2021 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 3 - Pleadings and Motions
§ 9-11-12. Answer, Defenses, and Objections; When and How Presented and Heard; When Defenses Waived; Stay of Discovery

1. When answer presented. A defendant shall serve his answer within 30 days after the service of the summons and complaint upon him, unless otherwise provided by statute. A cross-claim or counterclaim shall not require an answer, unless one is required by order of the court, and shall automatically stand denied.
2. How defenses and objections presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion in writing:
   1. Lack of jurisdiction over the subject matter;
   2. Lack of jurisdiction over the person;
   3. Improper venue;
   4. Insufficiency of process;
   5. Insufficiency of service of process;
   6. Failure to state a claim upon which relief can be granted;
   7. Failure to join a party under Code Section 9-11-19.

      A motion making any of these defenses shall be made before or at the time of pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Code Section 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56.

3. Motion for judgment on the pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Code Section 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56.
4. Preliminary hearings. The defenses specifically enumerated in paragraphs (1) through (7) of subsection (b) of this Code section, whether made in a pleading or by motion, and the motion for judgment mentioned in subsection (c) of this Code section shall be heard and determined before trial on application of any party unless the court orders that the hearing and determination thereof be deferred until the trial.
5. Motion for more definite statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a proper responsive pleading, he shall nevertheless answer or respond to the best of his ability, and he may move for a more definite statement. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 15 days after notice of the order, or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.
6. Motion to strike. Upon motion made by a party within 30 days after the service of the pleading upon him, or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
7. Consolidation of defenses in motion. A party who makes a motion under this Code section may join with it any other motions provided for in this Code section and then available to him. If a party makes a motion under this Code section but omits therefrom any defense or objection then available to him which this Code section permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in paragraph (2) of subsection (h) of this Code section on any of the grounds there stated.
8. Waiver or preservation of certain defenses.
   1. A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived:
      1. If omitted from a motion in the circumstances described in subsection (g) of this Code section; or
      2. If it is neither made by motion under this Code section nor included in a responsive pleading, as originally filed.
   2. A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Code Section 9-11-19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under subsection (a) of Code Section 9-11-7, or by motion for judgment on the pleadings, or at the trial on the merits.
   3. Whenever it appears, by suggestion of the parties or otherwise, that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.
9. Officer's defense of service. The officer making service of process and the principal officer in charge of service made by a deputy need not be made a party to any action or motion where the defense or defenses under paragraph (2), (4), or (5) of subsection (b) of this Code section are asserted by motion or by answer. Any party to the action may give notice of the objection to the service, made pursuant to such paragraphs, to the officer making the service and to the principal officer in case of service made by a deputy, and the court shall afford the officer or officers opportunity to defend the service, in which case the decision on the question of service shall be conclusive on the officer and on his principal in case of service by a deputy.
10. Stay of discovery.
    1. 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 90 days after the filing of such motion or until the ruling of the court on such motion, whichever is sooner. The court shall decide the motion to dismiss within the 90 days provided in this paragraph.
    2. The discovery period and all discovery deadlines shall be extended for a period equal to the duration of the stay imposed by this subsection.
    3. The court may upon its own motion or upon motion of a party terminate or modify the stay imposed by this subsection but shall not extend such stay.
    4. If a motion to dismiss raises defenses set forth in paragraph (2), (3), (5), or (7) of subsection (b) of this Code section or if any party needs discovery in order to identify persons who may be joined as parties, limited discovery needed to respond to such defenses or identify such persons shall be permitted until the court rules on such motion.
    5. The provisions of this subsection shall not modify or affect the provisions of paragraph (2) of subsection (f) of Code Section 9-11-23 or any other power of the court to stay discovery.

(Ga. L. 1966, p. 609, § 12; Ga. L. 1967, p. 226, § 9; Ga. L. 1968, p. 1104, § 3; Ga. L. 1972, p. 689, §§ 4, 5; Ga. L. 1993, p. 91, § 9; Ga. L. 2009, p. 73, § 4/HB 29.)

