GA Civil Procedure

Question 1

Long Arm Statute

Answer 1

LIMIT

Land- Owns, uses, or possesses any real property in Georgia. (Note: A defendant cannot defeat jurisdiction by divesting herself of the realty before the case is filed.)

Injury- Commits a tortious act or omission in Georgia (except defamation).

Commits a tortious act or omission out of state that injures a plaintiff in Georgia. (Note: This basis is permitted only if the defendant regularly does or solicits business in Georgia, engages in some persistent course of conduct in Georgia, or derives substantial revenue from goods used or consumed in Georgia.)

Matrimony- Is named in an action for alimony, child support, or division of property in a divorce action or an independent action for support of dependents. In these cases, jurisdiction can be had over one who maintained a matrimonial domicile in Georgia when the action was commenced, or over one who resided in Georgia before commencement of the action (even if not cohabiting).

With respect to marital actions and child support cases, maintaining a domicile or residing in Georgia at the time the action arose.

Insurance- Insurance coverage of property/people in GA.

Transact - Transacts any business in Georgia. (Note: This provision may apply to tort cases also.)

Question 2

Forum Non Conveniens

Answer 2

The relative ease of access to sources of proof;

The availability and cost of compulsory process for attendance of unwilling witnesses;

The possibility of viewing of the premises, if viewing would be appropriate to the action;

Any unnecessary expense or trouble to the defendant;

The administrative difficulties for the forum courts;

Local interests in deciding the case locally; and

The traditional deference given to a plaintiff’s choice of forum.

Question 3

1 Year SOL

Answer 3

(1) Damage to reputation; (2) actions for foreign objects left in patient’s body (from date of discovery)

Question 4

2 Year SOL

Answer 4

(1) Personal injury; (2) medical malpractice (5 year Stat. of Repose)

Question 5

4 Year SOL

Answer 5

(1) Property damage; (2) trespass to realty; (3) oral or implied contracts; (4) contracts for sale of goods (contract may alter)

Question 6

6 Year SOL

Answer 6

Written contracts (from when they become due and payable)

Question 7

8 Year SOL

Answer 7

Actions for deficiency of survey, plat, plan, design specification, supervision, or observation of construction (10 year Stat. of Repose)

Question 8

10 Year SOL

Answer 8

Most products liability actions (from date of first use or consumption of product)

Question 9

20 Year SOL

Answer 9

Written contracts under seal

Question 10

PJ Framework

Answer 10

A GA statute must authorize PJ and the exercise of PJ using that statute must be constitutional.

Question 11

PJ Basis in GA

Answer 11

Physical presence in GA.

P consents to PJ by filing suit.

Defendant (“D”) can waive PJ. But there is no consent by contract in GA prior to lawsuit.

Under the fiduciary shield doctrine, an individual does not submit to PJ by doing acts in GA.

General PJ may be exercised over a corporation that is incorporated in GA, has its principal place of business in GA, or has registered to do business in GA.

An individual or business may be subject to specific PJ (meaning that the cause of action must be related to D’s GA contacts) under GA’s long arm jurisdiction.

The Nonresident Motorist Act also provides for PJ over a driver who gets into a car accident in GA.

An “in rem” suit is one involving the status of something, like the ownership of property in GA or divorce only actions (no support or custody determinations).

Question 12

Methods of Service

Answer 12

Personal service (handing to D directly).

Abode service (someone of suitable age and discretion residing with D).

Service on an agent.

Waiver of service.

If the D can’t be served with due diligence, a business may be served by mail.

A county, city, etc., is served by serving the person in charge.

Question 13

Service of Process

Answer 13

A method of process is constitutional if it is reasonably calculated to give notice.

A sheriff, a deputy sheriff, a certified process server, or an adult appointed by the court may serve process.

Service must be made within a “reasonable time” to avoid dismissal.

Process must be served within 5 days of receipt or else process must be reissued (exercising due diligence to meet the reasonable time above).

Question 14

Service under GA Tort Claims Act

Answer 14

An ante litem notice is required.

The claimant can start their action 90 days after the notice was presented (and not responded to) or the claim was denied (whichever occurs first). Entity must be served despite notice.

