Ga Civ Pro Flashcards
What does a Ga court need to exercise jurisdiction?
PJ, SMJ, and venue
What are the different types of PJ?
1) In personam (over the person)
2) in rem and quasi in rem (over property)
Difference between general and specific jurisdiction?
General: Ga jurisdiction need not relate to events giving rise to the claim
Specific: Ga jurisdiction MUST relate to the events giving rise to the claim
For valid PJ, what do you need?
A statutory AND a constitutional basis
What are the statutory bases giving rise to general jurisdiction in Ga?
Presence in Ga when served with process—cant be tricked, immune when in state for another case, and doesn’t have to relate to Ga
Domicile in Ga when served with process- gives general jurisdiction, no need for claim to relate to activities in Ga. merely being a resident is enough
Incorporated/Authorized to Transact Bus. In Ga—like domicile status for a person. Foreign corp authorized to transact bus is considered a resident of Ga. so long as its business is systematic/continuous. Foreign corp not authorized is a nonresident but can be subject to juris under long arm
Consent
What are the statutory basis giving rise to specific jurisdiction in Ga?
Long Arm Statute- applies to nonresidents (a person not a resident when the case arose or if a resident at that time, was not a resident when served with process)
- Gives specific juris- contacts with Ga must relate to or give rise to the claim
Non-Resident Motorist Act: against nonresident who has committed vehicle accident in Ga
Includes someone not a resident when the accident occurred
- Does NOT include someone who was a Ga resident when claim arose but NOT Ga resident when case filed
Involves claims of the nonresident’s use or ownership of the vehicle in GA
Contacts that trigger Ga Long Arm Statute
Transacts bus in Georgia (except advertising in national mag)
Commits a tort in Ga
- Both tort act and injury occur in Ga
- NO juris: if tort act committed somewhere else and injury in Ga—> UNLESS, D engaged in persistent course of conduct in GA or derives substantial revenues from goods consumed there.
Owns, uses or possesses real prop. In Ga
Domestic relations: D has matrimonial domicile in GA–then can be used in Ga for alimony, child support, divorce division of property.
What is the constitutional basis for PJ in Ga?
Minimum Contacts: “such minimum contacts with the forum such that the exercise of juris does not offend the traditional notions of fair play and substantial justice”
Contacts: 1) describe it —> do the contacts show a) purposeful availment (purposeful, voluntary act towards forum) and 2) foreseeability (could D foresee getting sued in forum)
Fairness and Resolution: relatedness (claim arise from D’s contact with the forum), convenience and state interest
In Rem and Quasi In Rem: what must be satisfied for PJ in Ga?
Statutory Basis = Attachment statute
Constitutional Basis
- MUST satisfy minimum contacts
- Property is treated as a contact with the dispute is related to the property attached.
SMJ in Ga deals with what?
Which Court? Superior, State or Magistrate?
Superior Court hears what cases?
felony criminal cases, divorce, suits seeking affirmative equitable relief and suits affecting change in title of land
State Court hears what cases?
all except the ones that Superior cases, can hear equitable defenses, cannot hear counterclaims that raise cases that must be heard in Superior
Magistrate Court hears what cases?
anything state court can hear but amt. in controversy cant exceed $15,000.
Has a compulsory counterclaim rule
No juries
Venue in Ga asks what question?
which county in Ga do we bring the suit?
Improper venue remedy
Transferred to the proper county.
Residence for Ga Venue
person = county of residence;
unincorporated association = all counties in that it does business or has a branch/local organization;
corporation = registered office (county stated in the articles),
- K cases any county where contract was made but only if the corp has an office & transacts bus in that county
- Tort damages cases: Option 1: county where claim arose only if corp has office & transacts bus there; OPTION 2: county where claim arose without added requirement in option 1 (Lots of procedural stuff in this option)
Local Actions: Venue
involve title to land—venue equals county where land lies (lease is not a local action)
Transitory Actions? What are these?
Everything except local actions
Transitory Actions when D = Ga Resident
suit must be tried in the county where D resides
Exceptions:
Mult. Ds and Joint Liability: (joint obligors, trespassers, tortfeasors or copartners) venue can be in any county where any D resides—doesn’t apply if one of the Ds is a non-Ga resident
Makers/Endorsors of Notes: venue is where maker resides
Affirmative Equitable Relief: venue in county of D against whom substantial relief is sought
Divorce or Alimony: if D= Ga resident then in that county, if D is NOT Ga resident then in P’s county. D can consent to being in P county.
