Is discovery cut-off automatically stayed when a plaintiff has filed an appeal of the grant of Defendants' Motion to Dismiss Complaint? Defendants are also counterclaimants (pro se) against Plaintiff, and their countercomplaint is still viable (i.e., not dismissed); meanwhile, there has been no decision rendered by the Court of Appeals (GA) yet, and the case's discovery cut-off date is fast approaching (Aug 15th). Defendants/Counterclaimants have drafted a motion to stay discovery, being unable to find anything in the OCGA or otherwise which addresses this issue, and need to know if it should be filed. THANK YOU for any advice or suggestions!
1 Answer from Attorneys
No. And why would you appeal the dismissal of a motion to dismiss a complaint? Such an appeal would be premature unless the GA Court of Appeals granted the appeal as either interlocutory as of right or by permission.
The answer will be partly in the GA statutes - see OCGA Title 5 Chapter 6 provisions. Here is the link: http://www.lexisnexis.com/hottopics/gacode/default.asp.
Also, look in the GA rules of appellate procedure governing interlocutory appeals and whether an appeal will stay any lower court proceedings.
IX. APPLICATION FOR INTERLOCUTORY APPEAL
Rule 30. Interlocutory Applications.
(a) An application for leave to appeal an interlocutory order will be granted only when it appears from the documents submitted that:
The issue to be decided appears to be dispositive of the case; or
The order appears erroneous and will probably cause a substantial error at trial or will adversely affect the rights of the appealing party until entry of final judgment in which case the appeal will be expedited; or
The establishment of precedent is desirable.
(b) Applications for interlocutory appeal shall contain a jurisdictional statement and have attached a stamped "filed" copy of the trial court's order to be appealed and a stamped "filed" copy of the certificate of immediate review. The trial court's order and certificate of immediate review must contain the signature of the trial court judge. Neither conformed signatures nor stamped signatures shall be permitted.
(c) The Clerk is prohibited from receiving the application without the filing fee, a sufficient pauper's affidavit, or a public defender's appointment to represent the party on appeal. See OCGA § 5-6-4. The filing fee shall be in the amount set out in Rule 5.
(d) The applicant shall include a copy of any petition or motion which led directly to the order or judgment being appealed and a copy of any responses to the petition or motion with the application.
(e) Applications for interlocutory appeal pursuant to OCGA § 5-6-34 (b) shall have copies of all submitted materials from the record tabbed and indexed and shall be securely bound at the top with staples or fasteners (round head or ACCO). If not tabbed, indexed and securely bound at the top, the application is subject to dismissal or return for preparation according to the Court's rules. The materials must be sufficient to apprise the Court of the appellate issues, in context, and support the arguments advanced. Failure to submit sufficient material to apprise the Court of the issues and support the argument shall result in denial of the application. Applications and responses to applications are limited to 30 pages in civil cases and 50 pages in criminal cases, exclusive of attached exhibits and parts of the record, and shall follow the general format of briefs as to margins. Tables of content, tables of citations, cover sheets and certificates of service shall not be counted toward the applicable page limit for interlocutory appeal applications and responses.
(f) No application for interlocutory appeal shall be filed under seal unless counsel has moved the Court for permission to file under seal and the Court has granted such motion.
(g) No extension of time shall be granted for filing of interlocutory applications or responses to interlocutory applications.
(h) Responses are due within 10 days of docketing. No response is required, unless ordered by the Court.
(i) If an interlocutory application is granted, appellant must file a notice of appeal in the trial court within 10 days of the date of the order granting the application.
(j) No pleadings will be accepted on an application for interlocutory appeal which are filed more than 30 days after the date of the order granting, denying or dismissing the application or the order granting, denying or dismissing the motion for reconsideration filed on the application.
Really, appeals are sophisticated things. If you are representing yourself, you are not likely to prevail based on my experience working for the courts.
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