Georgia Civil Procedure

Question 1

Personal Jurisdiction

Answer 1

Georgia courts will have personal jurisdiction over a defendant if two things are true:

• A Georgia law must grant personal jurisdiction
• The Georgia law must be constitutional - meaning it complies with federal, constitutional due process limits

Georgia is more stingy with PJ than the Constitution

Question 2

Basis for Personal Jurisdiction under Georgia Law

Answer 2

Presence, waiver, a business entity organized in Georgia, and long arm jurisdiction

Question 3

Personal Jurisdiction by Physical Presence

General personal jurisdiction.

Answer 3

For an individual, physical presence in Georgia either by domicile or by being served with process while in Georgia gives rise to personal jurisdiction in Georgia.

For service, the presence in Georgia must be knowing and voluntary and not for the purpose of attending some other court proceeding.

Question 4

Personal Jurisdiction by Consent by Waiver

Answer 4

• Failure to timely object or objection too late
• Limited to that particular case
• No consent by contract in Georgia (like in advance of a legal dispute), but Georgia will enforce a forum selection clause that names a state other than Georgia as the forum.

Question 5

Personal Jurisdiction Over Businesses

Answer 5

A business is subject to general PJ in Georgia if it is organized under the laws of Georgia or if it has registered to do business in Georgia.

Question 6

Fiduciary Shield Doctrine

Answer 6

The fiduciary shield doctrine holds that a nonresident individual cannot be subject to PJ in a state based solely on acts taken in corporate capacity

Rejected in Georgia

• In Georgia, an employee of a corporation that is subject to PJ in the state’s courts may be subject to PJ if he was the primary participant in the activities that form the basis of PJ over the corporation.

Question 7

Effect of Judgement Against Business

Answer 7

A judgment over a corporation or other business with valid PJ will be satisfied from the business’s assets, but not the individual members (for example, shareholders, partners) unless they are named as defendants and helped perpetrate the wrong.

Question 8

Long Arm Statute

Answer 8

Specific PJ Thing

Applies to nonresidents (person not domiciled/served in GA, or business not incorporated/registered in GA)

The defendant is deemed a nonresident if she did not reside in Georgia either when (1) the act or omission occurred or (2) she was served with process. The specific acts are listed in the chart below, but here’s another way to remember the bases:

LIMIT

Question 9

Test for Sustained Ga. Activity

Answer 9

Regularly Conducts Business

Engages in other persistent course of conduct

Derives substantial revenue providing goods or services

Question 10

Non-Resident Motorist Act

Answer 10

The Nonresident Motorist Act provides for jurisdiction over nonresidents who operate a motor vehicle in Georgia, but only for claims

arising from their ownership or operation of the vehicle.

For purposes of the Nonresident Motorist Act, the defendant must have been a nonresident at the time of the accident.

Question 11

In Rem Jurisdiction

Answer 11

True in rem proceedings concern property located in Georgia, and only the interests in that property may be adjudicated. Attaching a potential defendant’s property in Georgia, by itself, is not a basis for PJ over the defendant.

Question 12

Status Suits (In Rem)

Answer 12

Suits regarding civil status, such as divorce and adoption, are often spoken of as “in rem” because it is the interest of persons in the “thing” of the marriage or family relationship that is being adjudicated. Thus, a court may adjudicate the status of a citizen even though it does not have PJ over other interested persons.

Question 13

Who is Authorized to Serve Process?

Answer 13

Process may be served by
1. the sheriff or deputy for the county where the action is brought or where the defendant is found,
2. by an adult citizen who is specially appointed by the court; or
3. by a certified process server.

In federal practice - it can be any non-party who is at least 18

Question 14

Time Frames for Effective Service

Answer 14

Service must be made within a reasonable time after filing the complaint or the action will be dismissed without prejudice unless plaintiff can show good cause not to dismiss.

An in-state process server must serve the summons and complaint within 5 days of receipt or else process must be reissued.

The plaintiff must exercise “due diligence” in having the summons reissued.

Question 15

Timing of “Due Diligence”

Answer 15

Due diligence is determined from the date when the plaintiff became aware that the process server failed to perfect service, not the date when the complaint was filed.

The trial court has great discretion in determining whether the plaintiff was diligent, and its judgment will rarely be overturned on appeal.

