GA Civ Pro Flashcards
(95 cards)
1
Q
Two step analysis for personal jurisdiction
A
- Is there a statute?
2. Does it satisfy due process? (minimum contacts)
2
Q
Statutory Bases for In Personam Jurisdiction
A
- Presence in Georgia when served
- Domiciled in GA but served elsewhere
- Business incorporated in GA
- Consent
- GA Long-Arm Statute
- Nonresident Motor Act
3
Q
Presence in Georgia when served - what type of jurisdiction?
A
General jurisdiction
Exceptions: when D is tricked into the state or when D is only in the state to testify (immunity)
4
Q
Domiciled in GA when served outside the state - what type of jurisdiction
A
General Jurisdiction
5
Q
Business incorporated in GA or authorized to transact business in GA - what type of jurisdiction
A
General jurisdiction
Out of state corporations are subject to general jurisdiction as long as the business activity in GA is sufficiently continuous and systematic to be regarded as at home in GA.
6
Q
Consent - how do you consent to PJ?
A
- you sign a contract (forum clause)
2. you waive PJ by appearing in court
7
Q
Georgia Long Arm Statute - who can you use this against
A
Non-resident:
Someone who was a nonresident when the claim arose AND someone who is no longer a resident of GA
8
Q
GA long-arm statute: what type of jurisdiction?
A
Specific jurisdiction
9
Q
What type of contacts will trigger the long-arm statute?
A
- Transacts any business in GA
- Commits a tortious act or omission in GA (except defamation)
- Commits a tortious act OUT OF STATE that injures P in Georgia
- Owns, uses, or possesses real property in GA
- Domestic relations
10
Q
What happens if a manufacturer creates a defective product in MI and injures person in GA?
A
Specific jurisdiction arising from this claim in GA if the D engages in some persistent course of conduct in GA or derives substantial revenues from goods consumed in GA.
11
Q
GA Nonresident Motor Act: who can you sue?
A
Only nonresidents. You can only sue if, when the claim arose, the person was NOT A RESIDENT. (narrower than long-arm)
Ex: When you got in the car accident, the person had to be an out of stater at that moment.
12
Q
What can you do if the person was a resident when you got in the car accident but now he is NOT a resident of GA?
A
Use the GA Long-Arm Statute -
“tortious act and injury both occurred in GA” prong
13
Q
Does exercise of PJ satisfy due process? Standard:
A
Does D have such minimum contacts with the forum so that the exercise of jurisdiction does NOT OFFEND TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE
14
Q
What factors help determine minimum contacts?
Remember the Mnemonic: My Parents Frequently Forgot to Read Children’s Stories
A
- how much contact has D had with forum
- PURPOSEFUL AVAILMENT: Has D purposefully availed himself toward GA?
- FORESEEABILITY: Has the contact made if foreseeable D might be sued in GA? - fairness and reasonableness
- RELATEDNESS: how related is the contact and the claim?
- CONVENIENCE: forum ok unless extremely inconvenient to D
- STATE’S INTEREST: in providing a forum for its citizens
15
Q
What is the statutory basis for in rem jurisdiction?
A
An attachment statute
16
Q
What satisfies minimum contacts for in rem jurisdiction?
A
Check to see how related the dispute is to the underlying property.
17
Q
What types of actions do you bring in superior court in GA?
A
- Divorce
- Suits seeking affirmative equitable relief
- Cases affecting title to land
- any other cases that are no specifically vested in a special court (like juvenile or probate)
18
Q
What types of actions can be brought in state court?
A
All civil cases except those reserved to superior court (divorce, equity, cases affecting title to land)
19
Q
Magistrate court: what cases can it hear?
A
Anything the state court can hear, but the amount in controversy cannot exceed $15,000
20
Q
Special rules for magistrate court
A
No juries
Must assert compulsory counterclaims
21
Q
What if P asserts a claim in magistrate court for $5000 and D asserts a counterclaim for $20,000?
A
Case gets transferred to state or superior court
22
Q
Subject matter jurisdiction in GA: what does this deal with?
A
Are we in the right type of court (state, superior, magistrate)?
23
Q
Venue in GA: what does this deal with?
A
Are we in the right COUNTY in GA?
24
Q
Venue: If it is a case involving title to land
A
Venue must be laid where the county where the land lies -> this is very restrictive, only if P is asserting her own title (not if she is trying to gain title in equity)
25
Venue: what if it doesn't involve P asserting title to land (local action)
Every other cause of action is a TRANSITORY ACTION
26
Transitory Actions: venue general rule
Bring suit in county where D resides
Exception: If P brings suit against joint torfeasors, you can pick any county where a D resides if all Ds are GA residents
27
Where is venue proper when you are suing a maker and endorser? (exception to general rule)
The county where the maker resides (if both Ds are residents of GA)
28
Where is venue proper if seeking affirmative equitable relief? (exception to general rule)
If all Ds are GA residents, the county where substantial relief is sought from that D.
