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Flashcards in GA Civil Procedure Deck (190):
1

Three types of personal jurisdiction:

1. In personam
2. In rem
3. Quasi in rem

2

Two steps to determining jurisdiction:

1. Whether it satisfies a statute or code
2. Is it constitutionally permissible?

3

In personam jurisdiction: General jurisdiction: Statutory basis in GA:

need not relate to events giving rise to the claim.

4

In personam jurisdiction: Specific jurisdiction: Statutory basis in GA:

MUST relate to the eventing giving rise to the claim.

5

In personam jurisdiction: gives court power over D b/c: (3 different ways)

she lives in,
is present in, or
has done something in the forum.

6

GA long arm statute:

available to sue non-residents.

7

One of two requirements to apply long arm: It can be used to sue:

1. Someone who is not a resident of GA when the claim arose, OR
2. Someone who was resident of GA when the claim arose but not when the suit was filed.

8

Long arm claims must arise from:

D's contacts with the state - it's specific jurisdiction.
Stated another way the claim must rise from D's contacts with GA.

9

GA contacts that trigger long arm statute: (5)

1. Transacts business in GA.
2. Commits a tortious act or omission (except defamation) in GA.
3. Commits tortious act or omission out of state that injures P in GA
4. Owns, uses, or possesses RP in GA
5. Domestic relations. If D had matrimonial domicile here when case is filed or before the commencement of the case.

10

Long arm statute: If D transacts business in GA physical presence is:

not required - sustained purposeful connection will suffice even if there is no physical manifestation of transaction in the state.

11

Long arm statute can be used against D that commits tortious act or omission out of state that injures P in GA only if:

D engages in some persistent course of conduct in GA; OR derives substantial revenues from goods consumed here.

12

Long arm statute: Ways to transact business in GA: (3 ways)

Note: Advertising in a nat'l publication and accepting GA orders is not enough -- must target GA.

1. Having an office in GA
2. Negotiating, signing, or undertaking to perform K in GA
3. Placing goods into the stream of commerce for resale in GA

13

Non-resident Motorist Act (car accidents). Only available to sue:

non-residents of GA. It is narrower than the long arm statute.

14

Non-resident Motorist Act: Does it include someone who was a resident of GA when the claim arose, but not when the case was filed?

No.

15

Non-resident Motorist Act:

Gives only specific jurisdiction for claims arising from "any accident or collision involving the non-resident's USE OR OWNERSHIP of a motor vehicle in GA.

16

Constitutional Standard: (Int'l Shoe) Test:

Does D have "such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice"?

17

Factors in minimum contact analysis: (2)

1. Contact
2. Fairness and Reasonableness

18

Factors in minimum contact analysis: What type of Contact: (2 factors)

1. Purposeful availment : purposeful, voluntary act towards the forum
2. Foreseeability : making it foreseeable that D could get sued in this forum.

19

Factors in minimum contact analysis: Fairness and reasonableness: (three factors)

1. Relatedness b/t contact and the claim.
2. Convenience
3. State's interest

20

Summary of Constitutional Test:
My Parents Frequently Forgot to Read Children's Stories

Minimum Contacts
-Purposeful availment
-Foreseeability

Fair play and substantial justice
-Relatedness of claim and
-Convenience
-State's interest.

21

In Rem and Quasi In Rem: Statutory Basis:

State exercises power over not the person, but the property. Statutory basis is an attachment statute.

22

In Rem and Quasi In Rem: Constitutional Test:

ALL exercises of jurisdiction must satisfy Int'l Shoe minimum contacts test. Property would probably be treated as a contact and the constitutionality would probably depend on whether the dispute is related to the property attached.

23

Subject matter jurisdiction:

defines the TYPES OF CASES that can be brought in a given ct.

24

Three trial cts in GA for basic civil actions:

1. Superior Ct.
2. State Ct.
3. Magistrate Ct.

25

Superior ct (every county has one) has exclusive jurisdiction over: (1 criminal, 3 civil)

1. Felony criminal cases
2. Divorce
3. Affirmative equitable relief
4. Title to land

26

Superior ct can hear any:

any other civil cases EXCEPT those involving specialized subject matter in which exclusive jurisdiction is vested in some other ct. (e.g. Probate Ct, Juvenile Ct.)

27

Does the amt in controversy of these nonexclusive civil cases in Superior Ct matter?