Question 16

Basic Methods of Proper Service in Georgia (4 Methods)

Answer 16

1. Personal Service
2. Abode Service
3. Service on An Agent
4. Mailing the Complaint as Part of a Request for Waiver

Question 17

Abode Service

Question 18

Personal Service

Answer 18

Directly Serving the defendant.

If the Defendant is a minor/incomptent - serving the Defendant and the guardiant

A defendant who is in Georgia to appear as a witness in another case is immune from service.

Service Outside of Georgia: Personal service outside Georgia is permitted (1) on defendants who are residents of Georgia, and (2) in any action affecting specific realty or status, or other in rem or quasi in rem proceeding. Under the long arm statute, service can be made out of state in any manner allowed by Georgia law, as long as it is effected by someone who is qualified to serve process in the state in which the defendant is found.

Service Under the Non-Resident Motorist Act: Under the Nonresident Motorist Act, the plaintiff serves 2 copies of process on the secretary of state. Notice of the service on the secretary of state is then given to the defendant by registered or certified mail. The theory of the Nonresident Motorist Act is that one using Georgia’s roads impliedly consents to the appointment of the secretary of state as her agent for service of process for cases arising from the operation of the motor vehicle.

Question 19

Abode Service / Substituted Service

Answer 19

A person who resides at the abode of the defendant and who is of “suitable age and discretion” is served under the assumption that the person will give the process to the defendant.

Make sure you consider both components of this method; the person must (1) be of suitable age and discretion; (2) reside at the defendant’s abode.

Question 20

Service on an Agent

Answer 20

Service also be made on a high level officer of the business or an agent appointed to accept service, as when an agent is appointed as a part of registering to do business in Georgia.

Question 21

Mailing the Complaint as Part of Request for Waiver

Answer 21

Like in federal court, the plaintiff may mail the complaint with a request that defendant waive formal service. The defendant has a duty to avoid cost of service and receives 60 days from date request sent to respond.

Question 22

Backup Service Methods

Answer 22

Mail on Business:

In the unlikely event the authorized or registered agent cannot be served, the business may be served either by a mailing to the company’s principal office using a service that requires proof of delivery or by service on Georgia’s secretary of state, with the plaintiff mailing a copy (with proof of delivery) to the party’s last know address of a corporate official. The plaintiff must submit an affidavit swearing that they could not make service by personally serving an officer in Georgia.

Publication

Publication is available by court order and plaintiff’s affidavit on the plaintiff’s diligent efforts to serve the defendant if: (1) the resident party is actively concealing themselves to avoid service; (2) the nonresident party cannot be found; or (3) the case is an in rem or quasi in rem proceeding.

Question 23

Serving the County, Municipality, City or Town

Answer 23

the mayor, or their appointee, the chairman of the board of commissioners, or their appointee, or the CEO or clerk of the public body, etc.

Question 24

The Georgia Tort Claims Act

Answer 24

Contents: (1) the name of the state agency that caused the loss; (2) the time and place of the transaction or occurrence giving rise to the loss; (3) the nature and amount of the loss; and (4) the alleged acts or omissions that caused the loss.

Jurisdictional: This notice is jurisdictional, meaning that the court must dismiss this action if notice was not provided.

Delay in Commencing Action: A claimant must wait until the Department of Administrative Services denies the claim or 90 days have passed after the notice of claim was presented (whichever occurs first) before commencing the action

Pleading: A copy of the notice, along with a copy of the receipt of delivery, must be attached to the pleadings. To avoid dismissal (without prejudice) for failure to attach the copies, the plaintiff must cure the defect within 30 days after the state raises the issue by motion.

Mailing to Attorney General: A copy of the complaint, showing the date of filing, must be mailed to the attorney general at his office, by certified mail or statutory overnight mail, return receipt requested. A certificate stating that this requirement has been satisfied must be attached to the complaint. However, this requirement is not jurisdictional and may be corrected by amendment if no prejudice to the state is shown.

Subsequent Service: Once the complaint is filed, the plaintiff has to serve process on the CEO of the state agency and on the director of the Risk Management Division.

Question 25

Georgia Subject Matter Jurisdiction

Answer 25

CAN NEVER BE WAIVED

Question 26

Superior Court

Subject Matter Jurisdiction

Answer 26

The court of General Jurisdiction

a. Exclusive Jurisdiction

The superior court has exclusive jurisdiction over land title and divorce actions.

b. Cases that Cannot Be Heard

Most probate and all juvenile delinquency cases cannot be heard by the superior court.

c. Concurrent Jurisdiction

The superior court has concurrent jurisdiction with the state court, magistrate court, juvenile court, the business court, and an Article 6 probate court, as explained below.

