Pleadings Flashcards
What must the complaint contain?
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
What are the effects of a failure of the expert’s affidavit for professional malpractice?
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
When are verified pleadings required?
Divorce
Garnishment
What does Georgia’s Rule 11 require?
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
What is the standard and sanctions available for abusive litigation (9-15-14)?
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)
How and when must a defendant respond to a complaint?
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
When may a party amend the pleadings?
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.