Transitory Actions when D is NOT Ga Resident
if non Res D is served in Ga- venue = county where D was actually served
Long Arm Statute: venue is any county where a substantial part of claim arose
- If a Co-D = Ga res—> venue = where Ga res resides
Nonresident Motorist Act: if all Ds are nonres. then venue = 1) where accident occurred OR 2) where P resides.
- If a Co-D = Ga res—> venue = where Ga res resides
Vanishing Venue
allows non-res Ds to require that a case be transferred to proper venue if all Ds who reside in the original county venue are discharged from liability whether before or upon a verdict
Impleader Venue
a TPD cannot object to venue in a TP claim if venue is valid in P’s main/original case—if court loses venue over original claim, it loses venue over TPD
Inconvenient Forum in Actin by Non-Resident Accruing Outside Ga
Ct may decline juris. and dismiss without prejudice to filing in another more convenient forum. ONLY applies where P = non resident and claim occurred outside of GA.
Factors:
1) place of accrual of cause of action
2) location of witnesses
3) is litigant attempting to circumvent SoL of another St.
4) residences of parties
5) convenience and burden upon the court
Forum Non Convenions
I n int of justice and convenience, ct can decline juris. in favor of another ct.
Factors:
1) ease of access to sources of proof
2) availability/cost of compelling unwilling witnesses to attend
3) possibility of viewing premises
4) unnecessary expense/trouble to D
5) administrative diff. for forum cts
6) local interest in deciding the case?
7) traditional deference to P’s choice of forum
If forum outside Ga: case must be dismissed before transferring
If forum inside Ga: case is simply transferred
Service of Process in Ga: Who can serve?
1) sheriff/marshall/deputy, 2) nonparty 18 yrs old appointed by court, 3) ct appointed permanent process server
Service of Process: Methods of Service
same as fed rule (personal, leaving process @ D’s abode, authorized agent of D)
Waiver by First Class Mail: same as federal
Who to Serve in Ga?
Corporations: registered agent, president/other officer/secretary/cashier, managing agent, any agent who represents the company in some way.—>If you cant serve one of these ppl, then you can substitute service on Sec. of St. by 1) delivering summons/complaint to Sec. of St., 2) certifying affidavit that corporate ppl couldn’t be served, 3) forward service of process by reg. mail to last known reg. office/agent listed with Sec. of St. (can be inside or outside of Ga)
- alternative: can serve by reg/certified mail the Corporate CEO/Sec. of Corp. at its principle office. Copies of service should be sent to Sec. of St.
Unincorporated Associations: serve agent/partner in Ga
Minors: serve minor personally AND the parent/general guardian or guardian ad litem
Out of Ga Service?
Ga res served outside of Ga: personally serve where found (need ct. order upon affidavit)
Long Arm Staute: can serve in any method permitted in Ga but it must be served by someone authorized to serve process in that state or a licensed attorney
Nonresident Motor Act: serve Ga Sec. of St. showing the act applies, 2) reg/certified mail of process to D, & 3) file D’s return receipt & original affidavit with the ct.
Publication Service: extremely rare. Need ct order upon P affidavit that D cant be found in Ga. Usually used for in rem/quasi in rem
Service Returns
serving person just file proof of service promptly after service
Subsequent Documents to Serve
can be served by first class mail/delivery—server executes an affidavit of service. If served by mail, add 3 days to party’s time to respond.
Pleadings: Complaint Requirements
SMJ statement, short/plain statement of claim showing entitlement to relief/damages, demand for judgement, facts alleging basis of venue
In Malpractice cases, what needs to be attached to the complaint?
Must attach to complaint an expert affidavit est. with specificity at least 1 negligent act/omission and the facts on which the claim is based
failure to do this—> by motion of D = subject to dismissal for failure to state a claim, cannot be cured by amendment/voluntary dismissal and refiling unless the ct finds that P in fact had the affidavit in proper time but failed to file as a mistake.
Defective affidavit: can be dismissed per D motion (raised with specificity) but can be cured by P by amendment within 30 days of D motion
Delay: P may be excused from filing affidavit if 1) SoL will run on claim within 10 days of filing, 2) P alleges time constrained ability to get expert, 3) P attorney files an affidavit with complaint swearing that he/his firm was not retained by P 90 prior to SoL expiration
- If met, P has 45 days to supplement complaint with expert affidavit.
Are general denials ok?
Yes, you can deny everything in the complaint
Verified Pleadings
made under oath, really rare, required in divorce, garnishment/other specialized areas. (?s with verified pleadings= important for SJ)
Pleadings: Attorney Certificate/Bad Faith: State Section 11
only applies to pleadings—requires atty. to certify only that she has read the document & its not delayed. No sanctions. If atty. doesn’t sign, pleading could be struck or amendment allowed to fix prob.