Question 27

State Court

Subject Matter Jurisdiction

Answer 27

Co-equal in authority with the superior court, neither oversees the other

Must of its SMJ is concurrent with the superior court

• State Courts have no exclusive jurisdiction of their own
• State courts cannot hear land title or divorce cases, large dollar commercial cases, seeking business related equitable relief, juvenile, family, probate
• Most civil matters

Question 28

Magistrate Court

Subject Matter Jurisdiction

Answer 28

Ga. Small Claims

No exclusive jurisdiction.

The magistrate court can hear any civil case not vested in the exclusive jurisdiction of the superior court and in which the amount in controversy does not exceed $15,000.

No jury trials in magistrate court.

Concurrent with State and Superior Court

Question 29

Probate Court

Subject Matter Jurisdiction

Answer 29

The regular probate court has exclusive jurisdiction over the probate of wills and administration of estates.

It’s SMJ is exclusive and limited to these matters.

Question 30

Article 6 Probate Court

Subject Matter Jurisdiction

Answer 30

The Article 6 probate courts share concurrent jurisdiction with the superior court over some discrete matters.

Article 6 probate courts sit in larger Georgia counties.

Question 31

Juvenile Court

Subject Matter Jurisdiction

Answer 31

The juvenile court has exclusive jurisdiction over delinquency actions.

It has concurrent jurisdiction with the superior court over child custody and support cases.

Question 32

Business Court

Subject Matter Jurisdiction

Answer 32

Georgia’s business court has no exclusive jurisdiction.

It has concurrent jurisdiction with the superior court over large-dollar commercial cases and business-related cases seeking equitable relief (for example, an action seeking an injunction in a trade secrets cases).

Question 33

Appellate Jurisdiction in Georgia (Chart)

Answer 33

Question 34

Court of Appeals

Subject Matter Jurisdiction

Answer 34

The court of appeals is an intermediate appellate court hearing appeals from the superior court, the state court, the juvenile court, the business court, and Article 6 probate courts.

Question 35

Supreme Court

Subject Matter Jurisdiction

Answer 35

The supreme court exercises only appellate jurisdiction, except in the rare instance in which it issues an extraordinary writ. The supreme court has exclusive appellate jurisdiction over: (1) cases involving the construction of a treaty; (2) questions concerning the constitutionality of a state or federal statute; and (3) cases of election contest.

The supreme court also has jurisdiction to answer any question of law from any state appellate or federal district or appellate court. The supreme court has discretion to review decisions of the court of appeals by certiorari.

Question 36

General Default Rule for Venue

Answer 36

The general venue rule is venue is proper in a county where the defendant resides when the case was filed. That is true regardless of the number of defendants.

Exceptions: An impleaded defendant has no right to be impleaded in their county of residence.

Effect on Multiple Defendants: Venue is proper in any county where any defendant resides when they are jointly liable for the plaintiff’s injuries. If the defendants are not jointly liable, they must be sued separately in their respective county of residence.

Question 37

Nonresident Defendants (Venue)

Answer 37

Venue for a nonresident is proper in the county in which:

*The defendant was served;

*A substantial part of the harm took place; or

*For an action under Georgia’s Nonresident Motorist Act against nonresidents only:

(1) in the county where the accident took place; or

(2) the plaintiff’s residence at the time of the action.

Note that if there are Georgia residents joined with nonresidents in the action, venue must be proper as to the residents; that is, you use their county of residence.

Question 38

Real Estate (Special Venue Rule)

Answer 38

Cases involving real estate must be laid in the county where the land lies.

Question 39

Estates (Special Venue Rule)

Answer 39

For cases involving estates, venue is proper in the county where the estate’s executor lives. Not where the decent lived or died.

Question 40

Divorce or Alimony (Special Venue Rule)

Answer 40

In divorce or alimony cases, if the defendant is a nonresident, venue is proper in the county of the plaintiff’s residence. If the defendant is a resident of Georgia, the default venue rule applies (county of the defendant’s residence).

Question 41

Georgia Tort Claims Act (Special Venue Rule)

Answer 41

In tort claims against Georgia, venue normally lies in the county where the loss occurred.

Question 42

Residence of Business Entities (Venue)

Answer 42

A business entity resides in the county where its registered office is located. The location of its registered office is not necessarily the business’s principal place of business in Georgia or its headquarters. Rather, the registered office is provided when the business organizes or registers under Georgia law.