No.

28

State Ct: 62 most populous counties have these. What civil cases can State Ct here?

All, except the three that lie exclusively in Superior Ct.

29

What if D in State Ct raises and equitable defense, such as duress or fraud?

State ct can hear case b/c those are not affirmative equitable relief remedies.

30

Magistrate Ct. Each county has one of these. (Basically small claims ct.) What cases can they hear?

Anything the State Ct can hear in which the amt in controversy does not exceed $15k

31

Magistrate Ct: Jurisdiction is:

not exclusive.

32

Compulsory counter claim rule:

A D must assert a counterclaim if it arises out of the same transaction or occurrence as P's claim.

33

What if a compulsory counterclaim asserted in Magistrate Ct exceeds $15k?

Once the counterclaim in asserted the entire case will be transferred to the State or Superior Ct.

34

Venue:

It's a geography question. We know which ct to sue in, but WHERE in GA?

35

Venue: Title to Land: (Local Action)

Venue must be laid in the county where the land or any part thereof lies.

36

Venue: P must be asserting her own title to realty at law and not relying on equity to perfect her title. If suing to establish or gain title at equity it:

is not local.

37

An action about a lease is:

NOT an action involving a title to land.

38

Transitory Actions (everything BUT local actions): General Rule where D is a GA resident:

Suit must be tried in the county in which D resides at the time of the action is commenced. (Enshrined in GA Constitution)

39

Transitory Actions: Where D is GA resident: Exception to the rule. Multiple D and Joint Liability (MDJLE): If a case is against joint trespassers, promisors, tortfeasors, or co-partners venue is okay in the county:

in which any of them resides when the case is filed.

40

Does the MDJLE exception apply if any of the D are non-residents of GA?

No. Only if ALL D are GA residents.

41

Transitory Actions: Exceptions to General Rule: (4)

1. Multiple Defendants and Joint Liability (MDJLE)
2. Makers and Endorsers of Notes
3. Affirmative Equitable Relief
4. Divorce or Alimony.

42

Venue: Exception: Makers and endorsers of notes: If case is against both the maker and endorser of the note, and both reside in GA, venue may be laid:

in the county where MAKER resides.

43

Venue: Exception: Affirmative Equitable Relief: If all D's are GA residents venue lies in:

the county in which a D against whom "substantial relief is sought" resides.

44

Venue: Exception: Divorce or Alimony: If D is GA resident lay venue where he resides. If D is non-resident, lay venue where:

P resides.

45

Venue: Exception: What about uncontested divorce?

Resident D can consent to venue where P resides.

46

Hypo for Vanishing Venue Problem: Claim for damages is against two joint tortfeasors who reside in different counties. D1 resides in Floyd Co., D2 resides in Bibb Co. P brings suit in Floyd Co.

Floyd Co. jury finds in favor of D1 (resident D) and against D2 (resident of Bibb Co.) What can D2 argue?

D2 can argue that judgment should be set aside and the case transferred for retrial in Bibb Co.
Why? B/c after jury found in favor of D1 (the resident D) venue in Floyd Co VANISHED and the only venue to support suit against D2 was in Bibb Co.

47

Vanishing Venue:

Allows any non-resident D to require that the case be transferred to proper venue if all D's who reside in the county of original venue are discharged from liability, whether before or even upon return of the verdict.

If, however, the venue would still be proper in more than one co. P may choose among them.

48

County of residence of GA D for venue purposes: An unincorporated association:

resides in all counties in which it does business or has a branch or local organization.

49

County of residence of GA D for venue purposes:
Domestic GA Corp. and foreign corps authorized to transact business in GA: Registered office?

Corp always resides in the co. in which it has its registered office as stated by Articles of Incorporation filed with the Sec. of State.

50

County of residence of GA D for venue purposes:
Domestic GA Corp. and foreign corps authorized to transact business in GA:
Contracts Cases:

Corp ALSO resides in co. where the K was made or to be performed but ONLY IF corp has office to transact business there.

51

County of residence of GA D for venue purposes:
Domestic GA Corp. and foreign corps authorized to transact business in GA:
Torts (damages) cases:

Corp can be sued in co. where the tort occurred, but if the corp does not have an office and transact business in that co. D has right to remove to co. where D maintains principal place of business.

