Lawyers, particularly those who intend to keep their licenses to practice law, are serious about deadlines.  They keep a calendar on their phone and on their desktop, and their assistants generally maintain a duplicate calendar, all with the hope and expectation that deadlines won’t get missed.  But, as a recent decision of the Georgia Court of Appeals reminds us, the best calendaring system in the world won’t help you if you don’t know the correct deadline that the law fixes for whatever it is you are calendaring.

In Satnum Waheguru Corp. v. Buckhead Community Bank, — S.E.2d —-, 2010 WL 2384934 (Ga. App. June 16, 2010), the trial court entered a default judgment in favor of the plaintiff bank after the defendant debtor filed an answer more than 30 days after acknowledging service of the complaint.  On appeal, the defendant debtor argued that a default judgment should not have been entered against it because, under O.C.G.A. § 9-11-4(d)(5), it had 60 days to file an answer because it waived service.

Under § 9-11-4(d)(3),

[T]he plaintiff may notify such a defendant of the commencement of the action and request that the defendant waive service of a summons. The notice and request shall:

(A) Be in writing and shall be addressed directly to the defendant, if an individual, or else to an officer or managing or general agent or other agent authorized by appointment to receive service of process for a defendant subject to service under paragraph (1) or (2) of subsection (e) of this Code section;

(B) Be dispatched through first-class mail or other reliable means;

(C) Be accompanied by a copy of the complaint and shall identify the court in which it has been filed;

(D) Make reference to this Code section and shall inform the defendant, by means of the text prescribed in subsection (l) of this Code section, of the consequences of compliance and of failure to comply with the request;

(E) Set forth the date on which the request is sent;

(F) Allow the defendant a reasonable time to return the waiver, which shall be at least 30 days from the date on which the request is sent, or 60 days from that date if the defendant is addressed outside any judicial district of the United States; and

(G) Provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing.

(Emphasis added).  If the plaintiff follows this process and the defendant, “before being served with process, returns a waiver so requested in a timely manner is not required to serve an answer to the complaint until 60 days after the date on which the request for waiver of service was sent, or 90 days after that date if the defendant was addressed outside any judicial district of the United States.”  O.C.G.A. § 9-11-4(d)(5).

The problem for the defendant debtor in Buckhead Community Bank, however, was that the plaintiff bank did not request a waiver of service from the defendant pursuant to § 9-11-4(d)(3).  It requested that the debtor acknowledge service, which is what it did.  As the Court of Appeals explains,

O.C.G.A. § 9-10-73[which provides that a defendant may acknowledge service or waive process by a writing signed by the defendant] does not prescribe a particular form for the notice. The “Acknowledgment of Service” here stated simply that “the undersigned hereby acknowledges service of the Summons and Complaint, … and does hereby acknowledge that he is authorized to accept service of same, and waives any and all further service of process herein.”

Because the 60-day provision of O.C.G.A. § 9-11-4(d)(5) was not implicated by the executed acknowledgment of service (not waiver of service), “the trial court was authorized to conclude that [the defendant's] counsel executed an acknowledgment and waiver pursuant to O.C.G.A.9-10-73; that [the defendant's] answer was therefore due within 30 days after the acknowledgment and waiver; and that, because it failed to serve an answer within that 30-day period, its answer was untimely.”

The lesson is simple but important:  A calendar is only as good as the information on it; if you don’t correctly determine deadlines for your cases, you may as well not bother writing them down.

The Georgia Constitution provides that joint tortfeasors who reside in different counties may be tried together in either county.  The counterclaim that Grantville filed alleged that M&M and Randles were joint tortfeasors.  But it overlooked one significant fact:  neither M&M nor Randles resided in Coweta County.  M&M was subject to suit there, but that does mean that it is “a resident” of Coweta County for venue purposes.  And because M&M did not reside in Coweta County, the joint tortfeasor provision of the Georgia Constitution did not operate to subject Randles, an individual DeKalb County resident, to suit there.

Unsurprisingly, the Court of Appeals vacated the judgment against Randles, thus undoing all of the undoubtedly expensive work that had been done to earn it, because Randles must be tried, if it all, in DeKalb County.  For practitioners, the lesson here is obvious:  don’t assume that joint tortfeasors can always be sued in every county in which one may be subject to suit.  Joint tortfeasors can be sued together in the same county only so long as one resides in the proposed venue.

Brenda Robinson filed a Chapter 13 bankruptcy in April 2002, and in May 2002, a bankruptcy judge confirmed her plan, which called for a complete repayment of her creditors over a 60-month period.  In October 2006, i.e., while in her repayment period, Robinson filed a lawsuit against Tyson Foods, alleging unlawful employment practices and race-based mistreatment.  As part of her lawsuit, Robinson sought compensatory, punitive, and liquidated damages.  Robinson never amended her bankruptcy filings to reflect her claim against Tyson.  In July 2007, Robinson completed her bankruptcy plan; she repaid all creditors and received a full discharge from bankruptcy.

Tyson discovered Robinson’s bankruptcy filing while taking her deposition in September 2007 and filed a motion for summary judgment based on judicial estoppel, arguing that Robinson’s failure to disclose the litigation against Tyson in the bankruptcy proceeding “constituted inconsistent positions under oath that were calculated to make a mockery of the judicial system,” despite the fact thatRobinson repaid all creditors and received a full discharge from bankruptcy.

The 11th Circuit paid very little attention to this specific feature of Robinson’s plan, engaging, instead, in a mechanical analysis demanded by precedent.  It concluded first that Robinson took inconsistent positions under oath in the bankruptcy and Title VII proceedings because, even though the Title VII claim was filed almost 5 years after her bankruptcy filing, she had a “continuing duty” to disclose changes in her assets in bankruptcy court.  By not disclosing it, Robinson represented to the bankruptcy court that she had no legal claims while she was simultaneously pursuing a claim against Tyson.  The Court next concluded that Robinson’s inconsistency was calculated to make a mockery of the judicial system because Robinson knew about the Title VII and had a motive to conceal it.

Robinson (and all of the cases upon which it stands) must be respected.  Bankruptcy claimants cannot be cute or clever.  If you have a claim, disclose it.  Bankruptcy lawyers cannot be lazy.  Yes, disclosing a claim will, at best, cause you to do a little more paperwork and, at worst, affect the Chapter 7 or 13 petition, but the consequences of secreting your client’s claim could not be more devastating.  And personal injury and employment discrimination lawyers (and any other lawyer whose clients regularly sue others for money damages) cannot be ignorant.  You have to know your client’s history, including whether there is a recent or ongoing bankruptcy.  If client, bankruptcy lawyer, and litigation lawyer are not all on the same page and doing what they ought to be doing, then all will suffer.  The client and litigation lawyer lose a potentially very valuable claim, and the bankruptcy lawyer could very well be staring down a very expensive legal malpractice claim.