For contract cases, venue also lies where the claim arose, but only if the business either has an office or transacts business in that county.

For tort cases, the business can remove the case to the business’s principal place of business within 45 days of being served with process.

Question 43

Remedy for Improper Venue

Answer 43

An action filed in an improper venue must be transferred to a proper venue. An action filed in a proper venue may be transferred in the court’s discretion for the convenience of parties or witnesses.

Question 44

Forum Non Conveniens

Answer 44

Despite proper subject matter jurisdiction, personal jurisdiction, and venue, if the forum is still so grossly inconvenient to parties and witnesses, the action must be either: (1) transferred within Georgia or (2) dismissed to a court outside of Georgia, but the court can require that the defendant waive any statute of limitations defense.

Question 45

Conflict of Laws Framework

Answer 45

Georgia Law almost always applies but:

1. Substantive or procedural? Assuming the states’ laws differ, you determine if the state considers the issue substantive or procedural. (Again, this is a separate question from Erie.) If the issue is procedural, Georgia’s laws apply.
2. Identify the area of law. Is the claim based on a tort or contract, etc.?
3. Match the area of law with the rule. (See below.)
4. If the outcome points to using another state’s law, would a fundamental Georgia policy be offended? If so, apply Georgia law.

Question 46

Torts (Conflict of Laws)

Answer 46

Georgia follows the “last act” rule whereby the law of the state where the last event necessary to make the defendant liable occurred.

Question 47

Contracts (Conflict of Laws)

Answer 47

In Georgia, in contract cases, apply the law where the contract was made (when formation is the issue) or where the contract was to be performed (where performance is the issue). Georgia courts generally respect the parties’ choice of law.

Question 48

Statute of Limitations (Conflict of Laws)

Answer 48

Georgia considers statutes of limitations to be procedural. So you apply Georgia’s statute.

(As noted in the federal civil procedure material, statutes of limitations are “substantive” for Erie purposes, so you apply forum state law rather than federal law. But to determine which state’s statute to apply, you have to apply Georgia’s rule expressed above.)

Question 49

Exception (Conflict of Laws)

Answer 49

Georgia considers statutes of limitations to be procedural. So you apply Georgia’s statute.

(As noted in the federal civil procedure material, statutes of limitations are “substantive” for Erie purposes, so you apply forum state law rather than federal law. But to determine which state’s statute to apply, you have to apply Georgia’s rule expressed above.)

Question 50

Contents of Pleadings

Answer 50

Contents of Pleadings

1. Subject matter jurisdiction
2. Claims asserted
3. Demand for judgment

Question 51

Pleadings - Differences from Federal Procedure

Answer 51

a. Notice Pleading

Georgia is a notice pleading state; all that is required is a fair notice of the general type of litigation involved in the case and the basics of what the defendant did wrong.

b. Pleading Venue Required

In Georgia state courts, venue must be pleaded with specific facts that show that venue is proper in the county where suit was filed.
**
c. Sworn Affidavits**

Sworn affidavits by the plaintiff are required in actions for extraordinary relief and actions for divorce. Less likely to be tested but nonetheless required affidavits are actions for habeas corpus, garnishment, and attachment.

Question 52

Professional Malpractice Cases (Pleadings)

Answer 52

In malpractice cases, the plaintiff must include an affidavit of an expert, setting forth specifically at least one negligent act or omission claimed to exist and the factual basis for it.

If plaintiff fails to include expert affidavit, the plaintiff must state that affidavit was prepared but inadvertently omitted

If the plaintiff’s lawyer is retained just before the statute of limitation is set to expire, the affidavit may be filed shortly after the complaint rather than with it.

Question 53

Sanctions

Answer 53

There are two sources to potential pleading sanctions.

The first is derived from the Civil Practice Act. Under the Act, by signing a pleading, the signor certifies that they have read the complaint and that it was not filed to interpose delay.

The second is a statute that permits sanctions for vexatious litigation. The statute allows for sanctions for acts that are frivolous, unsupported by the acts, or in bad faith.

Sanctions are discretionary with the court.

Attorney’s fees are the preferred sanction.

Question 54

Time to Respond

Answer 54

A defendant has 30 days after being served with process to file an answer.

If the defendant waived service, they have 60 days.

The 30 days is not stayed by filing a pretrial motion; an answer still must be filed.