52

Transitory Actions: Venue: When D is a non-resident venue can be laid:

in the county where service was made.

53

If non-resident is brought in under the long-arm statue, venue is laid:

in any county where a substantial part of the claim arose.
NOTE: If one or more of D's is a GA resident, venue is laid in the co. where the GA co-defendant resides.

54

Venue under the Nonresident Motorist Act: If all D's are non residents, two choices for venue:

1. Where accident occurred.
2. Where P resides.

NOTE: Just like long arm statue if one or more D's are GA residents then venue is laid where the GA co-D resides.

55

Vanishing venue? If GA co-D wins a verdict or judgment at trial, venue remains OK for the non-resident D. But if the GA co-D is dismissed b/f trial:

transfer case to proper venue for nonresident.

56

Can impleaded party object to venue if venue is proper in the main claim?

No.

57

If case is brought in improper co.:

it will be TRANSFERRED to proper county.

58

The ct in a PROPER county can order change of venue if:

an impartial jury cannot be found in co. where case is pending. Ct. will transfer to any county on which the parties agree. If they can't agree, ct. will choose the county.

59

When a NON-RESIDENT brings action in a GA court and the action ACCRUED OUTSIDE OF GA, a GA court may:

decline to exercise jurisdiction and DISMISS ACTION WITHOUT PREJUDICE to its filing in a more convenient forum w/ jurisdiction over the parties.

60

In considering whether to dismiss on account of inconvenient forum in action by a NON-RESIDENT of an action accruing OUTSIDE GA factors include: (5)

1. Place of accrual of the cause of action;
2. Location of witnesses;
3. Residence(s) of the parties;
4. Whether litigant is attempting to circumvent the applicable SOL of another state; and
5. Public factor of the convenience to and burden upon the ct.

61

Inconvenient forum in action by non-resident accruing outside GA motions must be filed:

not later than 90 days after the last day allowed for the moving party's answer.

62

Forum Non Conveniens: If a GA ct finds that:

in the INTEREST OF JUSTICE and for the CONVENIENCE OF THE PARTIES AND WITNESSES an action would be more properly heard either in another state or in another county.

Then the ct shall decline to adjudicate the matter under the doctrine of forum non conveniens.

63

Factors in determing whether to grand motion of forum non conveniens: (7) A VAULTA

Access to sources of proof;
Viewing the premises (if viewing would be appropriate in the action.)
Availability and cost of compulsory process for attendance of unwilling witnesses;
Unnecessary expense or trouble of D;
Local interests in decided the case locally;
Traditional deference given to Ps choice of forum.
Administrative difficulties for the forum cts.;

64

Where the more convenient forum lies outside GA:

Ct must DISMISS, but not until D stipulates to waive any SOL defenses in new forum.

65

Where the more convenient forum lies within GA:

Ct. must TRANSFER the action to the more convenient GA county.

66

Service of Process: Who may serve in GA: (3)

1. Sheriff, marshal, or deputy, or
2. A civilian non-party who is at least 18 and who is specially appointed by the ct., or
3. Such a civilian appointed by the ct. as a permanent process server
(Narrower than federal rules)

67

Timelines of service: While SOL is tolled by the filing of a complaint, the CPA states that the designated process server must effect service:

within five days of receiving the summons and complaint.

68

If complaint is filed w/i the SOL period but not served upon the D within 5 days or within the limitations period service will still be deemed valid if:

service was made in a reasonable and diligent manner.

69

Three methods of service under CPA:

1. Personal svc.
2. Leaving process at D's usual abode with person of suitable age and discretion who resides therein (substituted service)
3. Serving D's authorized agent.

70

Steps to use Waiver of Svc by First Class Mail: (3)

1. P must notify D of the action by sending by first class mail a copy of the complaint and form asking D to waive svc of summons.
2. D who receives request may grant waiver by returning the waiver form w/i 30 days of when the request was sent.
3. If D does not comply with a request for waiver of svc (thus forcing P to effect service of process on D) the ct. shall impose on the D the costs subsequently incurred in effecting svc of process, including costs and reasonable attys fees of any motion required to collect the cost of svc.

71

What happens to D who returns waiver form in timely manner?

(D who returns form in timely manner is not required to serve an answer to the complaint until 60 days after the date on which the request for waiver of service was sent.)

