occurrence as the original claim.
Is a response required to an Amended pleading in GA?
No. No response is required to an amended pleading, unless ordered by the court.
Relation Back Doctrine
The relation back doctrine allows a plaintiff to add new parties or claims to a lawsuit after the statute of limitations has passed. This doctrine is important for avoiding issues with the statute of limitations when amending a complaint.
How does it work?
**The new claims or parties must be related to the original complaint.
**The defendant must be given enough notice to prevent prejudice to their defense.
**The court has discretion to decide if the doctrine should be applied.
When might it be applied?
**When a plaintiff discovers new violations after the statute of limitations has passed
**When a plaintiff wants to add a new defendant who is “united in interest” with a defendant who was already named in the original complaint
**When a plaintiff wants to add a new claim against a defendant who was already named in the original complaint
**When a plaintiff wants to identify an unknown defendant after the statute of limitations has passed
Permissive vs. Compulsory Joinder
Permissive joinder allows parties or claims to be added to a lawsuit, while compulsory joinder requires them to be added.
Testifying Expert Witness
Testifying — Facts, opinions, and basis of opinions to be used at trial are discoverable by deposition or interrogatory. Discovering party must pay their costs.
Consulting Experts
Consulting — Generally not discoverable unless exceptional circumstances exist which make is impracticable for the party to obtain the information by other means. Discovering party must pay fees unless manifest injustice would arise.
Voluntary Dismissal
O.C.G.A. § 9-11-41 states that an “action may be dismissed by the plaintiff, without order or permission of court… by filing a written notice of dismissal at any time before the first witness is sworn.” However, filing a “second notice of dismissal operates as an adjudication upon the merits.” The first dismissal will be without prejudice.
Involuntary Dismissal
Involuntary dismissal in Georgia is when a court terminates a legal action or claim without a further hearing.
***When can a defendant move for involuntary dismissal?
-When the plaintiff fails to prosecute the case
-When the plaintiff fails to comply with a court order
-When the plaintiff has
presented their evidence and the defendant believes the plaintiff has no right to relief
Directed Verdict/Judment as a Matter of Law
(Called a Judgment as a Matter of Law in the FRCP)
Can motion for a directed verdict at the close of evidence or close of the case.
Alleges that the evidence presented was legally insufficient to the extent that no reasonable jury could find for the adverse party based on that evidence. (Think: missing an element of the claim)
JMOL must be raised/preserved in court to be eligible to raise a motion for a Judgment Notwithstanding the Verdict after court
Renewed motion can be raised then within 28 days after the verdict - then the judge can overturn
Motion for Relief from Judgement
due to clerical issue, mistake, oversight, fraud or misconduct
JNOV
In Georgia, a judgment notwithstanding the verdict (JNOV) is a motion that can be filed if a jury’s verdict is contrary to the evidence or the law. A judge may grant a JNOV if they believe no reasonable jury could have reached the verdict.
When to file a JNOV
A JNOV can be filed after a motion for a directed verdict is denied.
A JNOV can be filed when a verdict is contrary to the instructions.
What happens if a JNOV is granted
The court will rule on any pending motion for a new trial.
The court may order a new trial or enter judgment in accordance with the JNOV.
**What happens if a JNOV is denied **
The party who filed the JNOV can appeal the decision.
If the appellate court reverses the judgment, it can order a new trial or direct the trial court to determine if a new trial is necessary.
Default/Opening a Default
A Defendant is automatically in default if they do not answer within 30 days.
If the Defendant answers within 15 days after the 30 day deadline, they may “open a default” by filing an answer and paying costs.
If the Defendant does not answer within 15 days after the 30 day deadline, they *may only open a default with court permission by demonstrating “providential cause” or “excusable neglect”.
If a default is not opened, the Defendant is entitled to liquidated damages up to the amount demanded, but not more.
Motion for New Trial
Grounds =
(1) verdict was against the great weight of evidence;
(2) there was a procedural error;
(3) new evidence was discovered within 30 days of judgment.
Must be brought within 30 days of judgment.
(Must be more than a harmless error)
Ante Litem Notice
An ante litem notice is a formal written notification that must be given to a government entity in Georgia before filing a lawsuit. The term “ante litem” is Latin for “before litigation”.
In Georgia, no party may bring a tort claim against the state without first giving ante litem notice.
Notice must be in writing and within one year of the loss complained of. This deadline will be tolled if the plaintiff is incapacitated.
Must be mailed by certified mail or personally delivered to the Risk Management Division of the Department of Administrative Services AND the government entity being sued.
Must state —
1. Name of gov’t entity.
2. Time + place of transaction/occurrence giving rise to the claim.
3. Nature + amount of the loss.
4. Acts or omissions by the gov’t that caused the loss.
MTD for Failure to State a Claim
A motion to dismiss for failure to state a claim upon which relief can be granted should be allowed if, in taking all of the facts alleged in a light most favorable to the non-moving party, the plaintiff would not be entitled to relief.