Waiver of certain defenses (for example, the lack of personal jurisdiction) works as in federal court.

Question 55

Amendments - General Rule

Answer 55

The pleader may amend once as of right up to the pretrial order or up to the start of trial if no pretrial order is entered. After these periods, the process reverts back to being similar to federal practice.

More generous than federal practice

Question 56

Amendments - New Claims

Answer 56

An amended pleading adding new claims related back to the date of a timely filed complaint if the new claims derive from the same transaction or occurrence as the original claims.

Question 57

Amendments - New Parties

Answer 57

An amendment adding new parties relates back to the date of a timely filed complaint if:

(1) the claim against the defendant arises from the same conduct, transaction, or occurrence as the original complaint;

(2) the defendant had notice of the suit such that they will not be prejudiced in maintaining their defense; and

(3) they knew or should have known that, but for a mistake, they would have been named as a defendant.

One key difference with federal practice is that the period for acquiring the knowledge has not been extended to allow for service of process after the statute of limitation.

Question 58

Statute of Limitations

Answer 58

The statute of limitation may run from accrual or from the date that the plaintiff discovers the claim.

Question 59

Statute of Repose

Answer 59

A statute of repose is an absolute time limit on filing claims that runs from the occurrence, not discovery.

Question 60

Medical Malpractice Statute of Repose

Answer 60

A statute of repose is an absolute time limit on filing claims that runs from the occurrence, not discovery.

Question 61

Specific Time Limitations

Answer 61

*1 Year: Defamation claims and “foreign object” medical malpractice claims starting at discovery (for example, a sponge is not removed after surgery).

*2 Years: Personal injury and all other medical malpractice claims.

*4 Years: Property damage, trespass to title, oral or implied contracts, contracts for the sale of goods.

*6 Years: Written contracts (runs from the date of breach)

*8 Years: A claim based on a deficient survey, plat, plan, design specification, supervision, or observation of construction, but the claim also is subject to a 10-year statute of repose.

*10 Years: A products liability action, which runs from the date that the plaintiff first used or consumed the product.

*20 Years: Action on a contract under seal.

Question 62

Joinder of Claims

Answer 62

A single plaintiff can join as many claims against a single defendant as they have, no connection is required.

Question 63

Joinder of Parties

Answer 63

A litigant or the court may join parties if the claims involving that party derive from the same transaction or occurrence and raise a common legal or factual connection.

The court also may compel the joinder of any party necessary for full and fair adjudication.

Question 64

Permissive Counterclaims

Answer 64

Counterclaims that do not derive from the same transaction or occurrence as plaintiff’s claims may be filed. (This is like the federal rule.)

A permissive counterclaim must be severed for trial unless the parties agree otherwise.

Question 65

Compulsory Counterclaims

Answer 65

Counterclaims that do derive from the same transaction or occurrence as the plaintiff’s claim must be filed, or the claim is waived.

(This too is like the federal rule.)

Question 66

Cross-Claims

Answer 66

Cross-claims are claims brought by one party against a co-party that derive from the same transaction or occurrence.

The Georgia rule states that cross-claims are permissive. However, once a cross-claim is asserted, the party must join all related claims (including indemnity or contribution claims) or else they are lost due to claim preclusion.

Note too that due to the elimination of joint and several liability, cross-claims in Georgia must be for the cross-claimant’s injuries only.

Question 67

Impleader

Answer 67

A defendant may implead a new third party if the new party may be liable to them for all or part of the same liability to the plaintiff.

As in federal court, derivative liability is required; it cannot be used to apportion fault.

(Note: Georgia tort law eliminates contribution among joint tortfeasors, which restricts impleader actions.)

The defendant has 10 days to implead a third party without notice or leave; after this period, notice to all parties and leave of court are required.

As in all cases everywhere, once a party is impleaded, they may assert their own cross-claims and defenses.

Question 68

Interpleader

Answer 68

The holder of a common fund may file as a plaintiff and interplead as defendants all rival claimants to its common fund.

Question 69

Equitable Interpleader

Answer 69

In addition, the Georgia Code allows the ancient form of equitable interpleader, which has two substantial restrictions that Rule 22 does not have.

First, the claimants’ claims must share a common origin.

Second, the stakeholder must be disinterested; i.e., she cannot claim the res.

Also, because it is equitable, it is only available in superior court.

