GSB Vol. 17, NO. 6, Pg. 18. A Tool for the Plaintiff Attorney's Toolbox.

• Author: by Joseph G. Mitchell

Georgia Bar Journal

Volume 17.

GSB Vol. 17, NO. 6, Pg. 18.

A Tool for the Plaintiff Attorney's Toolbox

GSB JournalVol. 17, NO. 6April 2012A Tool for the Plaintiff Attorney's by Joseph G. MitchellThis article discusses service issues in connection with filing a lawsuit close to the afflicable statute of limitations.

Not Perfecting Timely Service

According to O.G.C.A. § 9-ll-4(c), service of a summons and complaint will relate back to the time of filing if the service processor perfects service upon the defendant within five days of the filing of the summons and complaint. This code section also specifically provides that "failure to make service within the five-day period will not invalidate a later service."(fn1)

When service of a summons and complaint occurs after the five-day period prescribed in O.C.G.A. § 9-11-4(c), the test for determining if service will relate back to the time of filing is whether the plaintiff "'acted reasonably and diligently to ensure that proper service was made as quickly as possible.'"(fn2) The burden is on the plaintiff to show that he was not at fault in unreasonably delaying service and was not guilty of laches.(fn3) Lack of reasonable diligence in perfecting service of the summons and complaint ultimately may cause problems for the plaintiff.

What If service of the summons and complaint Is unreasonably delayed?

In Hobbs v. Arthur,(fn4) Hobbs filed his lawsuit two days prior to the expiration of the applicable two year statute of limitations for personal injury cases. Personal service of the summons and complaint on defendant Arthur did not occur within five days of filing. Service of the summons and complaint actually occurred two months after filing the summons and complaint. Hobbs did, however, perfect proper personal service; he just perfected such service without being reasonably diligent, and he did not act as quickly as possible.

Arthur raised this as a defense in his answer and moved to dismiss. Arthur argued that the untimely service of the summons and complaint should not relate back to the time of filing the original summons and complaint since Hobbs was not diligent in perfecting service.(fn5) In response to such motion, Hobbs filed a dismissal without prejudice pleading pursuant to O.C.G.A. § 9-2-61 (a).(fn6)

O.C.G.A. § 9-2-61 (a) provides: "When any case has been commenced in either state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state . . . within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later, . . . provided, however, if the dismissal . . . occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once." Hobbs is clear, however, that the plaintiff must obtain proper service prior to dismissing his case without prejudice or else the original suit is void.(fn7) Further, the dismissal must occur in the original suit prior to a judicial determination or else, again, the original suit is said to be void, instead of voidable.(fn8)

Since Hobbs obtained proper service of the summons and complaint prior to a judicial determination, Hobbs could validly dismiss his original complaint without prejudice. When Hobbs re-filed the suit within six months of the dismissal date and obtained timely and proper service in the re-filed case, the Supreme Court of Georgia held that Arthur could not raise Hobbs' lack of diligence in the first case in his answer in the re-filed case.(fn9)

Pursuant to Hobbs, to the extent a plaintiff perfects proper service, and a judicial determination has not occurred, the plaintiff need not worry about the timeliness of the service of the summons and complaint upon the defendant in the initial case. If the defendant raises the untimely service or running of the statute of limitation as an affirmative defense in the original matter, the plaintiff can file a dismissal without prejudice and re-file a second suit, timely perfecting service.

In, Robinson v. Boyd,(fn10) Boyd filed a personal injury lawsuit just prior to the running of the applicable statute of limitation. Boyd made no attempt...