GA. CIVIL PROCEDURE Flashcards
Superior Court Jurisdiction
Superior courts have general jurisdiction over state court claims + exclusive jurisdiction over (1) felonies, (2) divorces, (3) equity cases, and (4) title to land cases.
Magistrate Court Jurisdiction
Civil claims up to $15,000.
The procedural rules are liberally construed in magistrate courts.
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 Over Non-GA Residents (Long Arm Statute)
Georgia construes its long arm statute to the limits of due process.
“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 has personal jurisdiction over a non-resident if they —
1. transact business in Georgia.
2. commit a non-defamatory tortious act in Georgia.
3. owns/uses property in Georgia.
4. are in a family law case for support or custody and their matrimonial domicile was in Georgia preceding the action.
5. commit an out of state tort that causes an in-state injury.
Minimum Contacts for Long Arm Statute/Due Process
Georgia construes its long arm statute to the limits of due process.
The Georgia long arm statute will afford personal jurisdiciton over a non-resident defendant if that defendant has sufficient minimum contacts with the state so as not to offend the traditional notions of fair play and substantial justice.
Venue
1 ∆ = the county of that ∆’s residence.
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.
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 ∆
- 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
- 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.
Forum Non Conveniens
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.
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 of Process
Who can serve?
- Sheriff of that county; any citizen appointed by the court; any 18+ non-party appointed as a permanent process server.
Must serve within 5 days of filing summons/complaint.
Must serve the ∆ personally, at their abode with a person of suitable age, with a registered agent, or can be waived (increasing the deadline to answer to 60 days instead of 30).
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.
Accrual of Statute of Limitations
If a plaintiff does not file their claim within the statutory time period required for that claim, the claim is barred. The statute of limitations begins when the cause of action accrues.
TORTS = Cause of action accrues when the injury is inflicted.
PERSONAL INJURY = Discovery Rule, cause of action accrues when the plaintiff has actual knowledge of the harm, or a when reasonable person would have had knowledge.
CONTRACT = Cause of action accrues when the contract becomes due or when breach occurs.
Tolling Statute of Limitations
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.
Complaint
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”.
Special Pleadings
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 and 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/Cross-Claim
Must be brought by the ∆ or it is waived.
A counterclaim/cross-claim is compulsory if it arises out of the same transaction or occurrence as the existing claim.
Amendment of the 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.
Permissive vs. Compulsory Joinder
Joinder is permissive if it arises from the same transaction or occurrence and includes a common question of law and fact.
Compulsory if ∆ is necessary; i.e. the court can’t grant full relief without them and the party can’t protect their interest without being joined.
Claim will be dismissed if the ∆ is necessary and indispensable, but joinder is not feasible.
SOL for Defamation + Med. Mal. for Foreign Objects
1 year from the injury or reasonable discovery of the injury.
SOL for Personal Injury, Breach of Restrictive Covenant, Med. Mal., Products Liability Claims
2 years, but not including any statutes of repose.
SOL for Contracts, Trespass, Injury to Property
4 years
SOL for Childhood Sexual Abuse
Within 5 years of the plaintiff turning 18.
Scope of Discovery
Parties may discover anything “reasonably calculated to lead to admissible evidence”. Must be reasonable + proportional.
No requirement of initial disclosures in Georgia.
Not required to be filed unless requested/ordered/relating to a motion.
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”.
Testifying Expert Witnesses vs. Consulting Experts
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 — 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.
Spoliation
Parties are required to take reasonable steps to preserve evidence in anticipation of litigation.
Where spoliation (destruction or loss of evidence) is proven, a rebuttable presumption is raised that the evidence lost was favorable to the other party.
There must be a meaningful link between the spoliation and the claims of the spoliators opponent.
Voluntary vs. Involuntary Dismissal
Voluntary — May be dismissed (with costs) as a matter of right at any time before the first witness is sworn in. Otherwise, must get leave of court. The first dismissal will be without prejudice, but the second dismissal will be a judgment on the merits.
Involuntary — For lack of venue, jurisdiction, parties will be without prejudice. An involuntary dismissal for failure to prosecute or comply with a court order may be an adjudication on the merits (up to the discretion of the court).
Summary Judgment
May be brought at least 30 days before the hearing.
Where no genuine issue of material fact exists, the moving party is entitled to judgment as a matter of law.
“No genuine issue of material fact for which a reasonable jury could find for the nonmoving party, supported by sworn affidavits (not mere pleadings), and viewed in the light most favorable to the non-moving party.”
Impleader
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.
Directed Verdict + Judgment Notwithstanding the Verdict
(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)
Must be raised/preserved in court to be eligible to raise a motion for a Judgment Notwithstanding the Verdict after court (within 30 days of judgment).
Default/Opening a Default
A ∆ is automatically in default if they do not answer within 30 days.
If the ∆ answers within 15 days after the 30 day deadline, they may “open a default” by filing an answer and paying costs.
If the ∆ 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 ∆is entitled to liquidated damages up to the amount demanded, but not more.
Motion for a 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.
Ante Litem Notice
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.
