Pleadings and Motions: Identifying Parties and Defining the Controversy

Question 1

Generally: Attorney Certification

Answer 1

a. Every pleading by a party represented by an attorney must be signed by at least one attorney of record saying that he or she has read the pleading and that it is not interposed for delay.

Question 2

Generally: Verification

Answer 2

2. Verification
   a. Unless otherwise provided by rule or statute, no verification or affidavit is required.b. Verification is required to be filed with a pleading in a few specific situations, including:
   (a) A plaintiff seeking equitable or injunctive relief.
   (b) Petitions for divorce or complaints on a divorce action.

Question 3

Generally: Time for Filing

Answer 3

a. All papers after the complaint that are required to be served upon a party must be filed with the court within the time allowed for service.
b. In Georgia, if the last day of a period falls on Saturday or Sunday: the period runs through the following Monday.
c. When the last day is a holiday: the period runs through the next business day.
d. When the period of time is less than 7 days, intermediate Saturdays, Sundays, and legal holidays are excluded from the computation of the period.

Question 4

Complaint: Notice Pleading

Answer 4

a. A complaint must contain facts upon which venue is based, a short and plain statement of the claims showing that the plaintiff is entitled to relief, and a demand for judgment for the requested relief.

b. Medical Malpractice Cases
(1) A complaint for medical malpractice seeking damages
for $10,000 or less must contain: a demand for
judgment for a sum certain.
(2) Where more than $10,000 is sought, the complaint
must state: that the plaintiff “demands judgment in
excess of $10,000” with no further amount stated.

Question 5

Complaint: Expert Affidavit

Answer 5

a. The affidavit of an expert must accompany any pleading that contains a charge of professional malpractice against a licensed professional, a corporation or other entity, or a licensed health care facility.
b. The expert must be competent to testify.
c. The affidavit must set forth: specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.

d. The affidavit need not be filed contemporaneously with the complaint if:
(1) The plaintiff’s attorney can affirm that her firm was
retained within 90 days prior to the expiration of the
statute of limitations.
(2) The statute of limitations will expire on any claim stated in the complaint within 10 days of the date of filing.
(3) The plaintiff then has 45 days after filing the complaint to supplement the pleading with the expert’s affidavit.
(a) Defendant will not be required to answer until 30 days after the affidavit is filed.

e. If the affidavit is not filed: the complaint will be dismissed for failure to state a claim. This is an adjudication upon the merits and a later case will be barred by res judicata.

f. Renewal Privilege
(1) If plaintiff fails to file the affidavit with the pleading and the defendant raises the failure in a motion to dismiss filed contemporaneously with its responsive pleading and the case is dismissed, plaintiff is entitled to the
renewal privilege if plaintiff had the affidavit available at
the time of filing and the failure to file it was a result of mistake.

g. Defective Affidavit
(1) If plaintiff files a defective affidavit, and the defendant alleges such with specificity in a motion to dismiss filed on or before the close of discovery, plaintiff’s complaint may be dismissed for failure to state a claim.
(2) Plaintiff may cure the defect by amendment within 30 days of service of the motion to dismiss (or longer if the trial court grants an extension).

Question 6

Complaint: Medical Authorization Form

Answer 6

a. The authorization must:
(1) Provide that defendant’s attorney may obtain and disclose protected health information in medical records to facilitate the investigation, evaluation, and defense of the claims raised in plaintiff’s complaint.
(2) Allow defendant’s attorney to discuss plaintiff’s care and treatment with all of plaintiff’s treating physicians.

Question 7

Complaint: Special Pleading Rules

Answer 7

a. Certain pleadings require additional information to be included:
(1) Actions for fraud or mistake.
(2) A denial of the performance or occurrence of a condition precedent.
(3) Items of special damages.

Question 8

Defenses and Objections: Answer

Answer 8

1. An answer in Georgia must be served: within 30 days after service of the summons and complaint upon the defendant.
   a. Exception: If the complaint alleges professional malpractice but does not attach the required expert affidavit, the defendant’s time to file an answer is extended until 30 days after the
   filing of the affidavit, and no discovery may take place until after the answer is filed.

Question 9

Defenses and Objections: Affirmative Defenses

Answer 9

a. At the time of answering, a defendant must raise the following affirmative defenses – either in the answer or in
a motion to dismiss – or they are deemed WAIVED:
(1) Lack of personal jurisdiction;
(2) Improper venue;
(3) Insufficiency of process; and
(4) Insufficiency of service of process.

Question 10

What defenses are not waived if not included in the D’s answer or motion to dismiss and may be made up until the time of trial?

Answer 10

(1) Failure to state a claim upon which relief can be
granted;

(2) Failure to join an indispensable party; and
(3) Failure to state a legal defense to a claim.

The defense of lack of subject matter jurisdiction may never be waived.

Question 11

Contrast to FRCP 12

Answer 11

In contrast to Fed. R. Civ. P. 12, filing a pre-answer motion, such as a motion to dismiss, does not extend the time to answer the complaint.

Question 12

Cross Claims and Counterclaims

Answer 12

1. Counterclaims that arise out of the same event or
   transaction as the plaintiff’s claim are compulsory and must
   be brought by the defendant or the defendant will lose them.
   a. In Georgia, cross-claims of the same nature are compulsory as well.

Question 13

Amendment of Pleadings

Answer 13

1. A party may amend his pleading in Georgia: as a matter of right and without leave of court at any time before the entry of a pretrial conference order.
   a. Thereafter the party may amend his pleading only by leave of court or by written consent of the adverse party.
   b. If there is no pre-trial conference order: a party may amend his pleading at any time until the commencement of trial.

Question 14

Relation Back of Amendments

Answer 14

As long as an additional claim is arising from the same transaction or events as the original claim, the amended
complaint will relate back in time such that the relevant date for statute of limitations purposes will be the original date of filing and not the date of filing of the amended
complaint.

Question 15

Joinder of Parties: Impleader

Answer 15

Defendant wants to bring in another party who is or may be liable to them for some or all of what the defendant is liable to the plaintiff for.

Question 16

Joinder of Parties: Interpleader/ Equitable Interpleader

Answer 16

a. Plaintiff takes a fund or piece of property to the court and wants to join all parties who have a claim to that fund or piece of property in a single action.

b. Equitable Interpleader
(1) Georgia also has equitable interpleader, which is more restrictive:
(a) All of the claimants must claim the same thing, debt, or duty;
(b) All adverse claims derive from a common source;
(c) Plaintiff has no interest in the subject matter; and
(d) Plaintiff is merely a stakeholder, with no independent liability.

Question 17

Class Actions

Answer 17

1. The Georgia rule on class actions is generally the same as Fed. R. Civ. P. 23.
2. Georgia includes additional rules regarding class certification:
   a. The court must hold a conference to establish a
   discovery schedule for any discovery germane to class certification.
   b. The court must set a hearing date for class certification, which may not be: less than 90 days nor more than 180 days after the date the court issues the scheduling order
   (unless good cause is shown).
   c. The court must stay all merits discovery (unless good cause is shown) until it has decided the issue of class certification.
   d. The court must enter a written order on class certification, and must address whether the factors for class
   certification have been met.
   e. The class certification is immediately appealable and the underlying action is stayed in the appellate court.