72

Svc on Corps: Under CPA P may serve a corp by serving any of the following in GA: (4) ROMO

1. Registered agent
2. President or other officer, secretary or cashier
3. Managing agent
4. Other agent whose job shows that she represents the corp in some way.

73

Substituted Service of Corp in GA: If svc cannot be effected on any corp agents then P may serve corp by: (3)

1. Delivering a copy of the summons and complaint to the Sec. of State.
2. Certifying by affidavit that svc on corp agent could not be effected, and
3. Forwarding the svc of process by registered mail to the last known registered office or agent listed w/ the Sec. of State.

74

Additional substituted svc of corp in GA: If P cannot effect svc on the registered agent, P may serve the corp by:

registered or certified mail, return receipt requested, addresd to the CEO or secretary of corp at its principal office.
Copies of the svc docs must also be served on the Sec. of State.

75

Svc on unincorporated associations (including PS) in GA:

Serve agent or partner in GA.

76

Serving minors:

Serve minor personally and his parent, general guardian, or guardian ad litem.

77

Svc out of state: On GA domiciliary:

Serve personally where found. Need court order based on affidavit.

78

Svc out of state: Under Long Arm: Can serve out of state by any method permitted by GA law, service may be made by:

someone authorized to serve process by that state or a licensed attorney there.

79

Svc out of state: Nonresident motorist act: (3 steps)

1. Serve process on GA Sec of State w/ copy of affidavit showing that NRMA applies,
2. Registered/certified mail of process to D, and
3. File D's return receipt and original affidavit w/ ct.

80

Service by publication:

Need a court order based upon P's affidavit that D cannot be found in GA.

81

Return:

Person serving process must file proof of service (return) promptly after svc.

82

Failure to file a return:

does not affect the validity of svc.

83

If service is made by an officer return can be made by:

affidavit or certificate

84

If service is made by a civilian return must be by:

affidavit.

85

Pleadings: Complaint: (5)
Sec VD

1. Statement of subject matter jurisdiction.
2. Short and plain statement of claim showing,
3. Pleader is entitled to relief,
4. A demand for judgment, and
5. Fact alleging basis of venue. (GA specific)

86

Pleading (Complaint) in professional malpractice cases:
(5 + extra)

1. Statement of subject matter jurisdiction.
2. Short and plain statement of claim showing,
3. Pleader is entitled to relief,
4. A demand for judgment, and
5. Fact alleging basis of venue. (GA specific)
PLUS
and expert's affidavit setting forth WITH SPECIFICITY at least one negligent act/omission and the facts on which the claim is based.

87

Failure to file affidavit w/ complaint in pro. malpractice cases: General Rule:

Upon motion by D the complaint is subject to dismissal for failure to state a claim. Defect generally cannot be cured by amendment or voluntary dismissal and refiling under GA renewal statute after the SOL expires UNLESS:
Ct finds that P in fact had the affidavit in proper time but failed to file due to mistake.

88

Defective affidavit: Case will be dismissed if D raises the defect w/ specificity by motion to dismiss filed w/ her responsive pleading. However P can cure the defect:

by amendment w/i 30 days of D's motion.

89

A P in a professional malpractice case may be excused from filing the affidavit contemporaneously with the complaint if: (3 things)

1. The SOL will run w/i 10 days of filing the complaint, and
2. P alleges b/c of time constraints an expert affidavit could not be prepared, and
3. P's atty files w/ complaint an affidavit swearing that his law firm was not retained more than 90 days prior to the expiration of the SOL

If these conditions are met P has 45 days from filing of complaint to supplement the pleadings by filing the expert affidavit.

90

Pleadings: General denial:

one that denies each and every allegation of the complaint. Permitted in GA/Fed - but be careful b/c it may be improper if there is ANYTHING in the complaint that cannot be denied.

91

Improperly used general denials may be treated as:

admission, since it does not fairly meet the allegations of the complaint.

92

Atty certificate, bad faith litigation: State Sec. 11 applies:

only to PLEADINGS and requires the atty to certify only that she has read the document and it is not interposed for delay.

93

Litigant in Superior or State ct. may recover reasonable costs of litigation including atty's fees if the other side took a position as to which there was:

a "complete absence of any justifiable issue of law or fact" such that a reasonable person could not believe the ct. would accept it. (Abusive litigation)

94

Abusive litigation sanctions are available against:

the party, the lawyer, or both.

