Pleadings and Responsive Motions

Question 1

Contents of Pleadings

Answer 1

The complaint must contain all the allegations required in federal practice: (1) short statement of the grounds for subject matter jurisdiction, (2) short and plain statement of the claim showing the plaintiff is entitled to relief, and (3) a demand for relief sought.

in addition, GA requires the complaint alleges facts on which venue is based (more than an assertion venue is proper)

NOTICE PLEADINGS – GA is a notice pleadings state – all that is required is fair notice of the general type of litigation involved in the case and the basis of what the defendant did wrong

Question 2

Verified Pleadings

Answer 2

verified pleadings are made under oath by affidavit. Verified pleadings are required for (1) actions for extraordinary relief, (2) actions for divorce

Additionally required for habeas corpus, garnishment, and attachment

Question 3

Professional Malpractice Cases

Answer 3

in a malpractice case, the plaintiff must include an affidavit of an expert, setting forth specifically (1) at least one negligent act or omission claimed to exist and (2) the factual basis for it

Question 4

Omitted or Defective Affidavits (Malpractice)

Answer 4

if the plaintiff failed to include the expert affidavit, the plaintiff must state that the affidavit was prepared but inadvertently omitted

If the affidavit is defective, the plaintiff can cure by amending the affidavit within 30 days of being served with the defendant’s motion

Question 5

Unavailable Affidavit (malpractice)

Answer 5

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

Question 6

Attorney Certification

Answer 6

Section 11 of the Civil Practice Act applies only to pleadings, and requires that every pleading of a party represented by an attorney be signed by at least one attorney

the signature certifies (only) that the attorney has read the document and it is not interposed for delay (pro se parties make this certification themselves)

SANCTIONS – violations of this certification result in appropriate sanctions which generally mean all expenses (including attorney’s fees) reasonably incurred by the other side because of the improper document

Sanctions can be posed on the party, the lawyer or both

Question 7

Vexatious Litigation

Answer 7

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

Standard – there existed such a complete absence of any justifiable issue of law or fact that it could not be reasonably believed that a court would accept the assertion

The awarded the other side can recover the reasonable costs of litigation

Question 8

Time to Respond

Answer 8

A defendant has 30 days after being served with process to file an answer. If the defendant waived process, they have 60 days from the date the request was sent.

NOT STAYED – the 30 days period is not stayed by filing a pretrial motion – an answer must still be filed within the 30 day period

Waiver of certain defenses (such as personal jurisdiction) works the same way as federal court

Question 9

Effect of Preanswer Motion on Discovery

Answer 9

if a party files a pre answer motion to dismiss, discovery will be stayed for 90 days after the filing of the motion or until the court rules on the motion, whichever occurs first

Question 10

Reply to Counter Claim or Cross Claim

Answer 10

the civil practice act does not require a reply to a counterclaim or cross claim - they are permissive unless required by court order