A motion to dismiss for failure to state a claim is considered on the mere pleadings alone.
When a MTD relies on materials outside of the complaint, the motion should be treated as a motion for summary judgment.
Res Judicata (Claim Preclusion)
**Requirements **
The parties involved in the previous and current cases must be the same or their privies
The cause of action in both cases must be the same
A court of competent jurisdiction must have previously ruled on the merits of the case
When res judicata applies
A judgment of a court of competent jurisdiction bars relitigation of any matter that was or could have been adjudicated in the previous case
A subsequent action seeking the same relief on the same grounds is barred
**When res judicata does not apply **
If the court lacked jurisdiction over the parties involved in the previous case
Answer to Complaint in GA
Answer to Complaint is due 30 days after service
of summons and complaint unless proof of service is not filed with the
court within five business days after service was made, in which case the
answer is not due until 30 days after proof of service is filed.
Amending an Answer in GA
Before the hearing
A party can amend a pleading without court permission until 10 days before the hearing.
Georgia Rules of Regulation
A party can amend a pleading without agency permission until 8 days before the hearing.
Georgia Code
A party can amend a pleading without court permission until a pretrial order is entered.
**After the hearing **
Georgia Code
A party can amend a pleading with court permission or the opposing party’s written consent.
In Georgia, a motion to dismiss may be treated as a summary judgment if the court considers matters outside of the pleadings.
Explanation
A motion for summary judgment is used when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.
A motion to dismiss is used when the defendant claims that the plaintiff’s claim has no legal or factual merit, or that the court lacks jurisdiction over the defendant.
If a motion for judgment on the pleadings includes matters outside of the pleadings, the court will treat it as a summary judgment.
What happens next?
The court will give all parties a reasonable opportunity to present any relevant material.
The moving party can point to documents in the record, such as affidavits and depositions, to show that there is no evidence to support the nonmoving party’s case.
The nonmoving party must point to specific evidence to create a triable issue.
The responding party can file a brief that explains the law and the facts that support their side of the case.
Collateral Estoppel
Also called issue preclusion, is a legal doctrine that prevents a party from re-litigating an issue of fact or law that has already been litigated, decided, and essential to the judgment in a prior case.
Unlike res judicata (which bars re-litigation of entire claims or causes of action), collateral estoppel focuses only on specific issues that were previously resolved in litigation.
Cannot use against someone who was not a party in the first suit
Collateral Estoppel Examples in Georgia
Civil Example:
A landlord sues a tenant for unpaid rent and wins, with the court specifically finding that the tenant breached the lease. If the tenant later sues the landlord for wrongful eviction, the tenant is collaterally estopped from arguing that they did not breach the lease because this issue was already decided.
Criminal Example:
If a defendant is acquitted of murder on the grounds of self-defense, the prosecution may be collaterally estopped from re-litigating the issue of whether the defendant acted in self-defense in a subsequent trial on related charges (e.g., aggravated assault from the same incident).
Answer to Crossclaim or counterclaim in GA
No answer is required to a cross‐claim or counterclaim, unless
ordered by the court.
In GA, the following defenses are waived if not raised in
initial responsive pleading or contemporaneous motion:
- Lack of Personal Jurisdiction
- Improper Venue
- Insufficient Process
- Insufficient Service of Process
Affirmative Defenses in GA that must be raised in the initial defensive pleading
Accord and satisfaction
Arbitration and award
Discharge in bankruptcy
Duress
Estoppel
Failure of consideration
Fraud
Illegality
Injury by fellow servant
Laches
In GA, the Civil Practice Act requires the following affirmative defenses be raised in the initial defensive pleading:
- Accord & Satisfaction;
- Arbitration & Award;
- Discharge in Bankruptcy;
- Duress; Estoppel;
- Failure of Consideration;
- Fraud;
- Illegality;
- Injury by Fellow Servant;
- Laches;
- License;
- Payment;
- Release;
- Res Judicata;
- Statute of Frauds;
- Statute of Limitations; Waiver;
Tolling effect of Motion to Dismiss in GA
a motion to dismiss filed at or before the time of filing an answer will result in a stay of discovery for 90 days or until the court rules on the motion.
Right to a Jury Trial
In GA, a party is entitled to a jury trial unless the party stipulate otherwise in writing or in open court and on the record - at any time before the case is called for trial.
Whereas, in Federal Court — a party must make a demand for jury trial within 14 days after service of the last pleading directed to the issue on which jury trial is demanded.
Under Georgia law, when does an action accure when a bodily injury develops over an extended period?
An action does not accure until the injury is discovered.
