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Flashcards in Civil Procedure Distinctions Deck (86)
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1

Under Georgia law, when does an action accure when a bodily injury develops over an extended period?

An action does not accure until the injury is discovered.

2

Under Georgia law, how must personal service commence?

Personal service outside of Georgia can be made on a natural person

  • who is a Georgia resident and
  • when the action affects specific real property or status, or in any other in rem proceeding without regard to the person’s residence.

Service on nonresident motorists can be made on the Secretary of State of Georgia.

Service under the long-arm statute can be made in the same manner as service is made in Georgia.

3

Under Georgia law, what is the statute of limitation of claims arrising out of written contracts?

Six years from when they become due and payable.

If the contract is sealed, then the time period is 20 years.

4

Under Georgia law, what is voluntary presence?

Georgia allows personal service on nonresidents who are in the state on a transient basis.

Nonresidents who are attending a court proceeding or traveling to or from it are immune from service of process.

5

Under Georgia law, when must a party demand a jury trial?

The Georgia statute providing for a jury trial sets no time limit for demands for a trial by jury.

A demand can be made at any time before the case is called for trial or upon the call for trial.

6

Under Georgia law, when may a corporation be under Georgia's jurisdictional reach?

A business incorporated out of state that is authorized to do business in Georgia is a resident for personal jurisdiction purposes.

If the corporation is not authorized to do business in Georgia, then it is a foreign corporation, and any personal jurisdiction will have to arise under Georgia's long-arm statute.

7

Under Georgia law, when may a party move for summary judgment?

A party seeking to recover on a claim may not move for summary judgment until 30 days after commencement of the action or after service of a motion for summary judgment by the adverse party.

A party against whom a claim is asserted may move for summary judgment at any time. The motion must be served at least 30 days before the time fixed for the summary judgment hearing.

8

Under Georgia law, are pretrial conference required? What is the purpose of a pre-trial conference?

Georgia does not require a scheduling conference.

Georgia courts may require pretrial conferences at their discretion. Courts must also hold pretrial conferences whenever a party moves for one.

These conferences are to consider:

  • Simplifying issues;
  • The need or desirability of amendments to the pleadings;
  • The possibility of obtaining admissions and documents to avoid unnecessary proof;
  • Limiting expert witnesses; and
  • Any other matters that may aid disposition.

9

Under Georgia law, what are the rules regarding contribution?

When the plaintiff is even slightly at fault, fault is apportioned between the plaintiff and the defendants.

In this situation, there is no joint liability between the defendants, and so contribution is not allowed. No cross-claim or impleader for contribution should be filed.

10

Under Georgia law, what is a local action?

Cases involving title to land must be tried in the county where the land lies. If a single tract of land is dividied by a county line, either county's superior court has jurisdiction.

11

Under Georgia law, what is the statute of limitation of claims arrising out of medical malpractice?

Two years from the date of the injury, but never more than five years from the negligent or wrongful act or omission.

If the action relates to a foreign object left in the patient’s body, then the action must be brought within one year of discovery.

A child who was under the age of five when the act or omission occurred has two years from his fifth birthday to bring an action, but an action cannot be brought on such a claim after his 10th birthday; if he was five or older at the time of the act or omission, then an action cannot be brought more than five years after the act or omission occurred.

12

Under Georgia law, what is the response time when a party objects to the request?

If the party upon whom the request is served objects in whole or in part, then the party submitting the request may move for an order with respect to any such objection or failure to respond. This section applies to discovery against a nonparty who is a “practitioner of the healing arts or a hospital or health care facility.”

In that event, a copy of the request must be served upon the person whose records are sought by certified mail, return receipt requested, or upon that person’s attorney, if known, and upon all parties of record; or, upon notice, the party seeking discovery may take a written or oral deposition of the nonparty. The nonparty may not furnish the requested materials until the court issues an order to compel discovery. If no objection is filed within 20 days of service of the request, then the nonparty must promptly comply with the request.

13

Under Georgia law, what is the statute of limitation of claims arrising out of deficiency in planning, supervising, or constructing improvement to realty?

Eight years from substantial completion.

Ten years if an injury to a person or property accrued in the seventh or eighth year.

14

Under Georgia law, what is the statute of limitation of claims arrising out of contracts for the sale of goods?

Four years, but the contract can amend this for a period not less than one year.

15

Under Georgia law, what is the proper standard of review for a directed verdict?

A verdict should not be directed unless there is no issue of fact, or unless proved facts, viewed from every possible legal point of view, can sustain no other finding than that directed.

16

Under Georgia law, when must service be processed?