Question 70

Intervention As of Right

Answer 70

Intervention as of right is available when the intervening party’s interest, as a practical matter, is adversely affected and not protected by the parties.

Question 71

Permissive Intervention

Answer 71

Permissive intervention is discretionary with the court and requires a commonality of issues between those in the suit and those affecting the intervenor.

Question 72

Class Actions

Answer 72

Georgia does not require class action settlements to have opt-out provisions

Question 73

Discovery - General Requirements (2 Things)

Answer 73

Material is discoverable if 2 things are true:

(1) the method of discovery must be proper; and

(2) the material must be within the scope of discovery.

Question 74

Methods of Discovery

Answer 74

The proper methods of discovery in Georgia are the same as those under the federal rules, with the following exceptions:

*There are no automatic prompt disclosures in Georgia state court (no initial disclosures)

*Requests for production can be served on a nonparty without a subpoena

*Responses are due in 30 days and within 20 days for medical records

*There are 50 interrogatories to a party as opposed to 25 in federal court

*There is no limit on the number of depositions, but cannot be used on a nonparty without a subpoena (federal limit is 10 depositions) (non-party has to be in Georgia)

*Physical and mental examinations can be performed only by licensed physicians or licensed psychologists

*For pretrial disclosure of expert witnesses, a party may serve an interrogatory on the other party requesting disclosure of testifying experts, the subject matter of their testimony, and grounds for their opinions. The expert can then be deposed, and the examiner must pay the expert’s fees.

Consultants are discovered only in exceptional circumstances as in Federal.

Question 75

Time Limits for Discovery

Answer 75

*A defendant has 45 days after service of process to respond

*A plaintiff must wait 30 days after service to depose the defendant unless the court orders otherwise

*Discovery is stayed for 90 days if the defendant files a pre-answer motion

Question 76

The Scope of Discovery

Answer 76

Material is within the scope of discovery if it is relevant and not privileged.

No proportionality benefit-burden balancing test in Georgia.

Although “proportionality” is not specifically mentioned in the Georgia rule, it is of course a part of discovery, as a party may request a protective order for excessive discovery.

Question 77

Work Product

Answer 77

Work product is material prepared in anticipation of litigation and protects the mental impressions of the attorney.

The mental impressions of the attorney are never discoverable.

Other types of work product require a showing of substantial need and undue hardship

before it can be discovered.

Question 78

Communication Involving Healthcare Providers

Answer 78

Georgia has a virtually absolute privilege governing psychiatrist-patient communications and AIDS-related communications.

Question 79

Physician Shield Statute

Answer 79

Georgia has a physician “shield” statute that shields physicians from liability for releasing information.

Under the statute, no physician, hospital, or health care facility is required to release any medical information concerning a patient except:

(1) to the Department of Community Health when required in the administration of public health programs and where authorized or required by law;

(2) on written authorization or other waiver by the patient or his guardian; or

(3) on appropriate court order or subpoena.

HIPAA Preemption:

The statute also provides that a patient who places their care and treatment or the nature and extent of his injuries at issue in any civil or criminal proceeding waives his right to privacy with regard to the related medical information, but this provision has been preempted by federal law (HIPAA) that requires patient consent or a court order before release.

Question 80

Pre-Trial Conferences

Answer 80

Unlike in federal court, there is no requirement for the parties to meet to plan for discovery. Additionally, the judge is not required to hold a pretrial conference, but must do so if the parties request. Of course, conferences can still be held at the judge’s discretion, for example, to simplify the issues, etc.

Question 81

Pre-Trial Order

Answer 81

If the judge holds a pretrial conference, they will enter an order that controls the remainder of the case.

Question 82

Consolidation

Answer 82

A judge may order that multiple cases be consolidated for efficiency (that is, the cases present common questions of law or fact), but the parties must agree to consolidation as well

Question 83

Involuntary Dismissals

Answer 83

Involuntary dismissals can be for failure to diligently prosecute the case or as a sanction.

Question 84

Voluntary Dismissals

Answer 84

Voluntary dismissals operate the essentially the same way as in federal court with a timing difference.

Question 85

Timing of Dismissals as a Matter of Right

Answer 85

In Georgia state court, a voluntary dismissal as a matter of right may be had by filing a notice of dismissal with the court up until the first witness is sworn.

Question 86

Effect of Counterclaim on Voluntary Dismissal

Answer 86

When the defendant has filed a counterclaim, the defendant may object and may have their counterclaim remain pending.