Under Georgia law, how must personal service commence?
Personal service outside of Georgia can be made on a natural person
- who is a Georgia resident and
- when the action affects specific real property or status, or in any other in rem proceeding without regard to the person’s residence.
Service on nonresident motorists can be made on the Secretary of State of Georgia.
Service under the long-arm statute can be made in the same manner as service is made in Georgia.
Under Georgia law, what is the statute of limitation of claims arrising out of written contracts?
Six years from when they become due and payable.
If the contract is sealed, then the time period is 20 years.
Under Georgia law, what is voluntary presence?
Georgia allows personal service on nonresidents who are in the state on a transient basis.
Nonresidents who are attending a court proceeding or traveling to or from it are immune from service of process.
Under Georgia law, when must a party demand a jury trial?
The Georgia statute providing for a jury trial sets no time limit for demands for a trial by jury.
A demand can be made at any time before the case is called for trial or upon the call for trial.
Under Georgia law, when may a corporation be under Georgia’s jurisdictional reach?
A business incorporated out of state that is authorized to do business in Georgia is a resident for personal jurisdiction purposes.
If the corporation is not authorized to do business in Georgia, then it is a foreign corporation, and any personal jurisdiction will have to arise under Georgia’s long-arm statute.
Under Georgia law, when may a party move for summary judgment?
A party seeking to recover on a claim may not move for summary judgment until 30 days after commencement of the action or after service of a motion for summary judgment by the adverse party.
A party against whom a claim is asserted may move for summary judgment at any time. The motion must be served at least 30 days before the time fixed for the summary judgment hearing.
Under Georgia law, are pretrial conference required? What is the purpose of a pre-trial conference?
Georgia does not require a scheduling conference.
Georgia courts may require pretrial conferences at their discretion. Courts must also hold pretrial conferences whenever a party moves for one.
These conferences are to consider:
- Simplifying issues;
- The need or desirability of amendments to the pleadings;
- The possibility of obtaining admissions and documents to avoid unnecessary proof;
- Limiting expert witnesses; and
- Any other matters that may aid disposition.
Under Georgia law, what are the rules regarding contribution?
When the plaintiff is even slightly at fault, fault is apportioned between the plaintiff and the defendants.
In this situation, there is no joint liability between the defendants, and so contribution is not allowed. No cross-claim or impleader for contribution should be filed.
Under Georgia law, what is a local action?
Cases involving title to land must be tried in the county where the land lies. If a single tract of land is dividied by a county line, either county’s superior court has jurisdiction.
Under Georgia law, what is the statute of limitation of claims arrising out of medical malpractice?
Two years from the date of the injury, but never more than five years from the negligent or wrongful act or omission.
If the action relates to a foreign object left in the patient’s body, then the action must be brought within one year of discovery.
A child who was under the age of five when the act or omission occurred has two years from his fifth birthday to bring an action, but an action cannot be brought on such a claim after his 10th birthday; if he was five or older at the time of the act or omission, then an action cannot be brought more than five years after the act or omission occurred.
Under Georgia law, what is the response time when a party objects to the request?
If the party upon whom the request is served objects in whole or in part, then the party submitting the request may move for an order with respect to any such objection or failure to respond. This section applies to discovery against a nonparty who is a “practitioner of the healing arts or a hospital or health care facility.”
In that event, a copy of the request must be served upon the person whose records are sought by certified mail, return receipt requested, or upon that person’s attorney, if known, and upon all parties of record; or, upon notice, the party seeking discovery may take a written or oral deposition of the nonparty. The nonparty may not furnish the requested materials until the court issues an order to compel discovery. If no objection is filed within 20 days of service of the request, then the nonparty must promptly comply with the request.
Under Georgia law, what is the statute of limitation of claims arrising out of deficiency in planning, supervising, or constructing improvement to realty?
Eight years from substantial completion.
Ten years if an injury to a person or property accrued in the seventh or eighth year.
Under Georgia law, what is the statute of limitation of claims arrising out of contracts for the sale of goods?
Four years, but the contract can amend this for a period not less than one year.
Under Georgia law, what is the proper standard of review for a directed verdict?
A verdict should not be directed unless there is no issue of fact, or unless proved facts, viewed from every possible legal point of view, can sustain no other finding than that directed.
Under Georgia law, when must service be processed?
If service is to be made in Georgia, then it must be made within five days of receipt of the summons and complaint. If the plaintiff acted reasonably and diligently in attempting to effect service, then a case will not be dismissed even if service occured outside the five-day window.
Under Georgia law, what matters are considered compulsory cross-claims?
Cross-claims are permissive. However, Georgia courts have treated cross-claims as compulsory. A judgment on the merits is supposed to be conclusive on all matters in controversy, including all matters that could have been in controversy between parties in identical causes of action.