If service is to be made in Georgia, then it must be made within five days of receipt of the summons and complaint. If the plaintiff acted reasonably and diligently in attempting to effect service, then a case will not be dismissed even if service occured outside the five-day window.

17

Under Georgia law, what matters are considered compulsory cross-claims?

Cross-claims are permissive. However, Georgia courts have treated cross-claims as compulsory. A judgment on the merits is supposed to be conclusive on all matters in controversy, including all matters that could have been in controversy between parties in identical causes of action.

18

Under Georgia law, how is forum nonconvenien executed?

If the more appropriate forum is another Georgia court, then the case should be transferred.

If the more appropriate forum is not another Georgia court, then the case should be dismissed. The defendant must file with the court a written stipulation that all defendants waive the right to assert a statute of limitations defense in all other states that the claim was not barred at the time it was filed in Georgia as necessary to effect a tolling of limitations in those states.

19

Under Georgia law, what is the time to file for third-party defendants and third-party plaintiffs?

Third-party plaintiffs do not need the court’s permission to file a third-party claim if the third-party plaintiff does so within 10 days of serving his original answer. Otherwise, he must obtain leave on motion upon notice to all parties to the action.

Third-party defendants must assert any defenses or counterclaims against the third-party plaintiff—or cross-claims against any other third-party defendant—and may also assert defenses against the plaintiff.

20

Does Georgia law allow for service by publication?

Yes. Georgia permits service by publication whenever a nonresident or unknown person claims or owns title to an interest in any real or personal property in Georgia.

21

Under Georgia law, what is the statute of limitation of claims arrising out of oral or impled contracts?

Four years.

22

Under Georgia law, where is proper venue in an equity case?

Venue is proper in the county of residence of the defendant against whom substantial relief is sought.

23

Under Georgia law, what is the statute of limitation of claims arrising out of damage to reputation?

One year.

24

Under Georgia law, what is required to issue a default judgment? What is the effect of a default judgment?

In Georgia, a defendant will automatically be in default if he does not file an answer within 30 days (or more if allowed).

The defendant has 15 days to open the default as a matter of right by filing defenses with costs. If the case is still in default after the 15 days, then the plaintiff is entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury.

If the action arises in tort or involves unliquidated damages, then the plaintiff must produce evidence and establish the amount of damages before the court, and the defendant may introduce evidence to damages. Both parties have the right to move for a new trial on the damages issue, and if the defendant raised the issue of damages in a pleading, that can be a jury trial.

25

Under Georgia law, what are the rules regarding permissive counterclaims?

Georgia allows permissive counterclaims, but unless the parties otherwise agree, the claims must be separated for trial.

26

Where is the proper venue for anyone living in an army post or military reservation within Georgia?

If they have lived there one year preceding the filing of the action then they can bring that action in any county adjacent to the post or reservation.

27

What does Georgia's long-arm statute cover?

Georgia’s long-arm statute allows the state to exercise personal jurisdiction over any nonresident in a cause of action arising from his actions, omissions, ownership, use, or possession if he:

  • Transacts any business in Georgia
  • Commits a tort in Georgia (except defamation)
  • Causes an injury in Georgia by an act or omission outside of Georgia, only if he regularly does or solicits business, engages in another persistent course of conduct, or derives substantial revenue from goods used or services rendered in Georgia
  • Owns, uses, or possesses real property in Georgia
  • With respect to actions for divorce, separate maintenance, annulment, or other domestic relations, or with respect to an independent support action, maintains a matrimonial domicile in Georgia at the commencement of the action or lived in Georgia prior to commencement
  • Is under an order issued by a Georgia court regarding alimony, child custody, child support, equitable apportionment of debt or division of property, and the current action involves enforcement of the order or a motion by a Georgia resident to modify the order.

The long-arm statute is not limited to contract cases.

28

Under Georgia law, what are the limits on the number of depositions?

Georgia does not limit the number of depositions unless the court, upon motion and for good cause, issues a protective order.

29

Under Georgia law, what are the rules regarding cumpulsory counterclaims?

In Georgia, a party does not need to assert a compulsory counterclaim if:

  • the claim is the subject of another pending action,
  • the opposing party brought an action on his claim by attachment or another process by which the court did not gain personal jurisdiction on the claim and the pleader is not stating a counterclaim, or
  • the claim is outside the court’s jurisdiction.

30

Under Georgia law, what are the rules regarding interrogatories?

In Georgia, a party may serve another party with interrogatories requiring the party to identify any expert witness expected to testify, state the subject matter she will testify to, and state the substance of the facts and opinions she is expected to testify to along with the grounds for each opinion.

The expert witness can be deposed, but the party deposing her will have to pay the expert a reasonable fee.