09 LC
14 9970-EC
Senate
Bill 108
By:
Senators Cowsert of the 46th, Pearson of the 51st, Hudgens of the 47th, Heath of
the 31st, Hill of the 32nd and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 3 of Chapter 11 of Title 9 of the Official Code of Georgia
Annotated, relating to pleadings and motions under the "Georgia Civil Practice
Act," so as to provide for the recovery of attorney's fees and costs involving a
motion to dismiss under certain circumstances; to provide for definitions; to
provide for exceptions; to provide for notice; to provide for a stay of
discovery; to provide for related matters; to provide for an effective date and
applicability; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Article
3 of Chapter 11 of Title 9 of the Official Code of Georgia Annotated, relating
to pleadings and motions under the "Georgia Civil Practice Act," is amended by
adding a new Code section to read as follows:
"9-11-12.1.
(a)
As used in this Code section, the term:
(1)
'Claim' means a claim, counterclaim, cross-claim, or third-party
claim.
(2)(A)
'Substantial merit' means more than simply not frivolous, and, based on the
arguments submitted to the court, a reasonable judge could have denied the
motion to dismiss.
(B)
'Substantial merit' does not mean not frivolous; a claim may be not frivolous
and still not have substantial merit.
(b)
A party whose claim is dismissed pursuant to subsection (b) of Code Section
9-11-12 shall be required to pay reasonable attorney's fees and costs to the
prevailing party unless the court determines, after notice and hearing,
that:
(1)
In the case of a claim dismissed pursuant to paragraph (4) or (5) of subsection
(b) of Code Section 9-11-12, the party bringing or alleging the dismissed claim
acted with due diligence in the prosecution
thereof;
(2)
In the case of a claim dismissed pursuant to paragraph (1), (2), (3), (6), or
(7) of subsection (b) of Code Section 9-11-12, the claim exhibited substantial
merit or represented a good faith attempt to establish a new theory of law in
Georgia if such new theory of law is based on some recognized precedential or
persuasive authority; or
(3)
The award of attorney's fees would render a substantial injustice on the party
liable for such fees.
(c)
Before filing a claim, an attorney shall provide notice of this Code section to
his or her client. Upon notice that a motion filed pursuant to Code Section
9-11-12 has been filed against a party, the attorney shall provide notice of
such filing to the client. Failure to provide the notice required by this Code
section may result in the court imposing a portion of or all attorney's fees
awarded pursuant to this Code section against such attorney.
(d)
If a party files a motion to dismiss pursuant to the provisions of Code Section
9-11-12, discovery shall be stayed until the trial court rules on the motion;
provided, however, that the filing of a motion to dismiss against less than all
counts alleged shall only stay discovery related to the challenged claims.
Discovery shall be extended for the duration of the stay of discovery imposed by
this Code section. 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 is not limited to, discovery needed because a witness will be
unavailable during the discovery period or because a party is seeking an
interlocutory
injunction."
SECTION
2.
This
Act shall become effective on July 1, 2009, and shall apply to all claims,
counterclaims, cross-claims, or third-party claims filed on or after July 1,
2009.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.