Ga Practice And Procedure

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Tagging with Personal Jurisdiction

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A person's physical presence in the state is a sufficient basis for in personam jurisdiction.
EXCEPTION
- if in the state to attend a court proceeding as a party or witness

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Waiver of PJ

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A party may be deemed to have consented to PJ by failing to raise lack of PJ as an affirmative defense in his answer
EXCEPTION
- if it would prejudice a third party

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PJ over a corporation if

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1) incorporated in GA
2) authorized to transact business in GA

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PJ over a person if

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resident of GA

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GA Long Arm

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If in person or through an agent, he
1) transacts any business within GA
2) commits a tortious act or omission within GA, except as to a cause of action for defamation of character arising from the act;
3) commits a tortious injury in GA caused by an act or omission outside the state if the tortfeasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in GA;
4) owns, uses, or possesses any real property in GA; or
5) with respect to proceedings for alimony, child support, or division of marital property in connection with a divorce or action for support:
- maintains a matrimonial domicile in GA at the time of the commencement of the action; or
- resided in GA preceding the commencement of the action, whether cohabitating during that period of residence or not.

* The GA courts construe the long arm statute to extend to the limits of due process, and have held that an "intangible presence" (i.e., mail and telephone calls) alone may be sufficient to establish the purposeful activity int the state necessary for personal jurisdiction.

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Venue Generally

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Must be tried in the county where the defendant resides when the case is filed

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Venue for cases respecting title to land

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Must be filed in the county where the land lies
EXCEPTION
- if single tract divided by county line - can bring in either

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Venue for actions seeking equitable relief

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Must be filed in the county of the residence of one of the defendants against whom substantial relief is sought.

If injunction to stay pending proceedings -> bring in county where proceedings are pending, provided no relief is sought as to matters not included in such litigation

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Ancillary venue

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When a P brings suit in the same county on two claims arising from the same transaction, and venue for one of the claims is proper under a GA constitutional provision, the trial court has discretionary ancillary venue over the other claim as well.

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Venue for nonresidents

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A person who is not a citizen of GA, passing through, or staying temporarily in the state may be subject to an action in any county thereof in which:
1) he may be found at the time when the action is brought;
2) a substantial part of the business involved was transacted;
3) the tortious act, omission, or injury occurred; or
4) the real property is located

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Venue for Corporations

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1) the county where the corporation maintains its registered office; or
2) if the corporation fails to maintain a registered office in GA, it will be deemed to reside in the county where its last named registered office or principal office, as shown by the records of the Sec. of State, was maintained.

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Transferred Venue

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GA Constitution requires a court to transfer venue if it determines that jurisdiction or venue lies elsewhere.
- It is error to dismiss when should transfer

The court MAY transfer a case when it determines that an impartial jury cannot be obtained in the county where the case is pending.
- either to county that parties agree on or
- place picked by judge if no agreement

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Inconvenient forum
Venue

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If upon written motion of a party, a GA court finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside the state or in a different county of proper venue within the state, the court must decline to adjudicate the matter.

For a claim or action that would be more properly heard in a forum outside the state, the court must dismiss the claim.

FACTORS
1) relative ease of access to sources of proof;
2) availability and cost of compulsory process for attendance of unwilling witnesses;
3) possibility of viewing of the premises, if viewing would be appropriate to the action
4) unnecessary expense or trouble to the defendant not necessary to the plaintiff's own right to pursue his or her remedy;
5) administrative difficulties for the forum courts;
6) existence of local interests in deciding the case locally; and
7) the traditional deference given to a plaintiff's choice of forum.

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Process must be served within Georgia by:

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1) the sheriff of the county were the action is brought or where the defendant is found, or such sheriff's deputy, or the marshal or sheriff of the court, or such official's deputy;
2) any citizen of the US specially appointed by the court for that purpose; or
3) someone who is not a party and is at least 18 years of age and has been appointed as a permanent process server by the court in which the action is brought

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Service of Process on individuals personally within GA is permitted by

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1) personal service
2) leaving copies at defendant's abode with someone of suitable age and discretion; or
3) delivering a copy to defendant's registered agent

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Service of Process for parties represented by an attorney

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Service must be made upon the attorney unless service upon the party himself is ordered by the court

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Nonresident present in the state to appear in court as a party or a witness

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is immune from service of process

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Service of Process against a corporation incorporated or domesticated under the laws of GA or a foreign corporation authorized to transact business in GA

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Service must be delivered to the president or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof

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Statutes of Limitations

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Starts running when the COA "accrues"
- In tort -> generally when injury inflicted
- In contract-> when offer accepted and K formed.

If the D is absent form eh sate when the COA accrues, the time begins to run from the time he returns.

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Tolling

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P must
1) file lawsuit before the time limit expires; and
2) make a good faith effort to serve process on the defendant within the statutory period (5 days)
- if within 5 day time period, will relate back to filing date

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discovery rule

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the SOL does not begin to run until the P has actual knowledge of he harm or until a person of reasonable diligence should have had knowledge, whichever is sooner.

Generally only applicable in cases of bodily injury that develop over an extended period of time, not in property damage cases

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COAs with 1 year SOLs

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- Defamation or other injuries to reputation
- Medical malpractice for foreign objects left in the patient's body

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COAs with 2 year SOLs

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- Breach of restrictive covenant
- personal injury
- Medical malpractice generally (with 5 year statute of repose). Starts running when injury or death arising from negligent or wrongful act or omission occurred.
- Products liability (10 year statute of repose from date of first sale for use or consumption causing injury)

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COAs with 4 year SOLs

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- All actions upon open account, or for the breach of any contract not under the hand of the party sought to be charged, or upon nay implied promise or undertaking
- All other actions upon contracts, express or implied, not otherwise provided for
- Contracts for the sale of goods
- Trespass upon or damage to realty
- Injuries to personal property, and actions for recovery of personalty.