The attorney general must be served by certified mail or statutory overnight service (look for signature being required).

Question 15

Superior Court SMJ

Answer 15

Exclusive jurisdiction over land title and divorce actions.

Cannot hear most probate and all juvenile delinquency actions.

Concurrent jurisdiction with state court, magistrate court, juvenile court, the business court, and the Article 6 probate court.

Question 16

State Court SMJ

Answer 16

GA’s state court is meant to supplement the superior court and have concurrent jurisdiction with the superior court.

Can’t hear cases falling under the superior court’s exclusive jurisdiction, large-dollar commercial matters, business cases seeking equitable relief, juvenile and family law matters, and probate-related matters.

Question 17

Magistrate Court SMJ

Answer 17

Can hear any case not within the superior court’s exclusive jurisdiction and where the amount in controversy does not exceed $15,000.

No jury trials.

Question 18

Specialized Courts

Answer 18

The regular probate court has exclusive jurisdiction over the probate of wills and administration of estates.

Juvenile court has exclusive jurisdiction over delinquency actions. It has concurrent jurisdiction with the superior court over child custody and support cases.

The business court has no exclusive jurisdiction, but they hear large-dollar commercial cases and business-related cases seeking equitable relief.

Question 19

Venue (1 D)

Answer 19

Venue is proper in the GA county where D resides when the case is filed.

Exception: An impleaded D cannot object to venue.

Question 20

Venue (2+ Ds)

Answer 20

Venue is proper in any GA county where any D resides if they are jointly liable for P’s injury.

If the Ds are not jointly liable, they must be sued separately in their GA county of residence.

Question 21

Venue (Nonresident Ds)

Answer 21

Venue is proper in the GA county where D was served or where a substantial part of the harm took place.

Under the Nonresident Motorist Act, venue is proper in the county where the accident occurred or where the plaintiff resided at the time of the accident.

If there are GA residents joined, venue must be proper as to them.

Question 22

Special Venue Rules

Answer 22

Cases involving land must be brought in the GA county where the land is located.

For cases involving estates, venue is proper in the GA county where the executor resides.

In a divorce or alimony case, if the D is a nonresident, venue is proper in the GA county where P resides. (If D is a resident, the default rules apply.)

In claims under Georgia’s Tort Claims Act, venue is proper where the loss occurred.

Question 23

Vanishing Venue

Answer 23

If the defendant on whom venue is based is dismissed, venue “vanishes.” The case must be transferred to a venue that is proper as to the remaining defendants.

Exception - If the only remaining defendants are nonresidents, venue does not vanish.

Question 24

Forum Non Conveniens

Answer 24

An action filed in a proper but inconvenient forum may, in the court’s discretion, be transferred (if the convenient forum is another GA county) or dismissed (if the convenient forum is outside GA).

Question 25

Pleadings

Answer 25

GA is a notice pleading state, meaning that fair notice of the general type of litigation and basic facts showing what D did wrong is all that is required. Facts showing venue must be pleaded. Affidavits are required in divorce actions and when extraordinary relief is sought. A professional affidavit also is required in medical malpractice claims. (But if the statute of limitations is about to expire, P may file the claim and provide the affidavit shortly after filing. A defective affidavit can be cured within 30 days of the D’s motion.)

Question 26

Pleading Sanctions

Answer 26

GA has a similar rule to FRCP 11, plus it has a separate statute that permits sanctions for vexatious litigation.

Question 27

Responsive Motions and Answer

Answer 27

D has 30 days to respond after being served with the summons and complaint (60 if process is waived). The 30 days is not stayed by a pretrial motion, but discovery is stayed for the earlier of 90 days or until the court rules on the motion.

Question 28

Statutes of Limitation

Answer 28

SOL is generally tolled for minors except for medical malpractice claims. A medical malpractice claim must be filed within 5 years of the occurrence, but this period does not begin until the child turns 5 years old.

Question 29

Amending Pleadings

Answer 29

A pleader may amend as of right up to the pretrial order or up to the start of trial if there is no pretrial order. Relation back works as in federal court, except that period for acquiring knowledge of the suit has not been extended to allow for service of process.

Question 30

Joinder of Claims

Answer 30

A P may join as many claims as they have against a D. (But the court has the ability to sever the claims if prejudice would result.)

