Motion to Dismiss in Georgia Superior Court – At A Glance

Use this At A Glance Guide to learn the Georgia Code related to bringing a motion to dismiss in Georgia Superior Court. For more detailed information, please see the SmartRules Motion to Dismiss Guide for the court where your action is pending.

A party may assert any or all of the following claims in a motion to dismiss:

  1. Lack of subject-matter jurisdiction;
  2. Lack of personal jurisdiction;
  3. Improper venue;
  4. Insufficiency of process;
  5. Insufficiency of service of process;
  6. Failure to state a claim on which relief can be granted; and
  7. Failure to join an indispensable party (see O.C.G.A. 9-11-19).

Any other defense in law or fact to any pleading must be asserted in the initial responsive pleading, if one is required. O.C.G.A. 9-11-12(b).

In any action alleging professional malpractice, the complaint is subject to dismissal for failure to state a claim if the plaintiff fails to submit with the complaint an expert affidavit setting forth at least one negligent act or omission and the factual basis therefor. O.C.G.A. 9-11-9.1.

In any action alleging medical malpractice, the complaint is subject to dismissal if the plaintiff fails to submit a medical authorization form along with the complaint. O.C.G.A. 9-11-9.2.

Georgia case law holds that if a complaint fails to plead with particularity a matter that is required to be pled with particularity, the proper remedy is a motion for a more definite statement and not a motion to dismiss.
If the court considers matters outside of the pleadings in ruling on a motion to dismiss for failure to state a claim on which relief can be granted, the court must treat the motion as a motion for summary judgment. In such an instance, all parties must be given a reasonable opportunity to present all evidence that would be allowed on a motion for summary judgment. O.C.G.A. 9-11-12(b); O.C.G.A. 9-11-56.

A party may present any of the seven defenses listed in Official Code of Georgia Annotated 9-11-12(b) in the same motion as one or more other defenses or objections. O.C.G.A. 9-11-12(b);O.C.G.A. 9-11-12(g).

Any of the seven defenses listed in Official Code of Georgia Annotated 9-11-12(b) must be presented in the party’s initial motion to dismiss. If a party files a motion to dismiss but omits a defense of (1) lack of personal jurisdiction, (2) improper venue, (3) insufficiency of process, or (4) insufficiency of service of process, the party will not be permitted to assert that defense in a later motion. O.C.G.A. 9-11-12(g).

A party may assert the defenses of failure to state a claim on which relief can be granted or failure to join an indispensable party, or an objection of failure to state a legal defense to a claim:

  1. In any pleading provided for by O.C.G.A. 9-11-7(a);
  2. In a motion for judgment on the pleadings; or
  3. At a trial on the merits. O.C.G.A. 9-11-12(h)(2).

If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action. In this instance, no motion to dismiss is required. O.C.G.A. 9-11-12(h)(3).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

1 thought on “Motion to Dismiss in Georgia Superior Court – At A Glance”

  1. which motion do you file if you are the defendant in a civil action; the plaintiff has only filed a complaint, and that is it. Neither party has conducted discovery, and it is now 7 months from the filing of the complaint.

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