95

Motion for abusive litigation sanctions must be brought:

during a case or w.i 45 days of adjudication.

96

Under CPA how long does D have to respond to the complaint?

30 days to respond to complaint.

97

Under CPA assumption of risk and contributory negligence:

need not be pleaded as affirmative defenses.

98

Unlike Fed. Ct. a Rule 12 motion:

does NOT suspend the time in which to file an answer.

99

Under the CPA is a response needed to a cross or counter claim?

No. Not unless the ct. orders it.

100

If a party files a pre-answer motion to dismiss discovery will be stayed for:

90 days after filing of motion or until the court rules. (Ct. must rule w/i 90 days)

101

Amendment of right:

Any party has the right to amend BEFORE the pretrial conference order is entered. If there is no such order, there is a right to amend up until the start of trial.
(Much more liberal than Fed. Ct.)

102

An amendment naming a new D relates back to the date of the original pleading if P can show the party to be brought in: (2 elements)

1. had notice* of action that she will not be harmed in presenting a defense, AND
2. knew or should have known that she would have been named but for a mistake.
*In GA such notice must be imputed before SOL runs.

103

Responses to amd pleadings under CPA:

D not required to respond unless ct orders.

(In Fed Ct. D must respond to amd complaint w/i 10 days or the time remaining for his original response, whichever is longer.)

104

If P sues and unincorporated org. it can reach its assets to satisfy judgment. To reach assets of members:

P must sue them as well.

105

SOL: Accrual:

The point which P could sue and recover, even if P doesn't know about the accrual.

106

SOL: Discovery rule for cases of bodily injury developing over an extended period of time:

In such cases the limitations period does not begin to run until P discovered or should have discovered the defect.

107

SOL: Personal injuries:

2 years from injury or death

108

SOL: Damage to reputation:

1 year from act.

109

SOL: Damage to personal property:

4 years

110

SOL: Damage to realty (including trespassing):

4 years.

111

SOL: Med Mal:

2 years from injury (limitations), but never more than five years from negligence (ultimate repose)

112

SOL Med Mal Hypo: Dr. commits malpractice on 1 Feb 2005, but the negligence does not cause injury until 15 March 2010. When does the 2 year SOL start running?

15 Mar 2010

113

SOL Med Mal Hypo 2: Dr. commits malpractice on 1 Feb 05, but the negligence does not cause injury until 20 Jan 10. The 2 year SOL STARTS running on 20 Jan 10, but P does not get 2 years from that date to sue. Why?

b/c 5 year statute of ultimate repose runs out on 31 Jan 2010 - P only has 11 days to sue.

114

The statute of ultimate repose applies to _______ claims against a doctor that are based on negligence.

impleader

115

SOL: Written K:

6 years.

116

SOL: K for sale of goods:

6 years.

117

SOL: Oral or implied K:

4 years

118

SOL in action against any person such as architect, engineer, or contractor) for deficiency in design, supervision, or construction of an improvement to RP or a deficiency in preparing a land survey or plat is:

8 years from substantial completion.

119

How does D raise SOL?

Alleges affirmative defense in answer.

120

What tolls a SOL? (2)

1. Filing complaint tolls the statute if served in timely fashion.
2. Minority (under 18) tolls statute except in med mal.

121

Effect of minority in med mal cases: If child is 5 or older when med mal claim accrues:

regular rules apply.

122

SOL: If child is under the age of 5 when med mal claim accrues:

SOL is tolled until age five, but the parent must sue before age 7.

123

Cross claims:

ALWAYS compulsory in GA.

124

When P is partly responsible for injuries:

joint and several liability is abolished.

125

When joint and several liability is abolished, it negates:

the need for contributions among joint tortfeasors - thus no need for D to file a cross claim or third party claim based on contribution theory against joint tortfeasor.

126

CA: 4 things needed for a class to be certifiable: CAN'T

Commonality
Adequacy of Representation
Numerosity
Typicality

127

CA: Numerosity:

Class members are so numerous that joinder is impractical.

128

CA: Commonality:

Questions of law or fact are common to the class.

129

CA: Typicality:

Named parties interests are typical of the class.

130

CA: Adequate Representation:

Named parties will adequately represent the interests of absent members of the class.

