09 LC 29
3842S
The
Senate Judiciary Committee offered the following substitute to HB
29:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 11 of Title 9 of the Official Code of Georgia Annotated, relating
to the "Civil Practice Act," so as to provide for electronic service of
pleadings subsequent to the original complaint; to provide for presumptions
regarding service of pleadings by e-mail on an attorney; to provide for a stay
of discovery when a motion to dismiss is filed; to provide for related matters;
to provide for an effective date; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
11 of Title 9 of the Official Code of Georgia Annotated, relating to the "Civil
Practice Act," is amended by revising subsection (b) of Code Section 9-11-5,
relating to service and filing of pleadings subsequent to the original complaint
and other papers, as follows:
"(b)
Same — How
made. Whenever under this chapter service
is required or permitted to be made upon a party represented by an attorney, the
service shall be made upon the attorney unless service upon the party
himself
is ordered by the court. Service upon the attorney or upon a party shall be
made by delivering a copy to
him
the person to
be served or by mailing it to
him
the person to
be served at
his
the
person's last known address or, if no
address is known, by leaving it with the clerk of the court. As used in this
Code section, the term 'delivery of a copy' means handing it to the
attorney or
to the party,
person to be
served or leaving it at
his
the person to
be served's office with
his clerk
or other
a
person in charge thereof or, if
the
such
office is closed or the person to be served has no office, leaving it at
his
the person to
be served's dwelling house or usual place
of abode with some person of suitable age and discretion
then
residing therein.
'Delivery of a
copy' also means transmitting a copy via e-mail in portable document format
(PDF) to the person to be served using all e-mail addresses provided pursuant to
subsection (f) of this Code section and showing in the subject line of the
e-mail message the words 'STATUTORY ELECTRONIC SERVICE' in capital
letters. Service by mail is complete upon
mailing. Proof of service may be made by certificate of an attorney or of his
or
her employee, by written admission, by
affidavit, or by other proof satisfactory to the court. Failure to make proof
of service shall not affect the validity of service."
SECTION
2.
Said
chapter is further amended by adding a new subsection to Code Section 9-11-5,
relating to commencement of action and service, to read as follows:
"(f)
Electronic
service of pleadings.
(1)
A person to be served may consent to being served with pleadings electronically
by:
(A)
Filing a notice of consent to electronic service and including the person to be
served's e-mail address or addresses in such pleading; or
(B)
Including the person to be served's e-mail address or addresses in or below the
signature block of the complaint or answer, as applicable to the person to be
served.
(2)
A person to be served may rescind his or her election to be served with
pleadings electronically by filing and serving a notice of such
rescission.
(3)
If a person to be served agrees to electronic service of pleadings, such person
to be served bears the responsibility of providing notice of any change in his
or her e-mail address or addresses.
(4)
If electronic service of a pleading is made upon a party who is represented by
an attorney, and such attorney certifies to the court that he or she did not
receive such pleading, it shall be presumed that such pleading was not received
unless the serving party disputes the assertion of nonservice, in which case the
court shall decide the issue of service of such electronic
pleading."
SECTION
3.
Said
chapter is further amended by revising subsection (e) of Code Section 9-11-6,
relating to time, as follows:
"(e)
Additional time after
service by mail
or
e-mail.
Whenever a party has the right or is required to do some act or take some
proceedings within a prescribed period after the service of a notice or other
paper, other than process, upon him
or
her, and the notice or paper is served
upon
him
the
party by mail
or
e-mail, three days shall be added to the
prescribed period."
SECTION
4.
Said
chapter is further amended by adding a new subsection to Code Section 9-11-12,
relating to answers, defenses, and objections in civil practice, to read as
follows:
"(j)(1)
Stay
of discovery.
If a party files a motion to dismiss before or at the time of filing an answer
and pursuant to the provisions of this Code section, discovery shall be stayed
for 120 days after the filing of such motion or until the ruling of the court on
such motion, whichever is sooner; provided, however, that such stay may be
extended:
(A)
By the court on its own motion;
(B)
By agreement of the parties, filed with the court; or
(C)
By order of the court upon motion of a party to extend such stay for good
cause.
(2)
The filing of a motion to dismiss against less than all counts alleged shall
only stay discovery related to the challenged claims.
(3)
Discovery shall be extended for the duration of the stay of discovery imposed by
this subsection.
(4)
Upon a showing of good cause, a court may grant a motion for expedited discovery
while the motion to dismiss is pending. Good cause may include, but shall not
be limited to, discovery needed because a witness will be unavailable during the
discovery period or because a party is seeking an interlocutory
injunction.
(5)
If a motion to dismiss raises defenses set forth in paragraph (2), (3), (5), or
(7) of subsection (b) of this Code section, limited discovery needed to respond
to such defenses shall be permitted until the court rules on such
motion.
(6)
The provisions of this subsection shall not modify or affect the provisions of
paragraph (2) of subsection (f) of Code Section 9-11-23.
(7)
The court shall decide any motion to dismiss which results in the imposition of
a stay of discovery pursuant to this subsection during the time period in which
such stay exists."
SECTION
5.
(a)
Sections 1 through 3 of this Act shall become effective on January 1,
2010.
(b) Section 4 of this Act shall become effective on July 1, 2009, and shall apply to motions to dismiss filed after July 1, 2009.
(c) Sections 5 and 6 of this Act shall become effective on July 1, 2009.
(b) Section 4 of this Act shall become effective on July 1, 2009, and shall apply to motions to dismiss filed after July 1, 2009.
(c) Sections 5 and 6 of this Act shall become effective on July 1, 2009.
SECTION
6.
All
laws and parts of laws in conflict with this Act are repealed.