Lack of an affidavit filed with the complaint
If a plaintiff fails to file an affidavit and that failure is raised by motion to dismiss filed contemporaneously with the initial responsive pleading, the complaint is subject to dismissal. If an affidavit is not filed with the complaint, that plaintiff may not dismiss a lawsuit and refile the case after the expiration of the statute of limitations and obtain the benefit of the renewal statute, unless the court makes a determination that the affidavit was available and not filed due to a mistake. The failure to attach the affidavit is generally not an amendable defect. If the required affidavit is not filed with the complaint, the complaint is subject to dismissal for failure to state a claim. A dismissal for failure to state a claim is a dismissal on the merits and is with prejudice. Since the renewal privilege under OCGA 9-2-61 does not apply to cases decided on the merits, once a case is dismissed for the failure to attach an affidavit, it will not be subject to renewal. Only by dismissing and refiling the suit prior to the running of the statute of limitations can the suit be revived if an affidavit is not attached initially. When the court determines that the plaintiff had the requisite affidavit within the time required by OCGA 911 9.1.c and the failure to file the affidavit was a result of a mistake, renewal may be possible. For example in Rector v. oh day, the parties agreed that the plaintiff had the requisite affidavit and that it was inadvertently not filed. The plaintiff dismissed and refiled the action, and in the renewal action, the Court of Appeals held that the underlying facts are precisely the scenario that OCGA 9-11-9.1 (c) was intended to address. Rector 268 Ga. App. at 867. Contact an Atlanta lawyer today to help you with your case.