Termination Without Trial

Question 1

Involuntary Dismissals

Answer 1

Involuntary dismissal can be for failure to diligently prosecute the case or as a sanction

Question 2

Voluntary Dismissal

Answer 2

Voluntary Dismissals operate essentially the same way as federal court with a timing difference

TIMING – In GA, a voluntary dismissal as or right may be had by filing a notice of dismissal with the court up until the first witness is sworn in

EFFECT OF COUNTERCLAIM – when the defendant has filed a counterclaim, the defendant may object to a voluntary dismissal and have their counterclaim remain pending

A second dismissal operates as an adjudication on the merits with prejudice

the parties can stipulate to dismiss the case without court permission (settlement)

Question 3

Savings Statute for Voluntary Dismissal

Answer 3

If the plaintiff voluntarily dismisses (without prejudice), the plaintiff may refile their case within the remaining statute of limitations period or six months, whichever is longer

Question 4

GA Default

Answer 4

In GA, if the defendant fails to answer within 30 days, the defendant is automatically in default - no showing by the plaintiff is required

HOWEVER, the defendant has an automatic right to open the default within 15 days of its entry, but they must pay costs

Question 5

GA Default Judgment

Answer 5

After the 15 days to open default have expired, the plaintiff may move for a default judgment. However, the judge must enter default - even if the amount is a sum certain.

Question 6

Opening Default after 15 Cure Period

Answer 6

If the plaintiff fails to move for a default judgment after the 15 days expire, the defendant can move to open default

The defendant must show:
1) providential cause that prevented them from answering;
2) excusable neglect; or
3) a proper case has been made for opening the default (focus will be on interests of justice)

Required Procedure – The defendant must:
1) make the required showing;
2) pay costs;
3) show a meritorious defense with specific supporting facts;
4) offer to be instanter - meaning must answer within 24 hours; and
5) represent that he is ready for trial

Question 7

Setting Aside a Default Judgment

Answer 7

The defendant may seek relief from a default judgment

If the court’s term has NOT Expired – the set aside can be done as party of the court’s inherent authority

If the court’s terms HAS Expired – the only way the default judgment may be set aside is if the defendant can show that the court lacked:
1) subject matter or personal jurisdiction (no time limit);
2) fraud, accident, or mistake (three year time limit); or
3) a non-amendable defect apparent from the records or fact of the pleadings (three year time limit)

Question 8

GA Summary Judgment

Answer 8

In GA, summary judgment works the same as federal court with the following exceptions

TIMING – a claiming party must waive 30 days after the complaint is filed to move for summary judgment. A defending party can move at any time

NOTICE – A notice of summary judgment must be served 30 days prior to the motion being heard