Pleadings: Attorney Certificate/Bad Faith: Abusive Litigation
may recover reasonable costs of litigation (atty’s fees) if opp. side showed “complete absence of any justifiable issue of law/fact” such that a reasonable person could not believe the ct would accept it. Motion for Sanctions brought during case or w/n 45 days of final adjudication.
Timing for defense responses
20 days
Rule 12 does NOT suspend response time
Does D have to respond to counter/cross claims?
No, not unless ordered to do so.
What is the pre-answer effect on a discovery motion?
re-Answer motion to dismiss, discovery = stayed for 90 days after filing motion or until ct. rules on the motion whichever is first—discovery deadline is extended equivalent to the stay period
Amended Pleadings in Ga
ame as Federal except: 1) amendment of right: right to amend before pretrial conference order is entered, if no order exist, right to amend exist till trial; 2) amendment chaining a party: an amendment changing a D after SoL ran will relate back if a) amend covers same T/O or conduct as orig. pleading, b) new party had notice of action within the proper time period (proper time period = new D must have learned of the suit within the SoL), c) new D knew/should have known that but for a mistake, it would have been named as D originally.
Response to Amended: not required to respond unless ct ordered.
Capacity to be Sued with Minors/Incompetents and Unincorporated Associations?
if minor/incompetent has no representative—> the minor/incomp. brings suit in his name and is styled as “by his next friend” or guardian ad litem. This style gives ct notice that it needs to appoint a guard. ad litem. Failure to appoint guard. ad litem is excused if no harm was felt
Unincorporated Assc.: P sues assoc., P can reach its assets to satisfy judgement.
SoL Accrual
statute starts to run from “accrual” of claim (the point at which P could sue & recover). In cases of bodily injury developing over extended time, SoL does not being until P discovered or should have discovered the defect
Indemnity or Contribution Claims
accrues when liability = imposed
SoL time period in personal injury cases?
2 years from injury/death
SoL time period in damage to reputation cases?
1 year from defamatory act
SoL time period in damage to personal property cases?
4 years
SoL time period in damage to realty cases?
4 years
SoL in medical malpractice cases?
2 years form injury but never more than 5 form negligence
SoL in written Ks?
6 years
SoL in Ks for Sale of Goods?
4 years
SoL in oral/implied Ks?
4 years
SoL in Deficient Improvements in Real Property?
8 years from substantial completion.
SoL will extend 2 years from date of injury if the injury occurs within the 7th or 8th year but will never reach beyond 10 years
What is deficient improvements in real property?
Deficient in deigns, supervision, construction or preparing a land survey/plat
How to raise a SoL defense?
raise it as an affirmative defense
What does tolling the SoL mean?
Tolling means to stop SoL from running
What tolls the SoL?
1) Filing a complaint permanently tolls it
2) minority temporarily tolls it
Minority in Malpractice SoL
If child is 5 or older when MED map accrues, reg rules apply.
If 5 or under, SoL is tolled until age 5 (but must sue by age 7 b/c of SoL 2 year period)
Joinder of Claims/Parties
Same as federal
But, cross claims are compulsory
If P is partly responsible for injuries, and joint/several liability = abolished—> does D have to file a cross claim?
No, D doesn’t have to file a cross claim or TPC based on contribution theory ag. joint tortfeasor.
Steps in a Class action in Ga
Step 1: Is the class certifiable? (numeroisty, commonality, typicality & ad. reps?) Step 2: Action maintainable as class action? (risk of conflicting results, opp. party has refused to ct, ?s of law/fact)
What are the differences between the Ga and Fed Discovery rules?
Ga adopts the federal rules except:
No required disclosures.
Interrogatories limited to 50 (Fed is limited to 25)
Production of Doc/Things: no subpoena needed to use against non-parties
Phy/Mental Exams: permits phy by a “physician”,permits mental by “a physician or licensed psychologist” (federal allows it done by any licensed health care professional)
Experts: cannot get testimony from an expert retained for trial absent a showing of exceptional need. Send interrogatories asking for expert names/expected to testify/expert opinions then depose experts.
Subpoena: Depose non parties: issued/signed by clerk of ct. (atty. can issue it by parties consent)
Depos: no limit
Voluntary Dismissal of Case
P has right to do it once 1) before 1st wit is sworn in at trial or 2) by stip. of parties
Georgia Renewal Statute
Georgia Renewal Statute: when a case is dismissed w/out prejudice that P may refile the action w/n the unexpired SoL period or if SoL has ran, w/n 6 months of the dismissal.
IF a counterclaim is pending, P can not voluntarily dismiss unless D agrees or counter is capable of remaining in ct for independent adjudication.
