Pleadings

Question 1

What must the complaint contain?

Answer 1

Generally:

• subject matter jurisdiction
• short and plain statement of the claim showing that the pleader is entitled to relief
• demand for judgment
• facts alleging basis for venue

Professional malpractice cases:

• the above; and
• expert’s affidavit setting forth with specificity at least one negligent act or omission and facts on which the claim is based

Question 2

What are the effects of a failure of the expert’s affidavit for professional malpractice?

Answer 2

Failure to file affidavit:

• subject to dismissal for failure to state a claim
• cannot be cured by amendment or by voluntary dismissal
• exception: if the court finds that the plaintiff in fact had the affidavit in proper time but failed to file it due to a mistake

Defective affidavit:

• dismissal if defendant raises the defect with specificity;
• plaintiff has 30 days of motion to cure

Delay** in filing affidavit **when statute of limitations is about to run–excused if:

• staute of limitations will run on the claim within ten days of filing the complaint
• plaintiff alleges that because of time constraints an expert could not be prepared; and
• palintiff’s attorney files affidavit swearing that not retained more than 90 days prior to expiration of statute of limitations

Question 3

When are verified pleadings required?

Answer 3

Divorce

Garnishment

Question 4

What does Georgia’s Rule 11 require?

Answer 4

Applies only to pleadings

Certification that:

• read the document
• document not interposed for delay

No section on sanctions

• may strike the pleading; or
• allow amendment

NOTE: generally toothless relative to federal rule

Question 5

What is the standard and sanctions available for abusive litigation (9-15-14)?

Answer 5

Standard:

• 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 court would accept it

Must be brought during the case or within 45 days of its conclusion

Sanctions:

• reasonable costs of litigation, including attorney’s fees (including that incurred in successfully seeking sanctions)

Question 6

How and when must a defendant respond to a complaint?

Answer 6

Defensive pleading

Rule 12 Motion

• doesn’t not suspend the time in which a party may file an answer
• does stay discovery for 90 days after the 1) filing of the motion; or 2) the court’s ruling on the motion, whichever is sooner

Within 30 days of filing of complaint

A party need not respond to a counterclaim** or **crossclaim unless the court orders it

Question 7

When may a party amend the pleadings?

Answer 7

Amendment of right:

• before the pretrial conference order is entered
• if no such order, right to amend up until start of trial
• no requiremend to respond to an amended pleading unless the court so orders

Amendment changing a party** after statute of limitations period–**relation back if:

• amendment concerns the same conduct, transaction, or occurrence as the original pleading; and
• the new party received notice of the action within the proper time period** that she will **not be prejudiced in maintaining a defense; and
• the new party knew or should have known that but for a mistake, it would have been named as the defendant originally

NOTE: the “proper time period” is the period provided by law for commencing the action against him–statute of limitations.