GA Civil Procedure Flashcards
Subject Matter of State Courts
Rule: The state courts which are in the 62 most populous counties, are courts of original and general jurisdiction and therefore, as a rule, they have SMJ over all types of actions
Exception: If there is exclusive SMJ elsewhere
Jurisdiction of GA Superior Courts
Have jurisdiction over all civil cases and exclusive jurisdiction over cases involving land title, and divorce
What are the special courts of GA? And, what do they do?
GA private and juvenile courts have exclusive jurisdiction over their matters.
Statewide business courts have concurrent jurisdiction with the superior court over material issues implication GA’s business code and matters seeking equitable relief
The GA magistrate courts have ___ over small claims in which the amount does not exceed ___
concurrent jurisdiction; $15K
What is personal jurisdiction?
The power of the Georgia court over the defendant’s person or property
When do GA courts have PJ?
1) Georgia law must grant PJ; and
2) Georgia law must be constitutional
What are the three bases for PJ in Georgia?
1) Consent
2) Presence
3) Long-arm
What are the two types of consent for PJ?
Express and implied
What is express consent for the purposes of PJ?
Express contract term agreeing to litigate in Georgia or defendant otherwise expressly consents; personal jurisdiction can be consented to, unlike SMJ
What is implied consent for purposes of PJ?
D fails to object in the 1st response to the complain (can be combined with other defenses) within 30 days of service of process
What are the three types of presence for the purposes of PJ?
1) Actual, voluntary physical presence while served
2) Domicile - true home and intent to return to Georgia
3) Doing business - regular, systematic and continuous business. Not mere solicitation of business “at home”
Under the GA long-arm statute, there is PJ over a non-resident D who performs one of the following acts, so long as there is a specific connection between the act and the lawsuit filed:
L - Land-defendant owns/uses/possess land in GA related to the lawsuit
I - Injury - from defendant’s tort committed in GA or injury in Georgia from defendant’s tort committed outside GA if D also does regular business in GA
M - Matrimony - act against D who is domiciled in GA before action is filed, for child support, alimony, or divorce
I - Insurance Contract - D enters contract for risk located in GA from which lawsuit derives
T - Transaction - a contract negotiated, made, or to be performed in GA from which the lawsuit derves
L-I-M-I-T (for GA long-arm statute)
Land
Injury
Matrimony
Insurance Contract
Transaction of business in Georgia
Non-Resident Motorists Act
Non-resident motorists who are sued for accidents in Georgia, if they were non-residents when the accident occurred.
Even if GA law grants PJ the GA law must also be
constitutional
When is PJ constitutional?
If D engages in such minimum contacts that it would not offend traditional notions of fair play and substantial justice
Who is authorized to serve process in GA?
Sheriff, deputy, certified process server, or 18-year old American citizen specially appointed by the court
What is the time frame for effective service?
A summons expires 5 days after its issuance, but the server may reassure the summons and continue to try to serve so long as “reasonable diligence” is used
How is process properly served? Process is proper if two things are true:
1) The method must be proper; and
2) The method must be constitutional
What are the basic methods of proper service in GA?
1) Abode service - authorized process server leaves the process at the D’s last and usual abode with a person residing therein of suitable age (13 years old) and discretion
2) Waiver - plaintiff mails complain with a request that D waive formal service. D has a duty to avoid cost of service and receives 60 days from date request sent to respond.
3) Agent service - personal service or waiver on registered agent, managing agent, or any responsible agent including president, officer, secretary or cashier, or any partner
4) Secretary of state - if no agent can be found, service of two copies to secretary of state, one to be mailed to corporation’s last known address
5) Personal service - in hand deliver
A WASP
1) Abode service - authorized process server leaves the process at the D’s last and usual abode with a person residing therein of suitable age (13 years old) and discretion
2) Waiver - plaintiff mails complain with a request that D waive formal service. D has a duty to avoid cost of service and receives 60 days from date request sent to respond.