Involuntary Dismissal
Ct can dismiss b/c P has 1) failed to prosecute with proper diligence or 2) failed to comply with CPA/ct. order. P involuntarily dismissed CAN refile under renewal statute
Automatic Dismissal
no written order in case for 5 years—> automatically dismissed w/costs to P. P can refile w/n 6 months.
Entry of Default in Ga
pre-req to Default Judg—> after proper service, if D does nothing within 30 days and parties have not stip to an extension, an entry of default occurs. But D gets automatic 15 day grace period where D can move to reopen as a matter of right (D must pay costs). Beyond the 15 days, D can move to set aside default anytime before default judgement. Ct. has discretion to grant based ONLY on 1) providential cause preventing filing, 2) excusable neglect, 3) convinced all facts it would be proper to set aside. The motion MUST 1) be under oath, 2) include a meritorious defense, 3) state D is ready to proceed to trial, 4) offer to plead immed.
Default Judgments in Ga
Not automatic, P must filed a motion for default judge. On the motion, liability is established automatically, damages is not. Hearing for damages = can happen if its a tort/liquidated dam case, either side presents evidence. P must est. dam. Hearing Jury? Only if D filed a pleading contesting damages.
Conferences in Ga?
No scheduling or Rule 26 conference.
BUT Has pretrial conferences : must hold one if party moves for it. Purp: to identify/narrow issues for trial and produce a pretrial order that will govern at tiral
Can an expert who is not on a pretrial order testify at trial?
Yes, An expert can testify at trial even if that expert was NOT on pretrial order. W/n ct. discretion to allow opp. party time to depose that expert
Ga Right to Jury?
Right to Jury trial: no need to demand a jury except in hearing on damages
Juries:
Superior Ct (12 or consent for less),
State Ct. (6 but claims over $25,000 parties can demand 12)
Magistrate Ct.: None
JNOV: what is it?
just like JMOL Standard = reasonable people could not disagree on the results.
JNOV timing?
no later than 30 days after entry of judgement
Directed Verdict
Comes before a JNOV. Standard= reasonable people could not disagree on the results
Made at the close of the opposing party’s case
Motion to Set Aside Judgment Basis
1) lack of SMJ, 2) fraud/accident/mistake, 3) non-amendable defect on the face of the record/pleading
Appeals Final Judgement Rule applicable?
Yes, same as Federal
Interlocutory Appeals of Right
allows it from orders of injunctions/receivers, directing an accounting, granting/refusing alimony, mandamous/extraordinary relief and order granting summary judgement as to any issue.
Res Judicata
Claim preclusion
only can sue on a cause of action once.
Requirements: 1) both cases brought by same P against same D, 2) 1st suit ended in valid final judgement on the merits, and 3) 1st and 2nd case involve same cause of action.
What cases are resolved on the merits?
Any case is resolved on the merits except for cases dismissed for: 1) lack of SMJ, 2) lack of PJ, 3) improper venue, 4) improper service, 5) failure to join R 19 party, and 6) any dismissal specified as being w/out prejudice
Res Judicata: Motor Vehicle Exception
Ga has a special statute for motor vehicles that says that personal and physical injuries arising from same accident has to be treated as two separate cases.
Hypo: P sued D for personal injuries in auto crash. Valid final judgment on the merits was entered. Now, P wants to sue D for property damages from the same crash. Dismiss for Res Judicata?
Step 1: same P & D? Yes, Step 2: valid final judgement on the merits? Yes BUT motor vehicle exception applies here. So no dismissal.
Collateral Estoppel
(Issue preclusion):
precludes re-litigation of a particular issue that was litigated and determined and embodied in a valid final judgement.
Requirements:
a) case 1 ended in valid final judgement on the merits,
b) same issue was actually litigated AND determined in case 1,
c) issue was essential too the judgement of case 1.
d) Can only be asserted against someone who was a party in the 1st case (this is a due process requirement) and
e) Who can assert it?
- Mutuality view = can only use it if you were a party in the first case.
- Modern Trend = can be used by anyone who was NOT a party in 1st case—> called non mutual collateral estoppel.
Non-mutual DEFENSIVE Collateral Estoppel
available to be used in GA. Elements a-d must be met. Element e must be met by the Modern Trend and it must asserted by a D.
Available in Federal if P had full opportunity to litigate in case 1.
Non-Mutual OFFENSIVE Collateral Estoppel
NOT available in Ga
Federal allows for this if it would be fair. Factors of fairness:
1) P had full/fair opportunity to litigate in case 1
2) P could foresee that there would be mult. suits
3) D could not have joined easily in case 1
4) no inconsistent judgements already rendered