Under Georgia law, how is forum nonconvenien executed?
If the more appropriate forum is another Georgia court, then the case should be transferred.
If the more appropriate forum is not another Georgia court, then the case should be dismissed. The defendant must file with the court a written stipulation that all defendants waive the right to assert a statute of limitations defense in all other states that the claim was not barred at the time it was filed in Georgia as necessary to effect a tolling of limitations in those states.
Under Georgia law, what is the time to file for third-party defendants and third-party plaintiffs?
Third-party plaintiffs do not need the court’s permission to file a third-party claim if the third-party plaintiff does so within 10 days of serving his original answer. Otherwise, he must obtain leave on motion upon notice to all parties to the action.
Third-party defendants must assert any defenses or counterclaims against the third-party plaintiff—or cross-claims against any other third-party defendant—and may also assert defenses against the plaintiff.
Does Georgia law allow for service by publication?
Yes. Georgia permits service by publication whenever a nonresident or unknown person claims or owns title to an interest in any real or personal property in Georgia.
Under Georgia law, what is the statute of limitation of claims arrising out of oral or impled contracts?
Four years.
Under Georgia law, where is proper venue in an equity case?
Venue is proper in the county of residence of the defendant against whom substantial relief is sought.
Under Georgia law, what is the statute of limitation of claims arrising out of damage to reputation?
One year.
Under Georgia law, what is required to issue a default judgment? What is the effect of a default judgment?
In Georgia, a defendant will automatically be in default if he does not file an answer within 30 days (or more if allowed).
The defendant has 15 days to open the default as a matter of right by filing defenses with costs. If the case is still in default after the 15 days, then the plaintiff is entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury.
If the action arises in tort or involves unliquidated damages, then the plaintiff must produce evidence and establish the amount of damages before the court, and the defendant may introduce evidence to damages. Both parties have the right to move for a new trial on the damages issue, and if the defendant raised the issue of damages in a pleading, that can be a jury trial.
Under Georgia law, what are the rules regarding permissive counterclaims?
Georgia allows permissive counterclaims, but unless the parties otherwise agree, the claims must be separated for trial.
Where is the proper venue for anyone living in an army post or military reservation within Georgia?
If they have lived there one year preceding the filing of the action then they can bring that action in any county adjacent to the post or reservation.
What does Georgia’s long-arm statute cover?
Georgia’s long-arm statute allows the state to exercise personal jurisdiction over any nonresident in a cause of action arising from his actions, omissions, ownership, use, or possession if he:
- Transacts any business in Georgia
- Commits a tort in Georgia (except defamation)
- Causes an injury in Georgia by an act or omission outside of Georgia, only if he regularly does or solicits business, engages in another persistent course of conduct, or derives substantial revenue from goods used or services rendered in Georgia
- Owns, uses, or possesses real property in Georgia
- With respect to actions for divorce, separate maintenance, annulment, or other domestic relations, or with respect to an independent support action, maintains a matrimonial domicile in Georgia at the commencement of the action or lived in Georgia prior to commencement
- Is under an order issued by a Georgia court regarding alimony, child custody, child support, equitable apportionment of debt or division of property, and the current action involves enforcement of the order or a motion by a Georgia resident to modify the order.
The long-arm statute is not limited to contract cases.
Under Georgia law, what are the limits on the number of depositions?
Georgia does not limit the number of depositions unless the court, upon motion and for good cause, issues a protective order.
Under Georgia law, what are the rules regarding cumpulsory counterclaims?
In Georgia, a party does not need to assert a compulsory counterclaim if:
- the claim is the subject of another pending action,
- the opposing party brought an action on his claim by attachment or another process by which the court did not gain personal jurisdiction on the claim and the pleader is not stating a counterclaim, or
- the claim is outside the court’s jurisdiction.
Under Georgia law, what are the rules regarding interrogatories?
In Georgia, a party may serve another party with interrogatories requiring the party to identify any expert witness expected to testify, state the subject matter she will testify to, and state the substance of the facts and opinions she is expected to testify to along with the grounds for each opinion.
The expert witness can be deposed, but the party deposing her will have to pay the expert a reasonable fee.
Under Georgia law, what is the response time for requests of production?
In Georgia, requests for production must be responded to within 30 days or, for a defendant, within 45 days of service of the summons and complaint
Under Georgia law, what is the statute of limitation of claims arrising out of injury to persons?
Two years after the cause of action accrues.
Under Georgia law, where is proper venue when the defendant moved from the plaintiff’s county of residence within six months from the filing date in a divorce or alimony case?
The venue is the plaintiff’s residence county if the county was the site of the marital domicile when the parties separated.
Under Georgia law, what is required for an amendment to relate back to the orginal pleading date?