Question 31

Joinder of Parties

Answer 31

Parties may be joined if their claims, or the claims against them, derive from the same transaction or occurrence and raise a common question of law or fact.

Question 32

Crossclaims

Answer 32

Because GA has eliminated joint and several liability, the cross-claim must be for the claimant’s damages only.

Question 33

Impleaders

Answer 33

As in federal court, derivative liability is required. Because of GA’s tort law restricting joint and several liability, there’s no impleader of a joint tortfeasor.

Question 34

Scope of Discovery

Answer 34

To be within the scope of discovery, the material sought must be relevant and not privileged. A party can seek a protective order if the material sought is not proportional to the needs of the case. Mental impressions of attorneys are not discoverable, either in state or federal court. GA has a physician shield statute that protects physicians from liability for releasing information. The physician is not required to release information except when the patient signs a release and when served with a subpoena.

Question 35

Pretrial Conferences

Answer 35

There is no requirement for the parties to initially meet to set forth a discovery plan. Pretrial conferences must be held when the parties request; the judge has the discretion to order pretrial conferences as well.

Question 36

Involuntary Dismissals

Answer 36

Involuntary can be for failure to diligently prosecute or as a sanction.

Question 37

Voluntary Dismissals

Answer 37

Voluntary dismissals work as in federal court, save for timing. In GA, a party has until the first witness is sworn to dismiss. “Savings statute”: P may refile the action within the remaining statute of limitations period or 6 months, whichever is longer. (Note: The savings statute will apply in federal court in diversity cases as well because statutes of limitations are substantive under Erie.)

Question 38

Defaults

Answer 38

If D fails to respond in 30 days, a default, then a default judgment, may be entered. A default is entered automatically. D has 15 days to open the default (and pay costs). After the 15 days has expired, P may move for a default judgment. If P fails to do so, D can move to open default after the 15 days. D must show providential cause that prevented a response, excusable neglect, and a proper case for opening the default (look to interests of justice). There must be a viable defense as well. In GA state courts, the judge has to enter the judgment, even if the amount is for a sum certain. P must present proof; D may appear and contest damages. D can move for relief from judgment, just like any other judgment.

Question 39

Summary Judgment

Answer 39

Summary judgment works as in federal court except: A claiming party must wait 30 days after the claim is filed to move for summary judgment. A notice of motion must file a notice of motion 30 days prior to the motion being heard.

Question 40

Jury Trials

Answer 40

No jury demand is required except for default, divorce, and probate proceedings. Generally, there are 12 jurors in superior court and 6 in state (a jury of 12 can be demanded when the amount in controversy exceeds $50,000).

Question 41

Trial and Post-Trial Motions

Answer 41

The timing for the post-trial motions is 30 days after the judgment is entered.

Question 42

Motions for Relief from Judgments (including Default Judgments)

Answer 42

Lack of jurisdiction, either subject matter or personal. (Remember that D also must be served with process for there to be PJ.) Fraud, accident, or mistake. Non-amendable defect apparent from the face of the record or pleadings; and Newly discovered evidence. First has no time limit; others are 3 years.

Question 43

Interlocutory Appeals

Answer 43

Injunctions One relating to child custody; One refusing a writ of mandamus or other extraordinary relief; and Orders granting summary judgment. There’s also a general discretionary appeal when the trial judge certifies the issue as one of great importance and the appellate court agrees to hear it.

Question 44

Appellate Jurisdiction

Answer 44

The Supreme Court has exclusive jurisdiction over trial court orders involving treaties, the constitutionality of a state or federal question, and contested elections. The Supreme Court also answers certified questions from other state appellate courts or from a federal district or appellate court. Otherwise, the court of appeals has appellate jurisdiction.

Question 45

Claim Preclusion

Answer 45

GA claim preclusion mirrors federal law, except: In GA, motor vehicle accidents give rise to a personal injury claim and a property damage claim that may be brought separately.

Question 46

Issue Preclusion

Answer 46

GA law on issue preclusion mirrors federal law, except: GA tends to be more strict on the mutuality requirement and will permit non-mutual issue preclusion only by defendant in vicarious liability situations.