Civil Procedure

Question 1

Subject Matter Jurisdiction

Answer 1

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

Question 2

Personal Jurisdiction

Answer 2

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.

Question 3

Personal Jurisdiction for Corporations in Georgia

Answer 3

Corporation - authorized to do business in GA - if not, PJ must arise under the GA long arm statute

Question 4

Pleadings

Answer 4

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.

Question 5

Statues of Limitations

Answer 5

Georgia’s statute of limitations includes: 2 years for personal injury, 4 years for property damage, and 6 years for written contracts.

Question 6

SOL for Contracts, Trespass, Injury to Property

Answer 6

4 years

Question 7

SOL for Personal Injury, Breach of Restrictive Covenant, Med. Mal., Products Liability Claims

Answer 7

2 years, but not including any statutes of repose.

Question 8

SOL for Childhood Sexual Abuse

Answer 8

Within 5 years of the Plaintiff turning 18

Question 9

Discovery

Answer 9

Parties may discover anything “reasonably calculated to lead to admissible evidence”. Must be reasonable + proportional.

Question 10

Depositions

Answer 10

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.

Question 11

Interrogatories

Answer 11

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.

Question 12

Requests for Production/Admission

Answer 12

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”.

Question 13

Service of Process

Answer 13

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.

Question 14

Georgia Civil Practice Act (CPA)

Answer 14

Governs civil procedure in Georgia courts, including pleadings, discovery, and motions.

Question 15

Venue

Answer 15

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.

Question 16

Direct Action Statute

Answer 16

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.

Question 17

Statute of Repose

Answer 17

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.

Question 18

Renewal Statute

Answer 18

Georgia allows a plaintiff to dismiss and refile a case within six months of dismissal, even if the statute of limitations has expired, provided the original filing was timely.

Question 19

Forum Non Conveniens

Answer 19

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.

Question 20

Summary Judgement

Answer 20

**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.

Question 21

Impleader

Answer 21

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.

Question 22

Interpleader

Answer 22

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

Question 23

GA Long Arm Statute

Answer 23

“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

Question 24

Superior Courts in GA

Answer 24

Have jurisdiction over felony offenses, divorce cases, and civil matters

Question 25

Magisterial Courts in GA

Answer 25

Have limited jurisdiction over legal claims not exceeding $15,000

Question 26

Special Rules for Divorce Venue

Answer 26

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.

Question 27

Venue for a Non-Resident Defendant

Answer 27

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.

Question 28

Venue for Corporations

Answer 28

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.

Question 29

Vanishing Venue

Answer 29

If venue is based on a resident ∆’s county and that ∆ is dismissed before trial, the proper venue is lost and must be transferred.

Question 30

Out-of-State Tortious Act Causing Injury in Georgia

Answer 30

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.

Question 31

Service on Special Parties

Answer 31

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.

Question 32

Tolling of Statute of Limitations - for special individuals

Answer 32

Minority: SOL is tolled until the plaintiff turns 18.

Incapacity: SOL is tolled until the disability is removed.

Question 33

Attorney Certification

Answer 33

Every pleading must be signed by at least one attorney. Only verifies that they read it and are not interposed for delay.

Question 34

Complaints in GA

Answer 34

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”.

Question 35

Rule for Special Pleadings in GA

Answer 35

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)

Question 36

Affirmative Defenses & Waiver

Answer 36

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.

Question 37

Compulsory Counterclaim

Answer 37

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.

Question 38

Cross-claim

Answer 38

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.

Question 39

Amendment of Pleadings

Answer 39

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.

Question 40

Relation Back Doctrine

Answer 40

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

Question 41

Permissive vs. Compulsory Joinder

Answer 41

Permissive joinder allows parties or claims to be added to a lawsuit, while compulsory joinder requires them to be added.

Question 42

Testifying Expert Witness

Answer 42

Testifying — Facts, opinions, and basis of opinions to be used at trial are discoverable by deposition or interrogatory. Discovering party must pay their costs.

Question 43

Consulting Experts

Answer 43

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.

Question 44

Voluntary Dismissal

Answer 44

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.

Question 45

Involuntary Dismissal

Answer 45

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

Question 46

Directed Verdict/Judment as a Matter of Law

Answer 46

(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

Question 47

Motion for Relief from Judgement

Answer 47

due to clerical issue, mistake, oversight, fraud or misconduct

Question 48

JNOV

Answer 48

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.

Question 49

Default/Opening a Default

Answer 49

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.

Question 50

Motion for New Trial

Answer 50

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)

Question 51

Ante Litem Notice

Answer 51

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.

Question 52

MTD for Failure to State a Claim

Answer 52

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.

Question 53

Res Judicata (Claim Preclusion)

Answer 53

**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

Question 54

In Georgia, a motion to dismiss may be treated as a summary judgment if the court considers matters outside of the pleadings.

Answer 54

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.

Question 55

Amending an Answer in GA

Answer 55

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.

Question 56

Collateral Estoppel

Answer 56

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.

Question 57

Collateral Estoppel Examples in Georgia

Answer 57

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).