29
Venue: where is venue proper for divorce or alimony case? (exception to general rule)
If D is a GA resident, in his county. If D is NOT a GA resident, county where P resides.
* In an uncontested divorce, D can consent to venue in P's county of residence
30
Vanishing venue problem in GA
*comes up when you sue joint tortfeasors in one D's county
If the resident D (or Ds) is discharged from liability, the D who is NOT a resident of the county can argue vanishing venue and get the case transferred (even for re-trial) to a proper venue.
If more than one proper venue, P chooses.
31
Where does an unincorporated association reside when determining venue?
All counties where it does business or has a branch.
32
Where does a corporation reside when determining venue?
Registered office AND
Contracts cases: Where the contact was made or to be performed if the corporation has an office in that county (contracts cases only) AND
Tort cases:
1. where claim arose if corporation has an office there and transacts business there OR
2. where claim arose
- D has option to remove to where its principal place of business is w/in 45 days
33
Determining venue if D is a nonresident: D served in GA
Venue laid in county where service was made
34
Determining venue if Ds are ALL nonresident: long-arm
Venue laid in county where a substantial part of the claim arose.
35
Determining venue if at least one D is a resident: long-arm
County where D resides
36
Venue under Nonresident Motor Act
If all Ds are nonresidents there are 2 choices:
- county where the accident occurred
- where P resides
If one of more Ds is a GA resident, venue is where one of the Ds resides.
37
What if P sues in D's county and the other D (nonresident) is sued there too. What happens if the resident D's case is dismissed BEFORE TRIAL?
Transfer case to proper venue for nonresident.
NO VANISHING VENUE. Must be dismissed BEFORE TRIAL.
38
What if third party is impleaded, can he contest venue?
No, if the main claim has valid venue.
39
What if a nonresident P sues in GA for an action accruing outside of GA?
Inconvenient forum in action (very limited action)
| - GA court can dismiss without prejudice if there is a more convenient forum.
40
Forum non conveniens: more convenient forum outside GA (what must D do?)
D must waive any statute of limitations defenses before court will agree to dismiss
41
Who can serve process in GA?
1. sheriff
2. specially appointed by court (18 years old +)
3. permanent process server
**** narrower than federal rule
42
When must service be performed?
Server must serve within 5 days of receiving the summons and complaint BUT if the delay is reasonable and diligent, then it won't matter if it took more than 5 days.
43
How to serve?
Same as federal rules
1. personal service
2. place of usual abode
3. D's registered agent
4. waiver
44
Serving a corporation in GA: who can you serve?
In state or federal court in GA it's ok to serve:
| - registered agent, officers of Corp, managing agent, other agents that represent the corporation
45
What if you can't find any corporate agent?
Serve corporation through giving Secretary of State the copy of the summons and complaint and certifying you can't find anyone
OR
If you can't find the registered agent, sent certified mail to CEO or secretary and Secretary of State
46
Serving someone out of state
1. GA domicile but served out of state: serve personally where found but need court order
2. Long arm: serve out of state by any method permitted under GA law
- long arm service can be made by someone authorized in the other state OR
- by a duly licensed attorney there
47
Serving someone out of state under Nonresident Motor Act
Serve process on Secretary of State w/ affidavit AND
| mail to D
48
Return of service of process: why do we want to file proof of service
Strong evidence that service was made if D contests service
49
What should be included in complaint?
1. subject matter jurisdiction
2. claim for relief
3. short and plain statement of claim
4. facts alleging venue ******* (not required in federal)
50
What must you do if it is a professional malpractice case in GA?
With her complaint, P must attach an affidavit of an EXPERT
1. expert must detail the standard of care charged to Ds
2. alleging with SPECIFICITY at least one negligent act
51
What if you don't file an affidavit with your complaint in a professional malpractice?
Subject to dismissal for failure to state a claim (non-curable unless mistake)
52
What if affidavit is defective in a professional malpractice case?
P can cure w/in 30 days
53
When can you be excused from filing an affidavit with your complaint in a professional malpractice case?
Only if statute of limitations is going to run within 10 days .... you get 45 days from the filing of the complaint to add the affidavit
54
Verified pleadings
Made under oath
| Can be considered when judge considers a summary judgment motion
55
Abusive litigation (GA)
Sanctions available if the other side has a completely meritless claim - must bring during case or within 45 days of final adjudication
56
How many days does D have to respond after being served?
GA: 30 days
Federal: 21 days
57
In GA court, do you have to file an answer if you've filed a Rule 12 motion?
Yes, D must still file an answer. Filing a Rule 12 motion doesn't suspend the time to file an answer.
58
"Relation back" in GA court
Stricter than federal court
Can relate back a claim after statute of limitations has run if:
1. same conduct, transaction, or occurrence
2. the new party received notice w/in the statute of limitations and will not be prejudiced with the new defense; AND
3. the new party knew or should have known that but for the mistake, it would have been a D originally
59
How does a minor or incompetent bring suit without a representative?