- It asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading;
- The party to be brought in by amendment receives notice of the action such that he will not be prejudiced in defending on the merits; and
- The party to be brought in by amendment knew or should have known that the action would have been brought against him, but for a mistake concerning the proper party’s identity.
Under Georgia law, what is the consequences of bring a lawsuit without substantial justification?
In Georgia, if a suit or any part thereof is brought without substantial justification, for the purposes of delay or harassment, or to unnecessarily expand the proceeding by improper conduct including abuse of discovery procedures, then the court can assess attorney’s fees and expenses.
A court will award fees and expenses to a party if the other party’s claim, defense, or position lacked any justiciable issue of law or fact, and the asserting party could not have reasonably believed that a court would accept it.
A motion for fees and expenses can be made at any time during litigation or within 45 days following the final disposition of the case.
What test applies to determine whether a Georgia court may exercise jurisdiction over a nonresident based on transacting business in the state?
- The nonresident defendant has purposefully done some act or consummated some transaction in Georgia,
- the action arises from or is connected with such act or transaction, and
- the exercise of jurisdiction by the courts of Georgia does not offend traditional fairness and substantial justice.
Under Georgia law, how are websites considered for personal jurisidction?
Sellers of goods sold over the internet have sufficient minimum contacts with Georgia to be haled into court under the long-arm statute. The test requires a showing that:
- The nonresident purposefully did some act or consummated some transaction in Georgia,
- The cause of action arises from or is connected to the act or transaction, and
- The exercise of jurisdiction does not offend trandtional fairness and substantial justice.
Under Georgia law, which venue is proper if there are multiple potentail claims arising from one trasaction and the Georgia Constitution makes a county proper venue for only one claim?
The trial count can hear all claims arising from that transaction or occurance.
What are Georgia’s special requirments regarding complaints?
Georgia also requires that the complaint include the factual basis for venue.
For professional malpractice claims, the complaint must include an affidavit of an expert setting forth at least one negligent act or omission claimed to exist and the factual basis for the claim. The expert must be licensed to practice the relevant profession.
In the case of a medical malpractice action, the expert must be a member of the same profession and must have been regularly engaged in
- the active practice of the relevant profession or specialty for at least three of the last five years, or
- the teaching of the relevant profession for at least three of the last five years as a faculty member of an educational institution accredited in the teaching of the profession.
Under Georgia law, what is required to voluntarily dismiss a lawsuit? What is the effect?
In Georgia, a plaintiff can voluntarily dismiss a case only before the first witness is sworn or with the agreement of all parties who have appeared.
If a defendant has already pleaded a counterclaim, then the action will not be dismissed unless the defendant agrees or the counterclaim can remain pending for independent adjudication by the court.
The case can be recommenced within the statute of limitations period or within six months after the voluntary dismissal, whichever is later.
Under Georgia law, is an answer to a counterclaim or cross-claim required?
An answer to a counterclaim or cross-claim is required only if the court orders it.
Otherwise, it is assumed that the allegations are denied.
Under Georgia law, where is proper venue when the defendant is not a Georgia resident in a divorce or alimony case?
Proper venue is where the plaintiff resides.
Under Georgia law, what is the result of granting a motion to dismiss for failure to state a claim upon which relief can be granted?
In Georgia, a motion to dismiss for failure to state a claim upon which relief can be granted shall be treated as a motion for summary judgment when the court looks at and accepts matters outside the original pleading.
Under Georgia law, where is a corporation’s county of residence in a litigation’s involving contracts?
For contract claims, a corporation reisdes int he county where the contract was made or is to be performed if the corporation has an office and does business in that county.
Under Georgia law, when should a motion for a new trial be made?
A motion for a new trial must be made within 30 days of entry of the judgment.
Under Georgia law, who can serve a motion?
Service may be made by
- the sheriff of the county where the action is brought
- by the marshal or sheriff of the court
- by one of their deputies
- A U.S. citizen specially appointed by the court
- A certified process server
- A nonparty who is at least 18 years old and has been appointed to serve process or as a permanent process server
- The sherif of the county where the defendant resides if any defendants reside outside the county wer ethe action is filed.
Under Georgia law, where is proper venue in an case agaisnt joint promisors, joint tortfeasors, joint obligors, copartners, or joint trespassers?
If all of the defendants are Georgia residents, then the suit may be brought in any county where a defendant resides.
Under Georgia law, where is a corporation’s county of residence in litigation regarding torts or injuries?
For tort or injury claims, the corporation is a resident of the county where the cause of action originated if the corporation has an office and transacts business in that county (if not, a corporation can move within 45 days to transfer venue to the county where it maintains its principle place of buisness).
Under Georgia law, how must subpoenas be processed against nonparties?
Generally, Georgia does not require a subpoena on nonparties.
Georgia requires a nonparty to be notified if a party is seeking the nonparty’s medical records.