- Form of motion to dismiss for failure to state claim upon which relief can be granted and for other grounds stated in subsection (b) of this section, § 9-11-119.

Form of answer presenting defenses under subsection (b) of this section, § 9-11-120.

Motions in civil actions, hearing, Uniform Superior Court Rules, Rule 6.3.

Transfer/change of venue, Uniform Superior Court Rules, Rule 19.

Uniform Transfer Rules.

- Pursuant to Code Section 28-9-5, in 2009, the formatting of subsection (j) was modified to be consistent with the other subsections of this Code section.

- Ga. L. 2009, p. 73, § 5/HB 29, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall apply to motions to dismiss filed after July 1, 2009.

- For provisions of Federal Rules of Civil Procedure, Rule 12, see 28 U.S.C.

- For article comparing sections of the Georgia Civil Practice Act with preexisting provisions of the Georgia Code, see 3 Ga. St. B.J. 295 (1967). For article discussing counterclaims and cross claims under the Georgia Civil Practice Act, see 4 Ga. St. B.J. 205 (1967). For article, "Synopses of 1968 Amendments Appellate Procedure Act and Georgia Civil Practice Act," see 4 Ga. St. B.J. 503 (1968). For article examining waiver of objections to venue and lack of personal jurisdiction by default, see 12 Ga. L. Rev. 181 (1978). For article surveying developments in Georgia trial practice and procedure from mid-1980 through mid-1981, see 33 Mercer L. Rev. 275 (1981). For survey article on domestic relations, see 34 Mercer L. Rev. 113 (1982). For article, "On with the Old!," see 24 Ga. St. B.J. 13 (1987). For article, "Georgia's 'Door-Closing' Statute: Who Bears the Burden?," see 24 Ga. St. B.J. 141 (1988). For annual survey of trial practice and procedure, see 58 Mercer L. Rev. 405 (2006). For annual survey on zoning and land use law, see 70 Mercer L. Rev. 301 (2018). For article, "2019 Georgia Corporation and Business Organization Case Law Developments," see 25 Ga. St. B.J. 30 (June 2020). For note, "Default Judgments Under the Federal Rules of Civil Procedure and the Georgia Civil Practice Act," see 7 Ga. St. B J. 385 (1971). For note discussing problems with venue in Georgia, and proposing statutory revisions to improve the resolution of venue questions, see 9 Ga. St. B.J. 254 (1972). For note, "Hewitt v. Kalish: Qualifying as an 'Expert Competent to Testify' Under O.C.G.A. Section 9-11-9.1," see 46 Mercer L. Rev. 1537 (1995). For case comment, "Yost v. Torok and Abusive Litigation: A New Tort to Solve an Old Problem," see 21 Ga. L. Rev. 429 (1986).

ANALYSIS

• General Consideration
• Answers and Time Therefor
• How Defenses, etc., Presented
• Judgments on the Pleadings
• Preliminary Hearings
• Motion for More Definite Statement
• Motion to Strike
• Waiver or Preservation of Defenses

RESEARCH REFERENCES

Am. Jur. 2d.

- 4 Am. Jur. 2d, Appearance, § 1. 20 Am. Jur. 2d, Counterclaim, Recoupment, and Setoff, §§ 30 et seq., 103 et seq. 24 Am. Jur. 2d, Dismissal, Discontinuance, and Nonsuit, §§ 53, 55. 51 Am. Jur. 2d, Limitation of Actions, § 377 et seq. 61A Am. Jur. 2d, Pleading, § 211 et seq. 73 Am. Jur. 2d, Summary Judgment, § 12 et seq.

8B Am. Jur. Pleading and Practice Forms, Desertion and Nonsupport, § 33. 8B Am. Jur. Pleading and Practice Forms, Dismissal, Discontinuance, and Nonsuit, § 1. 19B Am. Jur. Pleading and Practice Forms, Pleading, §§ 216, 273, 422. 20A Am. Jur. Pleading and Practice Forms, Process, § 149.

