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The Court of Appeals of Georgia Emphasizes the Strict Requirements to Move an Action Out of a Proper Venue

March 24, 2017

            On July 29, 2014, Stephen Prince was driving a vehicle while in the course and scope of his employment with West Metro Glass Inc. (“Metro Glass”) when he collided with a vehicle driven by Donna Burchfield.  Subsequently, on March 24, 2015, Burchfield filed an action in the State Court of Fulton County against Prince and Metro Glass for her alleged injuries from the collision.  Burchfield v. West Metro Glass Company, Inc., 2017WL715942 (Ga. Ct. App. 2017).  Defendants timely filed their answer and included improper venue as a defense; however, defendants never filed a notice to remove the action from Fulton County.  Rather, on November 11, 2015, defendants filed a motion to transfer venue.  On appeal, the Court held that venue was proper, and Metro Glass did not file a notice to remove within 45 days of service of the summons pursuant to O.C.G.A. § 14-2-510(b).

 

            Section 14-2-510(b)(4) “establishes venue for tort actions against corporations in the county where the cause of action originated [and] establishes a procedure for removal from that county.” Pandora Franchising, LLC v. Kingdom Retail Group, LLP, 299 Ga. 723, 724 (2016).  The collision occurred in Fulton County, therefore, venue was established for Burchfield’s action against Metro Glass in Fulton County.  Metro Glass failed to follow the procedure for removal from Fulton County by filing a notice of removal within 45 days of service of the summons.  Metro Glass argued that its answer, which was filed within 45 days, was the functional equivalent of a notice of removal.  The Court held that the defense filed in the answer was for improper venue, but a notice of removal under O.C.G.A. § 14-2-510(b)(4), concerns the defendant’s right to move the action out of a county in which venue is proper.  Therefore, defendant’s answer was not a functional equivalent of notice of removal.

 

            The Court identified one situation that may preserve the defendant’s right to file a notice of removal.  Specifically, if a defendant files a motion to transfer venue within 45 days of being served a summons, they may still be entitled to the right to remove the case pursuant to O.C.G.A. § 14-2-510(b)(4).  Huddle House v. Paragon Foods, 263 Ga.App. 382 (2003).  The Court also held that if venue in Fulton County is proper as to one joint tortfeasor (Metro Glass), then it is proper as to the other joint tortfeasor (Prince) as well. Therefore, the strict procedure set forth in O.C.G.A. § 14-2-510(b)(4), applies to Prince as well.

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