Rule 36 - Transfer/Change of VenueIn all cases where it is determined by the court that the court in which a case is pending lacks jurisdiction, or venue, or both, that court shall by written order, order the transfer of the original case file in accordance with Article VI, Section I, Paragraph VIII, of the 1983 Constitution of the State of Georgia, or where this rule is not applicable, dismiss said case without prejudice.
36.1. Lack of jurisdiction over counterclaimWhere the defendant asserts a legally sufficient counterclaim in good faith which is beyond the jurisdiction of the magistrate court but the entire case is within the jurisdiction of another Georgia court, the court shall transfer the case to a court with jurisdiction over the counterclaim. Where the parties agree on a transferee court with jurisdiction over the counterclaim, the court shall transfer the case to that court. Otherwise, the court shall select a proper court to which to transfer the case.
36.2.Transfer between magistrate courtsUpon a judicial determination that the court lacks venue, the court shall transfer the case by written order to a magistrate court of proper venue. No court shall refuse to accept a transfer accompanied by the fees provided by paragraph 36.3. If it is later determined that the transferee court has no jurisdiction or venue to hear the case, it may in turn transfer the action pursuant to this rule.
36.3.Costs for transfers between magistrate courtsA. The case shall be transferred with the initial filing fee, and the transferred filing fee shall be the filing fee in the transferee court. All surcharges, such as for local law library funds, retirement funds, and the like shall be retained and reported in the court of initial filing. No additional filing costs shall be required by the transferee court, no surcharges will be collected from the parties or be required to be paid by the transferee court, nor shall any refund be made to the parties if the filing fee is less in the transferee court.B. If service upon the defendant has not been perfected, a service fee in the amount provided for in OCGA § 15-16-21(b) (1) for the transferee court shall be paid by the plaintiff prior to the transfer. If a service attempt (beyond a check of map, data base or index of addresses) has been made in the court where the action was originally filed, the original service fee shall be considered as expended and the entire service fee shall be billed to the plaintiff. If no service has been attempted, the plaintiff shall only be billed for the difference between the service fee originally paid and that required by this rule. A bill for the required service fee shall be sent to the plaintiff by regular mail and the case may be dismissed without prejudice for want of prosecution if the bill is not paid within thirty (30) days.The service fee provided in OCGA § 15-16-21(b) (1) shall be the service fee in all transferred cases irrespective of whether the transferee court uses sheriff, marshal, or constable as the office for service of process in that county. The parties shall not be entitled to any refund of a portion of the fee.
36.4.Hearing transfer requestsA. Where the defendant has not been served, the court may entertain a motion to transfer ex parte, either orally or upon written request and need not require a hearing.B. Where the opposing party consents to a transfer, the court need not require a hearing. No transfer shall be made upon consent of the parties where no authorized factual grounds for transfer are asserted; however, the court may accept without further proof the factual assertions where the request is made by consent. C. Where the defendant has been served and there is no consent to the request for transfer, the court may decide the request at the hearing regularly set in that case. Alternately, the court may, after reviewing the legal sufficiency of the request, notify the opposing party that the request will be granted unless a hearing is requested within ten days. Such notice shall be sent by regular mail to the address shown on the pleadings.D. The transfer order shall not be entered until any required service fee is paid. The court shall transfer the case within 10 days of the entry of the order. E. If an order allowing the plaintiff to proceed in forma pauperis has been entered in the court where the action was originally filed, it shall be honored in the transferee court unless and until successfully challenged by an opposing party.Former Rule 18 amended and renumbered as new Rule 36 effective October 28, 1993; amended effective May 9, 2019.