Pleadings

Question 1

Complaint

Answer 1

Must include: statement of SMJ; short and plain statement of claim showing pleader entitled to relief and demand for judgment; and facts alleging basis for venue (not required in federal court)

Question 2

Malpractice

Answer 2

Plaintiff must file with complaint an expert affidavit alleging at least one act of negligence.

Failure to file an affidavit result in dismissal for failure to state a claim. No renewal is available or amendment unless plaintiff can show it had affidavit but failed to file it but for a mistake.

Defective affidavit - P can cure defect by amendment within 30 days of D’s motion to dismiss

Complaint filed w/in 10 days of Statute of limitation excuses the affidavit if the affidavit could not be prepared in time and D files an affidavit swearing its law firm was not hired more than 90 days prior to the expiration of the statute of limitations. D then has 45 days to file affidavit.

Question 3

Rule 11

Answer 3

No teeth like in Federal court and only applies to pleadings. No sanctions.

Question 4

Timing

Answer 4

Answer - Federal rules = 20 days/ Georgia = 30 days (Georgia contributory negligence and AOR are not affirmative defenses and need not be plead)

**Rule 12 motions do not suspend time to file answer (unlike federal court). Ga. must file answer with your rule 12 motion

***Rule 12 motion stays discovery for 90 days.

Question 5

Adding or changing a party - Rule 15

Answer 5

A plaintiff can add or change parties but must do so within the statute of limitations period.

If not within SOL will relate back if:

1) amendment arises out of the same T/O;
2) the new party received notice within the proper time period that it will not be prejudiced; and
3) new party knew or should have known but for P’s mistake that it would have to defend the lawsuit

**More narrow than federal rule (120 day rule which allows relation back)

Question 6

Rule 11

Answer 6

No teeth like in Federal court and only applies to pleadings. No sanctions.

Question 7

Abusive Litigation

Answer 7

Filed during the case or within 45 days of final judgment. Party can seek attorney fees and sanctions if no reasonable person support the position because there was a complete lack of any justifiable issue of law or fact.

Question 8

Timing

Answer 8

Answer - Federal rules = 20 days/ Georgia = 30 days (Georgia contributory negligence and AOR are not affirmative defenses and need not be plead)

Rule 12 motions do not suspend time to file answer (unlike federal court). Ga. must file answer with your rule 12 motion

Rule 12 motion stays discovery for 90 days.

Question 9

Amended Pleadings

Answer 9

Any party can amend a pleading before the pre-trial conference order is entered as a matter of right (more liberal than federal court which requires court’s leave to file amended complaint).

Question 10

Response to Amended Pleading

Answer 10

Ga. - not required unless ordered by court

Fed - must respond within 10 days