How does Georgia reach nonresident motorists involved in accidents?
Georgia plaintiffs may serve process on the secretary of state for an action against a nonresident based on an accident or collision in Georgia in which the nonresident was operating or controlling a vehicle.
Under Georgia law, what occurs if a trial court makes a finding that venue is improper?
The trial court must transfer the case to the appropriate court.
Under Georgia law, what is the cause of action regarding a motor vehicle accident?
For negligence claims stemming from motor vehicle accidents, Georgia recognizes two separate and distinct causes of action. The plaintiff may assert a cause of action for injuries to persons and a cause of action for injuries to property. The causes may be prosecuted in one case, but the plaintiff also has the option of pursuing them in two separate cases.
Res judicata will not apply when the causes of action are brought in separate cases.
Under Georgia law, what are the rules regarding supoenas?
Upon request, subpoenas for depositions are issued by the clerk of the superior court of the county in which the action is pending or by the clerk of any court of record in the county where the deposition is to be taken.
Upon agreement of the parties, an attorney may issue a subpoena if the deposition will pertain to a pending action in a court where he is authorized to practice.
Nonresidents cannot be compelled to come to Georgia to be deposed unless they are a party to the lawsuit.
Under Georgia law, what is the statute of limitation of claims arrising out of products liability?
Ten years from the date of the first sale for use or consumption, unless the action is
- for injuries or damages arising out of negligence in manufacturing products that causes diseases or birth defects,
- based on conduct manifesting a willful, reckless, or wanton disregard for life or property, or
- based on a manufacturer’s breach of his duty to warn of a danger arising from use of a product.
Under Georgia law, what venue is appropriate against nonresident motorists?
The county where the accident or injury occured, the cause of action originated, or in the county where the plaintiff resides.
A nonresident involved in the same accident or collision who is suable can be joined in the county where a resident defendant can be sued.
Under Georgia law, what is the statute of limitation of claims arrising out of trespass upon or damage to realty?
Four years.
Under Georgia law, what is the attorney’s pleading requirement?
Georgia requires every pleading to be signed by an attorney of record and include his or her name and address. If there is no attorney, then the party must sign and include his name and address instead.
The signature certifies that the party or attorney has read the pleading and that it is not being brought for the purposes of delay. Failure to properly include an attorney certification opens the party or attorney to sanctions, including fees.
Under Georgia law, what court generally has proper venue?
Generally, venue is the county where the defendant resides.
Under Georgia law, what factors are useful to determine forum non conveniens?
- The relative east of access to sources of proof
- The availability and cost of compulsory process for the attendance of unwilling witnesses
- The possiblity of viewing the premises, if viewing would be appropriate,
- Any expense or trouble for the defendant that is unnecessary for the plaintiff’s right to pursue her remedy
- Administrative difficulties for the forum court
- The existence of local interests in deciding the case locally, and
- The traditional deference given to a plaintiff’s choice of forum.
Under Georgia law, may a party appeal an interlocutory order?
Georgia allows interlocutory appeals regarding orders in divorce, alimony, and other domestic-relations cases; temporary restraining orders; and a number of other orders.
Appeals may also be requested within 10 days of an order being entered if the order is important enough to the case that it requires immediate review.
Under Georgia law, how is service of corporate defendant commenced?
Service on a business incorporated in Georgia or authorized to do business in Georgia is made on an officer or a managing or registered agent; however, if such service cannot be made, then service can be made on the secretary of state instead.
The plaintiff must certify in writing that
- he has forwarded by registered mail or overnight delivery the process, service, or demand to the last registered office or agent listed in the secretary’s records,
- service cannot be effected at that office, and
- it appears that the corporation has failed either to maintain a registered office or appoint an agent in Georgia.
If the certification indicates that there is a last known address outside of Georgia, then the plaintiff must also mail the summons and complaint to that address. Georgia also allows service on a corporation with no registered agent to be made using certified mail or overnight delivery addressed to the secretary of the business at the corporation’s principal office. Service will be considered perfected when the corporation receives the mail, on the date shown on the return receipt (if signed on behalf of the corporation), or five days after it was postmarked (if correctly addressed and postage paid), whichever is earliest.
Under Georgia law, when must a objection to jury instructions be made?
In Georgia, an objection to jury instructions can be made at any point until the verdict is announced.
How much time does a defendant have to file an answer?
A defendant ahs 30 days to file an answer to a compliant. A pre-answer motion does not toll this period.
Under Georgia law, is an action respecting title to land a local action?
No. An action to cancel deed is an equitable action. Accordingly, it must be brought in the county where the defendant resides.
Under Georgia law, where is a corporation’s county of resident in litigations regarding garnished wages?
For garnish proceedings, a corporation is a resident of the county where the corporate office or place of business where the employee who is the defendant in the main action is employed.