Question 87

Savings Statute

Answer 87

The plaintiff may refile their case within the remaining statute of limitation period or six months, whichever is longer.

First dismissal is without prejudice.

Question 88

Second Dismissal

Answer 88

A second dismissal operates as an adjudication on the merits with prejudice, as in federal court.

Question 89

Stipulated Dismissals

Answer 89

The parties can also agree (stipulate) to dismiss the case without court permission. This is common when the parties settle the case before trial.

Question 90

Default

Answer 90

In Georgia, if the defendant fails to answer within 30 days, the defendant is automatically in default. No showing by the plaintiff is required. But note: the defendant has an automatic right to open the default within 15 days of its entry, but they must pay costs.

Question 91

Default Judgment

Answer 91

After this period has expired, the plaintiff may move for a default judgment. Unlike in federal court, the judge must enter the default judgment in Georgia state court, even if the amount is for a sum certain.

If damages are disputable, the plaintiff must present evidence, and the defendant may appear and contest damages, as in federal court.

Question 92

If Plaintiff Fails to Move for Default Judgment

Answer 92

If the plaintiff fails to move for a default judgment after this 15-day period, the defendant can move to open the default.

*Required Showing for Opening a Default

The defendant must show (1) “providential cause” that prevented them from filing (for example, attorney illness, death, act of god); (2) excusable neglect; or (3) a “proper case” has been made for opening the default (prejudice to the plaintiff); the focus will be on the interests of justice in opening the default.

*Required Procedure

The defendant must:

1. Make the required showing under oath;
2. Pay costs;
3. Show a meritorious defense with specific supporting facts;
4. Offer to plead “instanter,” meaning that they must answer within 24 hours; and
5. Represent he is ready to proceed with trial.

Question 93

Setting Aside a Default Judgment

Answer 93

As with any judgment, the defendant can seek relief from a default judgment.

If the court’s term has not ended, the set aside can be done as part the court’s inherent authority. If the court’s term has ended, the only way the default judgment may be set aside is if the defendant can show that the court lacked:

(1) subject matter jurisdiction or personal jurisdiction (remember that a court lacks personal jurisdiction over a defendant who has not been served with process);

(2) fraud, accident, or mistake; or

(3) a non-amendable defect apparent from the record or fact of the pleadings.

*Timing:

The first ground, a lack of jurisdiction, may be raised at any time. For grounds (2) and (3), the time limit is three years.

Question 94

Summary Judgment

Answer 94

Same as in federal court except as noted below:

Timing: In Georgia, a claiming party must wait 30 days after the complaint is filed to move for summary judgment. (A defending party can move at any time.) A court can deem the motion premature if it believes that more discovery is warranted

Notice: A notice of motion must be served 30 days prior to the motion being heard.

Question 95

Jury Demand

Answer 95

No jury demand is required except for default proceedings, divorce actions, and probate proceedings. In addition, a jury trial cannot be waived by contract.

Question 96

Right to Jury Trial

Answer 96

Like in federal court, there is a right to a jury trial in an action at law.

Question 97

Jury Composition

Answer 97

The number of jurors depends on whether the case is in superior court or state court.

In superior court, there are 12 jurors;

in state court, there are six, except that a jury of 12 can be demanded for cases exceeding $50,000.

Have to reach a unanimous verdict

Question 98

No Exclusion of Party

Answer 98

A party may not be excluded from trial simply because they have a physical or mental condition that might evoke the jury’s sympathy. That party has an absolute right to be present for the proceedings.

Question 99

Closing Arguments

Answer 99

There are usually three phases to closing arguments in Georgia.

First, the party with the burden of proof, usually the plaintiff, makes an “opening” argument to the closing.

Second, the defendant gives its closing argument.

Third, the plaintiff gives a concluding argument.

Exception: However, if the defendant does not submit evidence or admits the plaintiff’s prima facie case, the order is flipped.

Exception to the Exception:

In personal injury cases only, if the defendant admits liability but contests damages, arguments proceed using the general rule (plaintiff, defendant, plaintiff).

Question 100

Jury Instructions

Answer 100

The giving of jury instructions is a lot like federal practice.

However, in Georgia, parties can make objections to jury instructions up until the verdict is returned.

Question 101

Directed Verdict

Answer 101

A motion for a directed verdict is basically the same as a motion for judgment as a matter of law in federal court. A directed verdict in Georgia may be made after the party rests their case.

