Trial Practice and Procedure

JurisdictionGeorgia,United States
Publication year2012
CitationVol. 64 No. 1

Trial Practice and Procedure

Kate S. Cook

Brandon L. Peak

John C. Morrison III

Tedra C. Hobson

Mary K. Weeks

Kate S. Cook, Brandon L. Peak, John C. Morrison III, Tedra C. Hobson, Mary K. Weeks, and Jeb Butler

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Trial Practice and Procedure

by Kate S. Cook* Brandon L. Peak** John C. Morrison III*** Tedra C. Hobson**** Mary K. Weeks***** and Jeb Butler******

I. Introduction

This Article addresses several significant cases and legislation of interest to the Georgia civil trial practitioner occurring during the survey period of this publication.1

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II. Legislation

On May 1, 2012, the Uniform Interstate Depositions and Discovery Act (UIDDA)2 was approved.3 The UIDDA, which will survive with the new 2013 evidence code, provides for a streamlined foreign subpoena process if the subpoena's forum state has also adopted the UIDDA.4 Additionally, the UIDDA was drafted so that documents may be subpoenaed without the need for an accompanying definition, should a practitioner so choose.5

The Official Code of Georgia Annotated (O.C.G.A.) section 9-11-4(c)(5)6 has been amended to strike the qualification that a certified process server qualified under O.C.G.A. § 9-11-4.17 can only be used in counties whose sheriffs allow for such process servers.8 Among other revisions, House Bill No. 6659 now allows court clerks to store depositions or discovery filed in cases that have reached final disposition in microfilm or digital format.10

On April 17, 2012, House Bill No. 39711 was signed into law.12 This bill substantially rewrites Georgia's Open Records Act,13 allowing, inter alia, for a clearer and more streamlined process of obtaining records,14 reducing the per-page cost of receiving requested records,15 requiring civil litigants to notify opposing counsel for a state agency of such open record requests,16 and increasing fines for violations.17

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III. Case Law

A. Choice of Law

In Andrews v. RAM Medical, Inc.,18 the United States District Court for the Middle District of Georgia, applying Georgia law, was required to decide—in the absence of a clear bright-line rule or consistent Georgia precedent-whether breach of warranty claims arise under tort or under contract for choice of law purposes.19 The court determined that because the claims of the plaintiff were based on personal injuries sustained as the result of the use of a defective medical product, the claims sounded in tort.20 The court therefore applied the Georgia choice of law rules for tort claims and found that the law of Georgia would apply to the case.21 The court's decision had the effect of barring the plaintiff's breach of warranty claims because the plaintiff was unable to establish the requisite privity needed to recover under Georgia law.22

B. Jurisdiction

In LLC v. Walker,23 the Georgia Supreme Court held as a matter of first impression that the "fiduciary shield" doctrine would not apply in Georgia.24 The plaintiff, a Georgia physician, had been selling nutritional supplements purchased through, a multi-level distribution company as defined by Georgia law.25 When refused to repurchase certain products from her, the plaintiff filed a damages suit in the State Court of Gwinnett County,26 alleging that and three of its corporate officers violated the Georgia Fair Business Practices Act27 and the Sale of Business Opportunities Act.28 After disposing of the plaintiffs claims against the corporate defendant on different grounds,29 the court turned to whether

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the individual defendants were subject to personal jurisdiction in Georgia.30 The individual defendants took the position that they were entitled to assert the "fiduciary shield" doctrine, under which "a nonresident individual cannot be subject to personal jurisdiction in Georgia courts based solely upon acts taken in his capacity as a corporate officer."31 Although the court noted that several Georgia Court of Appeals cases and federal courts have applied the "fiduciary shield" doctrine, the supreme court disapproved of the doctrine and overruled or declined to follow those cases, observing that any "special treatment" the doctrine would afford corporate officers and directors conflicted with the "literal language" of O.C.G.A. § 9-10-9K1),32 the Georgia long-arm statute.33

The court was careful to note, however, that while the individual defendants' respective statuses as corporate officers did not necessarily shield them from personal jurisdiction, such status did not automatically confer personal jurisdiction over them.34 Instead, the court determined that the liability of corporate officers and directors could be resolved only by analyzing their individual contacts with the forum state.35 Accordingly, the court held that the "minimum contacts" personal jurisdiction test for non-resident corporate officers and directors can be satisfied by a showing that each individual officer is a "primary participant[] in the activities forming the basis of jurisdiction over" the corporation and that "the cause of action arises from or is connected with such act or transaction."36