Under Georgia law, what is required for physical examinations?
Georgia requires physical examinations to be made by physicians and mental examinations to be made by a physician or licensed psychologist.
Under Georgia law, what is required when suing the State or its subdivisions?
Georgia requires ante litem notice, which is a written demand provided to the state before filing the lawsuit.
The state requires notice within 12 months of the injury that is written and hand delivers or mailed (using either certified or overnight delivery), return receipt requested, to the Risk Managmeent Division of the Department of Administrative Services, and it requires a copy to be sent by either First Class mail or personal delivery to the government office whose acts or omissions are the basis for the claim.
Failure to comply results in dismissal of the claim for lack of subject matter jurisdiction over the action.
What occurs if an expert affidavit is not properly filed in Georgia court with an complaint regarding professional malpractice?
If an expert affidavit is not filed, then the defendant does not have to file an answer until 30 days after the affidavit is filed, and no discovery will take place until it is filed.
Despite the requirement, the plaintiff may have an additional 45 days to file the affidavit if
- the statute of limitations will run within 10 days of filing the complaint,
- the plaintiff alleges an affidavit could not be prepared because of time restraints, and
- the plaintiff’s attorney files an affidavit swearing that he or his firm was retained within 90 days before the statute of limitations.
If the affidavit is allegedly defective, then the defendant can file a motion to dismiss on or before the close of discovery, and the plaintiff’s complaint can be dismissed for failure to state a claim.
The plaintiff will have 30 days to cure the alleged defect, and the court can extend time as justice requires. If the plaintiff failed to file the affidavit, and the defendant brings it up as a ground for dismissal, then the plaintiff will have his case dismissed and will not be allowed to renew the claim unless the court can determine that the plaintiff had the affidavit at the time of filing but, by mistake, failed to file it.
Under Georgia law, what is response time for requests for admissions?
In Georgia, requests for admission must be responded to within 30 days, or for a defendant, within 45 days of service of the summons and complaint. Georgia courts can allow shorter or longer time frames. Ga. Code Ann. § 9-11-36.
What effects, if any, does basing application of Georgia’s long-arm statute on real property cause?
If jurisdiction under the long-arm statute is based on real property ownership, use, or possession, then jurisidction will not be defeated if the defendant no longer owns the property when the action is filed.
As long as the cause of action arises from the defendant’s past ownership, use, or possession of the property, the court has jurisdiction.
What venue is appropriate whe personal jurisdiction applied Georgia’s long-arm statute?
Generally, venue is proper in a county where a substantial part of the business was transacted, the tort or injury occurred, or the real property is located.
For actions involving a nonresident defendant and a resident defendant, venue is proper in a county where the resident defendant may be sued.
Jurisdiction and venue over the nonresident defendant is not lost if a verdict is returned in favor of the resident defendant. If the resident defendant is dismissed before the trial commences, then the action against the nonresident does not abate but must be transferred to a county where venue is proper.
Under Georgia law, what is the doctrine of forum non conveniens?
Georgia courts must not adjudicate matters if, in the interest of justice and for the convenience of the parties and witnesses, a claim or action would be more proper in a forum out of state or in a different county.
Under Georgia law, when should a judgment notwithstanding the verdict be made?
In Georgia, a motion for judgment notwithstanding the verdict must be made within 30 days of the judgment.
Under Georgia law, what are the limits to the number of interrogatories?
Georgia limits each party to 50 interrogatories.
More interrogatories can be made with leave of the court, but the party must show complex litigation or undue hardship incurred if the extra interrogatories are not permitted.
The right to object to interrogatories is waived when objection is not timely made.
Under Georgia law, where generally is a corporate person’s county of residence?
Generally, a corporation resides in any county where it has a registered officer or where it last had a registered or principal office.
Under Georgia law, what is the rule of interpleader?
Georgia’s interpleader statute is the same as FRCP Rule 22. Under Rule 22, persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead.
Such joinder is proper even though the claims of the claimants, or the titles on which their claims depend, lack a common origin or are adverse and independent rather than identical or even though the plaintiff denies liability in whole or in part to any or all of the claimants. A defendant who is exposed to similar liability may seek interpleader through a cross-claim or counterclaim.
The primary standard for determining the propriety of an interpleader action under Rule 22 is whether the party bringing the action legitimately fears multiple claims against the property.
Georgia also allows equitable interpleader when a disinterested stakeholder holds property or debts to which more than one person lays a claim and there is such a close question of law or fact that it is doubtful or dangerous for the stakeholder to act.
Under Georgia law, when must a party respond to an amended pleading?
A party must respond to an amended pleading only if the court orders it.
Under Georgia law, when can a court decline to exercise juridiction over a nonresident’s action that accrued outside Georgia?