- 35A C.J.S., Federal Civil Procedure, §§ 168, 212, 214, 216, 218, 232, 289, 290, 294 et seq., 299, 301, 311, 337, 341 et seq., 377 et seq., 387, 393 et seq., 445 et seq., 448, 455, 457, 459, 460, 461. 35B C.J.S., Federal Civil Procedure, §§ 803, 809, 812, 818, 824, 827 et seq., 834 et seq., 846, 862, 863, 865, 867, 870, 875, 879 et seq., 1213, 1223. 71 C.J.S., Pleading, §§ 98 et seq., 111, 132 et seq., 123, 137, 432 et seq., 435 et seq., 461 et seq., 486 et seq.

- Plea of pendency of former action as affecting right of pleader to avail himself of objections to the former action, 32 A.L.R. 1339.

Joinder, in one action at law, of persons not jointly liable, one or the other of whom is liable to the plaintiff, 41 A.L.R. 1223.

Necessity and sufficiency of verification of specifications of objections to discharge in bankruptcy, 47 A.L.R. 640.

Attack by defendant upon attachment or garnishment as an appearance subjecting him personally to jurisdiction, 55 A.L.R. 1121; 129 A.L.R. 1240.

Constitutionality of statute or rule of court providing for summary judgment unless affidavit of merits is filed, 69 A.L.R. 1031; 120 A.L.R. 1400.

May unconstitutionality of statute be raised by demurrer to pleading, 71 A.L.R. 1194.

Bar of statute of nonclaim of decedent's domicile as affecting assertion of claim elsewhere, 72 A.L.R. 1030.

Action for abuse of process, 80 A.L.R. 580.

May or must claim for damages from wrongful seizure of property be interposed in action or proceeding in which such seizure is made, 85 A.L.R. 644.

May question as to qualification or competency of witness be raised by or upon motion for nonsuit or for directed verdict, absent objection on that ground when testimony was given, 93 A.L.R. 788.

Principal contractor as necessary party to suit to enforce mechanic's lien of subcontractor, laborer, or materialman, 100 A.L.R. 128.

Water user as necessary or proper party to litigation involving the right of ditch or canal company or irrigation or drainage district from which he takes water, 100 A.L.R. 561.

Asking relief in addition to vacation of service of process as waiver of special appearance or of right to rely upon lack of jurisdiction, 111 A.L.R. 925.

Consent of parties to consideration of matters extrinsic to pleading demurred to, 137 A.L.R. 483.

Power to open or modify "consent" judgment, 139 A.L.R. 421.

Right of defendant in civil action to change of venue upon motion made after time specified by statute or rule in that regard, as affected by fact that codefendant had made such a motion within the prescribed period, 141 A.L.R. 1177.

Adequacy of remedy by appeal in criminal cases to preclude prohibition sought on the ground of lack or loss of jurisdiction, 141 A.L.R. 1262.

Right of one defendant to demur to complaint because of failure to state a cause of action against codefendant, or to complain of overruling of demurrer interposed by latter, 145 A.L.R. 676.

Domicile or residence of person in the armed forces, 158 A.L.R. 1474.

Pleading particular cause of injury as waiver of right to rely on res ipsa loquitur, 160 A.L.R. 1450; 2 A.L.R.3d 1335.

Right to ruling on objection to jurisdiction over person before hearing or trial on merits, 161 A.L.R. 295.

Failure of complaint to state cause of action for unliquidated damages as ground for dismissal of action at hearing to determine amount of damages following defendant's default, 163 A.L.R. 496.

Demurring to complaint or petition in intervention as waiver of right to stand upon motion to strike, 163 A.L.R. 917.

Appealability of ruling on demurrer to plea, answer, or reply, 171 A.L.R. 1433.

Dissolved corporation as an indispensable party to a stockholder's derivative action, 172 A.L.R. 691.