Question 102

Motion for Judgment Notwithstanding the Verdict

Answer 102

The motion is called “a renewed motion for judgment as a matter of law” in federal court.

A motion for directed verdict is a prerequisite (as in federal court).

The timing is 30 days after the court enters the judgment (versus 28 days in federal court).

Question 103

Motion for New Trial

Answer 103

Unlike in federal court, Georgia allows for both remittitur and additur.

Other Grounds for New Trial

(1) improper admission or exclusion of evidence;

(2) improper jury instructions;

(3) jury, attorney, or party misconduct; and

(4) newly discovered evidence that with due diligence could not have been discovered at trial.

Timing

Timing is again 30 days after the judgment is entered by the court.

Question 104

Motion for Relief from Judgement

Answer 104

A party may seek relief from judgment when:

*The court lacked subject matter or personal jurisdiction. (Remember, a party must be served with process for there to be personal jurisdiction);

*The judgment was procured by fraud, accident, mistake, or acts by the opposing party;

*A non-amendable defect is apparent from the face of the record or pleadings; or

*Newly discovered evidence.

With the exception of jurisdictional flaws, which may be raised at any time, there is an outermost three-year time period for raising the defects in the judgment.

Question 105

Enforcement of Judgments

Answer 105

A winning plaintiff may move to enforce a judgment against a losing defendant.

A writ of execution is filed by the plaintiff, and discovery is permitted to ascertain the defendant’s assets.

Question 106

Order Granting a New Trial

Answer 106

Never appealable

Order denying a new trial is appealable though

Question 107

Direct Interlocutory Appeals

Answer 107

A litigant may file an interlocutory appeal from orders concerning injunctions, as in federal court. (Need permission from the appellate court but not the trial court).

They are unique to Georgia interlocutory appeals as well.

They are:

(1) an order directing an accounting;

(2) child custody orders;

(3) orders refusing a writ of mandamus or other extraordinary relief; and

(4) orders granting summary judgment as to any issue. *** In Georgia you can appeal partial summary judgement grant

Question 108

General Discretionary Appeal

Answer 108

A discretionary appeal is available if two conditions are met: the trial judge certifies the issue as one of great importance; and the appellate court must agree to hear the matter.

The three traits to look for are

(1) whether the judgment looks erroneous on its face;

(2) the issue is likely to dispose of the case; and/or

(3) it is worth establishing appellate precedent on the matter.

Question 109

Order Specific Discretionary Appeal

Answer 109

By writ of certiorari to review appellate court orders, including domestic relations orders, temporary restraining orders. and orders awarding to fees and costs. The trial court need not make a certification

Question 110

Georgia Court of Appeals

Answer 110

The Georgia appellate courts are courts of appellate jurisdiction.

They have jurisdiction over any appeal except those of which the Georgia supreme court has exclusive jurisdiction.

Question 111

Georgia Supreme Court

Answer 111

a. Exclusive Appellate Jurisdiction

The Georgia Supreme Court has exclusive appellate jurisdiction over trial court orders involving treaties, the constitutionality of a state or federal statute, and contested elections.

b .Certified Questions

Georgia’s Supreme Court also has appellate jurisdiction over certified questions from a state appellate court or from a federal district or appellate court.

c. By Writ of Certiorari

Georgia’s supreme court also can review cases from the appellate courts by writ of certiorari.

Question 112

Claim and Issue Preclusion

Answer 112

Mirror Federal Rules

Question 113

Claim Definition

Answer 113

By statute in Georgia, motor vehicle accident cases give rise to two causes of action: one for personal injuries and one for property damage.

This is contrary to the normal rule that the scope of the cause of action is defined by the transaction giving rise to the damage.

Question 114

Claim Preclusion

Answer 114

Claim is precluded if:

• Parties in the two cases are the same
• First case ended in a final judgment on the merits
• Both cases involve the same claim

Same as federal rule

Question 115

Issue Preclusion

Answer 115

The rules of collateral estoppel are the same as those discussed in the Federal Civil Procedure outline, with one exception.

Georgia almost always requires mutuality and will permit nonmutual use of collateral estoppel only by defendants and only in vicarious liability situations. It does not recognize offensive use of nonmutual collateral estoppel.

Issue Preclusion:

• First case ended in a valid, final judgment on the merits
• Same issue litigated and determined
• Issue was essential to the judgment in the first case
• Party being precluded was a party to the first case
• Mutuality - Both parties are the same in case 1 & 2