In Jordan Outdoor Enterprises, Ltd. v. That 70's Store, LLC,37 a federal district court rejected a plaintiff's attempt to broaden the scope

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of personal jurisdiction in Georgia by invoking "the due process personal jurisdiction test' expressed in Calder v. Jones [465 U.S. 783 (1984)] and Licciandello v. Loveland [544 F.3d 1280 (11th Cir. 2008)]."38 The plaintiff, owner of various copyrights and trademarks for "REALTREE" brand camouflage patterns, sued the defendants, which marketed items featuring a marijuana leaf camouflage pattern and using marks such as "REALBUD." The defendants marketed their products through two websites that were accessible in Georgia, but it was undisputed that the defendants had no physical presence in Georgia and neither website had generated any sales of the "REALBUD" products in Georgia.39 The court first rejected plaintiff's argument that federal case law expanded Georgia's long-arm statute to include personal jurisdiction coextensive with the limits of due process and then held that the plaintiff failed to meet any of the express requirements of Georgia's long-arm statute.40 Specifically, the court determined that the defendants did not transact any business in Georgia by either committing an intentional tort directed at the plaintiff in Georgia or by operating websites "accessible everywhere and not specifically in Georgia"; the defendants did not commit a tortious act in Georgia by displaying the "REALBUD" marks on websites accessible in Georgia; and they did not regularly "solicit business in Georgia solely by operating a website that is accessible here and everywhere else."41

C. Remand/Removal

In Goins v. City of Quitman,42 the district court addressed an apparent issue of first impression under Georgia law: which date of dismissal should control "in a renewal action when federal and state claims have been dismissed at different times."43 The plaintiffs filed a complaint alleging both state and federal claims. After first voluntarily dismissing the federal claims on June 30, 2010, the plaintiffs dismissed the case in its entirety on February 3, 2011. The plaintiffs then filed a second complaint re-alleging both the federal and state claims on August 3, 2011, arguing that the date of the action's ultimate dismissal should control because O.C.G.A. § 9-2-61(a) allows for a six-month grace period for the refiling of a dismissed case that would otherwise be time-

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barred.44 While acknowledging the broad remedial purpose of O.C.G.A. § 9-2-61, the district court held that the six months accrues from the date of a claim's dismissal, rather than the ultimate dismissal of the action.45

D. Statutes of Limitation

In Tindall v. H&S Homes, LLC,46 the United States District Court for the Middle District of Georgia made clear that a plaintiff who sought to recover general compensatory damages for mental anguish, pain, and suffering as the result of an intentional tort was not in fact asserting a wholly independent tort claim for intentional infliction of emotional distress.47 Thus, the plaintiffs claims for mental anguish damages resulting from the defendant's fraud were subject to the four-year fraud statute of limitations rather than the two-year personal injury statute of limitations for intentional infliction of emotional distress claims.48

In Infinite Energy, Inc. v. Pardue,49 the plaintiff filed his defamation and slander lawsuit on the first anniversary of the allegedly tortious misconduct.50 The defendant contended the action was barred by the one-year statute of limitations for injuries to reputation,51 relying on Jacobs v. Shaw,52 which held that such claims are "'untimely if brought on the anniversary date of the alleged publication or thereafter.'"53 The Georgia Court of Appeals noted that Jacobs and similar cases relied on an outdated version of O.C.G.A. § l-3-1(d)(3),54 which had required the date of the injury to be included in the calculation of the statute of limitations.55 The current version of O.C.G.A. § 1-3-1(d)(3), in contrast, specifically provides that "when a period of time measured in days, weeks, months, years, or other measurements of time except hours is prescribed for the exercise of any privilege or the discharge of any duty, the first day shall not be counted but the last day shall be counted."56

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Because the first day should not have been counted when calculating the applicable statute of limitations, the court held that the complaint "was timely filed on the first anniversary of the date of publication,'' and overruled the two cases which conflicted with the court's ruling.57

E. Causation

O.C.G.A. § 40-6-6(d)(2)58 disallows a finding of proximate cause between a police chase and any injuries of a person hurt during that chase "unless the law enforcement...

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