Appealability of order entered on motion to strike pleading, 1 A.L.R.2d 422.

Appealability of order overruling motion for judgment on pleadings, 14 A.L.R.2d 460.

Immunity of nonresident defendant in criminal case from service of process, 20 A.L.R.2d 163.

Pleading last clear chance doctrine, 25 A.L.R.2d 254.

Objection before judgment to jurisdiction of court over subject matter as constituting general appearance, 25 A.L.R.2d 833.

Motion to vacate judgment or order as constituting general appearance, 31 A.L.R.2d 262.

Court's power, on motion for judgment on the pleadings, to enter judgment against movant, 48 A.L.R.2d 1175.

Pleading or raising defense of privilege in defamation action, 51 A.L.R.2d 552.

Appealability of order sustaining demurrer, or its equivalent, to complaint on ground of misjoinder or nonjoinder of parties or misjoinder of causes of action, 56 A.L.R.2d 1238.

Necessity and manner of pleading assumption of risk as a defense, 59 A.L.R.2d 239.

Pleading imputed negligence as defense, 59 A.L.R.2d 273.

Proper procedure and course of action by trial court, where both parties move for judgment on the pleadings, 59 A.L.R.2d 494.

Raising defense of statute of limitations by demurrer, equivalent motion to dismiss, or by motion for judgment on pleadings, 61 A.L.R.2d 300.

Litigant's participation on merits, after objection to jurisdiction of person made under special appearance or the like has been overruled, as waiver of objection, 62 A.L.R.2d 937.

Waiver of, or estoppel to assert, failure to give required notice of claim of injury to municipality, county, or other governmental agency or body, 65 A.L.R.2d 1278.

Proper forum and right to maintain action for airplane accident causing death over or in high seas, 66 A.L.R.2d 1002.

Necessity and sufficiency of renewal of objection to, or offer of, evidence admitted or excluded conditionally, 88 A.L.R.2d 12.

Doctrine of forum non conveniens: assumption or denial of jurisdiction of contract action involving foreign elements, 90 A.L.R.2d 1109.

Prohibition as appropriate remedy to restrain civil action for lack of venue, 93 A.L.R.2d 882.

Pleading of election remedies, 99 A.L.R.2d 1315.

Modern trends as to pleading a particular cause of injury or act of negligence as waiving or barring the right to rely on res ipsa loquitur, 2 A.L.R.3d 1335.

Summary judgment in mandamus or prohibition cases, 3 A.L.R.3d 675.

Plea of guilty as waiver of claim of unlawful search and seizure, 20 A.L.R.3d 724.

Right to voluntary dismissal of civil action as affected by opponent's motion for summary judgment, judgment on the pleadings, or directed verdict, 36 A.L.R.3d 1113.

Permitting documents or tape recordings containing confessions of guilt or incriminating admissions to be taken into jury room in criminal case, 37 A.L.R.3d 238.

Waiver of, by failure to promptly raise, objection to splitting cause of action, 40 A.L.R.3d 108.

Pleading and proof of law of foreign country, 75 A.L.R.3d 177.

Stipulation extending time to answer or otherwise proceed as waiver of objection to jurisdiction for lack of personal service: state cases, 77 A.L.R.3d 841.

Dismissal of state court action for plaintiff 's failure or refusal to obey court order relating to pleadings or parties, 3 A.L.R.5th 237.

Necessity of oral argument on motion for summary judgment or judgment on pleadings in federal court, 105 A.L.R. Fed. 755.

Heightened Pleading Requirements for Alleging Securities Fraud - Post-Iqbal/Twombly D.C. Circuit Cases, 37 A.L.R. Fed. 3d Art. 1.

Heightened Pleading Requirements for Alleging Securities Fraud - Post-Iqbal/Twombly Fourth Circuit Cases, 37 A.L.R. Fed. 3d Art. 2.

Heightened Pleading Requirements for Alleging Securities Fraud - Post-Iqbal/Twombly Sixth Circuit Cases, 37 A.L.R. Fed. 3d Art. 3.