Minor or incompetent can bring suit by his own name with "by his next friend" or guardian ad litem. Then court knows it must appoint a guardian ad litem.
60
In GA, what is the statute of limitations for personal injuries?
2 years
61
In GA, what is the statute of limitations for damage to reputation?
1 year from defamatory act
62
In GA, what is the statute of limitations for personal property damage?
4 years
63
In GA, what is the statute of limitations for damage to realty (including trespass)
4 years
64
In GA, what is the statute of limitations for medical malpractice?
2 years from injury
Never more than 5 years from negligence (ultimate repose)
EXCEPT IF UNDER 5 years old: tolled til age 5 and then must sue by age 7
65
In GA, what is the statute of limitations for written contracts? Oral or implied contracts?
Written: 6 years
| Oral or implied: 4 years
66
In GA, what is the statute of limitations for contracts for the sale of goods?
4 years
67
In GA, what is the statute of limitations for deficiencies in improvements to real property? (actions against architects, contractors, engineers)
8 years from substantial completion
68
Cross-claims - are they mandatory?
In GA they are MANDATORY
Federal court: permissive
Cross-claim: same T/O as main claim against co-party
69
If there would normally be joint and several but P is partly at fault, what happens?
Court will apportion according to each D's fault, even if a person hasn't been joined. Don't have to file a cross claim or impleader
70
Discovery in GA: differences in disclosures
GA: no required disclosures, use the discovery tools to get info you want
Federal: required initial disclosures
71
Interrogatories in GA: how many are allowed?
GA: 50
federal: 25
72
Request for production in GA
GA: No need to get subpoena, the orders are self-enforceable
| Federal court: need a subpoena
73
Physical or mental exams in GA
GA: must be a physician
Federal: any licensed health care professional
74
Experts in GA
GA: send interrogatories asking other side to identify experts
federal: required disclosure by other side
75
Voluntary dismissal in GA
GA: before first witness is sworn at trial OR by stipulation of all parties
Federal: before D files answer
76
If P decides to voluntary dismiss, when must P refile?
Must file w/in unexpired limitations period or if it has already expired, w/in 6 months
77
What is an automatic dismissal (GA)?
If no written order has been filed in the case for 5 years, the case is automatically dismissed w/ costs to P.
78
Default in GA (very different than federal law)
If D doesn't respond w/in 30 days of service = default
But if D responds during 15 days grace period, can reopen by paying costs
If D doesn't respond w/in the grace period, D can move to set aside default anytime before entry of default judgment in the court's discretion.
79
Is default judgment automatic in GA?
No, P must file motion for default judgment and then there is a hearing for damages
80
Scheduling conferences
GA: in the court's discretion and mandatory if one party moves for it
Federal: required
81
Right to jury trial (GA vs. federal)
No need to plead in GA (unless for default judgment damages)
| Federal: must demand jury
82
Number of jurors in superior court and state court
Superior court: 12
| State court: 6 (unless over $25,000 - then parties can demand 12 jurors)
83
Motions for judgment not withstanding the verdict or motion for new trial - time limits
GA: 30 days after entry of judgment
Federal: 10 days
GA: called directed verdict, judgment notwithstanding the verdict
Federal: judgment as a matter of law, renewed motion for judgment as a matter of law
84
Interlocutory appeals
Those allowed in federal court + orders granting summary judgment as to any issue
85
Claim preclusion requirements
1. same P against the same D (or those in privity)
2. Valid final judgment on the merits
3. both cases must involve same cause of action
86
Special claim preclusion exception in GA for motor vehicle cases
You can treat property and personal injury as separate and you won't be precluded for bringing them in separate cases.
87
What is NOT a valid final judgment?
```
Dismissal for:
lack of PJ
lack of SMJ
improper venue
improper service
failure to join a Rule 19 party
any dismissal "without prejudice"
```
88
Issue preclusion
1. Valid final judgment on the merits
2. same issue was actually litigated and determined
3. that issue was essential to the judgment
89
Who can you assert issue preclusion against?
Only against one who was a party to the first case (or in privity)
90
Who can assert issue preclusion?
modern trend is to reject mutuality (must have been a party)
GA: only can use to defend -> nonmutual defensive collateral estoppel
91
Can a P assert offensive nonmutual collateral estoppel in federal court?
GA: no nonmutual offensive
Federal: okay if fair
92
What if the defendant is served within the 5 day window for service (or beyond if done diligently), but at the time of service the statute of limitations has run?
The service relates back to the date of filing the complaint, so it is considered TIMELY.
93
How do you show diligence if service was done beyond the 5 day window?
Show that the P took steps to ensure that process was served.
Show that P followed up on any service attempts.
94
What if a party wants the pretrial order amended? What is the standard for getting it amended?
Manifest injustice - A pretrial order controls the subsequent course of the case unless modified at trial to prevent manifest injustice.
95
What is the standard for granting a directed verdict?
Evidence leads to only one conclusion. No reasonable jury could find for the nonmoving party based on the evidence submitted.
