Rules of Procedure

Question 1

Where are the Georgia rules of civil procedure derived from?

Answer 1

The Georgia Civil Practice Act - which is almost entirely modeled on the Federal Rules of Civil Procedure.

Question 2

Who may serve process?

Answer 2

• 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.

Question 3

When must service be effectuated?

Answer 3

• 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.

Question 4

How can service be made?

Answer 4

Same methods as in federal court -

• Personal service
• “Abode” service
• Service upon an authorized agent
• Waiver

Question 5

Service on Corporations or Partnerships

Answer 5

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.

Question 6

What is the process for service outside of Georgia?

Answer 6

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.

Question 7

Requirements for a complaint?

Answer 7

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.

Question 8

Special complaint requirements in a professional malpractice case?

Answer 8

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.

Question 9

Georgia Rules for Amending Pleadings

Answer 9

• 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.

Question 10

Counterclaims

Answer 10

• 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.

Question 11

Special Crossclaim Requirements

Answer 11

• Crossclaims are compulsory in Georgia, they must be asserted or they will be barred.

Question 12

Class Certification Requirements

Answer 12

• 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

Question 13

Define

Impleader

Answer 13

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.

Question 14

Mandatory Disclosures in Georgia

Answer 14

Unlike the Federal Rules, Georgia does not require mandatory disclosures.

Question 15

Number of Depositions Permitted

Answer 15

Under the Civil Practice Act, there is no limitation on the number of depositions that may be taken without a court order.

Question 16

Number of Interrogatories Permitted

Answer 16

The Civil Practice Act provides that no party may serve more than 50 interrogatories without leave of the court.

Question 17

Requests for Production on Nonparties

Answer 17

A nonparty may be served with a request for production without a subpoena, unlike under the Federal Rules.

Question 18

Physician Shield Statute

Answer 18

• 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.

Question 19

Time Limits in Discovery

Answer 19

• 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.

Question 20

Scheduling Conference

Answer 20

The CPA does not require a scheduling conference - however the court must hold a pretrial conference on the motion of any party.

Question 21

Voluntary Dismissal

Answer 21

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.

Question 22

Right to Jury Trial

Answer 22

A right to a jury trial need not be demanded in Georgia - it is presumed.

Question 23

Jury Composition

Answer 23

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.

Question 24

Timing for Post-Trial Motions

Answer 24

Motions for a new trial or JNOV must be brought no later than 30 days after the entry of judgment.

Question 25

Res Judicata

Answer 25

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.

Question 26

Collateral Estoppel

Answer 26

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.