The court considers:
- Where the cause of action accrued
- Where the witnesses are located
- Where the parties reside
- Whether a party is trying to get around an applicable statute of limitations in another state, and
- Convenience to and burden on the court.
A party who wishing to move jurisdiction under these factors must file a motion within 90 days after the last day allowed for filing an answer.
Under Georgia law, when must a motion for directed verdict be made?
A motion for a directed verdict may be made at the close of the evidence offered by an opponent or at the close of the case. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that a motion is not granted without having reserved the right to do so and to the same extent as if the motion had not been made. A motion for a directed verdict shall state specific grounds. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.
When may a pleader correct an omitted counterclaim?
When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment.
Under Georgia law, where is proper venue in a case against the maker or endorser of a promissory note, or drawer, acceptor, or endorser of foreign or inland bills oexichange or like instruments?
The proper venue is the county where the maker or acceptor resides.
Under Georgia law, when may a pleader amend his or her compliant?
In Georgia, any party can amend a pleading at any time before a pretrial order is entered.
After that, amendment can be made only by leave of the court or by written consent of the other party. Leave shall be freely given when justice so requires.
Under Georgia law, does claim preclusion require mutuality?
Georgia generally requires mutuality of parties or their privies.
Under Georgia law, how does dismissal without prejudice effect the statue of limitations?
The xase may be recommenced within the origianl statute of limiations period or within six months after the discontinuance or dismissal, whichever is later.
The plaintiff will be required to pay costs.
What must a plaintiff and his or her attorney file with the complaint in Georgia court if the alleged conduct could be interpreted as free speech?
If a defendant’s actions could reasonably be construed as being in furtherance of free speech or the right to petition the government for redress of grievances in relation to an issue of public concern, then the plaintiff and his attorney must file, along with the complaint, a verification under oath that the plaintiff and attorney:
- Have read the claim;
- After reasonable inquiry and to the best of their knowledge and belief, have determined that the claim is well grounded in fact and is warranted by existing law or a good-faith argument for an extension or change in existing law;
- Have determined that the act on which the claim is based is not a privileged communication; and
- Have determined that the claim is not being brought for an improper purpose.
Wrongful verification of a claim subjects the plaintiff and/or his attorney to sanctions, which may include dismissal and reasonable expenses.
Under Georgia law, what occurs when venue vanishes?
If the defendant who reside in the county where an action is pending are discharged from liablity before or upon the return of a verdict by the jury or court, then a nonresident defendant can have the case transferred to a courty and court where venue would be proper.
If there are multiple proper counties, then the plaintiff can choose.
Final Judgement Rule
The final judgment rule in Georgia states that all issues in a case must be resolved before an appeal can be filed. This rule ensures that the appeals process is fair and efficient.
Explanation
A final judgment is a court’s final decision that resolves all issues in a case. It settles the rights of the parties involved.
After a final judgment is issued, the only remaining issues are how to enforce the judgment, whether to award costs, and whether to appeal.
A party must raise all concerns in one appeal after a final judgment is made.
Abstention Doctrine
The abstention doctrine is a legal principle that prevents federal courts from hearing certain cases, allowing state courts to handle them instead. The doctrine is based on the idea that states have their own laws and should be able to handle matters that are important to them.
**When does the abstention doctrine apply? **
When state law is unclear
When a state court’s interpretation of state law might make a federal constitutional issue unnecessary
When avoiding conflict with a state’s administration is warranted
When a case involves unsettled questions of state law
TRO in GA
A temporary restraining order (TRO) in Georgia law is a short-term court order that prevents a person from taking certain actions. TROs are often used in cases of domestic violence, stalking, or other threats.
Grounds for TRO in GA
The person seeking the TRO can show that they will suffer immediate and irreparable harm if the TRO isn’t issued.
The person seeking the TRO can show that the other person has threatened, assaulted, or caused physical harm.
The person seeking the TRO can show that the other person has deprived them of basic needs.
JMOL in GA
A judgment as a matter of law (JMOL) motion can be made in Georgia at any time before a case is submitted to a jury. A JMOL is a ruling made by the court during a jury trial when it finds that no reasonable jury could reach a different conclusion
Is “the most significant relationship test” used in GA?
No. Georgia courts have declined to adopt the most significant relationship test in favor of traditional common law approaches.
In tort actions, Georgia courts apply the rule of lex loci delictis, which states that the law of the place where the wrong occurred applies.
What is the Erie Doctrine?
The Erie Doctrine is a legal principle that mandates federal courts to apply the substantive law of the state where a case is being heard when exercising diversity jurisdiction, meaning they must follow state laws regarding the core legal issues of a case, while applying federal procedural rules for how the case is conducted; essentially, it ensures consistency between state and federal courts in cases based on state law.