3) Agent service - personal service or waiver on registered agent, managing agent, or any responsible agent including president, officer, secretary or cashier, or any partner
4) Secretary of state - if no agent can be found, service of two copies to secretary of state, one to be mailed to corporation’s last known address
5) Personal service - in hand deliver
When is publication (for SOP)
Only if:
1) Action involves D’s real property in GA and the defendant is outside GA or cannot be found; or
2) Affidavit is filed swearing the D really cannot with due diligence be found in GA to be otherwise served
The Georgia Tort Claims Act:
An ante litem notice (notice of a claim against a government entity) of a tort claim against the state must be made in writing within one year of the date the loss was or should have been discovered.
Notice of a claim under the Georgia Tort Claims Act is made by:
Certified mail or delivered personally to the risk management division of the department of administrative services. A copy must also be delivered personally to or mailed to the state government entity.
Service of process is constitutional if:
reasonably calculated to apprise interested parties of litigation
Venue is proper where:
Generally: any defendants reside when the case is filed (see exceptions flashcard)
What are the venue exceptions?
Motorists who are non-residents - venue proper where any GA defendant resides, but if none reside in GA, then where plaintiff resides
Alimony or divorce - venue proper where plaintiff resides if defendant does not reside in Georgia
Specific jurisdiction under long-arm - venue proper where any defendant resides or claim arose if no defendants reside in GA
Tortfeasors - venue proper where any defendant resides or where a substantial part of the injury occurred if the defendant is a Georgia corporation. But if the claim is against the state under the Tort Claims Act, venue is proper only where the loss occurred
Entities and estate - entities reside where registered office is located and where claims against them arose; estates - venue is proper where the executor resides if defendant is dead
Real property - Venue proper only where the land is located
MASTER
Motorists who are non-residents - venue proper where any GA defendant resides, but if none reside in GA, then where plaintiff resides
Alimony or divorce - venue proper where plaintiff resides if defendant does not reside in Georgia
Specific jurisdiction under long-arm - venue proper where any defendant resides or claim arose if no defendants reside in GA
Tortfeasors - venue proper where any defendant resides or where a substantial part of the injury occurred if the defendant is a Georgia corporation. But if the claim is against the state under the Tort Claims Act, venue is proper only where the loss occurred
Entities and estate - entities reside where registered office is located and where claims against them arose; estates - venue is proper where the executor resides if defendant is dead
Real property - Venue proper only where the land is located
What is the remedy for improper venue?
Actions filed in improper venue must be transferred to proper venue, actions filed in proper venue may be transferred in court’s discretion for convenience of parties/witnesses
What is vanishing venue?
If a defendant upon whom venue is based is dismissed from the case, venue vanishes. the case must be transferred to a jurisdiction in which venue is proper as to the remaining defendants.
What happens when despite proper matter jurisdiction, personal jurisdiction and venue, the forum is still grossly inconvenient to parties and witness that the action must be either:
1) Transferred within Georgia; or
2) Dismissed to court outside of Georgia, if defendant waives statute of limitations defense
What must complaints in Georgia generally complain?
A short and plain statement of jurisdiction, claims, and relief-sufficient information to place adversary on notice of claims and defenses,
but the complaint must also contain:
Factual allegations of venue
An amendment to a pleading adding new claims relates back to the date of a timely filed complaint if:
The new claims derive from the same transaction or occurrence as the original ones
An amendment to a pleading adding new parties relates back to the date of a timely filed complaint if two things are true:
1) There is sameness; and
2) The new defendant had acquired knowledge that, but for a mistake, it would have been named, and acquired that knowledge before the statute of limitations had run
How long do you have to file a personal injury tort claim?
2 years from discovery of the injury to file. Can serve later with reasonable diligence
What is the statute of repose?
An absolute time limit on filing claims that runs from occurrence, not discovery
When must medical malpractice claims be filed?
Medical malpractice actions must be filed within 5 years of the occurrence, regardless of discovery, but the five-year period of repose starts at age 5 for occurrences before then (so, 4-year olds hurt by negligence must sue by age 10 regardless of when they discovered their claims)
Joinder. How many claims can be joined?
As many claims as you have; no connections required
When can parties be joined?
A litigant or the court may join parties that derive form the same transaction or occurrence at least the same series of transactions or occurrences. The court may compel the joinder of any party necessary for full and fair adjudication
When is a counterclaim permissive?