Effect of 8 U.S.C.A. § 1252(g) Upon Jurisdiction to Hear Federal Tort Claims Act Claims of Noncitizen Wrongfully Removed in Violation of Court Order or Automatic Stay, 37 A.L.R. Fed. 3d Art. 4.

Heightened Pleading Requirements for Alleging Securities Fraud - Post-Iqbal/Twombly Tenth Circuit Cases, 37 A.L.R. Fed. 3d Art. 14.

What Constitutes Insolvency in Bankruptcy Preference Statute, 11 U.S.C.A. § 547(b)(3), 40 A.L.R. Fed. 3d Art. 2.

"Covered Person" Under the Consumer Financial Protection Act of 2010 (12 U.S.C.A. § 5481(6)(A)), 40 A.L.R. Fed. 3d Art. 3.

Heightened Pleading Requirements for Alleging Securities Fraud - Post-Iqbal/Twombly Second Circuit Cases, 40 A.L.R. Fed. 3d Art. 5.

Heightened Pleading Requirements for Alleging Securities Fraud - Post-Iqbal/Twombly Seventh Circuit Cases, 41 A.L.R. Fed. 3d Art. 3.

Heightened Pleading Requirements for Alleging Securities Fraud - Post-Iqbal/Twombly Eleventh Circuit Cases, 41 A.L.R. Fed. 3d Art. 4.

Issues Arising Under Enumeration Clause, U.S. Const. Art. I, § 2, cl. 3, 41 A.L.R. Fed. 3d Art. 6.

2018 to 2019 A.L.R. United States Supreme Court Review, 42 A.L.R. Fed. 3d Art. 1.

Actions Under Medicaid Federally Qualified Health Center (FQHC) Reimbursement Statute, 42 U.S.C.A. § 1396a(bb), 42 A.L.R. Fed. 3d Art. 4.

Heightened Pleading Requirements for Alleging Securities Fraud - Post-Iqbal/Twombly Third Circuit Cases, 42 A.L.R. Fed. 3d Art. 5.

Application of National Environmental Policy Act (NEPA) Anti-segmentation Principle to Natural Gas, Oil, or Petroleum Products Pipeline Projects, 42 A.L.R. Fed. 3d Art. 6.

Heightened Pleading Requirements for Alleging Securities Fraud - Post-Iqbal/Twombly Ninth Circuit Cases, 43 A.L.R. Fed. 3d Art. 2.

Housing Protections for Victims of Intimate Partner Violence Under Violence Against Women Act, 34 U.S.C.A. § 12491, 43 A.L.R. Fed. 3d Art. 4.

Claims of Sentencing Factor Manipulation and Sentencing Entrapment Under Federal Sentencing Guidelines in Drug Prosecutions, 42 A.L.R. Fed. 3d Art. 7.

Derivative Standing in Chapters 7, 11, and 13 Bankruptcy Proceedings, 43 A.L.R. Fed. 3d Art. 6.

Suggestion of Immunity from Executive Branch for Foreign Sovereigns and Officials, 43 A.L.R. Fed. 3d Art. 7.

Heightened Pleading Requirements for Alleging Securities Fraud - Post-Iqbal/Twombly Fifth Circuit Cases, 46 A.L.R. Fed. 3d Art. 4.

What Matters Not Contained in Pleadings May Be Considered in Ruling on Motion to Dismiss Under Rule 12(b)(6) of Federal Rules of Civil Procedure or Motion for Judgment on Pleadings Under Rule 12(c) Without Conversion to Motion for Summary Judgment - Fifth Circuit, 57 A.L.R. Fed. 3d 1.

What Matters Not Contained in Pleadings may be Considered in Ruling on Motion to Dismiss Under Rule 12(b)(6) of Federal Rules of Civil Procedure or Motion for Judgment on Pleadings under Rule 12(c) without Conversion to Motion for Summary Judgment - First Circuit, 58 A.L.R. Fed. 3d 1.