131

To be maintainable as a CA one of three situations must be present: (3) RIC

1. Risk of inconsistent results or impair the interests of unnamed parties, or
2. Injunctive or declaratory relief is appropriate for the class as a whole, or
3. Common questions of law or fact predominate over individual issues

132

Who is bound by CA?

All who decline to opt out.

133

Discovery disclosures:

No required disclosures.

134

Number of interrogatories that can be served w/o leave of court:

GA: 50
Fed: 25

135

Request to produce documents and things can be served on:

non-parties and in GA you do not need a subpoena to enforce.

136

If a request is sent to hospital or HC provider seeking discovery of medical records of a non-party that non-party must:

be given notice of the request.

137

Who can perform physical or mental exams under CPA?

GA permits physical examination "by a physician" or a mental examination "by a physician or a licensed psychologist."
(Fed Rules just say any suitably licensed HC professional)

138

Experts: Send interrogatories to party asking to identify:

experts she has retained in anticipation of litigation and whom she expects to testify at trial and giving substance of expert's facts and grounds for her opinion.

139

AFTER receiving answers to interrogatories opposing counsel may:

depose the expert(s), but must pay a reasonable fee for the expert's time.

140

Can opposing counsel get discovery from expert who is retained in anticipation of litigation but will not be testifying at trial?

No, absent exceptional circumstances.

141

For depos of non-parties subpoenas are:

issued and signed by the clerk of ct. Atty may also issue and sign such a subpoena if all parties agree.

142

Subpoenas for depos of non parties must:

pertain to a case in a court which the attorney is authorized to practice.

143

Limit on number of depositions a party may take:

None.

144

Voluntary dismissal: (written notice) P has the right to dismiss voluntarily ONCE w/o prejudice either:

1. before first witness is sworn, or
2. by stipulation signed by all parties.

145

GA Renewal Statute states:

After a voluntary dismissal a party can refile in state (or possibly fed) ct. w/i six months or during the limitations period, whichever is longer.

146

If counter-claim is pending against P can P still take a voluntary dismissal of her claim?

No. UNLESS D agrees or counter claim is capable of remaining for independent adjudication.

147

Involuntary dismissal: Ct can dismiss if P has: (2)

1. failed to prosecute the case w/ proper diligence, or
2. failed to comply with CPA or court order.

The matter is in the discretion of the trial court.

148

A dismissal for failure to prosecute is:

NOT an adjudication on the merits. (i.e. it is w/o prejudice)
P can refile under the terms of GA Renewal Statute.

149

Automatic dismissal: If no written order is filed in a case for five years what happens?

Case is automatically dismissed with costs taxed to P.

150

After automatic dismissal P can:

refile w/i 6 mo of the dismissal and the case is on the same footing as original for SOL.

151

SOL: Products liability:

10 years from date of first use or consumption of the product.

152

SOL: Written K under seal:

20 years.

153

Automatic default judgment:

If D fails to file an answer w/i 30 days of svc of the complaint she is automatically in default. BUT D gets automatic grace period of 15 days.

154

After 15 day grace period is default judgment automatic?

No. P must make a motion for default judgment. Liability has been established, but not damages.

155

During D's 15 day grace period after default judgment what can she do?

Move to open default, subject only to liability for costs.

156

Beyond 15 day grace period after default D can move to set aside default anytime:

before entry of default judgement.

157

If D moves to set aside default after 15 day grace period but before entry of default judgment the court has discretion on whether to open based on three grounds:

1. Providential cause preventing filing (e.g. serious illness)
2. Excusable neglect, or
3. Ct is convinced from all facts it would be 'proper' to set aside.

158

If D moves to set aside default after 15 day grace period but before entry of default judgment the motion must meet four conditions:

1. It must be under oath,
2. It must include a meritorious defense,
3. It must state the D is ready to proceed to trial, and
4. Offer to plead immediately (instanter)

159

After default judgment is there a hearing for damages?

Yes. If case is in tort or for unliquidated damages then P must introduce evidence and establish damages.

160

After default judgment at damages hearing is there a jury?

Only if D has filed pleading contesting damages and demanded a jury.

161

In default case P cannot recover:

more than was demanded in complaint.

162

CPA provides for pre-trial conferences at the cts discretion and the ct MUST hold one if:

any party moves for one.

163

Main purpose for a pre-trial conference is:

To identify and narrow issues for trial and to produce pretrial order that governs conduct in the trial.

