Ga Civ Pro Flashcards

Question

Service of Process in Ga: Who can serve?

Answer 1

1) sheriff/marshall/deputy, 2) nonparty 18 yrs old appointed by court, 3) ct appointed permanent process server

Answer 2

same as fed rule (personal, leaving process @ D’s abode, authorized agent of D) Waiver by First Class Mail: same as federal

Answer 3

Corporations: registered agent, president/other officer/secretary/cashier, managing agent, any agent who represents the company in some way.—>If you cant serve one of these ppl, then you can substitute service on Sec. of St. by 1) delivering summons/complaint to Sec. of St., 2) certifying affidavit that corporate ppl couldn't be served, 3) forward service of process by reg. mail to last known reg. office/agent listed with Sec. of St. (can be inside or outside of Ga) - alternative: can serve by reg/certified mail the Corporate CEO/Sec. of Corp. at its principle office. Copies of service should be sent to Sec. of St. Unincorporated Associations: serve agent/partner in Ga Minors: serve minor personally AND the parent/general guardian or guardian ad litem

Answer 4

Ga res served outside of Ga: personally serve where found (need ct. order upon affidavit) Long Arm Staute: can serve in any method permitted in Ga but it must be served by someone authorized to serve process in that state or a licensed attorney Nonresident Motor Act: serve Ga Sec. of St. showing the act applies, 2) reg/certified mail of process to D, & 3) file D’s return receipt & original affidavit with the ct. Publication Service: extremely rare. Need ct order upon P affidavit that D cant be found in Ga. Usually used for in rem/quasi in rem

Answer 5

serving person just file proof of service promptly after service

Answer 6

can be served by first class mail/delivery—server executes an affidavit of service. If served by mail, add 3 days to party’s time to respond.

Answer 7

SMJ statement, short/plain statement of claim showing entitlement to relief/damages, demand for judgement, facts alleging basis of venue

Answer 8

Must attach to complaint an expert affidavit est. with specificity at least 1 negligent act/omission and the facts on which the claim is based failure to do this—> by motion of D = subject to dismissal for failure to state a claim, cannot be cured by amendment/voluntary dismissal and refiling unless the ct finds that P in fact had the affidavit in proper time but failed to file as a mistake. Defective affidavit: can be dismissed per D motion (raised with specificity) but can be cured by P by amendment within 30 days of D motion Delay: P may be excused from filing affidavit if 1) SoL will run on claim within 10 days of filing, 2) P alleges time constrained ability to get expert, 3) P attorney files an affidavit with complaint swearing that he/his firm was not retained by P 90 prior to SoL expiration - If met, P has 45 days to supplement complaint with expert affidavit.

Answer 9

Yes, you can deny everything in the complaint

Answer 10

made under oath, really rare, required in divorce, garnishment/other specialized areas. (?s with verified pleadings= important for SJ)

Answer 11

only applies to pleadings—requires atty. to certify only that she has read the document & its not delayed. No sanctions. If atty. doesn't sign, pleading could be struck or amendment allowed to fix prob.

Answer 12

may recover reasonable costs of litigation (atty’s fees) if opp. side showed “complete absence of any justifiable issue of law/fact” such that a reasonable person could not believe the ct would accept it. Motion for Sanctions brought during case or w/n 45 days of final adjudication.

Answer 13

20 days Rule 12 does NOT suspend response time

Answer 14

No, not unless ordered to do so.

Answer 15

re-Answer motion to dismiss, discovery = stayed for 90 days after filing motion or until ct. rules on the motion whichever is first—discovery deadline is extended equivalent to the stay period

Answer 16

ame as Federal except: 1) amendment of right: right to amend before pretrial conference order is entered, if no order exist, right to amend exist till trial; 2) amendment chaining a party: an amendment changing a D after SoL ran will relate back if a) amend covers same T/O or conduct as orig. pleading, b) new party had notice of action within the proper time period (proper time period = new D must have learned of the suit within the SoL), c) new D knew/should have known that but for a mistake, it would have been named as D originally. Response to Amended: not required to respond unless ct ordered.

Answer 17

if minor/incompetent has no representative—> the minor/incomp. brings suit in his name and is styled as “by his next friend” or guardian ad litem. This style gives ct notice that it needs to appoint a guard. ad litem. Failure to appoint guard. ad litem is excused if no harm was felt Unincorporated Assc.: P sues assoc., P can reach its assets to satisfy judgement.

Answer 18

statute starts to run from “accrual” of claim (the point at which P could sue & recover). In cases of bodily injury developing over extended time, SoL does not being until P discovered or should have discovered the defect

Answer 19

accrues when liability = imposed

Answer 20

2 years from injury/death

Answer 21

1 year from defamatory act

Answer 22

2 years form injury but never more than 5 form negligence

Answer 23

8 years from substantial completion. SoL will extend 2 years from date of injury if the injury occurs within the 7th or 8th year but will never reach beyond 10 years

Answer 24

Deficient in deigns, supervision, construction or preparing a land survey/plat

Answer 25

raise it as an affirmative defense

Answer 26

Tolling means to stop SoL from running

Answer 27

1) Filing a complaint permanently tolls it | 2) minority temporarily tolls it

Answer 28

If child is 5 or older when MED map accrues, reg rules apply. If 5 or under, SoL is tolled until age 5 (but must sue by age 7 b/c of SoL 2 year period)

Answer 29

Same as federal But, cross claims are compulsory

Answer 30

No, D doesn't have to file a cross claim or TPC based on contribution theory ag. joint tortfeasor.

