Changes to Georgia Law on Opening Default in Litigation

If you are served with a lawsuit and fail to answer within 45 days, a recent Supreme Court of Georgia case makes it easier to file a late answer. So, rather than facing automatic judgment by default, you may still have your day in court. The following discussion summarizes the holding in the Court’s recent decision, which further promotes Georgia’s policy of deciding cases based on the facts or “on the merits.”

Applicable Georgia Statutes

In Georgia, after service of a complaint, the defendant typically has 30 days to respond. If a defendant fails to respond within those 30 days, the case is deemed to be “in default.” By statute, a defendant receives a grace period of an additional 15 days to automatically “open default,” without admitting to the plaintiff’s allegations, under O.C.G.A. § 9-11-55(a).

If a defendant fails to answer after 45 days of service, then a defendant may still be able to “open default.” But the defendant must satisfy specific statutory requirements and preconditions under O.C.G.A. § 9-11-55(b). Along with paying court costs, filing an answer under oath, and stating a readiness to proceed immediately to trial, a defendant must also explain the reason for the late answer, by proving providential cause, excusable neglect, or a “proper case.”

Impact of Georgia Supreme Court Decision in Bowen v. Savoy

Before the Georgia Supreme Court issued its decision in Bowen v. Savoy, 839 S.E.2d 546, 550 (Ga. 2020) on February 28, 2020, establishing a “proper case” to open default required the defendant to show not only that justice would be served by deciding the case based on the facts, but also that there was a reasonable explanation for the untimely response. However, the decision in the case changed the consequences of a late answer significantly. The Court held that opening default under the “proper case” standard does not require defendants to provide a reasonable explanation for their failure to timely respond.

So now, even after 45 days have passed, litigants do not need an excuse to open default and proceed to the merits, unless the defendant’s failure to answer was due to willful or gross negligence, or the plaintiff will be prejudiced. Likely, these exceptions will prove challenging for the plaintiff to establish.

What does the decision mean for defendants in the transportation and logistics industry? If you didn’t timely respond to a complaint resulting from a cargo claim, an accident or freight charges, you might still be able to avoid judgment if you act promptly to file your answer and argue a “proper case.”

Talk With Our Experienced Atlanta Litigation Attorneys

At Mitchell - Handschuh Law Group, we assist clients with all aspects of cargo claims and provide a comprehensive range of legal services for transportation and logistics companies. We welcome inquiries about our transportation claims and litigation practice, as well as our other legal services for transportation companies.

If you have been served with a lawsuit and are concerned about filing deadlines, please feel free to contact us by calling (404) 262-9488 or using our online contact form. We will be happy to discuss your case and assist you to ensure that you have your day in court.

Our attorneys assist clients with legal matters in Metro Atlanta, throughout the State of Georgia, and in other states.

Categories: Litigation