164

May ct permit testimony of an expert whose name is not contained in a pretrial order?

Yes, that is w/i the discretion of the ct to add.

165

Right to a jury trial?

Yes, for the same types of claims that are permitted in fed. ct. difference is that there is no need to demand a jury in GA. (Except in default judgment hearings for damages.)

166

Number of jurors in Superior Ct.

12 (GA Constitution) but parties can agree to less.

167

Number of jurors in State Ct.

6 unless claim is for more than $25k - then parties can ask for 12.

168

Directed Verdict (Called Judgment as a Matter of Law in Fed. Ct.)

Allows judgment to be granted for either party when the ct finds that a REASONABLE JURY would not have a LEGALLY SUFFICIENT BASIS to find for the non moving party.

169

Evidence in directed verdict is viewed:

in the light most favorable to the non-moving party.

170

Motion for directed verdict is requisite to make a motion for:

Judgment Notwithstanding the Verdict (JNOV)

171

Judgment Not Withstanding the Verdict (called Renewed Motion for Judgment as a Matter of Law in Fed. Ct.)

Verdict could not have been reached by reasonable persons. Moving party must have previously sought Directed Verdict.

172

When to make a motion for directed verdict:

After opponent has presented case but before submission of case to the jury.

173

When to make a motion for JNOV:

Not later than 30 days after entry of judgment.

174

When to make a motion for a new trial:

Not later than 30 days after entry of judgment.

175

Bases for motion to set aside judgment: (excusable neglect is NOT a basis): (3)

1. Lack of subject matter jurisdiction.
2. Fraud, accident, or mistake.
3. Non-amendable defect on the face of the record or pleading.

176

Interlocutory rights of appeal: (5)
MAIDS

Mandamus and other extraordinary relief,
Alimony, granting or refusing
Injunctions or receivers (same as fed. ct.)
Directing accounting, orders that.
Summary judgment, orders granting as to any issue.

177

Final judgment rule: Generally to appeal, there must be a:

final judgment of the case on its merits.

178

Res Judicata: (claim preclusion)

You only get to sue on a cause of action (claim) once. You must seek all relief available under that cause of action in single case or else you waive the right to go after it later.

179

Requirements for res judicata: (3)

1. Both cases must be brought by same claimant against the same D (or those with whom they are in privity)
2. The first suit must have ended in a valid final judgment ON THE MERITS. (This includes default judgment.)
3. The first and second case must involve the same cause of action.

180

6 dismissals where the judgment does not rest on the merits:

1. Lack of subject matter jurisdiction
2. Lack of personal jurisdiction
3. Improper venue
4. Improper service
5. Rule 19 Joinder
6. Dismissal specified w/o prejudice.

181

Weird res judicata thing with GA motor vehicle cases:

Claims for personal injuries and property damages arising from the same accident are considered different from each other for res judicata purposes.

182

Collateral Estoppel or Estoppel by Judgment (Issue Preclusion):

Narrower than res judicata. Precludes re-litigation of a particular issue that was litigated and determined and embodied in a valid final judgment in the first case.

183

Effect of collateral estoppel:

The particular issue is deemed established in the second case.

184

Requirements for collateral estoppel: (3)

1. The first case ended in a valid, final judgment on the merits.
2. The same issue was actually litigated and determined in the first case.
3.The issue was essential to the judgment in the first case.

185

Collateral estoppel may be asserted only against:

one who was a party to the prior case. (DUE PROCESS REQ'T SO IT CANNOT BE CHANGED.)

186

Who can assert collateral estoppel? Mutuality view:

You can only use collateral estoppel if you were a party to the prior case (or represented by the party) This is not a Constitutional req't so it can be changed.

187

Who can assert collateral estoppel? Modern trend:

To reject mutuality and allow collateral estoppel to be asserted by someone who was NOT a party to the first case. This is called non-mutual collateral estoppel.

188

Non-mutual DEFENSIVE collateral estoppel may be used when: 4

1. First case ended in a valid final judgment on the merits.
2. Same issue is litigated and determined in the first case.
3. Issue was essential to judgment in the first case.
4. Estoppel used AGAINST one who was a party to the first case.

189

Magistrate Ct: Jury trials are:

not available.

190

Magistrate Ct: Civil Practice Act _______, but there is a ______________ rule.

does not apply but there is a compulsory counter claim rule.