Answer 31

Step 1: Is the class certifiable? (numeroisty, commonality, typicality & ad. reps?) Step 2: Action maintainable as class action? (risk of conflicting results, opp. party has refused to ct, ?s of law/fact)

Answer 32

Ga adopts the federal rules except: No required disclosures. Interrogatories limited to 50 (Fed is limited to 25) Production of Doc/Things: no subpoena needed to use against non-parties Phy/Mental Exams: permits phy by a “physician”,permits mental by “a physician or licensed psychologist” (federal allows it done by any licensed health care professional) Experts: cannot get testimony from an expert retained for trial absent a showing of exceptional need. Send interrogatories asking for expert names/expected to testify/expert opinions then depose experts. Subpoena: Depose non parties: issued/signed by clerk of ct. (atty. can issue it by parties consent) Depos: no limit

Answer 33

P has right to do it once 1) before 1st wit is sworn in at trial or 2) by stip. of parties

Answer 34

Georgia Renewal Statute: when a case is dismissed w/out prejudice that P may refile the action w/n the unexpired SoL period or if SoL has ran, w/n 6 months of the dismissal. IF a counterclaim is pending, P can not voluntarily dismiss unless D agrees or counter is capable of remaining in ct for independent adjudication.

Answer 35

Ct can dismiss b/c P has 1) failed to prosecute with proper diligence or 2) failed to comply with CPA/ct. order. P involuntarily dismissed CAN refile under renewal statute

Answer 36

no written order in case for 5 years—> automatically dismissed w/costs to P. P can refile w/n 6 months.

Answer 37

pre-req to Default Judg—> after proper service, if D does nothing within 30 days and parties have not stip to an extension, an entry of default occurs. But D gets automatic 15 day grace period where D can move to reopen as a matter of right (D must pay costs). Beyond the 15 days, D can move to set aside default anytime before default judgement. Ct. has discretion to grant based ONLY on 1) providential cause preventing filing, 2) excusable neglect, 3) convinced all facts it would be proper to set aside. The motion MUST 1) be under oath, 2) include a meritorious defense, 3) state D is ready to proceed to trial, 4) offer to plead immed.

Answer 38

Not automatic, P must filed a motion for default judge. On the motion, liability is established automatically, damages is not. Hearing for damages = can happen if its a tort/liquidated dam case, either side presents evidence. P must est. dam. Hearing Jury? Only if D filed a pleading contesting damages.

Answer 39

No scheduling or Rule 26 conference. BUT Has pretrial conferences : must hold one if party moves for it. Purp: to identify/narrow issues for trial and produce a pretrial order that will govern at tiral

Answer 40

Yes, An expert can testify at trial even if that expert was NOT on pretrial order. W/n ct. discretion to allow opp. party time to depose that expert

Answer 41

Right to Jury trial: no need to demand a jury except in hearing on damages Juries: Superior Ct (12 or consent for less), State Ct. (6 but claims over $25,000 parties can demand 12) Magistrate Ct.: None

Answer 42

just like JMOL Standard = reasonable people could not disagree on the results.

Answer 43

no later than 30 days after entry of judgement

Answer 44

Comes before a JNOV. Standard= reasonable people could not disagree on the results Made at the close of the opposing party's case

Answer 45

1) lack of SMJ, 2) fraud/accident/mistake, 3) non-amendable defect on the face of the record/pleading

Answer 46

Yes, same as Federal

Answer 47

allows it from orders of injunctions/receivers, directing an accounting, granting/refusing alimony, mandamous/extraordinary relief and order granting summary judgement as to any issue.

Answer 48

Claim preclusion only can sue on a cause of action once. Requirements: 1) both cases brought by same P against same D, 2) 1st suit ended in valid final judgement on the merits, and 3) 1st and 2nd case involve same cause of action.

Answer 49

Any case is resolved on the merits except for cases dismissed for: 1) lack of SMJ, 2) lack of PJ, 3) improper venue, 4) improper service, 5) failure to join R 19 party, and 6) any dismissal specified as being w/out prejudice

Answer 50

Ga has a special statute for motor vehicles that says that personal and physical injuries arising from same accident has to be treated as two separate cases.

Answer 51

Step 1: same P & D? Yes, Step 2: valid final judgement on the merits? Yes BUT motor vehicle exception applies here. So no dismissal.

Answer 52

(Issue preclusion): precludes re-litigation of a particular issue that was litigated and determined and embodied in a valid final judgement. Requirements: a) case 1 ended in valid final judgement on the merits, b) same issue was actually litigated AND determined in case 1, c) issue was essential too the judgement of case 1. d) Can only be asserted against someone who was a party in the 1st case (this is a due process requirement) and e) Who can assert it? - Mutuality view = can only use it if you were a party in the first case. - Modern Trend = can be used by anyone who was NOT a party in 1st case—> called non mutual collateral estoppel.

Answer 53

available to be used in GA. Elements a-d must be met. Element e must be met by the Modern Trend and it must asserted by a D. Available in Federal if P had full opportunity to litigate in case 1.

Answer 54

NOT available in Ga Federal allows for this if it would be fair. Factors of fairness: 1) P had full/fair opportunity to litigate in case 1 2) P could foresee that there would be mult. suits 3) D could not have joined easily in case 1 4) no inconsistent judgements already rendered

Ga Civ Pro Flashcards

(83 cards)