Counterclaims that not derive from the same transaction or occurrence as plaintiff’s claims may be filed
When is a claim compulsory?
Counterclaims that do derive from same transaction or occurrence as plaintiff’s claim must be filed, or waived. Like federal rule.
What are cross-claims?
Claims brought by one party against a co-party that derive from the same transaction or occurrence are compulsory in Georgia
What is impleader?
Third party claims. A defendant may implied new third party, if the new party may be liable to the defendant for all or part of the defendant’s same liability to plaintiff
What is interpleader?
The holder of a common fund may file as a plaintiff and interplay as defendants all rival claimants to its common fund
What is intervention?
Act of a non-party in moving to intervene in an ongoing lawsuit
When can you do intervention as a matter of right?
Interest as a practical matter is adversely affected and not protected by the aprties
When is intervention permissive?
Discretion and a commonality of issues between those in the suit and those affecting the intervenor
What is a class action?
Action by named plaintiff who represents a class of commonly situated absent plaintiffs
What are the certifications for all class actions?
Commonality - common issues of fact or law
Adequacy - named plaintiff (and counsel) will fairly and adequately protect the class
Numerosity - the class is so numerous that joinder is impracticable - more than 40 class members
Typicality - claims of named plaintiffs are typical
Additional certification requirements for class actions seeking money:
Predominance - common issues predominate
superiority - class action device is superior
Material is discoverable if two things are true:
1) Method of discovery must be proper; and
2) The material must be within the scope of discovery
Is there an automatic prompt disclosure in GA?
No
Interrogatories
Only 50 to a party (as opposed to 25 in federal court)
When are discovery responses due?
Responses due in 30 days and within 20 days for medical records
What is the limit on number of depositions in Georgia?
No limit on number, but cannot be used on non-party without a subpoena
Who can perform physical and mental examinations in the discovery process?
Can be performed only by licensed physicians or licenses psychologists
Pre-trial disclosure of expert witnesses
Party may serve interrogatory on other party requesting disclosure of testifying experts and grounds for their opinions. Expert can then be deposed, but the examiner must pay the expert’s fees. Consultants discovered only in exceptional circumstances
Material is within the scope of discovery if it is?
relevant and not privileged
Is work product discoverable?
1) The mental impressions of an attorney are never discoverable
2) All other types are discoverable upon a showing of substantial need/ undue hardship
Are communications involving healthcare providers discoverable?
Georgia has a virtually absolute privilege governing psychiatrist-patient communications and AIDS-related communications
How many times can plaintiff voluntary dismiss without prejudice?
Once before the first witness is sworn at trial (unless defendant files a counterclaim)
When can a plaintiff who voluntarily dismissed without prejudice refile?
P may refile up to statute of limitations or 6 months from dismissal, whichever is longer
When is a motion for summary judgment granted?
When there is no genuine issue of material fact, such that judgment is proper as a matter of law
How long must you wait to file a motion for summary judgment?
30 days after filing a complaint and provide other side 30 days notice before the SMJ hearing
When is a motion for directed verdict granted?
When there is a legally insufficient evidentiary basis from which any reasonable jury could find for the nonmoving party
When can you make a motion for directed verdict?
After the adversary rests
When can a motion for JNOV be made?
Within 30 days after the judgment (have to have had made a prior motion for directed verdict)
What is the standard for a JNOV?
A legally insufficient evidentiary basis from which any reasonable jury could have found for the nonmoving party exists
When can a motion for a new trial be made?
30 days after judgment
What is the standard for a motion for a new trial?
Note this is a discretionary decision:
1) errors affecting parties substantial rights
2) verdict was against the manifest weight of the evidence
When does a default judgment occur?
When D fails to respond in a timely manner i.e. within 30 days of service of process or 60 if they waived service of process
When can a D re-open a case after a default judgment as a matter of right?
Within 15 days of entry (has to pay costs)
When can a default judgment be re-opened after 15 days has accrued?
D makes motion under oath and shows “providential clause” or excusable neglect, and meritorious defense
