Rules of Procedure Flashcards
Where are the Georgia rules of civil procedure derived from?
The Georgia Civil Practice Act - which is almost entirely modeled on the Federal Rules of Civil Procedure.
Who may serve process?
- Sheriff / Deputy for the county where the action is brought or where the defendant is found.
- A civilian appointed by the court.
- A certified process server.
When must service be effectuated?
- Within a reasonable time after filing the complaint.
- An in-state process server must serve the summons and the complaint within five days of their receipt.
- If not complied with, service may be upheld if plaintiff shows due diligence to effect service.
How can service be made?
Same methods as in federal court -
- Personal service
- “Abode” service
- Service upon an authorized agent
- Waiver
Service on Corporations or Partnerships
Corporations -
- Service may be made on the registered agent, president, or other officer.
- If none of the above can be found, service can be made on the secretary of state.
Partnerships -
- Service may be had on a partner in Georgia.
What is the process for service outside of Georgia?
Personal service outside of Georgia is permitted on Georgia residents or in any action affecting realty.
Under the long arm statute, service may be effected in any manner permitted by Georgia law, so long as the person serving process is qualified under the law of the foreign state.
Requirements for a complaint?
Must contain all of the allegations required in federal practice (SMJ / short statement of claim / demand for judgment) AND must allege facts on which venue is based.
Special complaint requirements in a professional malpractice case?
The plaintiff must file with his complaint an affidavit of an expert competent to testify, setting forth at least one negligent act or omission claimed to exist and the factual basis for it.
If the affidavit is defective the complaint is subject to dismissal for failure to state a claim - the plaintiff may amend the complaint within 30 days of service of the motion alleging that the affidavit is defective.
Georgia Rules for Amending Pleadings
- Any party may amend his pleading as a matter of right before an order from a pretrial conference. If no such order is issued, pleadings can be freely amended until the commencement of trial.
- An amendment naming a new defendant relates back to the time of the original filing, so long as the new defendant had notice.
Counterclaims
- A counterclaim is compulsory if it arises from the same transaction or occurrence and does not require the court to join parties over whom it does not have jurisdiction.
- A counterclaim is permissive if it does not arise out of the same transaction or occurrence, and it must be severed for trial unless the parties agree otherwise.
Special Crossclaim Requirements
- Crossclaims are compulsory in Georgia, they must be asserted or they will be barred.
Class Certification Requirements
- Class is so numerous as to make joinder impracticable
- Common issue of law and fact
- Class representative’s claim is typical
- Class representative adequately protects the members’ interests
Define
Impleader
A defendant may - as a third-party plaintiff - bring in a third-party defendant who may be liable to him for all or part of the plaintiff’s claim.
Mandatory Disclosures in Georgia
Unlike the Federal Rules, Georgia does not require mandatory disclosures.
Number of Depositions Permitted
Under the Civil Practice Act, there is no limitation on the number of depositions that may be taken without a court order.
Number of Interrogatories Permitted
The Civil Practice Act provides that no party may serve more than 50 interrogatories without leave of the court.
Requests for Production on Nonparties
A nonparty may be served with a request for production without a subpoena, unlike under the Federal Rules.
Physician Shield Statute
- A Georgia physician is not required to release any medical information concerning a patient except:
- To the Department of Public Health
- On written authorization or other waiver by the patient or his guardian
- On appropriate court order or subpoena
- A physician releasing patient information under these circumstances will not be liable to the patient or other persons.
Time Limits in Discovery
- Interrogatories / Requests for Production / Request for Admission - 30 days
- Exception - Defendant cannot be required to respond sooner than 45 days after she has been served with process.
Scheduling Conference
The CPA does not require a scheduling conference - however the court must hold a pretrial conference on the motion of any party.
Voluntary Dismissal
A plaintiff may voluntarily dismiss an action once without prejudice and without court approval before the first witness is sworn or by stipulation signed by all parties. A subsequent voluntary dismissal is treated as an adjudication on the merits.
Plaintiff may refile within the original limitations period or six months - whichever is longer.
If there is a pending counterclaim, the plaintiff may not voluntarily dismiss unless the defendant agrees or the counterclaim remains for independent adjudication.
Right to Jury Trial
A right to a jury trial need not be demanded in Georgia - it is presumed.
Jury Composition
There are 12 jurors in superior court, unless otherwise agreed; 6 in state court, but if the case is for $25,000 or more, either party can demand 12.
Timing for Post-Trial Motions
Motions for a new trial or JNOV must be brought no later than 30 days after the entry of judgment.
Res Judicata
The rules for res judicata are the same as for the federal rules, with the exception that a motor vehicle accident is presumed to give rise to two causes of action - one for personal injuries and one for property damage.
Collateral Estoppel
Georgia will permit nonmutual use of collateral estoppel only by defendants and only in vicarious liability situations. It does not recognize offensive use of nonmutual collateral estoppel.
