Pleadings Flashcards

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1
Q

What must the complaint contain?

A

Generally:

  • subject matter jurisdiction
  • short and plain statement of the claim showing that the pleader is entitled to relief
  • demand for judgment
  • facts alleging basis for venue

Professional malpractice cases:

  • the above; and
  • expert’s affidavit setting forth with specificity at least one negligent act or omission and facts on which the claim is based
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2
Q

What are the effects of a failure of the expert’s affidavit for professional malpractice?

A

Failure to file affidavit:

  • subject to dismissal for failure to state a claim
  • cannot be cured by amendment or by voluntary dismissal
  • exception: if the court finds that the plaintiff in fact had the affidavit in proper time but failed to file it due to a mistake

Defective affidavit:

  • dismissal if defendant raises the defect with specificity;
  • plaintiff has 30 days of motion to cure

Delay** in filing affidavit **when statute of limitations is about to run–excused if:

  • staute of limitations will run on the claim within ten days of filing the complaint
  • plaintiff alleges that because of time constraints an expert could not be prepared; and
  • palintiff’s attorney files affidavit swearing that not retained more than 90 days prior to expiration of statute of limitations
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3
Q

When are verified pleadings required?

A

Divorce

Garnishment

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4
Q

What does Georgia’s Rule 11 require?

A

Applies only to pleadings

Certification that:

  • read the document
  • document not interposed for delay

No section on sanctions

  • may strike the pleading; or
  • allow amendment

NOTE: generally toothless relative to federal rule

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5
Q

What is the standard and sanctions available for abusive litigation (9-15-14)?

A

Standard:

  • if the other side took a position as to which there was a complete absence of any justifiable issue of law or fact such that
  • a reasonable person could not believe the court would accept it

Must be brought during the case or within 45 days of its conclusion

Sanctions:

  • reasonable costs of litigation, including attorney’s fees (including that incurred in successfully seeking sanctions)
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6
Q

How and when must a defendant respond to a complaint?

A

Defensive pleading

Rule 12 Motion

  • doesn’t not suspend the time in which a party may file an answer
  • does stay discovery for 90 days after the 1) filing of the motion; or 2) the court’s ruling on the motion, whichever is sooner

Within 30 days of filing of complaint

A party need not respond to a counterclaim** or **crossclaim unless the court orders it

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7
Q

When may a party amend the pleadings?

A

Amendment of right:

  • before the pretrial conference order is entered
  • if no such order, right to amend up until start of trial
  • no requiremend to respond to an amended pleading unless the court so orders

Amendment changing a party** after statute of limitations period–**relation back if:

  • amendment concerns the same conduct, transaction, or occurrence as the original pleading; and
  • the new party received notice of the action within the proper time period** that she will **not be prejudiced in maintaining a defense; and
  • the new party knew or should have known that but for a mistake, it would have been named as the defendant originally

NOTE: the “proper time period” is the period provided by law for commencing the action against him–statute of limitations.

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