Articles Posted in Federal Rules of Civil Procedure

The first few decisions a Georgia personal injury plaintiff makes can be critical to the ultimate success of their case. In a recent Georgia premises liability case before the Court of Appeals of Georgia, the court dismissed the plaintiff’s case as untimely because the plaintiff originally named the wrong party as a defendant. By the time the plaintiff voluntarily dismissed her initial complaint and refiled a complaint naming the correct defendant, the statute of limitations had expired.

The Facts of the Case

According to the court’s written opinion, the plaintiff was injured at a water park. Just a few days before the statute of limitations expired the plaintiff filed a premises liability lawsuit naming “Georgia Department of Natural Resources d/b/a Summer Waves Water Park” as a defendant. Later, the plaintiff voluntarily withdrew that case and refiled a case naming “Jekyll Island State Park Authority, a/k/a Jekyll Island Authority, d/b/a Summer Waves Water Park” as the defendant. The two claims were based on the same injuries. The plaintiff claimed that the subsequent case was a renewal action and that it related back to the date of her original complaint.

The defendant argued that the plaintiff’s case was filed after the statute of limitations, and should be dismissed. The defendant argued that the plaintiff’s second case was not a renewal action because it named a different defendant. The trial court agreed with the defendant, and the plaintiff appealed.

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Although trial is the stage of litigation that many consider to be the key moment for legal argument, many critical battles over the admissibility of evidence, venue and the applicability of certain laws take place long before trial, assuming the case even gets that far. The initiation of litigation often leads to immediate procedural bickering over whether the case has been brought before the proper court or should be dismissed or otherwise transferred to a different venue. Among these procedural arguments raised at the onset of litigation is whether an action that has been brought in state court should be removed to federal court. Although plaintiffs typically have the right to bring a case in the setting of their choice, as long as that court has subject matter jurisdiction over the issues raised and personal jurisdiction over the parties involved, defendants can, under certain circumstances, move to have a case that has been brought in a state court removed to federal court. Given the differences in rules that can apply in these venues, determining whether removal is justified can have an impact on the outcome of a case. Arguments common in removal proceedings are highlighted in Watson v. Forest City Commercial Management, Inc., a recent decision from the United States District Court for the Northern District of Georgia.

The Watson case arose from an incident at The Mall at Stonecrest in DeKalb County, Georgia. During a trip to the mall, the plaintiff in this action alleges that she was attacked by several third parties. Although third parties carried out the attack, the plaintiff brought a legal action against Stonecrest Mall and North American Midway Entertainment-All-Star Amusement, Inc. (“Midway”), asserting claims for negligence and premises liability. Although proving negligence when there is an intervening third-party criminal act is already a demanding undertaking, the defendants created further trouble for the plaintiff by moving, only 20 days after the initiation of the action, to have the case removed to federal court from the State Court of DeKalb County, Georgia, where it had originally been filed. In response to the defendants’ Notice of Removal, the plaintiff argued that removal was unwarranted because both defendants did not properly join the removal action, one defendant made an untimely answer, and both defendant corporations are “citizens” of Georgia, which would render the federal court without jurisdiction over the case. Thus, the federal court, which was now exercising control over the case, needed to determine whether removal was warranted.

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