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COAs with 5 year SOLs

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A civil action for recovery of damages suffered as a result of childhood sexual abuse must be commenced within 5 years of the date the P attains the age of majorityCOAs with 6 year SOLs

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COAs with 6 year SOLs

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Actions on simple written Contracts (not under UCC 2)

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COAs with 7 year SOLs

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Possession of real property under written evidence of title

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COAs with 8 year SOLs

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Deficiency in survey, plat, planning, design, specifications, supervision, or observation of construction (including personal or property injury and wrongful death arising from the deficiency)

For injury occurring in 7th or 8th year, action may be brought within 2 years of injury.

10 year statute of repose

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COAs with 10 year SOLs

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Actions against fiduciaries

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COAs with 20 year SOLs

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Adverse possession of real property

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Pleadings and Motions

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Every pleading by a party represented by an attorney must be signed by at least one attorney of record.

Unless otherwise provided by rule or statute, no verification or affidavit is required.

All papers after the complaint that are required to be served upon a party must be filed with the court within the time allowed for service

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Defenses and Objections

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An answer in Ga must be served within 30 days after service of the summons and complaint upon the defendant.

At the time of answering, a defendant must raise the following affirmative defenses - either in the answer or in a motion to dismiss - or they will be deemed waived:
1) lack of personal jurisdiction
2) improper venue
3) insufficiency of process; and
4) insufficiency of service of process

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The reply
Cross-claims and Counterclaims

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A cross claim (against a co-party) or a counterclaim (against an opposing party) in GA does not require a reply and automatically stands denied without a reply unless one is required by order of the court.

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Compulsory counterclaims

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A counterclaims that meets the following three prongs is compulsory:
1) exists at the time of serving the answer;
2) arises out of the same transaction or occurrence that is the subject matter of the opposing party's claim; and
3) does not require the presence of third parties who cannot be joined

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Permissive counterclaims

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A counterclaim that does NOT arise out of the transaction or occurrence that is the subject matter of the opposing party's claim.

Will be separated for trial, unless the parties otherwise agree

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Joinder and Substitution of parties

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GA rules on joinder and misjoinder are the same as the Federal Rules

In GA, a motion for substitution of parties must be made within 180 days after the death of a party

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Impleader

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In GA, no leave of court is required for impleader if the filing is made within 10 days after defendant serves the original answer

Because cross claims will be deemed compulsory in GA, cross claims must be asserted by the third party defendant in his response to the third party complaint.
- The same holds true for a response to claims by the plaintiff against the third party defendant.

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Interpleader

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The GA rule on interpleader is the same as Fed. R. Civ. P. 22

Ga also has equitable interpleader, which is more restrictive. Equitable interpleader has the following requirements:
1) all of the claimants must claim the same thing, debt, or duty;
2) all of the adverse titles or claims must be derived from a common source
3) the plaintiff must not have any interest in the subject matter; and
4) the plaintiff must be merely a stakeholder, with no independent liability

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Scope of Discovery

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Includes all matters "relevant to the subject matter involved in the pending action," without the need to show "good cause" to request any information beyond that relevant to the claim or defense of a party.

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Automatic Duty to Disclose

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The GA rules do not impose on the parties an automatic duty to disclose certain types of basic information without formal discovery requests, Moreover, unless the court orders otherwise, the frequency of use of any discovery method is not limited.

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Depositions

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A subpoena for a deposition may be issued, upon request, by the clerk of the superior court of the county where the action is pending, or the clerk of any court in the county where the deposition is to be taken

In GA, an attorney may only issue a subpoena upon agreement by the parties

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Interrogatories

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GA permits 50 interrogatories to be propounded without leave of court, which will be granted only upon a showing of complex litigation or undue hardship.

Interrogatories may, without leave of court, be served upon the plaintiff any time after commencement of the action, and may be served upon any other party with or after service of the summons and complaint upon that party

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Requests for production of documents
Entry Upon Land

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The requests for these forms of discovery may be served, without leave of court, upon the plaintiff anytime after commencement of the action, and may be served upon any other party with or after service of the summons and complaint upon that party

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Requests for Admission

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In GA, requests for admission may be served, without leave of court, upon the plaintiff anytime after commencement of the action, and upon any other party with or after service of summons and complaint upon that party

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Physical or Mental Examination

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The Ga rule regarding a physical or mental examination is nearly identical to the Federal Rule. The only difference is that the GA rule provides that the court may order a party to submit to a physical examination by a physician or a mental examination by a physician or licensed psychologist, whereas the Federal Rule provides that the physical or mental examination may be made by a suitably licensed or certified examiner.

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Summary Judgment

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In GA, a claimant may move for summary judgment after the expiration of 30 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, whereas the Federal Rule allows a party to move at any time until 30 days after the close of all discovery

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Directed Verdict

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A motion for a directed verdict may be made at the close of the evidence offered by an opposing party or at the close of the case.

GA law explicitly provides that making the motion for a directed verdict does NOT prevent a party from presenting evidence if the motion is denied, nor does the making of such motion constitute the waiver of jury trial

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Motion for judgment notwithstanding the verdict

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must be made within 30 days after entry of judgment or after the jury is discharged, if no verdict was returned.